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Children: Private Law Update (October 2016)

Alex Verdan QC of 4 Paper Buildings reviews recent important judgments in private law children cases.

Alex Verdan QC, 4 Paper Buildings

Alex Verdan QC, 4 Paper Buildings

In this update I will consider the following areas: 

Duty of a Cafcass officer when preparing a report

In Re S (A child) [2016] EWCA Civ 495 the Court of Appeal was concerned with an appeal by a father against a child arrangements order in favour of the mother. 

Of particular interest is that the father contended that the Cafcass officer should have undertaken a full safeguarding welfare check of the mother, the child, and the mother's daughter from a previous relationship, to include looking into all of her home circumstances and even into matters which were not in issue between the parties (for example the mother was a capable and loving parent).

In dismissing the appeal, Keehan J clarified the duty of a Cafcass officer as follows at paragraph [28]:

"[I]t is not the duty of a CAFCASS Officer, when preparing a report, to explore every aspect  of a parent or a child's life or to investigate matters that are not in issue. The CAFCASS Officer will, aside from interviewing the parents and the child, usually make enquiries of the police, a child's nursery or school, health care professionals or social workers, if they have been involved with the family, but no more than that unless the court expressly requires other more extensive enquiries."

False allegations of abuse and guidance for professionals

In AS v TH (false allegations of abuse) [2016] EWHC 532 Fam MacDonald J was concerned with an application by the mother of two children seeking a range of findings that the father had physically, sexually and emotionally abused the children and mother.

The nine day fact finding hearing required oral evidence from a number of professionals involved with the children including the children's teachers, CAMHS support workers, police officers and social workers.

The father at the end of the hearing sought counter findings that the mother had fabricated the allegations. The court did not find any of the findings sought by the mother and found that the actions of certain professionals contributed to the difficulties in assessing the evidence, such as:

MacDonald J set out the guidance to be followed by professionals where allegations of sexual abuse have been made:

(i) In accordance with the general principles, when assessing whether or not allegations of sexual abuse are proved to the requisite standard, the court should focus on all of the relevant evidence in the case, including that from the alleged perpetrator and family members (see Re I-A (Allegations of Sexual Abuse) [2012] 2 FLR 837). 

(ii) The court should adopt a two stage process.

a.  First, is there evidence of sexual abuse?

b.  If so, is there evidence of the identity of the perpetrator (Re H (Minors); Re K (Minors)(Child Abuse: Evidence) [1989] 2 FLR 313 and Re H and R (Child Sexual Abuse: Standard of Proof) [1995] 1 FLR 643)?

(iii) The Report of the Inquiry into Child Abuse in Cleveland 1987 (hereafter the Cleveland Report) contains a plethora of salient and important guidance with respect to cases involving allegations of sexual abuse.

MacDonald J noted in particular from having heard extensive evidence from those professionals to whom the children made allegations and from those professionals who subsequently assessed the children and/or investigated those allegations, that they had, despite clear guidance, referred to the allegations made by the children as 'disclosures':

"I pause to note that despite the fact that the use of the term "disclosure" to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children's Guardian) used the term "disclosure" to describe what the children had said to them)."

MacDonald J went on to re-affirm the established practice for professionals to whom allegations of abuse have been made:

"(i) Initial Contact with a Child alleging Abuse

35. Where a child makes an allegation of abuse to a professional, the relevant guidance for professionals to whom allegations of abuse are reported makes clear the following principles with respect to the initial contact with the child. 

36. In the departmental advice What to do if you're worried a child is being abused (HM Government, March 2015) (replacing previous guidance published in 2006) states that before referring to children's services or the Police an attempt should be made to establish the basic facts.  Within this context, the following is said at [28]:

'The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information'

And at [29]:

'If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.'

37. The statutory guidance Achieving Best Evidence in Criminal Proceedings (March 2011) (hereafter the ABE Guidelines) makes clear at [2.4] that the need to consider a video recorded interview in respect of the allegations may not be immediately apparent to professionals involved prior to the police being informed.  Within this context the ABE Guidelines state at [2.5] that:

'Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present.'

