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Children: Public Law Update (August 2018)

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


John Tughan QC
, 4 Paper Buildings

In this article I consider recent decisions on the following issues:

(i) section 20 accommodation

(ii) the Legal Aid Agency's statutory charge in claims for damages under the HRA

(iii) cross examination and the role of litigants in person

(iv) adjournment applications in cases of improving drug and alcohol prognoses

(v) the burden of proof and a mathematical approach to findings of fact

In Williams and another v London Borough of Hackney [2018] UKSC 37 the Supreme Court was considering the limits of s20 accommodation.  The facts of the case were that one of the children in the family was caught shop-lifting.  The police visited the family's home and found it in what they considered to be an unhygienic and dangerous state unfit for habitation by children. A Police Protection Order was invoked in relation to all the children. The parents were arrested and released on bail with a condition that they could not have unsupervised contact with any of their children.  The parents were asked to (and did) sign a 'Safeguarding Agreement' by the local authority by which they agreed that all the children would remain in their foster placements for the present time. Their rights under s20 were not explained to them.  The local authority then decided that the children should be returned but took nearly two months to effect that return.  The parents claimed damages and the High Court dismissed all their claims except that brought under the Human Rights Act 1998.   The basis for allowing that claim was that the parents had not given their informed consent and therefore the continued accommodation was unlawful.  The Court of Appeal overturned that decision and held that there had been a lawful basis for the accommodation.

The Supreme Court dismissed the parental appeal.  Lady Hale gave the only substantive judgment.  Section 20 contained no express provision requiring parental consent to accommodation, rather it envisaged circumstances in which no consent could be obtained.  However, case law established that consent was required and that legal position was agreed by the parties at first instance.  Those cases included R (G) v Nottingham City Council [2008] EWHC 152 (Admin) [2008] EWHC 400Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam); In re W (Parental Agreement with Local Authority) [2014] EWCA Civ 1065; In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2017] AC 167; Northamptonshire County Council v S [2015] EWHC 199 (Fam) and Herefordshire Council v AB and CD; Herefordshire Council v EF and GH [2018] EWFC 10.

However, the starting point must be parental responsibility.  A local authority cannot interfere with a person's exercise of their parental responsibility without a Court order if such interference is against that person's will.  "Consent" may be an unhelpful concept in this context and may be confusing.  A person who does consent is simply delegating their parental responsibility to the local authority for the time being.  A delegation can be "real and voluntary" without being fully "informed".  The removal of a child from the care of a parent is very different to the local authority stepping into the breach when a parent is not caring for the child:

"The active consent or delegation of a parent who is not in fact looking after or offering to look after the child is not required, any more than it is when there is no-one with parental responsibility or the child is abandoned or lost. But the local authority's duty and power are subject to the later provisions of the section, in particular, to subsections (7) to (11)."

If a parent unequivocally requires the return of the child, the local authority have neither the power nor the duty to continue to accommodate the child and must either return the child in accordance with that requirement or obtain the power to continue to look after the child, either by way of police protection or an emergency protection order.

On the facts of this case, the local authority were looking after the children because they had been taken into police protection. This was not a case of removal by the local authority and when the PPO expired the circumstances fell within s20 (1)(c), the parents being "prevented" from caring for their children.  So although there are circumstances in which a real and voluntary delegation of PR is required it is not so in every case.

Northamptonshire County Council and Anor v The Lord Chancellor [2018] EWHC 1628 (Fam) involved a determination of the circumstances in which damages recovered pursuant to claims under the Human Rights Act are subject to the Legal Aid Agency's statutory charge.  Practitioners will be familiar with the problem that has been canvassed in a number of different decisions, that the statutory charge effectively swallows any damages achieved.

In an earlier judgment at [2017] EWHC 997 (Fam) Mr Justice Francis had found the local authority to be in "serious breach of the rights of A, a child, as guaranteed by articles 6 and 8".  The rights of the parents had also been breached.  Following that hearing and judgment the Legal Aid Agency confirmed its view that the statutory charge from the care proceedings would apply to HRA claims.  The HRA claims had been brought within the care proceedings but with freestanding pleadings.  The costs of the care proceedings would "obliterate" any damages awards achieved.  In the words of Francis J:

"The moral injustice arising out of such a situation is palpable: claimants who have been appallingly let down by a local authority would find themselves recovering money from a public body with one hand only to give it back to another public body with the other hand."

By a claim pursuant to CPR Part 8 the claimant local authority sought a declaration that:

"For the purposes of section 25 of the Legal Aid and Sentencing of Offenders Act 2012; whether brought under section 7(1)(a) or 7(1)(b) of the Human Rights Act 1998, a claim for damages under the Human Rights Act 1998 does not constitute 'proceedings… connection with which services are provided', where those services comprise civil legal services provided to a parent or child in part IV Children Act 1989 care proceedings".

The position of the LAA was that if the damages under the HRA were obtained on a freestanding basis, the operation of the statutory charge would depend on what costs were being claimed from the Lord Chancellor in respect of the HRA proceedings or dispute. 

"If the answer was nothing, there was nothing to protect by way of the statutory charge.  On that basis, the Legal Aid Agency invited all three firms and counsel to provide an undertaking that they would not claim in respect of any costs incurred in connection with the HRA claim under their client's legal aid certificate for the care proceedings. On the basis of the undertakings received, and the assumption that the recovery of the damages would take place outside the care proceedings, the Legal Aid Agency confirmed that the statutory charge would not arise in respect of the care costs."

