SUMMARY OF RECENT CASE PUBLIC LAW (FAMILY: CHILDREN)

QUARTERLY DIGEST

OCTOBER to DECEMBER 2018


PUBLIC LAW

Adoption

BT & GT (Children: twins – adoption) [2018] EWFC 76

29th November 2018

Keehan J

Care and placement orders were made in 2015 in respect of twins aged 5. The care plan was for a joint adoptive placement and failing that, joint placement with foster carers. A year after the final orders were made the local authority took the decision to place the children separately. There were no records relating to that decision and a sibling attachment assessment was only undertaken three months after the decision had been made. The care plan was not uploaded onto the local authority’s IT system. The sibling assessment ‘completely misrepresented’ the court’s care plan and was written with the plan for separation already determined; the judge found that the author of the sibling assessment had deliberately misrepresented the opinion of an expert psychologist, whose opinion was contrary to the local authority’s recommendation. In 2017, the twins were matched and placed with separate prospective adopters. It later emerged that important and highly relevant information had been deleted from the children’s Child Permanence Reports and Adoption Support Plans by the adoption team manager in order to mislead potential adopters as to the children’s challenging behaviours. The local authority had further decided, without recording why or how, to curtail sibling contact such that the twins saw each other just twice in the space of 11 months.

In October 2017, the local authority decided to end one of the placements under s35(2) ACA 2002, over purported concerns as to the care being provided; this decision was reversed a month later, with the local authority accepting it was ‘entirely misconceived’. For the avoidance of doubt and any future obstacles, Keehan J sitting as a judge of the Administrative Court, granted permission for and deemed an application for judicial review by the adopters; in which he quashed the decision to issue a s.35(2) notice on the basis of irrationality.

In late 2017 and in early 2018, the prospective adopters in respect of each child made separate applications for adoption. HHJ Plunkett noticed the sibling connection and allocated both applications to Keehan J. The adoption agencies and the twins’ older siblings were joined as interveners. All parties now agreed that the children should be adopted in the current, separate placements. Keehan J had hoped either to reunite the children or to make an order short of adoption, so as not to sever their legal relationship as siblings.

The Anna Freud Centre was instructed and recommended that the twins remain separated in their current placements, but continue to have a relationship. An adoption order was recommended, in preference to an SGO, due to the children’s likely ongoing vulnerability beyond their minority. The judge was persuaded, in particular by the evidence of the Centre, to make the orders sought. However, he was clear that but for the failings of the local authority there was a real possibility the children could have been placed together. An order for sibling contact was not made, as the judge was confident that the adopters would facilitate contact.

Damages were awarded to the adopters and to the children under HRA 1998 for extensive and grave breaches, that were admitted by the local authority. The local authority agreed to pay the children’s legal costs, though Keehan J concluded that the local authority’s limited resources would be better applied to securing urgently needed reforms.

Re C (a Child) [2018] EWHC 3332 (Fam)

6th November 2018

Cohen J

The mother became pregnant at the age of 13. She made it clear that she was unable to care for the child and that she wished for the child to be adopted. The court concluded that the father should not be informed of the birth as the mother was very young; it was likely that her education would be terminated and she would become socially isolated if knowledge of the birth became known by the community; she was psychologically vulnerable; she had genuine fears about what the father might do (speculative but not fanciful); the father and his parents did not appear a realistic option to provide a safe and secure home for the child; and the child would have the means by life story work to seek out her father in the future if she wished to.

In determining that the father should not be informed of the birth, the court highlighted the following principles:

  • Whilst circumstances would need to be exceptional to justify the exceptional remedy, that does not mean there has to be one magnetic factor. The combination of circumstances, none in themselves exceptional, may, when aggregated, satisfy the test;
  • a holistic exercise considering all the circumstance should be conducted in considering whether the test is met. This includes an assessment, however imperfect, of what the paternal family is likely able to offer;
  • the fact that the mother could if she had known, have declined to name the father and thus avoid this problem with which she and the court were faced is not a relevant factor, although its impact on the mother may be relevant;
  • the local authority had issued care proceedings (although waited until the child was two and a half months old before doing so). The court made clear that this was not the appropriate procedure for a child relinquished at birth in accordance with Re A [2016] EWFC 25 and Re TJ [2017] EWFC 6 and had caused delay. The local authority was therefore given permission to withdraw care proceedings and issue an application under Part 19 of the FPR 2010 (as set out by r.14.2(1)) to invoke the inherent jurisdiction.

