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Children: Public Law Update (December 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 cases in the public law field which relate to:

Refusal to hear an application for an ICO following refusal to make an EPO
In Re B-C (A Child) [2016] EWCA Civ 970 involved an application for permission to appeal brought by a local authority following a determination declining to list the local authority's application for an interim care order.  The child (aged 6) had serious medical and developmental conditions and a history of earlier findings of fact in relation to a physical assault by his father.  He was rehabilitated to the care of his mother under a supervision order which had then expired.  Following overnight contact with his father he returned to the care of his mother with severely blistered feet.  On examination he was also found to have bruising.  On the application for an EPO the judge refused to make such an order and rejected the fact that the current injuries were non-accidental.

Six days later the case was back before the court and the local authority asked for a two day listing for a contested interim care order.  The local authority relied on the developing medical evidence in seeking the listing as well as statements from the child.  The judge refused to list the case and criticised the way in which the information had been obtained during the questioning of the child.

The Court of Appeal (McFarlane and King LJJ) held that the original application that was refused by the judge was for an EPO, from which there is no appeal by virtue of s 45(10) Children Act 1989.  The only remedy to the local authority is an application for an ICO.  The refusal to list such an application meant that the local authority had no avenue to challenge the outcome.  The decision not to hear the application was questionable and the more conventional approach would be to hear the application, thereby allowing an aggrieved party a route to an appeal.

The appeal was allowed.

Should a child be removed from an adoptive placement in order to be placed with natural extended family?
In RA (Baby Relinquished for Adoption) [2016] EWFC 47 Cobb J was dealing with cross-applications for an adoption order made by his current carers, applications by his maternal grandmother for permission to apply for a child arrangements order with a plan that RA (aged 14 months) should live with her in Latvia.  Late in the day (after the hearing and draft judgment but before judgment was handed down) the natural parents applied for leave to oppose the adoption order, having earlier relinquished RA for adoption.
Cobb J found the evidence of the adopters to be enormously impressive and described their devotion to RA as well as the stress that they faced at being propelled into contested proceedings.  The maternal grandmother had never met RA and had no contact with him.  She had no actual relationship with him.

The adopters were approved as Early Permanence Placement (EPP) foster/adopters, and were caring for RA in that capacity.  Cobb J distinguished the earlier decision of Munby P  in Re T (A child) (Early Permanence Placement)  [2015] EWCA Civ 983 most centrally because in Re T the carers were foster carers and not approved adopters:

"The legal status of the placement at the point of the challenge was significant, as is the reasonable expectations which accompany that status."

The Latvian authorities collated and filed assessments of the maternal grandmother and placed them before the court.   Their position was to express concern that RA's rights under Article 8 and 20 of the UNRC were threatened, with which Cobb J disagreed.

The guardian supported the adoption.

It can be seen that the issues facing the court were similar to those in that line of cases already discussed in earlier public law update articles.  Cobb J considered the line of authority but, in doing so, granted permission to the maternal grandmother to make her applications so that RA would know that her case was fully considered.  The following legal considerations applied to the decision:

(i) In Re W (A Child) [2016] EWCA Civ 793 McFarlane LJ identified that one of the issues of "general importance" for consideration in that case was:

"The approach to be taken in determining a child's long-term welfare once the child has become fully settled in a prospective adoptive home, and, late in the day, a viable family placement is identified."

(ii) While Re W was useful, the focus remained on the essential statutory framework, including the welfare checklists that fell to be considered.

(iii)  On the issue of relationship with prospective adopters, per McFarlane LJ in Re W at [40]:

"it should be self-evident that a prospective adopter with whom a child has been placed under a placement for adoption order will automatically be "any other person" within the context of s 1(4)(f). Such an individual will have the child committed to their care for the express purpose of establishing themselves in the important, if not the most important, relationship of parent to the child both in reality and, if the anticipated adoption takes place, in law. Such an individual will have parental responsibility for the child, shared with the adoption agency and any parent, upon the moment that the adoptive placement commences (ACA 2002 s 25(3)). It is also of note that this court in Re M'P-P (Children) [2015] EWCA Civ 584 held that a local authority foster carer, who intended in due course to put herself forward as a prospective adopter, qualified as "any other person" within s 1(4)(f)."

