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Children: Public Law Update (February 2016)

John Tughan QC of 4 Paper Buildings analyses recent significant judgments in public children law.

John Tughan QC, 4 Paper Buildings

John Tughan QC, 4 Paper Buildings

In this update I will consider:

Adoption and natural family members

In a recent public law update article I discussed recent authorities on the issue of whether to make adoption orders when there is a natural family member available and the child is placed for adoption. The cases I referred to were the decision of Holman J in A & B v Rotherham [2014] EWFC 47 (5th December 2014), the Court of Appeal in M'P-P (Children) [2015] EWCA Civ 584 (June 2015) and Russell J in Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039.  In M'P-P and Re W there have been developments.  At the rehearing of the issues in M'P-P HHJ Atkinson came to a different conclusion from the original court and the children will remain with their foster carer.  The judgment has been published as Re B and E (children) [2015] EWFC B203.

Re W returned to the Court of Appeal and the appeal was allowed.  It is reported as Re H (A Child) [2015] EWCA Civ 1284.  The issue of the interplay between natural family and prospective adopters with whom the child is placed was not the subject of the appeal and those issues are returning for a second rehearing before the High Court.  However, the appeal is interesting for other reasons.  The grounds of appeal included (i) judicial bias and a closed mind in a finely balanced case and (ii) a misunderstanding of the effect of the first appeal's decision.  McFarlane LJ pointed out the approach he took to an appeal that was about "process" and not outcome.  He was striving to hold on to the judge's order unless satisfied to the contrary.  In allowing the appeal he made the following remarks:

"out of place, as a matter of law, in a case where the issue did not relate to the s 31 threshold, but solely to an evaluation of welfare."

"...which did no more than set aside the district judge's orders on the basis that he had failed to undertake any acceptable analysis. This court did not hold that the district judge's welfare decision was 'wrong' or engage in any analysis of what, if any, orders would or should have been made in September 2013. The outcome of that first Court of Appeal hearing was no more than that which had been sought by the father's junior counsel, namely the removal of the district judge's orders so that they could not be taken as resulting from a valid welfare evaluation at that time."

Evidence and the ABE process

Re W and F (Children) [2015] EWCA Civ 1300 (18th December 2015) was a case in which Baker J delivered the decision of the Court of Appeal.  The case involved allegations of sexual abuse, the "ABE" interview of the complainant and evidence arising from the physical examination of the child.

In a judgment that sets out the relevant passages of the ABE guidance, Baker J explained why there were serious breaches of that guidance in this case.  The impact of those breaches was well recognised in earlier cases and in particular

"The importance of following the Guidance has been stressed by the courts on many occasions. One example in this Court occurred in TW v A City Council [2011] EWCA Civ 17 (a case which concerned an earlier version of the Guidance) where Sir Nicholas Wall P said:

'52…the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with a clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and in particular to make LR repeat on camera what she had said to her mother. That, emphatically, is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.

53 Against this background, the judge's assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not in our judgment stand up to analysis….it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed, in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required and the child's interview must be assessed in that context.'"

The Court of Appeal held that no weight should have been attached to these ABE interviews.

The medical evidence was dealt with in this way (it being noted that the child K who was examined had not made allegations of abuse):

"...The findings of the medical examinations conducted by Dr. O were of only limited value. Taken collectively, the fact that several of the children displayed signs that were consistent with abuse is a matter of concern.  As Miss Bazley pointed out, however, taken individually each sign was no more than consistent with abuse. None of them was diagnostic of abuse. That was the case with the genital marks seen in L's examination – the bump in the hymen at 3 o'clock and deep notch at 6 o'clock. They were consistent with abuse but equally consistent with the child not being abused. In my judgment, the recorder went too far is describing them as "supportive" of abuse. In all the circumstances, these signs added little if any weight to the allegations that she had been abused by X. In K's case, the examination revealed two findings – a genital sign said "to have the appearance of a notch" and reflex anal dilatation – each of which is consistent with abuse but not diagnostic of it.  There was no other evidence that K had been abused by X save for these equivocal physical findings...."

Judicial reasoning and the 'holistic' approach

Re P (A Child) [2016] EWCA Civ 3 is an example of the judgment of the court of first instance falling foul of the necessary "holistic" approach.  The Court of Appeal held that

"It is, as this Court has emphasised in Re B-S and in Re R (A Child) (Adoption: Judicial Approach) [2014] ... "essential" that a judge provides an adequately reasoned judgment at the conclusion of a case such as this.  We very much regret that after the extensive, perhaps overly discursive, review of the evidence this judgment is light on analysis of at least one of the two realistic options (i.e. adoption) to the degree of detail necessary, nor does the judgment contain a comparison of each option or options (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]), or a proportionality evaluation....

There is no specially prescribed form for a judge undertaking the exercise outlined above; the judge is doing little more than performing an 'old-fashioned welfare balancing exercise' (Re F [2015] EWCA Civ 882 at [48]); the term 'holistic' does not have any special meaning. Neither the parties, nor this Court, will readily conclude that a judge has performed the necessary welfare balancing exercise just because he or she acknowledges the need to do so. The debate about whether the analysis of the realistic options is a 'balance sheet' of the pros and cons or an aide memoire of the key welfare factors and how they match up against each other is sterile.  What is expected is that the benefits and detriments of each option are considered and there is an evaluation of each option as against the other based on that analysis.

In this case, as in Re R (A Child) (Adoption: Judicial Approach) [2014], Judge Ansell was faced with an essentially binary decision; either P was restored to her mother's care, or she was adopted. There was no realistic alternative. The fact that the judge considered the merits of the mother's position, properly evaluating, we are satisfied, her strengths and weaknesses, but ruling her out as a long-term carer for P before moving on to consider the other option of adoption is 'linear' thinking, both in form and substance (see Re R [18])."

Exceptionally, in Re P, the Court went on to substitute its own conclusion as to adoption as an outcome and dismissed the appeal.

Costs of intervenor

In Re F (Children) [2016] was decided on the 3rd February 2016 and does not yet have a neutral citation reference.  The Court of Appeal were considering the costs of an intervenor in care proceedings, the court below having ordered the mother to pay those costs.  The appellant intervenor was a school nurse against whom the children made some allegations.  The mother's position before the court had been that she did not want to take the allegations further but that her daughter, who had made the allegations, might want to pursue them. The judge decided that the matter could not be left up in the air, and joined the intervenor.  The court made a finding that the allegations were false and that the mother had coached the children to make them in order to deflect attention from herself and sabotage the proceedings.

The Court of Appeal held that the mother was the source of the allegations and the court below  had joined the intervenor because of those allegations.  Although it was normal not to make orders for costs in family proceedings, the court could do so where that was just and appropriate in response to reprehensible or unreasonable behaviour.  The mother's appeal was dismissed.

Adoption law: an overview

Re (N (Children) (Adoption: Jurisdiction)
[2015] EWCA Civ 1112 includes a judgment of the President that ranges over many different topics and includes a summary of the Court's approach to various issues that arise in care proceedings.  However, the President set out the immediate questions raised by the appeal:

Question i)  Does the English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national and (b) to dispense with the consent of a parent who is a foreign national? 

Yes on both limbs.

Question ii)  If the English court has jurisdiction (a) to make an adoption order in relation to a child who is a foreign national and (b) to dispense with the consent of a parent who is a foreign national, how should it exercise that jurisdiction?

"It cannot be emphasised too much that the court in such a case must give the most careful consideration, as must the children's guardian and all the other professional witnesses, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background. Moreover, it must always be remembered that, in the context of such factors, the checklist demands consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family. Mere lip service to such matters is not enough. The approach, both of the witnesses and of the judge, must be rigorous, analytical and properly reasoned, never forgetting that adoption is permissible only as a "last resort" and only if a comprehensive analysis of the child's circumstances in every aspect – including the child's national, cultural, linguistic, ethnic and religious background – leads the court to the conclusion that the overriding requirements of the child's welfare justify adoption.

In Re CB (A Child) [2015] EWCA Civ 888, a case involving a Latvian child, remains valid:

"The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:

(i)  local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;

(ii) the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA: see generally In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670;

(iii)  if there is no transfer in accordance with Article 15, the court, if the local authority's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, and Re R (A Child) [2014] EWCA Civ 1625;

(iv)  in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family."

Question iii) What is the scope or ambit of BIIA? In particular, what is included within its scope by virtue of Article 1(1)(b) and excluded from its scope by virtue of Article 1(3)(b)? Specifically, are care proceedings within the scope of Article 1(1)(b) even if the local authority's care plan is for adoption? Are proceedings for a placement order within the scope of Article 1(3)(b)

"Care proceedings are within the scope of Article 1(1)(b) even if the local authority's care plan is for adoption. Proceedings for a placement order are within the scope of Article 1(3)(b). It follows that Article 15 applies to care proceedings, even if the local authority's care plan is for adoption, but does not apply to proceedings for a placement order."

