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Children: Public Law Update (October)

John Tughan QC of 4PB considers the latest judgments that Public law child lawyers need to know about.

John Tughan QC of 4PB

Pandemic?  What pandemic?  The work of the public law Family Court continues apace and that should be a source of pride to the professions involved. 

There are a number of interesting decisions to report in this quarter on the following issues:

• The burden of proof
• Similar fact evidence
• Stay
• Section 33 Children Act 1989 and change of nationality
• Disclosure of asylum documents
• Injuries: withdrawal of care proceedings
• Remote hearing Issues

1. The burden of proof

Shagang Shipping Company Ltd (in liquidation) [2020] UKSC 34 was a commercial case involving allegations of corruption, including bribery and torture.  It is interesting for the debate centred on In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2009] AC 11.  Lords Hamblen and Leggatt gave the lead opinion and held this:

"99.  The requirement to discharge the legal burden of proof, which operates in a binary way, applies to facts in issue at a trial, but it does not apply to facts which make a fact in issue more or less probable. Lord Hoffmann was alert to this point in In re B as, immediately after the passage quoted above, he contrasted facts in issue with "facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened" (para 3).  So, for example, in the present case (as already discussed) it was not necessary to prove that the prospect of leniency in fact caused the confessions to be made.  That it may have done is sufficient to make it relevant to take into account in deciding whether a bribe had been paid.  Judges need to take account, as best they can, of uncertainties and degrees of probability and improbability in estimating what weight to give to evidence in reaching their conclusions on whether facts in issue have been proved. It would be a mistake to treat assessments of relevance and weight as operating in a binary, all or nothing way."

2. Similar fact evidence

R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 was a private law judgment which, it is apparent, can be read across to public law fact finding principles. Peter Jackson LJ gave the lead judgment of the Court of Appeal.  It was a case involving a Mother's allegations of coercive and controlling behaviour on the part of the Father.  She sought to rely on his previous allegedly coercive and controlling behaviour towards another woman as similar fact evidence.  At first instance the court refused to admit the evidence.  The Mother appealed.

By similar fact the court was concerned with a contention that an individual's behaviour in other circumstances makes it more likely that he will have behaved in the manner now alleged because it is evidence of a propensity to behave in that way.

Lord Bingham in O'Brien v Chief Constable of South Wales Police  [2005 UKHL 26; [2005] 2 AC 534 held:

"3. Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne [1973] AC 729, 756,

"Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ….. relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable".

4.   That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. … To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it."

That analysis, given in a civil case, applies also to family proceedings:

"23. There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind. Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted? This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O'Brien."

The next question was: to what extent do the facts relating to the other occasions have to be proved for propensity to be established?  Lord Kerr in R v Mitchell [2016] UKSC 55, [2017] AC 571 answered that question in this way:

"Propensity - the correct question/what requires to be proved?
39.              A distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case where there are several incidents which are relied on by the prosecution to show a propensity on the part of the defendant, is it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred? Must the facts of each individual incident be considered by the jury in isolation from each other? In my view, the answer to both these questions is "No".

43.              The proper issue for the jury on the question of propensity… is whether they are sure that the propensity has been proved. … That does not mean that in cases where there are several instances of misconduct, all tending to show a propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of those. The jury is entitled to – and should – consider the evidence about propensity in the round. There are two interrelated reasons for this. First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jury's deliberations on whether propensity has been proved. Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents. Each incident may thus inform another. The question … is whether, overall, propensity has been proved.

44.              … the jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established."

These principles were also applicable to civil and family cases, with appropriate adjustment to the standard of proof.

3. Stay

In Re N (Children) (Interim Order/Stay) [2020] EWCA Civ 1070 the Court of Appeal was dealing with an appeal from a decision involving the interim removal of children from their family.  As to the approach to a stay of decisions pending appeal the Court said this:

"36. A short term stay to enable an application to be considered by an appeal court before an order is put into effect is to be distinguished from a stay pending a decision on permission to appeal or a stay pending appeal. Applications for stays of the latter kind will be considered in accordance with the principles set out in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065.  By contrast, a short term stay is a purely practical remedy, distinct from the decision about permission to appeal.  The correct approach for the court to take to an application of this kind was described by Wilson LJ in Re A [2007] EWCA 899....where he confirmed that the judge should always give serious consideration to allowing an applicant "a narrow opportunity" to approach this court so that the opportunity for a successful appeal is not unfairly eroded...

37. The current arrangements are that this court can be contacted during working hours on between 9.00 am and 4.15 pm and out of hours through the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer the matter on to the Duty Clerk.  Urgent applications should whenever possible be made within court hours. Unless already filed, the applicant or the applicant's representative will be required to give an undertaking to file the necessary application form and court fee.  Instructions may then be given for the transmission of essential information by email so that the application can be considered by a judge, who may decide to grant a stay, for example until the end of the following working day, to enable further documents, such as a note of the judgment and draft grounds of appeal, to be sent to the court for consideration of the merits of a further stay."

