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Children: Public Law Update (Spring 2019)

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


John Tughan QC of 4 Paper Buildings

In this update I will consider:

• an important recent decision on "failure to protect" findings

• a series of decisions relating to the evidence in sexual abuse cases

• recent guidance in non-accidental injury cases

• a case involving the practice of providing notice to a Father in a sexual exploitation case

• the jurisdiction for interim care orders beyond the age of 17

• whether the post-adoption contact order landscape has altered

In RE L-W (CHILDREN) [2019] EWCA Civ 159 was a case of non-accidental bruising injuries to L.  From a pool of perpetrators with four persons identified the Judge found that GL (the Mother's partner but not L's Father) had caused the injuries.  There was no appeal from that finding.  The issue was the finding that the Mother had failed to protect L.  There had been no intervention by social services in the family prior to the discovery of the injuries though GL did have a history of violence outside the home environment.

In a review of the authorities King LJ reminds us of the decision in Re J (A Child) [2015] EWCA Civ 222, approving Re A (A Child) [2015] EWFC 11, 2015 Fam Law 367.  It is for the local authority to prove the link between the facts and the threshold criteria, including why certain facts justify the conclusion sought.  Aikens LJ in that case also said this:

"[vi]  It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The state will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm…"

In this case there was a failure to demonstrate the causative link between the facts found and the alleged risk, in relation to the failure to protect finding.  Although the Judge found that the mother had failed to disclose to social services that GL had suggested that the GP should not be involved, the mother had "wholly ignored his suggestion" and immediately took L to the GP.  King LJ held that

"It follows that the finding (that she had not told the social worker of his suggestion) was in no way causative and could not possibly found a finding of failure to protect on the mother's part arising out of the events that morning, although it may be a matter for exploration at the assessment stage."

GL's propensity to violence towards adult males and his "unattractive" controlling behaviour was not enough to establish the failure to protect finding in this case because these traits did not prevent the mother from acting quickly and appropriately when her child was injured, and she maintained her independence sufficiently wholly to ignore GL's suggestion that L should not be taken to see a doctor.

In relation to failure to protect findings more generally King LJ said this:

"Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child....Such findings where made in respect of a carer, often the mother, are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children's best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries...Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming 'a bolt on' to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, "nearly all parents will be imperfect in some way or another". Many households operate under considerable stress and men go to prison for serious crimes, including crimes of violence, and are allowed to return home by their long-suffering partners upon their release. That does not mean that for that reason alone, that parent has failed to protect her children in allowing her errant partner home, unless, by reason of one of the facts connected with his offending, or some other relevant behaviour on his part, those children are put at risk of suffering significant harm."

There have been a number of recent decisions relating to the issue of sexual abuse findings and the evidence required in such cases. These follow on from earlier authorities (very often decisions of Baker LJ) that have been discussed in earlier articles.

In RE SR (A CHILD) [2018] EWCA Civ 2738 the initial referral in relation to sexual abuse came about by comments from a child to the foster carer.  The Father accepted saying that he loved and wanted to eat the child's penis/testicles, but claimed that that was common and acceptable within his culture.  This was confirmed by an Imam and a cultural expert.  A police officer visited the child and recorded the conversation.  The child made further allegations in discussion with the foster carer.  The Judge found the allegations proved and the Court of Appeal, while repeating that these issues were extremely difficult and that findings of fact would rarely be interfered with, found that the Judge's treatment of the police officer's conversation with the child was flawed.  The Judge had recognised that it was not an "ABE" interview and that the correct procedure had not been followed.  The conversation was given a "slightly different weight" by the Judge.

Baker LJ gave the lead judgment of the Court and held that the Judge had failed to recognise that the procedural deficiencies should have resulted in a significant reduction in the weight given to the interview.  A conversation with a police officer was different to a formal ABE interview.  The deficiencies in the process included the absence of any video recording, the delay before the conversation with the police officer, the absence of any evidence of planning, the procedural failures and the failure to check the child's level of understanding or his awareness of the importance of truth.  The judge had identified elements supporting the reliability of the child's allegations without articulating any of the detracting elements.

There were other deficiencies in the Judgment but the treatment of the conversation between the child and the police officer was "in particular" problematic.

The law report is a useful tour through the recent authorities relating to sexual abuse evidence and in particular the impact of deficiency in the ABE process.

In RE K (CHILDREN) [2019] EWCA Civ 184  the Court of Appeal was dealing with a case in which the child had denied the earlier account given.  X made allegations of physical and sexual abuse against her father to a teacher. She told the teacher that her father had come into her room at night, lain on top of her and hit her with a stick. She demonstrated by opening her legs whilst lying down and referring to her "pee-pee hole". She later denied this account.  Other allegations were made including that the children were physically chastised and locked into rooms.  Bruising was found and there was evidence that the Father had become sexually aroused at contact.