Question iv) What, upon the true construction of Article 15 of BIIA, are the requirements before the English court can make a request for a transfer to the other Member State?

Re M (Brussels II Revised: Art 15)
[2014] EWCA Civ 152:

"The relevant principles can be summarised as follows:

(i)  Article 15 operates 'by way of exception' to the principle, which is the starting point under BIIR, that jurisdiction is vested in the courts of the Member State where the child is habitually resident (Art 8), not the courts of the Member State of which the child is a national;

(ii)  Article 15 requires the court to address three questions: (1) Does the child have... 'a particular connection' with another Member State? (2) Would the court of that other Member State 'be better placed to hear the case, or a specific part thereof'?  (3) Will a transfer to the other court be 'in the best interests of the child'?

(iii)  The court cannot exercise its powers under Art 15 unless all three questions are answered in the affirmative. ...

(iv) The language of Art 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law...

(v) is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State....

(vi)  In particular … I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question … the question asked by Art 15 is whether it is in the child's best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, 'what outcome to these proceedings will be in the best interests of the child?'

(vii)  Article 15 contemplates a relatively simple and straight forward process....Submissions should be measured in hours and not days...."

To which Munby P expressly added the following considerations:

(viii) ....there is no doubt that, as a matter of law, it is open to the court to consider the matter "at any stage of the proceedings"....

(ix) although repeat applications are to be deprecated in the absence of a material change in circumstances, there may be circumstances in which a renewed application is appropriate

(x) judicial continuity will be usually a weighty factor in determining whether or not to make an Article 15 request.  But just how weighty will, in the nature of things, depend upon the circumstances of the particular case.

(xi) The matter should be dealt with quickly and without oral evidence. Reference to either the burden of proof or the standard of proof is neither necessary nor helpful; as to the first because the matter is one to be considered by the judge whether or not any application has been made, and as to the second because, except in relation to factual matters arising under Article 15(3), which are rarely in dispute and readily capable of ascertainment when they are, the essential exercise under Article 15 is, as I have said, one for judicial evaluation.  That said, the judge must, at the end of the day be satisfied that the grounds for making an Article 15 request are made out and that, as a matter of judicial discretion, the request ought to be made.  In practice, as the cases we have been taken to well illustrate, this has not given rise to any difficulty.  If some touchstone is needed, the question is not one of burden of proof or standard of proof but, rather, which side has the better of the argument.

Breach of section 20 process and civil damages

Finally, a civil claim in which the court was considering damages sought against a local authority.  In Williams v Hackney [2015] EWHC 2629 (QB) Sir Robert Francis QC (Sitting as Deputy High Court Judge) heard a claim that arose following events on the 5th July 2007 when one of the 8 children was arrested for shoplifting and told the police he had been beaten by his father with a belt, as an explanation for a bruise on his face.  The police visited the family home and were of the opinion that it was not in a fit state to be accommodation for the children. They alerted the defendant (local authority) to their concerns.  The police also initiated a Police Protection Order under section 46 of the Children Act 1989, and the defendants made emergency arrangements to accommodate them in foster homes. The police order authorised these arrangements for 72 hours.  On 6th July, the parents signed a form of agreement which the defendants assert authorised them to continue to accommodate the children away from their parents (an alleged s20 agreement).  The children did not in fact return to live with their parents until 11th September 2007.  The parents claimed damages and the causes of action alleged were misfeasance in public office, breach of statutory duty, negligence, religious discrimination and breach of the parents' Article 8 human rights. 

The court held that the action in negligence and misfeasance must fail and the action in religious discrimination was without foundation.  However, there was a breach of the Article 8 rights of the claimants based on the necessary s20 consent not having been obtained.  The  initial removal of the children from their home was lawful and indeed a proportionate and necessary response to the need to safeguard them from harm, the actions of the defendants in retaining the children away from their parents after the expiry of the 72 hour period were unlawful, and therefore the interference with the parents' Article 8 rights was also unlawful.  The interference only came to an end when the children were returned on 11 September.  This remains the case even if, hypothetically, the separation might have been rendered compliant with the State's Article 8 obligations by seeking the authority of the court for it.
The appropriate remedy was £10,000 to each parent.