H (Children) [2018] EWFC 61

18th October 2018

Sir James Munby sitting as a judge of the High Court

In care proceedings, the father was found to have inflicted injuries upon the parents’ six week old daughter. The mother was exonerated. Despite these findings, the Crown decided to prosecute both parents. There was a long delay before the criminal proceedings were concluded. The trial judge directed the jury to acquit the mother. The father was found ‘not guilty’.

The effect of the criminal proceedings on the mother were that: Her bail conditions hindered the ability to assess her as a carer for both children (applications to vary her bail conditions were opposed by the prosecution and refused by the Crown Court); she lost her accommodation; the mother and the wider family were subjected to very considerable stress.

In week 116 of the family proceedings, the court finally made a final order whereby the child was placed with the mother, supported by a supervision order. Prior to the final hearing, on the application of mother the matter came before Sir James Munby to “look at the wider ramifications of delay in proceedings in the family court”.

Sir James Munby analysed the case law and principles in relation to the engagement of the family court with other courts, agencies and public authorities:

  1. There is a fundamental point of principle that the High Court cannot exercise its wide powers to intervene on the merits in an area of concern entrusted to another public authority.  This means that a family court cannot dictate to another court or agency how to exercise its powers, and the ambit of family court judicial decision making is constrained by the extent of the resources made available by other public bodies
  2. The family court cannot direct that resources be made available or services provided.  It can only persuade but must not apply pressure
  3. These principles apply to all family courts – the High Court has no greater powers than the family court in this respect, even if the child is a ward of court
  4. In such situations the family court will need the fullest and most up-to-date information, whether this is as to resources that will be provided (such as housing) or as to where a decision-making process has got to and the likely time-frame
  5. Consideration must be given to the most appropriate form of engagement for the third party decision maker with the family court
  6. The third party decision maker should not be made an intervener and should not be required to argue its case in the family court
  7. The family court can properly seek information from the third party decision maker as to the progress of the decision making process and the disclosure of documents
  8. Where the third party decision impacts on the ability of the family court to perform its task, the family court can legitimately ask the third party decision maker to explain the decision made and may pose questions probing the decision in order to properly understand it
  9. The family court must not require the third party to justify the decision or exert any pressure to change the decision
  10. Where necessary for the disposal of the family proceedings, the family court can order the third party decision maker to disclose relevant documents or give evidence
  11. Several protocols have been issued to address the practical difficulties with disclosure identified previously and facilitate the exchange of information between the family court and other decision makers and justice systems.  Those protocols do not appear to be working as well as hoped
  12. If any public authority to whom an order is directed by a family court wishes to challenge that order, the authority must, before the time for compliance has expired, appeal the order or (if made without notice and in the absence of the authority) apply for the order to be discharged or varied. A failure to do so may result in contempt of court proceedings

Further, it was suggested that in some cases it is appropriate to consider how best to communicate not just information, but also the family court’s thinking or explanation of what it is trying to achieve, and the objectives for the child and family.


Fact Finding

B (A Child) [2018] EWCA Civ 2127

4th October 2018

Peter Jackson and Newey LJJ and Lady Justice Asplin

In care proceedings, the parents accepted that only they could have caused injuries to their child (leg and rib fractures). In the proceedings, the following evidence was unchallenged:

a. There were three separate applications of force occurring on between one and three occasions within about 10 days of admission to hospital;

b. The injuries were unlikely to be deliberate, but rather the loss of control. It was most unlikely that they were caused by more than one parent;

c. Both had the opportunity to cause the injuries during the relevant time, but the mother had a greater opportunity by virtue of her role as primary carer and the father’s return to work;

d. There were no obvious risk factors in relation to the parents, and a number of positive factors in relation to each of them. They had worked as a team to care for the child and were attuned to his needs;

e. The house was a small one in which if both parents were home, it would be difficult for one parent to cause injuries of this scale without the other becoming aware;

The Recorder accepted all of the above and, after hearing oral evidence at a fact finding hearing, made a finding that the mother had caused Nathan’s injuries and that the father had not. He found that this had not been deliberate or malicious, but the actions of a mother who had lost control at a time when the stress of caring for a young baby overwhelmed her.