4. Section 33 Children Act 1989 and change of nationality

Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038 held that a local authority was not entitled to take steps to change the nationality of a child in its care in the face of parental opposition and where the change might lead to a loss of the child's original nationality, without first obtaining approval from the High Court.

Compare and contrast the earlier decision of the effect of s. 33 Children Act 1989 on local authority powers relating to vaccination of children in care: Re H (A Child)(Parental Responsibility: Vaccination [2020] EWCA Civ 664.

5. Disclosure of asylum documents

The debate regarding the confidentiality of asylum documents and how properly to balance the considerations involved in questions of disclosure into family proceedings continues with H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001.  This was a private case in which the Father faced serious allegations of domestic abuse and child sexual abuse.  He was entitled, subject to certain redactions, to disclosure and inspection of documents from the Mother's successful asylum claim in which she had made the same allegations.  On the particular facts, the strong public interest in maintaining the confidentiality of the asylum system was outweighed by the father's ECHR Art. 6 and Art. 8 rights.

The Court of Appeal held that whenever a party asserted exemption from disclosure, a judge had to conduct a balancing exercise of the competing ECHR rights, in particular the right to a fair trial of the party seeking disclosure or inspection as against the confidentiality rights of the other party and any person whose rights might require protection, bearing in mind that the denial of disclosure was limited to where it was strictly necessary. That approach applied to a range of documents, such as police records, local authority files, information held by central government departments, medical records, therapeutic and counselling notes. Information relied on by an asylum applicant should not be treated any differently. The fact that it was provided on a confidential basis and the public interest in maintaining the confidentiality of the asylum process, were both factors a judge had to take into account.

6. Injuries: withdrawal of care proceedings

In Re GC (A Child) (Withdrawal of care proceedings) [2020] EWCA Civ 848 the Court of Appeal held that a judge was wrong to allow the local authority to withdraw the care proceedings.  The case involved a small displaced oblique fracture of the right parietal bone with a 5mm subgaleal haematoma overlying the fracture site.

Baker LJ summarised the principles in play: 

"19. As identified by Hedley J in Redbridge London Borough Council v B and C and A [2011] EWHC 517 (Fam) applications to withdraw care proceedings will fall into two categories.  In the first, the local authority will be unable to satisfy the threshold criteria for making a care or supervision order under s.31(2) of the Act.  In such cases, the application must succeed. But for cases to fall into this first category, the inability to satisfy the criteria must, in the words of Cobb J in Re J, A, M and X (Children), be "obvious".

20. In the second category, there will be cases where on the evidence it is possible for the local authority to satisfy the threshold criteria. In those circumstances, an application to withdraw the proceedings must be determined by considering (1) whether withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned, and (2) the overriding objective under the Family Procedure Rules. The relevant factors will include those identified by McFarlane J in A County Council v DP which, having regard to the paramountcy of the child's welfare and the overriding objective in the FPR, can be restated in these terms:

(a) the necessity of the investigation and the relevance of the potential result to the future care plans for the child;

(b) the obligation to deal with cases justly;

(c) whether the hearing would be proportionate to the nature, importance and complexity of the issues;

(d) the prospects of a fair trial of the issues and the impact of any fact-finding process on other parties;

(e) the time the investigation would take and the likely cost to public funds."

7. Remote hearing Issues

There have been several decisions in this area since the last update.  They include Re Y (A Child) (Leave to oppose Adoption) [2020] EWCA Civ 1287 which involved the court managing a remote hearing involving a litigant with hearing difficulties, the first such case before the Court of Appeal.  The parents required the assistance of sign language interpreters and a deaf-registered intermediary. It was not appropriate to give general guidance for managing cases involving litigants suffering from such disabilities in the new landscape of remote and hybrid hearings. Those issues would be referred to the President of the Family Division for consideration as to whether already published guidance on the conduct of remote and hybrid hearings in the family jurisdiction needed amendment.

In NP v A Local Authority [2020] EWCA Civ 1003 the Court was dealing with removal of children in urgent circumstances and by remote hearing.  The Court of Appeal held that the case demonstrated the difficulties facing courts required to conduct hearings remotely because of the restrictions imposed as a result of the pandemic. The recorder was faced with a series of decisions and applications which, if granted, would have removed three small children from the family for the first time. There was often no alternative to conducting truly urgent hearings remotely, but the experience of the last four months demonstrated that particular care had to be exercised when making such important decisions under what were inevitably sub-optimal conditions.

In Re D-S (Contact with children in care: Covid-19) [2020] EWCA Civ 1031 the Court of Appeal held that the ordinary principles governing applications for contact with children in care under the Children Act 1989 s.34 continued to apply during the COVID-19 pandemic, even though outcomes might be affected by the practical difficulties facing local authorities.

In Re C (Children) (Covid-19: Representation) [2020] EWCA Civ 734 the Court of Appeal refused to adjourn a fact-finding hearing because the Mother's leading counsel would be unable to attend court and would have to take part remotely.  There was no inequality of arms and the Mother's participation was not prevented.

Stay well.