(iv)  The options must be considered in a holistic way, and not sequentially; there should be a thorough analysis of all of the realistic options: Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440.

(v)  Adoption represents a significant interference with family life, and should be assessed by the requirements of necessity and proportionality.  However, the words of Baker J in Re JL and AO were apposite:

"Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents' wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate."

(vi)  The views of birth parents in a relinquished baby case will carry "significant weight" even if they are not decisive (Re JL & AO) and it is perfectly appropriate for the court to have regard to the fact that parents may well wish to make "discreet, dignified and humane" arrangements for the birth and adoption of their baby (Holman J in Z County Council v R [2001] 1 FLR 365).

vii)  The child has no right to be brought up by his or her birth family; as McFarlane LJ said in Re W:

"The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest.  No such 'right' or presumption exists.  The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged."

viii)  In this case Article 8 rights are engaged, and Cobb J found that:

a)  The birth parents initially sought a right to a private life under Article 8, and further sought to exercise this right by inviting the authority to arrange a discreet and confidential adoptive placement for their baby; their right to this private life has not been faithfully observed;

b)  The prospective adopters plainly have Article 8 rights to private and family life with RA.  Their rights reflect a rich reality, and have real substance;

c)  The maternal grandmother does not have Article 8 family rights with RA; her blood relationship to him, albeit not unimportant in many ways, does not on its own create a right which is entitled to protection under Article 8 of the ECHR. 

The Court dismissed the parental applications for leave to oppose the adoption.

In considering the essential question before the Court, Cobb J reminded himself of the words of Munby P in Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431:

"Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?"

Cobb J concluded that adoption was in the best interests of RA.

Separate representation of a child
In Re W (A Child) [2016] EWCA Civ 1051 was a case concerning the issue of whether a child ("FW") should have been allowed to be separately represented from her guardian within the proceedings.  The proceedings concerned the local authority's application for a recovery order in relation to FW and she sought to discharge the care order the local authority held.  FW is 16 years old.

Within the earlier care proceedings (2014) FW was separately represented.  Those proceedings included findings of physical and emotional abuse of the children, including the imposition of demeaning and humiliating punishments upon certain of them, and that they were controlled by their father.

Accordingly the threshold criteria were met and the case was prepared for the welfare stage.  Within those preparations, the department of child and adolescent mental health at Great Ormond Street Hospital were instructed.   Within that assessment was the following conclusion:

"The children have been brought up in an environment where there has been an expectation that they will remain subservient to their parents and their parents' wishes at all times. Due to this the older children have been unable to develop their own sense of autonomy and self-belief."

In making the care order, the judge concluded that:

"This large family has because of the parents' views about the outside world been isolated to a significant extent and therefore the children in particular appear to be emotionally dependent on one another, as well as their parents and, especially in FW's case, extremely loyal to her parents and the family and she made this clear to me when I met her earlier today." 

The local authority applied for a recovery order and the original guardian was appointed for FW but she (FW) wished to instruct a different solicitor.  Her plan was to apply to discharge the care order.  The guardian and her solicitor did not agree that FW was in a position to instruct a new solicitor.  An expert child psychiatrist was instructed but FW refused to attend the appointment.  The judge refused FW's application, saying:

"I am satisfied in this case that FW has not been able to demonstrate that she is not being used or required by her parents to conduct litigation. She has issued an application to discharge the care order. FW attempted to issue an application to discharge the care order for her younger brother, E, also. All this seems to be at the behest of the parents, who, as I have said, choose not to take part in these proceedings. She is completely allied to her parents' position. In these circumstances, I will not grant FW's application for permission to be separately represented."

FW appealed and it was common ground at the appeal that the question of separate representation for FW had to be determined by reference to FPR, Rule 16.29, which includes: 

"(2)  If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

(a)  wishes to give instructions which conflict with those of the children's guardian; and

(b)  is able, having regard to the child's understanding, to give such instructions on the child's own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

Black LJ found that

"there is no assistance to be found in the rules as to the precise nature of the understanding that will be required of a child before he or she is considered able to give instructions."

