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Children: Public Law Update (June 2018)

John Tughan QC of 4 Paper Buildings reviews recent, important Children Public Law cases.

John Tughan QC, 4 Paper Buildings

In this public law update, I will touch upon recent decisions which concerned the following issues:

(1) the fact-finding process, the role of the criminal law and the need for preparation time;

(2) s20 accommodation and the misuse of it together with anonymity

(3) the division of responsibility between the Court and a local authority in the context of placement orders

Re R (Children) [2018] EWCA Civ 198 is an interesting split-decision of the Court of Appeal relating to the fact-finding process.  Theis J was dealing with the death of a Mother through a stab or slash-wound in the context of an acrimonious parental separation.  The wound arose out of an argument between the parents.  F and a child both received knife wounds and the issue in the case was whether F had acted in self-defence.  F had been charged with murder and acquitted on all counts.

The Court of Appeal focused on two questions:

a)  The extent to which, if at all, the Family Court should import elements of criminal law into a fact-finding determination within child care proceedings;

b)  Whether the amount of time allowed for preparation by the father's legal team in this case was so constricted that the resulting trial was unfair within the terms of Article 6 of the European Convention on Human Rights.

In preparing closing submissions before Theis J the parties, through Counsel, had prepared an agreed note on the law, which included a treatment of the criminal law of self defence.  F's appeal implicitly accepted the relevance of the criminal law concepts to the fact-finding process in the Family Court.  However, on appeal all parties agreed that the criminal law had no place in the family court.  McFarlane LJ gave the lead judgment and Hickinbottom LJ agreed.  Gloster LJ disagreed.

Having referred to the two earlier cases that were on point (Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567 and A Local Authority v S, W and T [2004] EWHC 1270) McFarlane LJ said this:

"65. The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of 'murder' or 'manslaughter' or 'unlawful killing'. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.

66. Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see....."

McFarlane LJ also repeated and endorsed some of the dicta relating to an often-run argument in support of fact-finding, the child's right to know the truth.  He said this:

"88. For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent's actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181...

'… we are also of the view that it is in the public interest that children have the right, as they grow up into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.'"

Hickinbottom LJ said this:

"103. The second point of divergence between McFarlane LJ and Gloster LJ is more stark. McFarlane LJ considers that criminal law concepts, such as the elements that must be established to prove guilt or disprove a defence, have no place ("neither relevance or function") in family proceedings; whereas Gloster LJ considers that it is unavoidable that family court judges apply such criminal law concepts to fact-finding trials. On this issue, I very firmly prefer the view of McFarlane LJ. With respect to the contrary view of Gloster LJ, I agree with him that it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts."

Gloster LJ said this:

"121. Whilst I share McFarlane LJ's concerns about the undesirability of introducing criminal concepts into trials in the family court of welfare issues, I see real difficulty in a judge being able to determine whether the father's conduct was "reasonable" – i.e. whether he is to be criticised in a family welfare context for reacting with violence to the mother's violent knife attack upon him, and upon their child - without regard to, or applying, criminal law concepts of self-defence, reasonable force, and loss of control. If the judge is indeed required to decide the issue of whether the father used 'inappropriate force' or 'proportionate force' (see paragraph 90 of McFarlane LJ's judgment), or whether his conduct was "unreasonable" in relation to the circumstances of the death itself, then I ask rhetorically by what other standards can the judge evaluate the appellant's past conduct and any potential risk that might give rise to in the future, other than by the relevant criminal standards? What other guide will he or she have to determine the issue as to whether the father's killing of the mother was blameworthy, unreasonable or inappropriate?"

There was also a divergence between McFarlane LJ and Gloster LJ on the necessity for fact-finding hearings on such issues.  In reply to paragraph 88 of McFarlane LJ's judgment, Gloster LJ said this:

"117. But in response to the point made by McFarlane LJ at para 88 as to the necessity for a fact finding hearing so that the court and the children may know whether or not the surviving parent's actions were reasonable or not in relation to the circumstances of the death itself, I would refer to para 35 of the judgment of the Supreme court in S-B Children [2009] UKSC 17, where the court pointed out there is no obligation to identify a perpetrator:

"Of course, it may be difficult for the judge to decide, even on the balance of probabilities, who has caused the harm to the child. There is no obligation to do so. As we have already seen, unlike a finding of harm, it is not a necessary ingredient of the threshold criteria. As Lord Justice Wall put it in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472 judges should not strain to identify the perpetrator as a result of the decision in Re B:

"If an individual perpetrator can be properly identified on the balance of probabilities, then . . . it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification."