Peter Jackson LJ, described the Judge's "model" legal direction.  The Court had been entitled to place weight on the teacher's account and to decide that it included a level of detail that rendered it reliable.  The Judge had approached the evidence of sexual abuse with appropriate caution and

"Crucially, the judge was entitled to form a reasoned view on the credibility of the father. Had she formed a more positive view of his character and credibility, she might have found [the child's] statement on its own insufficient to prove the allegation. But her assessment of the father did nothing to reduce the likelihood that it was true, indeed it made it more probable."

In RE Y & E (CHILDREN) [2019] EWCA Civ 206 the Court of Appeal (Baker LJ giving the lead judgment) was again dealing with deficiencies in the ABE process.  These deficiencies were not so serious as to render the interviews of no value.  This was a case involving an older allegation (by Y) of sexual abuse that was investigated but not established.  Contact with the Father therefore resumed.  Six years later Y repeated the allegations and then gave three interviews with police.  The Father's case was that the Mother and Grandmother had coached Y.  The Judge found that the interviews were central to the case, that the Father had raped Y on multiple occasions, had masturbated in front of her and was guilty of other incidents of sexual abuse.

Baker LJ found that there were significant breaches of the ABE procedure however the guidance was very challenging and often difficult for police officers and social workers to follow.  It was the Judge's duty to assess the extent to which the failures undermined the reliability of the evidence. The breaches included an absence of any record of the previous conversations between Y and the police officer before the first interview, no proper "rapport" phase in any of the recorded interviews, the police officer encouraging Y to speak in ways which were inconsistent with the guidance.

However there was a significant amount of free narrative from Y, with sensitive follow-up questions and no leading questions.  There was considerable detail in Y's accounts which pointed to them being accounts based on experience.  The account of abuse came from the child and not the officer.  Ultimately, despite the deficiencies, the interviews contained significant evidence and detail on which the judge was entitled to rely.

Turning to the recent decisions in cases of non-accidental injury, RE G-P (A CHILD) [2019] EWCA Civ 56 involved the frequently encountered issue relating to the role of the childminder or the parents as the perpetrators of injuries.  The unusual aspect of this case was that the Judge found that the child was at risk of physical and emotional harm from her parents and at the same time found that the child-minder caused the injuries that had been found.

On admission to hospital, the child was found to have head injuries, 42 bruises and marks to her head and body, and a bruise to her hymen. There was no account of any accident that could account for the injuries.  The childminder had been caring for her alone for 28 hours prior to admission to hospital.  The Court of Appeal (Peter Jackson LJ giving the lead judgment) described the judgment of the Court below as "meticulous".  The childminder's appeal was based on the inherent improbability of the conclusions with simultaneous findings against the parents.  The Judge was entitled to find different types of harm and was entitled to conclude that all of the adults who might have assisted the Court had chosen not to.  The gross neglect and factitious illness disorder caused by the Mother with the Father's connivance were harm of a different order from inflicted physical trauma.

Another decision dealing with non-accidental injuries, the issues of rickets, metaphyseal fractures and Ehlers-Danloss syndrome is RE X (A CHILD) (2018) [2018] EWHC 1815 (Fam).  In that case Sir James Munby was dealing with a re-hearing of allegations that had already been established within the care proceedings.  The criminal proceedings had collapsed, causing the parents to apply to re-open the civil findings of fact.  After a thorough review of the evidence the Court decided that the civil findings survived and that this was not a case involving any miscarriage of justice.  The judgment is interesting for the description of the expert evidence and the "scathing" comments of one expert concerning the approach of Dr Ayoub, who will be well known to practitioners in the area of non-accidental injuries.

In RE P (NOTICE OF CARE PROCEEDINGS TO FATHER WITHOUT PARENTAL RESPONSIBILITY) [2019] EWFC 13 HHJ Clifford Bellamy decided that it was a matter of good practice for local authorities to apply to disapply the requirement to give notice to fathers without parental responsibility in cases of child sexual exploitation.

In RE Q (CHILD: INTERIM CARE ORDER: JURISDICTION) [2019] EWHC 512 (Fam) Knowles J was faced with the jurisdictional issue of the basis for a subsisting care (including interim care) order beyond the child's 17th birthday.  The Court concluded that an interim care or supervision order would not endure beyond the child's 17th birthday (or 16th if the child was married), and interim care and supervision orders made for a period during which the child turned 17 or got married (if aged 16) were impermissible.

In relation to cases involving placement orders and adoption RE B (A CHILD) (POST-ADOPTION CONTACT) [2019] EWCA Civ 29 decided that the insertion of s.51A into the Adoption and Children Act 2002, making provision for post-adoption contact orders, did not change the test stated in Re R (A Child) (Adoption: Contact Orders) [2005] EWCA Civ 1128.  In that earlier decision Wall LJ had described the imposition of post-adoption contact orders on adoptive parents as "extremely unusual" and that a Judge would be "plainly entitled in those circumstances to take into account that the court would be reluctant to make an order in the face of reasonable opposition from the prospective adopters".  However, the current Court of Appeal reminded us that the decision was to be undertaken on a case by case basis and not as a matter of law.