The LAA has amended its approach to the issue in cases where damages were sought outside of the care proceedings leading to the undertakings referred to above being sought.

The LAA position statement is attached to the judgment of the Court and is required reading for practitioners dealing with such issues.

This is, of course, a very welcome and long overdue development.  As Francis J (and others) have noted, the sense of injustice at the earlier funding arrangements was "palpable".

In PS v BP [2018] EWHC 1987 (Fam) Mr Justice Hayden was dealing with private proceedings, which for reasons I hope will become obvious are relevant to a public law article.  F (a serving police officer) was acting in person.  M alleged strangulation and rape of her by F and a further attempted strangulation, which was said to have taken place in the presence of the child.  The Judge below decided very early on that he was not going to allow direct cross-examination of M by F and cited an earlier decision of Hayden J, Re: A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam).  His decision was that the Court would cross-examine the Father. Hayden J allowed the appeal and was critical of both that decision of the Judge and the way he executed it, while recognising the invidious position the Court was in.   

The importance of this decision for the public-law sphere is in the comments of Hayden J about cross-examination, the purpose of it and the fundamental right to "challenge".  Hayden J said this:

"A true assessment of a witness's demeanour can only properly be undertaken when the witness is put to the assay by challenge (adversarial testing 'beats and bolts out the Truth much better, see Crawford v Washington (2004) 541 US 36 at 62 per Scalia J). In this case the witness's account was not satisfactorily challenged and the weight that can be placed on her presentation in the witness box is accordingly, in my view, diminished….

Having allowed this appeal and in the light of my comments in Re: A (supra), I consider it to be important, at least, to try to provide some wider assistance. The Youth Justice and Criminal Evidence Act 1999 (YJCEA), operating in the criminal courts, strikes the careful balance between recognising an accused's right to cross-examine a witness in person and the protection of potentially vulnerable witnesses. (see also Carmarthenshire County Council v Y and Others
[2017] WLR (D) 534; [2017] EWFC 36. Accordingly, the court may only prevent such cross-examination where it is satisfied that the quality of evidence given by the witness on cross-examination by the accused in person would (i) be diminished if conducted by the accused and (ii), would be likely to be improved if a direction were given prohibiting it. It is important to emphasise that the two, are indivisible in these provisions. Logically, there is not an automatic bar to cross-examination by a litigant in person in such circumstances. The application of these criteria may make it the predominant outcome but that is, of course, quite different. Having been required to confront these issues again in the context of this appeal I consider that they, by parity of reasoning, provide a useful starting point for the Judge in a family case. Thus, it requires to be emphasised that the prevention of cross-examination in person by an alleged perpetrator should not be regarded as automatic. The court must consider the broad canvas of evidence when reaching its decision on this point. Into this wider picture must be factored in, the continuing reality that unlike in the criminal courts, there is no mechanism by which the court can provide for the instruction of an advocate."

In Re P (A Child) [2018] EWCA Civ 1483 the Court of Appeal overturned a decision to make a final care and placement order and to refuse an adjournment.  The Mother had problems with alcohol.  By the time of the final hearing she had remained sober and had "done all that could have been asked of her" in terms of addressing her alcoholism.  The Mother had been "dry" for a year and Dr Hallstrom gave evidence to the Court as to prognosis:

"[61]  Her vulnerabilities will never disappear.  The question is at which point does one consider the risks to be acceptable.  I cannot say what an acceptable risk is, but I would consider if she maintains her progress for another six months, that there would be some grounds for optimism that there has been a substantial improvement in her overall condition, both in relation to her personality and a vulnerability to relapse into drinking.

[62]  I don't think the prognosis will improve substantially by waiting a further six months after that."

King LJ held that too much emphasis had been placed on historic lies and that "no purpose" to the adjournment was not something she agreed with. 
Of course, by the time the case came on for Appeal a further 6 months sobriety was in evidence.  The child was 7 months old at the time of the order made at first instance.  Those sort of timescales are relatively commonplace in proceedings involving substance abuse and I wonder if this decision suggests a sea-change in approach.   In particular, given the age of the child and the oft-repeated imperative of reaching early final decisions.

In Re A Children) [2018] EWCA Civ 1718 the Court of Appeal heard the appeal by the local authority against the decision of Francis J.  At first instance the Judge found that the local authority had not proven their case on the totality of the evidence.  King LJ, giving the judgment of the Court of Appeal, decided that reliance on the burden of proof was only open to a Judge following a full and comprehensive assessment of all the evidence within the judgment.  That the burden of proof was reached for too early as the answer.  The Court was also critical of the use of a "pseudo-mathematical approach to the evidence, wherein the Judge had held as follows:

"Aggregating, as I must, the probability of suicide together with the probability of accident, I find that the aggregate of these two is more than 50 per cent.  Doing the best that I can, I find that the possibility of suicide is about 10 per cent, and the possibility of accident and a perpetrated act are about 45 per cent each.  It would be wrong for anyone to regard these figures as in any way accurate, for of course they are not.  They persuade me, however, that the local authority has not discharged the burden of proof which is upon it.  I am not satisfied, on the balance of probabilities, that this was a perpetrated act, albeit that I recognise that it is one of three possibilities."