Berkeley Lifford Hall Accountancy ServicesIQ Legal Training Alphabiolabs

Home > Articles > 2016 archive

Children: Public Law Update (May 2016)

John Tughan QC of 4 Paper Buildings reviews recent important judgments in the field of public children law.

John Tughan QC, 4 Paper Buildings

John Tughan QC,4 Paper Buildings,

In this update I will consider recent case decisions touching upon the following issues:

Publicity and transparency issues
In F v Cumbria County Council [2016] EWHC 14 (Fam) Peter Jackson J was again considering the much publicised case involving sexual abuse and death of a very young child.  The father had applied to discharge the care order and re-open the findings of fact earlier made.   Those findings were that the father had perpetrated a penetrative anal assault on P at or around the time of her death, either using his penis or some other unidentified object, but that the cause of her death was medically unascertained.  The application to review the findings was dismissed on the basis that there was no new medical evidence.  Peter Jackson J allowed publicity in relation to the proceedings, including the daily reporting of those proceedings.  The Guardian appealed the publicity issue and the lead judgment in the Court of Appeal is that of McFarlane LJ, reported at [2016] EWCA Civ 113.

The judge's decision on publicity was upheld with one exception, namely that the "daily reporting" clause was amended by the Court of Appeal so as to limit the "live" reporting of the proceedings.  The Court of Appeal said that the daily reporting should take place only after the end of the Court's business on each day so as to allow time for consideration of any issues that had arisen.

The case is interesting for the Court's rejection of the concept of a "principle" of open justice within the context of proceedings relating to children, as well as the raising for future consideration of the issue as to whether the child's welfare is paramount.

Cases involving new born babies
In Nottingham City Council v LM [2016] EWHC 11 (Fam) Keehan J gave guidance on good practice in relation to care proceedings relating to newborn babies.  Save in the most unusual and exceptional circumstances, local authorities must make applications for public law proceedings in respect of newborns timeously and within five days, at most, of the child's birth.  In this case the child was born on the 16th January and the social workers had known of the pregnancy since October.  The hospital told the local authority of the birth on the 18th January and the care proceedings were issued on the 28th January when an urgent interim care order was sought.  The case papers were served at 12.30 that day and the case called into court at 3pm.  The local authority was ordered to pay the costs of the hearing.  The following basic but fundamental steps should have been taken by the local authority:

(a)  the birth plan should have been rigorously adhered to by all social work practitioners and managers, and by the local authority's legal department;

(b)  a risk assessment of the parents should have been commenced immediately upon the social workers being made aware of the pregnancy, and completed at least four weeks before the expected delivery date;

(c)  the assessment should have been disclosed to the parents and, if instructed, to their solicitors, to enable them to challenge it and the proposed care plan;

(d)  the social work team should have provided all relevant documentation, necessary for the legal department to issue care proceedings and the application for an interim care order, no less than seven days before the mother's expected due date;

(e)  immediately on issue, if not before, the local authority's solicitors should have served the applications and supporting documents on the parents and their solicitors;

(f)  immediately on issue, the local authority should have sought from the court an initial hearing date, on the best time estimate that its solicitors could provide. If those steps had been followed, the unnecessary delay and procedural unfairness would have been avoided.

Burden of proof in radicalisation cases
In Re Y (Children) (No 3) [2016] EWHC 503 (Fam) the President was dealing with allegations that the respondent adults had travelled with the children to Turkey with the intention of entering an active war zone, namely Syria, thereby putting the children at risk of physical and emotional harm. 

The President emphasised the law in relation to the burden and standard of proof, citing with approval the principles enunciated by Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam) and adding three more principles.  Those were that the legal concept of proof on a balance of probabilities "must be applied with common sense", per Lord Brandon of Oakbrook in The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948, 956.  Secondly, that the court can have regard to the inherent probabilities: see Lady Hale in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, para 31. But this does not affect the legal standard of proof.  Thirdly, that the fact, if fact it be, that the respondents (here, the parents) fail to prove on a balance of probabilities an affirmative case that they have chosen to set up by way of defence, does not of itself establish the local authority's case.

