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Children: Public Law Update (March 2021)

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






John Tughan QC of 4PB

In this update I will consider the following recent cases and issues:

• The inter-relationship of criminal findings with facts found in care proceedings

• When to seek clarification of a judgment (and when not to do so)

• The power to control documentation within the proceedings and afterwards

• The refusal of placement orders

• The competence of a child to give instructions, the interplay with his autism, passage of time between assessments of competence and the difference between public and private law issues

• When findings of fact are open to a court

• Recusal

The inter-relationship of criminal findings with facts found in care proceedings

The case of Re T and J [2020] EWCA Civ 1344 raised issues relating to the inter-relationship of facts found in the care proceedings with those found in criminal proceedings.  The Court of Appeal heard the Mother's appeal against facts found in the family court.  She had been found to have inflicted some of the bruising, bite marks and lacerations to an 18-month-old child and was found to be in the pool of perpetrators for some of those injuries.  The injuries occurred shortly after she had commenced a new relationship with K.  In the care proceedings K refused to give evidence.  The judge found that K had been out of the home at the relevant time and that the Mother had inflicted the injuries.  At the criminal trial of K the Mother changed her account to say that K was in the home.  K was convicted of causing grievous bodily harm and sexual assault while the mother was acquitted of GBH but convicted of cruelty.  The mother then appealed the findings within the care proceedings.

Part of her grounds of appeal were that the care judge had failed to draw adverse inferences from K's refusal to give evidence in the care proceedings.

The Court of Appeal (Baker LJ giving the lead judgment) held that:

"neither the fact that a jury has reached a verdict on criminal charges that is inconsistent with earlier findings in care proceedings nor the simple fact (if it be true) that the evidence heard by the jury was different from, or more comprehensive than, that adduced before the judge in the family proceedings is sufficient by itself to justify the conclusion that the findings in the family proceedings were wrong so as to require an appellate court to overturn the findings. It may, however, be sufficient to justify a reopening of all or part of the fact-finding hearing."

On the issue of the failure to draw an adverse inference from K's refusal to give evidence, the Court set out the law and concluded that the judge was not obliged as a matter of law to draw such an inference.  He declined to infer that K was the perpetrator but did take into account the refusal to give evidence in his overall analysis.  The judge could not be criticised for his approach.

The Court repeated that the Children Act 1989 Pt XII s.98(2) only gave protection against the admissibility of statements in criminal proceedings and not against their use in a police enquiry into the commission of an offence.

The case had involved two applications to re-open the fact-finding process, both refused.  During the appeal the local authority indicated that it would no longer oppose a further application to re-open the facts.

When to seek clarification of a judgment (and when not to do so)

The case of Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 was a case in which the Court of Appeal overturned findings of sexual abuse.  There is an interesting analysis of the deficits of the fact-finding judgment, which included the conclusion that the judge had compartmentalised the evidence.  The Court went on to consider when clarification of a judgment should be sought.  Baker LJ set out the earlier relevant decisions and the current practice direction and held that:

"...where the omissions [from the judgment] are on a scale that makes it impossible to discern the basis for the judge's decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal."

Peter Jackson LJ held that:

"It is of course the responsibility of the trial judge to give sufficient reasons. But all judgments are capable of improvement and where there has been what the Practice Direction refers to as 'a material omission from a judgment' the court is required to 'provide additions', either on its own initiative or on request. That will be particularly suitable where an issue has escaped attention or where a part of the reasoning is not fully clear or needs amplification. Where the line is to be drawn will depend on the circumstances, but there will come a point where what would be required would not be additions but foundations. In those circumstances, the difficulties in returning to the trial judge were explained by Wall LJ in Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, when, speaking of that case, he said:

'47. The difficulties about the Emery Reimbold solution are, in my judgment, legion. I put on one side the fact that this was a reserved judgment. What strikes me with greater force – if my analysis is correct – is that the judge has made up his mind without properly considering the evidence of Dr. T, Messrs M and F and the guardian. Were we thus to invite him to reconsider, he would be bound to reject their evidence. To put the matter another way, the conclusion which he has reached would render impossible a proper judicial discussion of that evidence. Equally, were the judge to change his view and find the threshold satisfied, neither the mother nor the father would have any confidence in the judge's final conclusion.'"

The power to control documentation within the proceedings and afterwards

In Re R (Children: Control of Court Documents) [2021] EWCA Civ 162 the Court of Appeal considered the power of the court to control documents.  The issue arose when an intervenor ("R") appealed against a decision that he was not entitled to physical copies of the judgment or the written submissions.

As to the power to withhold documents, Peter Jackson LJ (giving the lead judgment) held that there was no doubt that there was such a power and went on to conclude that:

"When faced with an application to withhold documents or information, the court is required to uphold the rights protected by Articles 6 and 8, and possibly Article 3. In family proceedings, the right to respect for private life will almost inevitably be engaged, but the transmission and preservation of private information in documents is a necessary part of any system of justice. There will however be rare cases where the possession of documents may amount to more than an interference with privacy. In this case the Judge considered that the use of descriptions of the children's abuse for the sexual gratification of the abuser and others would amount to subjecting them to degrading treatment within the meaning of Article 3.   Whether that is so in a given case will depend on the circumstances: Kudla v Poland (2000) 35 EHRR 198 at 91-92.  But the fact that there are cases in which a breach of Article 3 comes into question makes it self-evident that the court is entitled and may be obliged to control the possession and distribution of documentation. The existence of that power is reflected in the Rules....

