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Children: Public Law Update (August 2017)

John Tughan QC of 4 Paper Buildings reviews a range of recent important public law cases.

John Tughan QC, 4 Paper Buildings

John Tughan QC, 4 Paper Buildings

I am conscious that my last public law update focused on claims under the Human Rights Act.  In this update I will go back to more general public law issues.

S-F (A Child) [2017] EWCA Civ 964
In S-F (A Child) the Court of Appeal was dealing with an appeal from a decision to make a care order and not a placement order.  The lead judgment of the Court identified the issue as whether the judge was wrong to prefer long-term fostering over adoption.  The Court's reasoning in Re V (long-term fostering or adoption) [2013] EWCA Civ 913 and Re B-S (adoption: application of s47(5)) [2013] EWCA Civ 1146 was endorsed.  The proportionality of interference in family life that an adoption represents must be justified by evidence, not assumptions that read as stereotypical slogans.  A conclusion that adoption is better for a child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

The Court of Appeal held that:

"In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child.  If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example:  research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics.  As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case ... In this context, the evidential importance of what is described in the Adoption Agencies Regulations 2005 as the 'permanence report' is not to be underestimated."

Practitioners were reminded of the relevant regulatory scheme as highlighted in K v London Borough of Brent [2013] EWCA Civ 926 and Surrey County Council v S [2014] EWCA Civ 601.  The permanence report and the agency decision maker's record of decision contain the analysis and reasoning which are necessary to support an application for a placement order.  They are disclosable documents that should be scrutinised by the children's guardian and are susceptible of cross-examination. 

Re W (A Child) [2017] EWHC 829 (Fam) and W (A Child – No 4) [2017] EWHC 1760 (Fam)
I have written before about the line of cases that involves balancing a family member's application for the return of a child already placed for adoption.  The President described his recent decision in such a case as

".... a very complex and worrying case. It is, I think, by some margin the most difficult and concerning case of its type I have ever been involved in."

The case is reported as Re W (A Child) [2017] EWHC 829 (Fam).  The litigation history of these proceedings is extraordinary.  The child W was made the subject of care and placement orders in September 2013 and placed for adoption.  Her siblings remained with her father.  After various applications and appeals (see Re H (Children) (Application to Extend Time: Merits of Proposed Appeal) [2015] EWCA Civ 583) the proceedings came before Russell J and the decision was reported as Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039 (Fam). Russell J found that W should move to her father's care.  The adopters appealed and the appeal was allowed: see Re H (A Child) (Appeal) [2015] EWCA Civ 1284.

The President was dealing with the re-hearing of the issues following the successful appeal from Russell J.  By this stage there were two substantive applications, that of the local authority for permission to withdraw the care and placement applications and the adoption application by Mr and Mrs A.  The judgment runs to 254 paragraphs and summarises the legal principles to be applied.

The President heard the case as a "private law adoption" which was the consequence of the granting to the local authority permission to withdraw the public law proceedings.  He disagreed with the submission that the court must consider whether the "threshold criteria" were met at the relevant date some five years prior to the hearing.  The placement orders had been set aside and the application for an adoption order was proceeding pursuant to s 47(2) Adoption and Children Act 2002, under which the threshold criteria have no application.  The "unpicking" of the threshold criteria would be an irrelevant historical issue. 

The Article 8 rights of W, Mr and Mrs A, the father and the mother were all engaged:

"But none of this really advances matters. The impact of Article 8 is already incorporated as an integral element in the analysis underpinning each of the four key authorities, so a proper application of the principles there set out will necessarily give proper effect to each party's Article 8 rights. Despite any suggestions to the contrary, it is quite clear from the authorities I have referred to that there is in a case such as this no hierarchy of rights under Article 8."

The claim for breach of the father's Article 8 rights found sympathy with the court but ultimately did not impact the central welfare analysis:

"...the fact is that we are where we are. Ultimately, and in the final analysis, this case has to be determined in accordance with the requirements of section 1 of the 2002 Act and the principles laid down in what I have referred to as the four key authorities. The law, both our domestic law and the Strasbourg law, has long recognised that there may be cases where the outcome is determined, to the prejudice of an unimpeachable parent, by the passage of time and consequential change of circumstances, even where this has been brought about by the actions, or lack of action, or the 'fault' of a public give effect to an 'unfairness' argument offends against the statutory principles and runs the risk of the welfare analysis being skewed and diverted from what must be its paramount focus – W's welfare."

The President distilled the essential arguments.  The argument for Mr and Mrs A was that if W was adopted by Mr and Mrs A, there would, from her perspective, be no significant change in her life.  The difficulties that might emerge would do so years into the future and the trauma of a move would be at least severe.

The argument for the birth family was that W would quickly assimilate into her birth family and navigate any trauma.  The risk of placement breakdown with Mr and Mrs A was very real as a result of the impossibility of creating an honest and meaningful narrative for W.

Ultimately, the President was driven to the view there were "considerably" more risks and uncertainties in moving W from Mr and Mrs A than in leaving her where she was.  Remaining where she was represented the least amount of risk.  W "must" remain living with Mr and Mrs A.