In a case involving issues of travel to Syria it was extremely important to note that the local authority was not seeking to prove an ideological driver to the mindset of the respondent adults.  The President put it in this way:

"[the local authority] ... cannot establish, some pre-existing ideological mindset as the evidential foundation for its case that the family intended to go to Syria. It does not rely upon motive to establish intention; on the contrary, it relies upon intention to establish motive. How, then, does it seek to prove intention? That is the central issue in the case."

On a review of the evidence the President found that the local authority had failed to make good the case that the respondents were adherents to a belief system that could explain the travel to Syria.  The evidence given by the respondents was, in significant aspects, untruthful.  However, there was no evidence to support the assertion that these loving and devoted parents would be motivated to expose their children to the realities of life in Syria.  Although the local authority might be right about the intentions of the respondents, it had not persuaded the court, even on a balance of probabilities, that it was.

Registration of names
In Re C (Children) [2016] EWCA Civ 374 the Court of Appeal was dealing with the issue of the registration of names.  The twins were made the subject of an interim care order shortly after their birth.  Their mother had long-standing mental health problems and the father was unknown. When the mother indicated that she wished to name her son "Preacher" and her daughter "Cyanide", the local authority asked the court to invoke its inherent jurisdiction under the Children Act 1989 s.100 to prevent her from registering those names.  The first instance court concluded that it could not use the inherent jurisdiction but invoked the power contained within s.33(3)(b) to limit the extent to which the mother could exercise her parental responsibility, and thereby prevent her registering her chosen names.  An injunction was granted to that effect pursuant to the Senior Courts Act 1981 s.37.

The Court of Appeal held that the High Court could invoke its inherent jurisdiction to prevent a parent with parental responsibility from registering their child with the forename of their choice.  The power was to be exercised only in the most extreme cases where the parent's choice of forename gave rise to reasonable cause to believe that the child would suffer significant harm.  Although s.33(3)(b) empowered the local authority to prevent the mother from naming the twins as she wished, the seriousness of the interference with her rights under ECHR art.8 demanded that it should exercise that power only with the approval of the court.

Relinquished babies and foreign parents
In Re RA (Baby Relinquished or Adoption: Case Management) [2016] EWFC 25 Cobb J was concerned with R who had been born in the UK to Latvian parents.  The parents consented to his adoption.  The local authority approved that course.  However, the adoption agency had notified the Latvian authorities and R's maternal grandmother had expressed an interest in caring for him.  A preliminary assessment of the grandmother had been carried out by the Latvian authorities, who strongly opposed R's adoption in the UK and were promoting the grandmother as his long-term carer.  The parents were opposed to such an outcome. The local authority supported the adoption application.

Cobb J held that in such circumstances it might be possible and/or proportionate to perform an analysis without full assessment of third parties.  In this case the grandmother was being fully assessed by the Latvian authorities. The court should not exclude that assessment simply because the birth parents did not support such a placement, or because the foster carers appeared to have a strong adoption claim.

The court directed itself that English courts could make adoption orders in relation to foreign national children, and in achieving that objective could dispense with the consent of foreign national parents, citing Re CB (Adoption Order) [2015] EWHC 3274 (Fam), [2016] Fam. Law 270 and Re J (Children) (Brussels II Revised: Article 15) [2015] EWCA Civ 1112, [2016] 2 W.L.R. 713 applied.  If the court concluded that an adoption order accorded with the paramountcy test in the Adoption and Children Act 2002 s.1(2), then the interference with R's art.8, and ECHR art.8, rights was entirely lawful and compliant with international legal obligations, notwithstanding the objections of the foreign authorities. 

The court gave guidance on the issues raised:

(i) It was important that local authorities considered carefully the issues of possible family placement at the earliest opportunity.

(ii)  A local authority had to consider, again at the earliest opportunity, whether it was obliged to notify the relevant foreign state pursuant to art.36 and art.37 of the 1963 Convention, and whether to request assistance and co-operation from the other state in advancing its planning for the child.

(iii) Local authorities should consider making a pre-emptive application to the court under the Family Procedure Rules 2010 Pt 19. They could ask the court to make a "decision on a question which [was] unlikely to involve a substantial dispute of fact" under r.19.1(2)(b).  That was the mechanism contemplated by r.14.21 for the invoking of the inherent jurisdiction where no proceedings had started and an adoption agency or local authority required "directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption". A significant advantage of making a pre-emptive application was that delay could be avoided.