118. In a case such as the present, where the issue, as McFarlane LJ has pointed out in para 89 above, is more likely to be whether the father has caused the children emotional harm, and therefore whether there is a potential for future emotional and psychological harm arising from the 'fact', if fact it be, that the surviving parent caused the death of the other, it seems to me that the decision whether to determine the killing issues is more finely balanced than McFarlane LJ appears to suggest."

The second issue is also of interest to practitioners.  The local authority changed the pleaded case late-on in the proceedings and it became apparent that the criminal evidence was to be largely re-heard.  F's team applied for and were granted a one week adjournment of the fact-finding hearing in which to prepare.  The complaint related to the volume of the task facing F's representatives.  McFarlane LJ said this:

"An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she 'simply did not have a grip on the evidence' and that, despite giving a clear and specific account of her professional difficulties, her client's case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute. Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father's lawyers when, for the first time on 26th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father's team was, in the circumstances, untenable."

In Herefordshire Council v AB [2018] EWFC 10 Keehan J was dealing with two cases.  CD was born in 2001, was accommodated in 2009 and only made the subject of public law care proceedings until September 2017.  GH was born in early 2008.  He was born with significant disabilities and spent the first five months of his life in a special care baby unit in Hereford hospital.  His mother was 14 at the time of his birth and his father was 17.  In July 2008 he was accommodated and was not made the subject of public law care proceedings until September 2017 when he was nine years of age.
Keehan J conducted a review of the law in relation to s20 accommodation, including Northamptonshire County Council v AS & Ors [2015] EWHC 199 (Fam) and Re: N (Children) (Adoption: Jurisdiction) [2016] 1 FLR, 621 in which the President said:

• "The first issue relates to the use by the local authority, in my judgment the misuse by the local authority, of the procedure under section 20 of the 1989 Act.  As we have seen, the children were placed in accordance with section 20 in May 2013.  Yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings.  Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings but the use of section 20, as a prelude to care proceedings for a period as long as here, is wholly unacceptable.  It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.  As I said in Re: A (a Child) in Darlington Borough Council v M [2015] EWFC 11, paragraph 100, 'There is, I feared, far too much misuse and abuse of section 20 and this can be no longer tolerated.

Of the case before him and the damage done to the children because of this state of affairs, Keehan J said this:

"I have never before encountered two cases where a local authority has so seriously and serially failed to address the needs of the children in its care and so seriously misused, indeed abused, the provisions of section 20 of the Children Act 1989.  By happenchance alone, as it appears to me, both children have remained in the care of quite extraordinary and superlative carers who have met their respective needs extremely well.  I offer the warmest of thanks and congratulations to CD's foster carers and to GH's foster carer.  For periods of at least eight years they have each cared for the two boys without any parental responsibility for either of them.  Both sets of foster carers have in many ways been failed by this local authority, but their commitment to CD and GH respectively has been undaunted and unfailing.  Nevertheless, serious and long lasting damage has resulted.  Contact between CD and his mother had never properly been considered nor promoted.  The mother is not without blame on this issue.  It led however to an extremely unfortunate event recently where the mother and CD inadvertently came across each other in public and the mother did not recognise her son.  CD was dramatically affected.  What child could reasonably cope with their mother or father not recognising them?  In respect of GH, his mother was so young when he was born that she needed the greatest possible advice, support and consideration.  She was not given any of the foregoing.  The local authority, as referred to above, did not even consider whether she was capable of consenting to GH's accommodation.  Thereafter she was frankly side-lined."

The Court was asked by the local authority not to publish the name of the authority.  It was an authority struggling to recruit and it argued that past mistakes should not impact it in this way now.  Keehan J refused that application and gave reasons:

"I decided that a public judgment which named the local authority was necessary for the following reasons: (a) the President has repeatedly emphasised the importance of transparency and openness in the conduct of cases in the Family Division and in the Family Court; (b) the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf; (c) the failure to plan and take action in both of these cases is extremely serious.  There were repeated flagrant breaches of guidance from the judges of the division and of standard good practice; (d) it is evident that this case emanates from the Midlands Circuit.  Not to identify the relevant local authority would unfairly run the risk of other authorities on this circuit coming under suspicion; and (e) the President and the judges of the division have always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard.

The director is understandably concerned about the potential adverse consequences of a public judgment.  I fully understand those concerns, but, for the reasons I have given above, I do not consider these concerns should lead me to anonymise the local authority.  In my view these concerns are addressed, or at least ameliorated, by the court making it clear, as I do in paragraphs 11 and 12 above and in the paragraphs below, that the criticisms set out in this judgment relate to the past actions of this local authority and that there is now a new director and leadership team in place who are committed to change and to improve the care and provision of services to the children and young people in its care."

In Re T (A Child) [2018] EWCA Civ 650 the Court of Appeal was faced with a position in which the Court below had decided that a child could live with a family member but only if that person was provided with support and monitoring.  The local authority declined to provide such support.