The mother appealed on two grounds:

(i) The finding against the mother was unfair on the basis that no party put an explicit case to her that she should be identified as the sole perpetrator, and she had not been questioned about other matters relied on by the recorder;

(ii) The Recorder applied the wrong legal test, comparing the parents against each other and finding the mother the likelier perpetrator, rather than considering each parent individually.

Held: Appeal dismissed.

Peter Jackson LJ gave the lead judgment. There was no possible way that the mother could have considered herself ‘immune from jeopardy’. Given the supposition that the father (and the local authority) had no knowledge of when the injuries occurred, it was difficult for blunt challenges to be put in cross-examination. Instead a detailed cross-examination focussing on the surrounding circumstances was undertaken on behalf of the father, which can only have been understood as being a means of furthering his case that he did not cause the injuries.

Peter Jackson LJ summarised the law relating to fact-finding exercises where there are two possible perpetrators: The court must first assess whether there is sufficient evidence to identify a single perpetrator on the balance of probabilities. If there is not, the court must then consider in relation to each possible perpetrator, whether there is a real possibility that they might have caused the injury, and exclude those of which this cannot be said. There will be cases where a court cannot identify a single perpetrator and the court should not strain to do so. Applying these principles to the case, Peter Jackson LJ held that the judge undertook precisely the right exercise, finding on the balance of probabilities that the mother caused the injuries.

A and Anor v Northamptonshire County Council & Ors [2018] EWHC 3244 (Fam)

17th October 2018

Keehan J

In 2012, the court made findings that the mother had inflicted multiple non-accidental fracture injuries to her then 7 week old child. At the fact-finding hearing, the court ruled out any underlying condition that would have pre-disposed the child to fractures. The child and her siblings were made the subjects of Special Guardianship Orders in favour of the maternal grandparents. The mother, supported by the father sought permission to set aside the findings on the basis that there was new evidence to suggest that at the time that the injuries were sustained, the child was vitamin D deficient and suffered from osteopenia. The local authority opposed the application.

Held: Application to set aside findings dismissed.

Keehan J reviewed the law in respect of re-opening findings of fact. The parents produced evidence from an expert who had not been involved in the fact finding hearing. Keehan J concluded that there was no material difference between his conclusions and those of the experts who gave evidence in the original proceedings. There was no evidence that the child was suffering from, or had ever suffered from, a disease or organic process that would predispose her to suffer fractures.


Lucas Direction

Hertfordshire CC v Ms T and Mr J [2018] EWHC 2796 (Fam)

3rd August 2018

Keehan J

These were care proceedings relating to the Afghani father’s and the Latvian mother’s two children. The parents were arrested on suspicion of people trafficking.  Five indecent videos were found on the father’s phone; four of which showed the father having sexual intercourse with a 12 year old girl. Interim care orders were made in respect of both children. The foster carer noted sexualised behaviour.  The child A alleged that he had been sexually touched when he was 6 or 7 years old.  He had told his maternal grandmother who told him not to speak about it to anyone.  There was intelligence that the parents planned to leave the United Kingdom with the children.  The father did not answer bail and did not subsequently participate in the care proceedings. The mother confirmed to the social worker that the grandmother had told her about child A’s allegations of sexual abuse and that nothing was done.

Keehan J summarised the standard and burden of proof, the threshold test, the paramountcy and welfare principles, and the articles 6 and 8 rights of the parents and the children. He gave himself a revised Lucas direction that he “should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied“. He took into account the decision in Re H-C [2016] EWCA civ 136, citing McFarlane, LJ, including at paragraph 10 that “Judges should, therefore, take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt“.