....In plain language, R has everything he needs to understand the Judge's decision. He should not be allowed to prolong his abuse of these children by being given possession of graphic descriptions of what he has done to them, and he is not to be trusted not to pass the material on to others like him."

The refusal of placement orders

In T & R (Children) (Refusal of Placement Order) [2021] EWCA Civ 71 the Court of Appeal determined an appeal by a local authority and guardian against the refusal of a placement order.  The family were members of the traveller community.  Following findings of fact the local authority's care plan was for long term foster care for the four older children and adoption for the two younger children.  The judge made care orders and approved the care plans for the elder children.  He refused to endorse the plan of adoption for the younger two children, dismissed the placement order applications, invited the local authority to reconsider the plans and made interim care orders.

The judge summarised the views of the local authority social worker as:

"the need for permanence was the ultimate goal and it came above the need to maintain the children's culture and heritage and with that, inevitably, the risk of contact never taking place were there to be an adoption."

The consensus of all the professionals was that T and R should be placed for adoption.  The Court of Appeal (Baker LJ giving the lead judgment) decided that the Judge was entitled to conclude as he did.  Following the decision in Re B (A Child (Post Adoption Contact) [2019] EWCA Civ 29 which re-stated the law on post-adoption contact orders and confirmed that it would be an extremely unusual case in which such orders were justified, the judge was entitled to conclude that post-adoption contact might not take place and there was clearly a risk that post-adoption sibling contact might not take place.  The cultural heritage and sense of belonging that these children had was a real and legitimate factor and the absence of post-adoption parental contact was also a risk.  Given the evidence, it was a risk that the judge was entitled to conclude should not take place.

In refusing to make placement orders in respect of two younger children (aged three and two), the judge was entitled to depart from the professional witnesses and guardian.

The competence of a child to give instructions

Z (Interim Care Order) [2020] EWCA Civ 1755 is an interesting case on issues surrounding the interim removal of children from the care of their parents.  This was a private case involving allegations of alienation.  The 15-year-old boy with autism was assessed in July as not having the capacity to instruct a solicitor.  That assessment was made within the private proceedings.  In November the issue before the court was the removal of the boy from his Father's care into a foster placement pending his move to his Mother's care.  The interim care order was granted with a care plan of removal.

The Court of Appeal (Baker LJ in the lead) allowed the appeal for a number of different reasons including procedural irregularity and the fact that the Father's evidence was not heard at the interim hearing. 

However, Baker LJ also considered the assessment of competence of a young person to give evidence, noting that the rules were "far from straightforward".   Proceedings brought under s8 were distinct from those brought under s31 Children Act 1989.  The latter are "specified proceedings", the former are not.  Different rules apply to each, with considerable overlap.  

"Attitudes to the direct participation of children in proceedings have evolved in recent [in Re W (A Child) [2016] EWCA Civ 1051] Black LJ observed (paragraph 27):

'The question of whether a child is able, having regard to his or her understanding, to instruct a solicitor must be approached having in mind this acknowledgment of the autonomy of children and of the fact that it can at times be in their interests to play some direct part in the litigation about them. What is sufficient understanding in any given case will depend upon all the facts.'

 It is also important to note the observation of this Court in Re S (A Minor) (Independent Representation) [1993] 2 FLR 437 that 'understanding is not an absolute. It has to be assessed relatively to the issues in the proceedings'."

Baker LJ emphasised the burden that was incumbent on a court when dealing with a child with disabilities.  It was wrong of the court to have relied upon the earlier assessment of competence:

"...Four months had passed since that assessment and, at Z's age, the passage of such a period of time may be significant.  Secondly, the distinction in the rules between specified and non-specified proceedings obliges the court to ensure that any assessment of competence in public law proceedings focuses on the issues arising in those proceedings which involve the statutory intrusion into family life and therefore inevitably an interference with Article 8 rights. Thirdly, on the specific facts of this case, the primary issues in the two sets of proceedings were different. The primary issue in the private law proceedings was whether Z should have contact with his mother. The primary issue in the public law proceedings at the interim stage was whether he should be removed from his father. If, as this Court observed in Re S, the level of understanding has to be assessed relatively to the issue in the proceedings, Z's understanding of the issues surrounding the proposal that he be removed from the family home may be materially different to his understanding of the issues relating to contact with his mother."

When findings of fact are open to a court

The case of X, T, A, E and S (Children) [2020] EWCA Civ 1680 involved a complicated factual background and an unusual decision for the court hearing fact-finding issues, namely whether T's injuries were inflicted by another person or self-inflicted.

Baker LJ (giving the lead judgment and allowing the appeal to a limited extent) had no difficulty in concluding that the judge was entitled to determine that some of the injuries were inflicted and that the other children were exposed to emotional harm as a result.  The difficulty arose in the decision as to the reasons for T's self-harming in relation to some of the other injuries.  The judge had concluded that it was as a result of emotional harm or neglect.  That conclusion was to go too far.  Such a conclusion was not sought, was not part of cross-examination by the local authority and was properly a question for the welfare hearing.


Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685 was a private law case dealing with issues of recusal, the appearance of bias and the correct procedure to be employed on such issues.  In that case the judge was wrong to have recused herself.