38. The ABE Guidance goes on to state at [2.6] under the heading 'Initial Contact with Victims and Witnesses' that a person engaged in early discussion with an alleged victim or witness should, as far as possible, (a) listen, (b) not stop a free recall of events and (c) where it is necessary to ask questions, ask open-ended or specific closed questions rather than forced-choice, leading or multiple questions and ask no more questions than are necessary to take immediate action.

39. Within this context, having examined the ABE guidance, in Re S (A Child) [2013] EWCA Civ 1254 at [16] the Court of Appeal held that, with respect to initial contact with alleged victims, discussions about the facts in issue in respect of an allegation as distinct from whether and what allegation is being made and against whom, should be rare and should not be a standard practice. 

40. Again within the foregoing context, when social workers are speaking to children who have made allegations they must be very careful to consider the purpose of the exchange and whether it is being conducted with a view to taking proceedings to protect the child or for separate therapeutic purposes where the restrictions upon prompting would not apply but the interview would not be for the purposes of court proceedings (Re D (Child Abuse: Interviews) [1998] 2 FLR 10).

(ii) Proper Recording

41. The requirement that all professionals responsible for child protection make a clear and comprehensive record of what the child says as soon as possible after it has been said and in the terms used by the child has been well established good practice for many years.  The Cleveland Report makes clear at paragraph 13.11 that: 'We would emphasise the importance of listening carefully to the initial presentation of information and taking careful notes'.  

42. The ABE Guidance re-emphasises this statement of good practice under the heading 'Initial Contact with Victims and Witnesses' by making clear that the person speaking with the alleged victim or witness should (a) make a comprehensive note of the discussion, taking care to record the timing, setting and people present as well as what was said by the witness and anybody else present (particularly the actual questions asked of the witness), (b) make a note of the demeanour of the witness and anything else that might be relevant to any subsequent formal interview or the wider investigation and (c) fully record any comments made by the witness or events that might be relevant to the legal process up to the time of the interview.  

43. In the context of schools, the departmental advice entitled What to do if you're worried a child is being abused (HM Government, March 2015) makes clear at [26] that professionals should record in writing all concerns and discussions about a child's welfare, the decisions made and the reasons for those decisions".  The statutory guidance Keeping Children Safe in Education (HM Government, July 2015) makes clear at [19] that poor practice in relation to safeguarding children includes poor record keeping.

44. The need for professionals working with children to record, as contemporaneously as possible, what the child has said has been recognised and endorsed by the courts as vital in circumstances where, in determining allegations of sexual abuse, it is necessary for the court to examine in detail and with particular care what the child has said (sometimes on a number of different occasions) and the circumstances in which they said it (D v B and Others (Flawed Sexual Abuse Enquiry) [2006] EWHC 2987 (Fam), [2007] 1 FLR 1295).  Within this context, it will also be important that, when recording an allegation, the child's own words are used and that those speaking with the child should avoid summarising the account in the interests of neatness or comprehensibility or recording their interpretation of the account."

MacDonald J also re-emphasised the extensive guidance and procedure for social workers investigating allegations of sexual abuse as set out in the Cleveland Report:

i) Whatever the nature of presentation, whether the response is immediate, prompt or deferred, the response should be planned and conducted with professional skill.  Children's best interests are rarely served by precipitate action. Initial action in securing the widest possible information about the child's circumstances and family background is an essential pre-requisite to careful judgment and purposeful intervention" (para 13.9);

ii) It is necessary to assess the family by looking at the parents individually, the parents' relationship, the vulnerability of the child, the child's situation in the family, the family's social situation, their contacts with extended family etc. as well as considering and recording the family's perspective of events which set the referral in motion (para 13.13);

iii) The principle aim of the social worker's contact with the family at this stage should be to compile a social history, obtaining as comprehensive a picture of relationships and pattern of family life as possible.  The quality of the marital relationship and parental skills should be carefully assessed (para 13.19);

iv) Social workers should seek a broadly based assessment of the child.  An outline of the child's social development together with information about the important relationships in the child's life is vital information.  Where a child is attending playgroup, childminders or school it will be helpful to record the views of those responsible for the child's day to day care (para 13.23);

v) Intervention should proceed as part of a planned and co-ordinated activity between agencies.  Children and families should not be subject to multiple examinations and interviews simply because agencies and their staff have failed to plan their work together (para 13.10);

vi) The social worker will need to establish a clear understanding with the Police about how their respective roles are to be co-ordinated (para 13.12);

vii) Throughout the phase of the initial assessment and preliminary decision making, social workers should be conscious of the fact that the presumption that abuse has taken place can have damaging repercussions for the child and the family.  Equally, an abnormally low level of alertness to the possibility of child sexual abuse may deter children from subsequently trusting adults sufficiently to reveal the fact of abuse to them (para 13.22).

