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Children: Public Law Update (Winter 2022)

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

John Tughan
QC of 4PB

I hope that everyone has had a happy and peaceful holiday season.

In this update I will consider the following issues from recent decisions:

• Finely balanced appeals and the function of the Court of Appeal

• Costs orders against intermediaries/third parties

• Whether to order separate fact-finding hearings

• The approach to the issue of Covid vaccinations

• Children with disabilities and s31 CA 1989.

Finely balanced appeals and the function of the Court of Appeal

The case of H-W (Children: Proportionality) [2021] EWCA Civ 1451 is interesting for the treatment the Court of Appeal gave to the judicial reasoning of the Court below as well as the function of the Court of Appeal.  Peter Jackson LJ gave the lead judgment but was in the minority in terms of the outcome of the appeal.  It was an appeal by the mother of the children from care orders with a plan for removal of the children into foster care.

The background over many years and throughout the mother's life was of sexual abuse and gross neglect, leading Peter Jackson LJ to note that his compressed background of the history does not reflect the volume of information across decades in relation to this family.

The first ground of appeal was that the expert risk assessment was permeated by a number of unproven, and in some case mistaken, facts.  That, it was said, offends the distinction drawn by the law between facts and concerns.  Peter Jackson LJ held that there was nothing in this argument:

"In the administration of justice, the court acts only on proven facts, but it is not entitled to insist on other professional disciplines taking the same approach. A psychiatric assessment may be based on information of all kinds, and not merely on matters that are more probably true than not. Provided there is clarity about what the position is, the court is able to make its own assessment of the weight that can be given to the opinion. That is what the Judge did in cautioning himself about the limited aspects of Dr Freedman's advice that were based on error or contentious information. There is nothing unusual about that and this ground of appeal can in my view be set to one side."

This was clearly a difficult case with an enormous history.  Peter Jackson LJ concluded that the judge was wrong.  The judgment did not sufficiently balance the advantages and disadvantages of the children being removed.  It did not consider the continuation of the non-molestation order and other protective provisions in order to ameliorate the risk of sexual abuse posed by A.

Laing LJ and Lewison LJ did not agree that the judge was wrong.  Whilst they had some criticisms of the judgment, the judge had clearly decided the issue of the mother's ability to safely care for the children and to learn sufficient skills into the future.

Laing LJ found that she too shared the misgivings as to the outcome.  However, ultimately the role of the appeal court was stated in this way:

"In a case like this, there is a temptation for an appellate court to wish to reflect, in its decision, its unease about, or disagreement with, the decision of the fact-finder, particularly when a case is as finely balanced as this case is. But it is precisely in the very hard cases that the appellate court must take the greatest care to resist that temptation. There is no identifiable error of law in the approach of the Judge. He has been immersed in this case for a long time. I do not think that it could be suggested that there is any aspect of this case which was not present in his mind when he delivered his ex tempore judgment, even if he has not mentioned every point expressly, or analysed the case in the same way as another judge might have done."

Lewison LJ cited Lord Wilson in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33:

"The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask "are the local authority's concerns about the future parenting of the child by this witness justified?" The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge's decision about the future arrangements for a child."

Lewison LJ continued:

"…As I read the judgment, the judge was particularly impressed by the fact that less intrusive interventions had been in place for many years, with little sign of success. M had undertaken courses but was not able to put into practice what she had learned. Contrary to M's evidence he considered that she still had a blind spot for A….

…In cases which are marginal it is, in my judgment, all the more important to trust to the wisdom and discretion of an experienced family judge, particularly one who has been immersed in the evidence, not only in relation to the welfare decision but also the prior fact-finding decision.  I agree that the judge's decision to leave F at home is questionable, but that is not the subject of any appeal before us.

Although Lord Neuberger's dissection of the concept of "wrong" in Re B at [93] has perhaps been overtaken by events (see R (Z) v Hackney London Borough Council to which Peter Jackson LJ has referred), I find myself in the uncomfortable position of reviewing a decision which I cannot say was right or wrong. In that situation Lord Neuberger considered that the appeal should be dismissed."

Costs orders against intermediaries/third parties

In A Local Authority v Mother & Ors [2021] EWHC 2794 (Fam) Lieven J ordered costs against an intermediary in care proceedings.

The original intermediary was DM.  DM had been instructed to assist the father.  As a result of a diary clash and two days before the hearing was due to commence, DM wrote:

"…I have a network of intermediaries where we have been overwhelmed with demand for services….

However I have asked MH to stand in for me. MH has acted as intermediary for XX numerous times and comes with the experience of special educational needs. She is competent and available and is able to serve for the durations of the listing…. I will completely handle the hand-over."

At the trial it became apparent that MH had not seen the pre-agreed questions for the father, had no knowledge of the relevant advocates toolkits, and had read neither the cognitive assessment nor the intermediary assessment.  On investigation it became apparent that MH was an English teacher who supports people in a capacity she described as a "life coach".  Her experience as an intermediary spanned two weeks.

The judge adjourned the hearing.  The parties to the care proceedings sought costs against DM and MH.  The costs issue was transferred to the High Court.  The two intermediaries appeared before Lieven J (in person).

Lieven J summarised the relevant provisions and case law including s.51 of the Senior Courts Act 1981 and the FPR r46.2:

"Section 51(3) of the SCA provides:

"51(3) The court shall have full power to determine by whom and to what extent the costs are to be paid."

The ability to make a costs order against an expert was considered and confirmed by Keehan J in Re ABCDEF [2019] EWHC 406 (Fam) . That case concerned an expert whose palpable defaults had led to the need to adjourn a trial. Keehan J made an order for the costs that had been wasted by the adjournment to be paid by the expert. The facts of the case are different, and Keehan J's decision turned on the expert's failure to comply with court orders. However, the principle that a third party, who is not a funder but who is involved in court processes, can be subject to a costs order is established.

