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Children: Public Law Update (Summer 2021)

John Tughan QC of 4PB considers recent judgments that public law child lawyers need to know about.







John Tughan QC of 4PB

In this public law update I will consider recent cases on the following issues:

(i) the jurisdiction to limit, withdraw or dismiss a local authority's factual case prior to the conclusion of the evidence

(ii) appeals, re-opening findings and the distinction between family and criminal proceedings

(iii) "pleadings", Scott schedules and how alleged findings of fact should be presented

(iv) the extent of the duty to assess family members

(v) procedural irregularity in adoption

(vi) the applications relating to a grandmother's attempted intervention in a case where her baby grandchild was placed in a "foster to adopt" placement.

The jurisdiction to limit, withdraw or dismiss a local authority's factual case prior to the conclusion of the evidence

Does the Court have the jurisdiction to limit a local authority's factual case at the conclusion of the evidence called by the local authority and part-way through the hearing?  That was the question under consideration by Darren Howe QC (sitting as Deputy HCJ) in BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20.  In a useful review of recent authorities on the point, the Court determined that there is, indeed, such a jurisdiction.

Sir Mark Hedley in AA v 25 others (Children) (Rev 2) [2019] EWFC 64 had considered the issue and come to the same conclusion.  The correct modern approach was to be found in the decision of Munby P in Re T G (Care Proceedings: Case Management Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250:

"In this connection, that is to say dealing with evidence, I venture to repeat what I recently said in Re C (Children Residence Order. Application Being Dismissed at Fact-Finding Stage) [2002] EWCA Civ 1489.  These are not ordinary civil proceedings, they are family proceedings where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration. It has long been recognised, and authority need not be quoted for this proposition, that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without any need for oral evidence. He may decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of that evidence….The judge in such a situation will always be concerned to ask himself: Is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise?..."

Sir Mark Hedley was at pains to point out that the principle of "no case to answer" has no proper place in family proceedings but that did not detract from the Family Court's case management powers to intervene.  It would be a power used in the most exceptional of circumstances.  Examples included medical evidence changing to a benign conclusion that required no explanation from the parents or a vendetta being pursued against the parents that was an abuse of process.

In A Local Authority v W and Others (Application for Summary Dismissal of Findings) [2020] EWFC 40, [2020] 2 FLR 1219 MacDonald J noted the decision in the Court of Appeal in Re H-L (Children: Summary Dismissal of Care Proceedings) [2019] EWCA Civ 704 and decided that it remains to be seen whether Re AA can survive that decision.

Re H-L concerned the dismissal of proceedings at the case management stage, prior to the local authority calling any evidence at a fact-finding hearing.  In H-L the case management provisions were described as a "self-contained code" with detailed provisions that "make it unlikely that recourse to the more general procedural provisions will be necessary".

Mr Howe QC decided that H-L had not undermined AA v 25 others and that there was jurisdiction to dismiss care proceedings.  However, the court did not go on to dismiss the remaining local authority case without hearing all of the available evidence.  There was a purpose to hearing the respondent's evidence for a number of different reasons which included the need to examine the consistency and honesty of the respondents.

Appeals, re-opening findings and the distinction between family and criminal proceedings

Re H-M (Children) [2021] EWCA Civ 748 had a lengthy litigation history.  Following a three-week fact-finding hearing in 2019 the trial Judge made the findings of fact that included injuries, including cuts, bruises and bite marks.  The mother was identified as the perpetrator.  KF was her partner but not the father of the subject children.

The criminal trial took place in October 2019 and concluded with the jury returning verdicts convicting KF of both counts of inflicting grievous bodily harm and a count of sexual assault, acquitting the mother of those three charges and of the fourth charge, but convicting her of the charge of cruelty.

The mother applied to re-open the findings and then appealed instead.  That appeal was dismissed (see T and J [2020] EWCA Civ 1344).  The mother then renewed her application to re-open the findings.  That application was dismissed.  The mother appealed.

How did the Court of Appeal deal with the difference between the "verdicts" of the criminal court and the family court?

The Court of Appeal (Peter Jackson LJ giving the lead judgment) reviewed the history, the law relating to re-opening applications and the judgment of the court below.  There was no error of law and the judgment was careful and thorough.  Peter Jackson LJ decided that:

"A decision about whether to reopen findings of fact is highly case-sensitive. An appeal court will be slow to interfere with a reasoned decision one way or the other and will only do so where some error is manifest. In this complex case, the Judge had the marked advantage of having conducted a very substantial fact-finding hearing that left him with a distinctive view of the strengths and weaknesses of the evidence that he had read and heard. He was therefore particularly well placed to compare that evidence with the evidence given at the criminal trial. As such, his assessment attracts a wide margin of consideration.

The differing outcomes of the two proceedings rightly led to the Family Court asking whether there was solid reason to believe that its findings required revisiting. The answer to that question did not depend on the existence of divergent findings, however striking at first blush, but on a careful analysis of the underlying evidence. In this case the most striking feature was, in my view, the conviction of KF for a sexual offence. However, as the Judge explained, the evidence leading to that conviction was not materially different from the evidence that was considered by the Family Court. For reasons that seemed good to the parties and the court in the family proceedings, no party pursued a finding that KF had acted with a sexual motive. On an analysis of the evidence, to which we were taken, that does not represent any shortcoming in the fact-finding process. The same can be said in relation to the other individual issues and as to the cumulative position. The outcome of the two proceedings is in some ways incongruent, but the underlying evidence was not."