The options before the Judge were approval of the grandmother as a kinship carer and local authority support or care and placement orders as sought by the local authority.  After an adjournment for the local authority to consider the judgment, following the refusal to do so, care and placement orders were made.  Permission to appeal was granted on the basis that the necessity of adoption was not made out.
Peter Jackson LJ conducted a review of those authorities relating to the separation of powers between the Court and local authority.  They include:

• An application for a placement order fundamentally engages the State's obligation under Article 8 ECHR to uphold the right to respect for family life. The nature of the obligation is concisely described in Re B-S (Children)(Adoption: Leave to Oppose) [2014] 1 WLR 563

• "The overarching principle remains as explained by Hale LJ, as she then was, in Re C and B [2001] 1 FLR 611

• YC v United Kingdom (2012) 55 EHRR 967:

'family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to "rebuild" the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.'

• Both the local authority and the court are public bodies and these well-known obligations apply to them both. This common purpose means that in the great majority of cases the local authority will acknowledge the court's welfare decision and, if necessary, amend its care plan to accommodate it; where that does not happen, the remedy of judicial review is available: Re C (Religious Observance) [2002] 1 FLR 1119.

• However, there are also divisions of responsibility. The court cannot dictate to the local authority what its care plan should be: Re S and D (Children: Powers of Court) [1995] 2 FLR 456. 

• Nor can it maintain supervision or control after a final order has been made: Re S (Minors)(Care Order: Implementation of Care Plan) [2002] UKHL 10

• Re CH (Care or Interim Care Order) [1998] 1 FLR 402 at 410. Here is his observation in that case on the relationship between the court and the local authority:

"The interdisciplinary character of the family justice system emphasises the co-operation that should exist between the court and public authority. It is, from my perception, inconceivable that there should not be reciprocal respect between the court and public authority for their differing functions and differing views. Manifestly, the statutory responsibility post-care order remains solely with the local authority. It is equally manifest that the local authority will pay due regard to the function of the judge in giving judgment upon the care plan after careful appraisal. Manifestly, the local authority will have greater regard for a judgment that is considered and that has embraced all the relevant circumstances and all the necessary expert opinion. I have no doubt that no public authority would wish the judicial appraisal to be preceded by anything less."

• Re W (A Child) (Care Proceedings: Court's Function) [2013] EWCA Civ 1227, also known as W (A Child) v Neath Port Talbot County Borough Council,

" The court's powers extend to making an order other than that asked for by a local authority. …  It is simply not open to a local authority within proceedings to decline to accept the court's evaluation of risk, no matter how much it may disagree with the same.... If the local authority's care plan fails to meet the court's expectations, the court may ask the local authority to reconsider.  If the plan in its formulation or content is deficient on public law grounds, then once the family court has asked for that to be rectified (perhaps more than once) then the High Court may engage with the issue to decide the challenge.... The circumstance in which a local authority can or indeed should be judicially reviewed on the content of a care plan should be rare indeed.  …  For the avoidance of doubt, I shall be more plain.  If the local authority disagree with the judge's risk evaluation they must in a case where it is wrong appeal it.  The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court.  If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding.  To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part."

In this case, the Court of Appeal held:

(1)  The judge underestimated her powers. She should not have accepted the local authority's unchanged position without calling it to account for what was on the face of it an unconvincing response to her careful assessment of risk and welfare;

(2)  It is true that the judge stayed her order to allow for judicial review proceedings, but that amounted to an acknowledgement that the resources of the family court were exhausted, when they were not. In effect, she accepted the submission of the local authority..... that the decision in relation to whether the child should be placed in the care of the grandmother was not a question for the court. It was;

(3)  Even if the point arrived where a decision had to be taken in circumstances where the local authority maintained a refusal to approve the grandmother as a foster carer, it was necessary for the judge to re-evaluate the remaining options for Alan's future. By not doing this, she effectively boxed herself in. Had she looked at matters afresh, she would inevitably have confronted the fact that this was a child who was being sent for adoption as a direct result of a decision of a non-court body, an outcome unprecedented in modern times so far as I am aware. She would then have been able to weigh that prospect against a range of lesser legal orders (interim care order, private law order, supervision order, injunctions, special guardianship, wardship) in order to arrive at a valid welfare outcome;

(4)  The fact that the local authority's decision arose as a result of a second process (fostering approval) does not alter the general principles that apply. The Agency Decision Maker was not obliged to follow the recommendation of the panel. Nor was the Agency Decision Maker in relation to fostering approval responsible for the case put by the local authority to the court. The judge's further investigations would have led her to better understand who was ultimately directing the local authority's thinking and to achieve an effective engagement with them until the issue had been satisfactorily resolved.