There is no doubt that the Court has the power to make an order against a third party if the requirements of s.51 are met.  In Dymocks Franchise System v Todd (Costs) [2004] UKPC 39, the Privy Council considered the principles applicable for making a third party costs order. Many of those principles are irrelevant because they relate to costs orders against funders. At [25] the Privy Council said:

"(1) Although costs orders against non-parties are to be regarded as "exceptional", exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such "exceptional" case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against."

Although there was a great deal of case law in relation to the causal link between the third-party default and the costs incurred, in this case the issue of causation was obvious.  It was also held that the role of intermediaries was "not particularly clear" under Part 3A.1 FPR.  However, that absence of clarity was neither here nor there as the real issue was the misrepresentation by DM and not the lack of guidance or any default by the court or parties.  DM had asserted that MH was a competent and experienced  intermediary and she was not.  He had acted inappropriately in putting forward MH.  The s51 Senior Courts Act test of exceptionality was met and a costs order was appropriate in relation to the wasted costs.

Whether to order separate fact-finding hearings

In Lincolnshire County Council v CB & Ors [2021] EWHC 2813 (Fam) Lieven J was considering the listing of a hearing in care proceedings.  The local authority and guardian sought a five-day final hearing while the parents sought a separate 20-day fact-finding hearing.

XE was 11 years of age when he died.  The threshold allegations went "way beyond" XE's death and extended to drug use by the parents, emotional harm and failing to meet the needs of the children including via a lack of supervision, domestic abuse and neglect.  XE had cerebral palsy, could not walk, move, hold his body weight and was non-verbal. 

There was no dispute that XE died from drowning in the bath.  The issue on the parental evidence was described by Lieven J in this way:

"It is apparent from this account that there are only two areas of factual dispute between the parents: what precisely DE said to the Mother in the kitchen before he went out, and who left the taps on. The police have now decided not to charge either parent with murder or manslaughter, but a decision has not yet been made as to whether they will be charged with drug related offences."

The issue of XE's death was live and before the court.  The local authority and guardian argued that it could be determined in a five-day composite final hearing and the parents argued for a 20-day fact-finding hearing with multiple witnesses.

In setting out the approach of the court, Lieven J recorded that there was a broad discretion in relation to case management decisions.  The starting point was rule 1.1 of the FPR.  The Court of Appeal in Re H-D-H (Children) [2021] EWCA Civ 1192, [2021] 4 WLR 106 had recently confirmed the continued applicability of the principles set out by Mr Justice McFarlane (as he then was) in A County Council v DP [2005] EWHC 1593 (Fam), [2005] 2 FLR 1031, in particular

"24. The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount);

b) The time that the investigation will take;

c) The likely cost to public funds;

d) The evidential result;

e) The necessity or otherwise of the investigation;

f) The relevance of the potential result of the investigation to the future care plans for the child;

g) The impact of any fact finding process upon the other parties;

h) The prospects of a fair trial on the issue;

i) The justice of the case.

25. I am well familiar with the concept of 'necessity', arising as it does from ECHR Art 8 and, indeed, from the pre Human Rights Act 1998 case law to which I have been referred. It is rightly at the core of Mr Tolson's submissions in this case and, without overtly labouring the issue by including substantial descriptive text in this judgment, it is at the forefront of my consideration of the point. Amongst the pertinent questions are: Is there a pressing need for such a hearing? Is the proposed fact finding hearing solely, as Mr Tolson puts it, 'to seek findings against the father on criminal matters for their own sake?' Is the process, which will be costly and time consuming, with potentially serious consequences for the father if it goes against him, proportionate to any identified need?"

Lieven J held that in the present case delay in planning for the children was a particularly weighty factor.  The welfare of the children was not paramount in this consideration.  The impact on court resources and other cases is a relevant consideration but the true question is whether a fact-finding hearing was necessary:

"As the President of the Family Division set out in The Road Ahead (both 2020 and Addendum in 2021), in current circumstances the Family Courts do not have the resources to undertake hearings which do not meet the test of strict necessity. It is therefore essential that this test is properly applied, with appropriate scrutiny by the Court, even if the parties themselves do not argue against a fact finding hearing. The Court must be careful to ensure that there is a proportionate and effective use of court time. It is well known that the family justice system has come under very severe pressure during the Covid pandemic.  Delays in the hearing of cases have become very much more lengthy and only through more rigorous case management will the delays be materially reduced.

The outcome in the present case is in my view clear cut. The factual dispute between the parents in relation to XE's death is a very narrow one, namely what DE said in the kitchen to the Mother and who left the taps on. Only the parents were witnesses to these two events, save possibly for A, and none of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct, and thus best, evidence of the Mother and DE's immediate responses at the time of the incident."

The approach to the issue of Covid vaccinations

In Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) Poole J followed Re H (Parental Responsibility: Vaccination) [2020] EWCA Civ 664

The same principles applied to the Covid-19 and winter 'flu vaccinations.  In the absence of specific evidence contra-indicating routine vaccinations the decision was not a "grave" one and a local authority can consent to such vaccinations pursuant to s33(3)(b) CA 1989.

Children with disabilities and s31 CA 1989

In Re W [2021] EWHC 2844 (Fam) Hayden J repeated the well established problems of applying the principles of child protection pursuant to Part IV CA 1989 to children with disabilities, and said this:

"It is important to emphasise that the provision "not being what it would be reasonable to expect a parent to give" is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child."