The appeal was dismissed.

"Pleadings", Scott schedules and how alleged findings of fact should be presented

In Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 involved a review by the Court of Appeal of the practice and procedure relating to domestic abuse.  The appeals arose from private proceedings but are relevant to this public law update for the treatment of the issue by the Court of Appeal.  Whilst his is a wide-ranging judgment covering many important areas of practice and procedure, I want to highlight one aspect of it for the purposes of this update.  That aspect is the use of Scott schedules to define allegations between parties.

The President said this:

"One striking feature of the dozen oral submissions heard during the hearing of these appeals was that there was effective unanimity that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid….The principled concern arose from an asserted need for the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time.  Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents.

The second, more pragmatic, criticism is not unrelated to the first. As an example in one of these four appeals, the parties were required to 'limit' the allegations to be tried to ten and the judge at trial further reduced the focus of the hearing by directing that only three would be tried. It was submitted that that very process of directed selection, produces a false portrayal of the couple's relationship…

For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be."

The extent of the duty to assess family members

In Re F (assessment of birth family) [2021] EWFC 31 Cobb J was dealing with the duty of a local authority to assess birth family members.  The question was formulated in this way:

"Within these public law proceedings, is there any obligation on the Local Authority to assess members of the 'original family' (i.e., the biological/birth family) of the mother of the subject infant child (F), where the mother herself was adopted as a child and raised by adoptive parents?"

Cobb J decided that there was no obligation to assess the mother's birth family:

"I am satisfied that the mother's birth family are her 'original' family (as per ACA 2002) but are not her current 'family' nor are they her 'relatives' as those terms are used in Part III of the CA 1989.  In that respect, their status (if any) in relation to F is materially different from the status of the extended or wider family as discussed in the caselaw referred to above….

Furthermore, the birth family's limited experience of F during a short visit in March 2020 (which culminated in a section 47 investigation as a result of the serious injury to F) falls a long way short of supporting any finding that they had acquired Article 8 rights to a family life with F.  This right is not established on the basis of biological kinship alone.

Even if the birth family could bring themselves within the definition of 'family' for the purposes of the statute/caselaw, this does not place upon the Local Authority any obligation under statute to inform, consult, assess, or otherwise consider them in circumstances such as these…"

Cobb J went on to conclude that on his own assessment the birth family could not be said to be "realistic options" as long-term carers of F.  But quite apart from those conclusions on the facts of the case, the mother had a strong opposition to the birth family being assessed and this

"…carries significant weight in my assessment this case.  I am further satisfied that involving the birth family in assessment would be likely to have a deleterious effect on the mother's fragile mental health, at a critical time when she herself is being assessed in the community as a long-term carer for her daughter. I t would also, I am satisfied, cause unwelcome and avoidable division in the relationship between the mother and her parents."

Procedural irregularity in adoption

In Re S (A Child) [2021] EWCA Civ 605 the Court of Appeal were dealing with an appeal from the refusal to grant leave to oppose adoption.  The appeal was allowed because of procedural unfairness.  Macur LJ gave the lead judgment and held that:

"In my view, the mother has a legitimate sense of grievance that, however sympathetically the judge approached her application, it was not determined properly. The consequences for her, and Z, are far reaching. It is trite to say that, however inevitable it may be, a disappointing result reached without procedural integrity will fuel a sense of injustice."

The procedural unfairness was rooted in the absence of a transcript of the original judge's judgment in making a placement order.  The new judge could not know what the baseline was against which to assess a change in circumstances.  The social worker's evidence could not rectify this as it was, inevitably, from the perspective of the local authority.  Neither could counsel's skeleton argument rectify the deficit.  The material from the local authority was "necessarily subjective" and this was unsurprising.

Applications relating to a grandmother's attempted intervention in a case where her baby grandchild was placed in a "foster to adopt" placement

In Re H and T [2021] EWFC 35 the court was dealing with young parents who had given up their baby ("H") for adoption.  The maternal family were aware of the decision, the paternal family were not.  The father told the social worker that his own mother did know of the decision.  H had been placed with foster carers immediately after birth.  At two weeks old he was placed with "foster to adopt" parents.  Just before that placement the paternal grandmother contacted the social worker.  She stated that she had only just become aware of H's existence, and wished to care for the baby immediately. She told the social worker that her son had told her that if she went ahead with this he would never speak to her again.

Before Judd J there were two applications.  The first was by the grandmother under section 10(9) Children Act 1989 for permission to apply for either a Special Guardianship Order or a Child Arrangements Order with respect to H (now seven months old). The second was an application by the local authority under the inherent jurisdiction for permission not to carry out any assessment of her as a possible carer.  All were agreed that neither application was governed by the paramountcy principle in either the ACA 2002 or the CA 1989.

The leading authority was  Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737 (Black LJ).

A major factor in the court's consideration was the firm stance of the parents.  They opposed the grandmother taking over care of H.  This meant that some of the obvious advantages of a natural family placement would not be present in the circumstances.  H would be disrupted and harmed by the granting of the grandmother's application.  The court granted the local authority's application and dismissed that of the grandmother.