The father's application for permission to appeal the decision was refused by the Court of Appeal.  On the same afternoon the President received an email from counsel for the father which referred to information that had been circulated by the local authority:

"W was seen [in a clinic] on 12th May [this was after the decision of the President discussed above] with prospective adoptive parents ... They informed a colleague that they plan to move to the US but that we should not mention this in any letters. They were advised that the hearing aid that we planned to fit was government property and would have to be returned on leaving the UK."

The President ascertained (while standing on the platform at Reading station) that the adoption order had been sealed and he was functus officio absent an application to set aside the adoption order.  The father then made two applications: one under the inherent jurisdiction seeking the setting aside of the adoption order and an order to prevent the removal of W from the jurisdiction; the other an application seeking a post-adoption contact order under section 51A of the Adoption and Children Act 2002.

Those applications came before the court and are reported as W (A Child – No 4) [2017] EWHC 1760 (Fam).

The legal principles were agreed between the parties and confirmed the "very high bar against any successful challenge to an adoption order which has been regularly made.  The authorities were reviewed and the judgment of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 applied:

"An adoption order is not immune from any challenge … The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud..."

As a result of the planned move of Mr and Mrs A to the USA following the acceptance of a job offer, it was the father's case that a fraud had been perpetrated.

The President found that the non-disclosure of the job offer was not fundamentally inconsistent with anything Mr or Mrs A had said in the course of their evidence, nor with any assumption articulated in the substantive judgment.  Further that any deliberate decision to conceal information at the medical appointment occurred after the judgment was handed down.  The adoption decision had not been "obtained" by fraud.

M (Children) [2017] EWCA Civ 891
In M (Children) the Court of Appeal was dealing with issues of the enforcement of a private law order made in Estonia.  The relevance of the decision to the public law sphere is that the Court found that there was no power to order a local authority or Cafcass to supervise contact under domestic law relating to private proceedings.  It was not appropriate to use the inherent jurisdiction.

Re J (Children) [2017] EWCA 398
Re J (Children)
involved the successful appeal from final care orders based on procedural unfairness.  The court below had used the IRH as a final hearing against the wishes and expectations of the parties.  The relevant case law was referred to in the judgment of Macur LJ and this passage from Lewison LJ's judgment in Re S-W (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27  was cited with approval:

"Moreover where parties arrive at court expecting to participate in a hearing that is to deal only with procedural aspects of progressing a case towards a final hearing, it is quite wrong for the court, on its own initiative and without prior notice to the parties – let alone any invitation from any of them – to treat the procedural hearing as if it were the final hearing and to make such a drastic order as the judge made in the present case. Had a party invited the judge to make the order that he in fact made without notice to the other parties one would have described it as 'an ambush'.  The fact that it came from the court makes it worse, not better."

The court below had also proceeded on the basis that the threshold was crossed when it remained challenged.  Macur LJ found it "entirely understandable that this judicial approach raised the collective hackles of all parties. The parties' united stance in this appeal demonstrates an objective unease at the lack of fairness in the process."  The mother's article 6 right to a fair hearing had been breached and the children's article 8 rights had not been safeguarded.

S v SP and CAFCASS [2016] EWHC 3673 (Fam)
S v SP and CAFCASS involved an application to commit an officer of Cafcass to prison for contempt of court.  Baker J held that the phrase "a professional acting in furtherance of the protection of children" within rule 23.73 FPR 2010 must be given a broad interpretation.  The rules plainly permitted the disclosure of information by Cafcass to a police officer in a conversation that arose in the course of investigation by the police including acts of domestic violence or abuse within the family.

Re SL (Permission to Vaccinate) [2017] EWHC 125 (Fam)
In this case MacDonald J made a declaration that it was in the best interests of the child to receive the vaccinations.  Emphasis was placed on the weight to be given to the views of the natural parent but those views were diametrically opposed to the medical evidence and were to be seen in the context of emotional and mental health difficulties.

Re C (A Child) [2016] EWHC 3171 (Fam) and Re C (A Child) No. 2 – (Application for Public Interest Immunity) [2017] EWHC 692 (Fam) 
In Re C (A Child) Pauffley J was grappling with "a situation without a solution bedevilled with arguments of considerable circularity".  The issue was the disclosure of information held by the Secretary of State for the Home Department into care proceedings.  The application to discharge the order for disclosure into the care proceedings was refused, Pauffley J having reminded herself of the authorities and principles enshrined therein, including the fact that the court must operate on the basis of the evidence.  The SSHD then applied for public interest immunity in relation to the information held and that decision is reported as Re C (A Child) No. 2 – (Application for Public Interest Immunity) [2017] EWHC 692 (Fam).  It is a useful decision for the procedure and legal test to be applied in such applications and the interplay between open and closed information.  R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 established the three steps for a PII claim.  First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings.  Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause 'real damage' or 'serious harm' to the public interest. Third, if applying the 'real damage' test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings.