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Children: Public Law Update

John Tughan QC of 4 Paper Buildings reviews recent important public law cases concerning children.



John Tughan QC of 4 Paper Buildings


Remote hearings


The risk in writing a public law update in the current circumstances is that the entire update will be about remote hearings and whether to hold them or not.  I am aware of two judgments (from Mrs Justice Lieven and Sir Mark Hedley) about to be published which each follow a remote hearing involving expert and lay evidence over several weeks.  Both judgments are positive about the experience of conducting a remote hearing.  It seems to this practitioner that the issue is not whether remote hearings are perfect, they are not.  But then neither is a courtroom perfect.  The issue is whether we want a functioning system of justice for families or not.  My personal view is that we have nothing to fear from remote hearings and if it is the only way to achieve resolution for families desperate for answers and can be done fairly in the particular circumstances of the case I have no difficulty with using the technology to achieve those ends.

The central decision on the issue is Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 in which the Court of Appeal emphasised that the decision whether to conduct a remote hearing was one for the tribunal hearing the case, was a case management decision and it entailed a broad discretion.  Temporary guidance from senior judiciary was only guidance or illustration.

The factors likely to influence the decision as to whether to proceed remotely or not include:

i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii) Whether the parties are legally represented;

iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully.

v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.


The following decisions on remote issues have also been published:

A Local Authority v (1) Mother (2) Father (3) SX (By his Children's Guardian) [2020] EWHC 1086, Lieven J (the judge decided to proceed to hear the lay evidence in a complex fact-finding using remote means)

Re Q (A Child) [2020]  EWHC 1109
, Sir Andrew McFarlane PFD (the judge was wrong to vacate a remote hearing)

Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA 584
(where there was a telephone hearing involving the interim removal of children, the court was wrong to go ahead in highly pressurised circumstances)

Re P (A Child : Remote Hearing) [2020] EWFC 32
, Sir Andrew McFarlane PFD (the fact finding issues relating to FII would not be heard remotely in the context of the mother's objection).


Enough of issues concerning remote hearings.  What of the substantive law?

There have been important decisions in the following areas:

(i) the powers of the local authority pursuant to s33 Children Act 1989 insofar as that section relates to the vaccination of children in care;

(ii) the issue of DNA testing putative or possible siblings for the purposes of paternity testing;

(iii) disclosure of information to police from care proceedings

(iv) costs.


Section 33 of the Children Act 1989 and vaccination of children in care

In Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 the Court of Appeal was considering whether a local authority had the power to arrange for the vaccination of a child in care pursuant to s33(3) Children Act 1989 or whether the issue should be referred to the High Court for determination in cases where the parents objected to the vaccination.

This was an appeal from Hayden J who determined the local authority's application for a declaration.  The judge decided that vaccinations were not "treatment" but part of public healthcare in the preventative sense.  The intrusion of a vaccination was at the lesser end of the scale of intervention and the risks of not vaccinating a healthy infant significantly outweighed the benefits of vaccinating.

The Court of Appeal agreed.  There may be factors in any given case that militated against vaccination but not here.  The critical issue was whether the issue was "grave" or "serious" so as to require court sanction before the local authority could exercise their parental responsibility.  The court decided that routine vaccination was not grave or serious.  The alleged and controversial link between MMR and autism had been definitively disproved.

A sharp distinction was drawn by the Court between the vaccination issue in the public law sphere as compared with private law applications.  In private law neither parent had primacy over the other whereas in the public law arena Parliament had given the local authority the power to decide.

The court emphasised the need for local authorities to continue to involve parents in the decision making process and emphasised that s33 Children Act 1989 did not absolve a local authority of their responsibilities in that regard.

For an article specifically concerning this judgment, see Vaccination: Course Correction Local Authority powers following Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 by Chris Barnes, and Harry Langford.


DNA testing putative or possible siblings for the purposes of paternity testing


Re A, B and C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41
was a case that considered the approach to be taken where a mother wants a baby to be placed for adoption without notice being given to the child's putative father.  In Re L (Adoption: Identification of possible Father) (2020) [2020] EWCA Civ 577 the Court of Appeal was considering further issues relating to the notification of fathers.  The issues were:

(1)  to what extent does the same approach apply where there is uncertainty about the child's paternity?

(2) what should the response of the court be to a proposal that paternity should be investigated by carrying out DNA testing on other children of the mother without reference to the possible father?

The Court held that if there was a substantial possibility that a person might be the child's father, that would be a factor to be taken into account alongside other factors bearing on the decision concerning notification. The weaker the possibility, the less likely the court would be to direct an investigation of paternity that compromised the mother's wish for privacy.

The issue of sibling testing arose in Re A, B and C because of the paternity issue.  Peter Jackson LJ noted the concern that existed about the appropriateness of paternity testing on demand, particularly where it is based on the consent of one parent alone. He cited the British Medical Association guidance to doctors, Consent in paternity testing, updated December 2019, which says this under the heading 'Ethical obligations':

"Although, legally, paternity testing may be undertaken without further investigation where the necessary consents have been obtained, from an ethical perspective, the BMA considers that health professionals should agree to provide assistance with testing only where this is considered to be in the best interests of the child or young person."

In relation to 'motherless testing' the guidance advises doctors to advise against it and not to participate in it.

"Legally, where the putative father has parental responsibility for the child, motherless testing (tests which do not involve testing the mother's DNA) could be undertaken without the knowledge of the mother.

The BMA believes that this could be very harmful to the child, as well as to the family unit as a whole, and would prefer to see a situation in which the consent of all parties is required for paternity testing."

In the decision of Peter Jackson LJ:

"....concerns about the harm that 'motherless' testing may cause are also potentially relevant to 'fatherless' testing: testing without notice to a father. Such covert testing of another child may amount to an unlawful breach of the Article 8 rights of that child's father and of the child. Social workers will need to take account of these legal and ethical issues when making a judgement about the appropriateness of such testing. For its part, a court should in my view be extremely cautious before approving the testing of possible siblings as a means of clarifying the parentage of a child whose mother seeks adoption. It should reflect on the fact that in the presence of one secret (the birth of the child) it is, as a public body, being asked to endorse another secret (covert testing). It should think beyond the testing to the possible consequences. The inherent ethical objections to sibling testing are therefore only likely to be overcome in compelling circumstances where the clarification of parentage is necessary and where standard paternity testing is for some reason not an acceptable option. In any case, such a course should only be contemplated after a thorough analysis that takes full account of the interests of the possible siblings.


Disclosure of information to police from care proceedings

In Re A (Children) [2020] EWCA Civ 448 the Court of Appeal were considering the issue of disclosure of information to the police.  In Re M (Children) [2019] EWCA Civ 1364 the Court of Appeal had decided that Re C (A Minor) (Care Proceedings: Disclosure) [1997] 2 WLR 322, sub nom Re EC (Disclosure of Material) remained "good law".  King LJ held:

"J has sustained devastating brain injuries at the hand of one of his parents. The police are rightly investigating the case. As the judge identified, there is little confidentiality to lose in circumstances where the police have already received the detailed finding of fact judgment together with all the medical and other evidence. What is left is the parent's inconsistent accounts, whether through their own statements or made orally to the Guardian. It is accepted that they are relevant to the police investigation even though they cannot be used as evidence. In my judgment, on any proper application of the Re EC checklist, an order for disclosure was inevitable."


Costs

Re W (A Child) [2020] EWCA Civ 77 involved a costs order against a local authority.  The Court of Appeal had allowed an appeal from care and placement orders and had decided that the local authority had not been "even handed" in its approach.  Having reviewed the authorities on costs – Re T (children) [2012] UKSC 36 and subsequently in relation to appeals Re S [2015] UKSC 20 – the Court ordered the local authority to pay the costs of the aunt.

1.6.20