This judgment serves as a very helpful reminder for practitioners and professionals alike to comply with the extensive and established guidance and procedure in dealing with allegations of abuse.

Application to terminate the appointment of a children's guardian

In QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam) MacDonald J was concerned with an application to discharge a children's guardian on grounds of apparent bias.

During the course of proceedings the existing guardian left Cafcass and was replaced. At the pre-trial review the newly appointed guardian filed a position statement following a meeting with the child. The mother criticised the position statement on the basis that the guardian had already expressed a view on the outcome without seeing all the evidence, and sought to terminate her appointment on the basis of "apparent bias".

MacDonald J reviewed the test for apparent bias set out in Porter v McGill [2002] 2 AC 357, namely "whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".

Further, he considered Article 6 ECHR, which enshrines the right to a fair hearing, and that the court is to look at the proceedings as a whole as well as any alleged individual deficiencies when considering whether there has been a fair hearing.

The court proceeded to consider a guardian's role and duties pursuant to FPR 2010 r 16.4 to "fairly and competently to conduct proceedings on behalf of the child" (FPR 2010 PD 16A paragraph 7.6).   Further, pursuant to FPR 2010 PD 16A paragraph 7.7 the children's guardian must advise the court on, inter alia, the child's wishes and feelings and the options available to the court in respect of the child and the suitability of each such option, including what order should be made in determining the application. Pursuant to FPR 2010 PD 16A paragraph 6.1 the children's guardian must make such investigations as are necessary to carry out his or her duties. 

The court's power to change a children's guardian is set out at FPR 2010 r 16.25.

MacDonald J decided, in dismissing the application, that the circumstances in which a guardian is to be changed for bias would be "very rare", and found that: 

Legal service payment orders for Section 8 Children Act proceedings

In BC v DE [2016] EWHC 1806 (Fam) the court was concerned with an application for the payment of both historic and prospective costs pursuant to a legal service payment order in Schedule 1 and section 8 Children Act 1989 proceedings.

In Rubin v Rubin [2014] EWHC 611 (Fam) Mostyn J warned that "a LSPO should only be awarded to cover historic costs where the court is satisfied that without such payment the applicant will not reasonably be able to obtain in the future appropriate legal services for the proceedings."

In this case there was an argument that without being able to make payment towards her historic costs the mother's solicitors were unlikely to provide their services in the future, and she would be unlikely to obtain the services of others whilst she had such significant debts.

The court considered that such an award was fair and reasonable in the circumstances of this case, and placed significant weight on the need for 'equality of arms'.

Duration of ex parte orders

In Re W (Minors) [2016] EWHC 2226 (Fam) Mostyn J was dealing with a final hearing in respect of an application for a location order. His judgment provides practitioners with guidance in respect of the duration of ex parte orders.

The mother had obtained an ex parte non molestation order which had been made for a period of one year, with provision in the order for it to be considered at a further hearing on a date to be fixed by the court officer on request by the respondent.

Mostyn J clarified that the order clearly flouts the guidance set out by the President in the President's Practice Guidance of 13 October 2014 in which it is made clear that the duration of an ex parte order prior to a review at an inter partes hearing should not normally exceed 14 days and that provision must be made for a specific return date.

Mostyn J draws practitioners' attention to the editorial notes in the Red Book in respect of ex parte orders, which criticises the President's Guidance as unworkable in practice and which reduces the protection for victims.

"It is perhaps unsurprising that this order was made in this form given the terms of the editorial note which prefaces the Guidance as it is printed in the 2016 edition of the Family Court Practice at p.2681.  This note, which in my judgment is intemperate, disrespectful and legally wrong, in effect incites the lower judiciary to ignore the Guidance and to continue with the bad practices that the Guidance was intended to eradicate."

An` ex parte order must specify a return date providing for a full inter partes hearing in order to review the hearing as soon as possible.