There was some assistance in the authorities and in particular Thorpe LJ's judgment in Mabon v Mabon [2005] EWCA Civ 634:

"26.  In my judgment, [Rule 9.2A] is sufficiently widely framed to meet our obligations to comply with both Article 12 of the UN Convention and Article 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child's understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty-first century, there is a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision-making processes that fundamentally affect his family life."

Black LJ concluded that views about children's involvement in legal proceedings have continued to evolve since 2005 and that

"the question of whether a child is able, having regard to his or her understanding, to instruct a solicitor must be approached having in mind this acknowledgment of the autonomy of children and of the fact that it can at times be in their interests to play some direct part in the litigation about them.  What is sufficient understanding in any given case will depend upon all the facts."

It was of considerable significance that FW had instructed her own solicitor virtually throughout the care proceedings and that that solicitor, with her accumulated knowledge of FW, considered her to have sufficient understanding to instruct her in the new proceedings.

On the issue of the alignment of FW with her parents Black LJ said that caution needed to be exercised before concluding that someone's expressed views were not their own.  Importantly:

"the fact that the child's views are considered to be misguided in some way does not necessarily mean the child does not have sufficient understanding to instruct a solicitor."

Tomlinson LJ concluded that the judge had "confused welfare with understanding". 

Finding that a party is a perpetrator without exploring that issue in evidence
In Re S (Children) [2016] EWCA Civ 1020 the issue before the Court was whether the judge was entitled to find that the mother was within the pool of two possible perpetrators of injuries to MS in circumstances where no party sought that finding and no allegation had been put to the mother.  The first time that the judge raised the possibility of including the mother within the pool of possible perpetrators was after the submissions of the local authority and the parents.  The mother's counsel rose to make further submissions addressing the point.  The judge found that the injury had been sustained while MS was in the care of the intervenor and/or the mother and concluded that there was nothing in the evidence which enabled him to identify the perpetrator on the simple balance of probabilities.  The judge therefore rejected the approach of all the parties and found instead that he was unable to identify the adult responsible for injuring MS, save to say it was either the intervenor or the mother.

This was a procedural error that was so serious that the debate as to whether the outcome would have been the same had the proper procedure been followed was unnecessary.  The appeal was allowed.

Are findings of the court against witnesses appealable?
In Re W (A child) [2016] EWCA Civ 1140 McFarlane LJ characterised the issue in this way:

"The central issue in the present appeal can be stated shortly. It is as follows:

Can a witness in Family proceedings, who is the subject of adverse judicial findings and criticism, and who asserts that the process in the lower court was so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, challenge the judge's findings on appeal?
If so, on what basis and, if a breach of Article 8 is found, what is the appropriate remedy?"

The answer was that each of the witnesses were by the conclusion of the first instance process a 'party' to the proceedings and that the Court of Appeal had jurisdiction to entertain their appeals on the basis that they each asserted that the judge had acted in such a way so as to amount to a breach of their rights under ECHR, Arts 6 and/or 8 pursuant to HRA 1998, ss 7 to 9.  There was a wholesale failure to achieve a fair trial in relation to the matters that the judge went on to find proved against them.  The appeals were allowed and those parts of the judge's judgment which recorded those matters were to be set aside on the basis that they were to have no further validity and were to be regarded as if they had never been made.

Provision of services to children in need by local authorities
In R (on the application of Cunningham) v Hertfordshire County Council & Another [2016] EWCA Civ 1108 the Court of Appeal were considering the provision of support for a looked after child.  The prime factual issue between the parties was whether it should have appeared to the council, on 17 October 2012, that R required accommodation because his mother was no longer able to provide him with it.  The Court of Appeal held that a factual analysis of every case was necessary but that the local authority's case was correct.  They had concluded that R never appeared to them to require accommodation because the mother made her own arrangements in which they took no part.