Keehan J went on to find that the mother either grossly minimised the risks that the father presented or that there was a degree of collusion in the abuse of child A. The mother characterised the father’s sexual abuse of the 12 year old girl as an affair and put the blame on the girl. The judge noted from the evidence, a catalogue of abuse of the children at the hands of their parents, of which the children had spoken and of their indulging in and demonstrating sexualised behaviour.

The judge found that the mother was a wholly unsatisfactory witness who repeatedly lied in her evidence to deceive the court and to cover up her actions or those of the father. He concluded that the mother lacked any insight into the damage done to the children in the care of her and the father.  The mother’s anger at the 12 year old girl’s abuse by the father, and her categorisation of what was taking place as an affair “demonstrates a skewed and perverted view of sexual abuse to a very, very high degree.”
The judge concluded that both children had suffered significant physical, emotional, psychological and sexual abuse, and were at risk of doing so if returned to the mother’s care. The harm was suffered most especially at the hands of the father, but also of the mother.  If the father reappeared in the children’s lives the risk of harm to the children was properly characterised as grave. There was no prospect of the mother making sufficient or sustained changes to be a safe parent in the foreseeable future commensurate with the needs of the children.

Care orders were made on the basis of placement with foster carers.


Special Guardianship

A (A Child) [2018] EWCA Civ 2240

16th October 2018

Peter Jackson, Newey and Lewison LJJ

These were care proceedings concerning one child. Both parents had mental health problems. The mother’s elder two children were already the subject of SGOs in favour of the grandmother, who lived in England. The grandmother was unable to care for the latest child. The maternal family supported by the local authority proposed that he be cared for in Ghana by the grandmother’s first cousin and her husband. The Guardian was concerned at the prospect of this child growing up away from his family in England and in particular, his siblings. The Guardian favoured an SGO in favour of the foster carers, who were in agreement. There were positive SGO assessments in respect of both sets of potential carers. The judge at first instance ruled in favour of the foster carers, because this would better maintain the link with family members in England. The Local Authority appealed.

Held: Appeal allowed

The judge’s reasoning did not have the necessary depth and detail to underpin a decision of this importance, and for the following reasons neither the Judge’s welfare assessment nor her proportionality evaluation could stand:

  • The Judge did not show that she had sufficiently balanced the powerful arguments in favour of the foster carer’s claim against the powerful arguments in favour of a placement with the extended family members in Ghana;
  • The Judge did not show that she had adequately weighed the risks inherent in each placement;
  • The tipping factor in the Judge’s evaluation sprang from the only contested issue. This, combined with the absence of a systematic checklist analysis, left open the possibility that this issue was given more weight than it could properly bear;
  • The judgment did not sufficiently explain why it was necessary for the child to grow up in foster care when he had available to him a placement in his natural family that also offered the prospect of significant time spent with close family members, nor did it explore the consequences for him of being the only member of his family to grow up outside it.

It was not clear what conclusion the Judge would have reached had she addressed matters more fully and there must therefore be a re-hearing before a Judge looking at the matter entirely afresh and independently.


Transfer of Proceedings

Re S [2018] EWHC 3054

29th October 2018

Mr D.R.L. Garrido QC sitting as a Deputy High Court Judge

The mother whilst pregnant with her child S, moved from England to the Republic of Ireland. When S was born, the Irish Child and Family Agency commenced care proceedings and S was placed, in the interim, with foster carers in the Republic of Ireland. The Irish court granted an application for the transfer of jurisdiction from the Republic of Ireland to England and Wales (the mother’s family lived in England and the mother herself had been a subject child in care proceedings in which there had been expert assessments). The English court accepted jurisdiction and made an interim care order approving the plan for S to remain in foster care in the Republic of Ireland. The IRH/EFH was set down to take place in December 2018, and the final hearing in January 2019.

M disclosed that she was pregnant with X, with an expected date of delivery in November 2018. M applied for the transfer of jurisdiction of S’s proceedings from England and Wales back to the Republic of Ireland, pursuant to Article 15 Brussels II revised. The application was supported by the father, but opposed by the local authority, the guardian, and the Irish Child and Family Agency. This raised a novel point of law as to whether Brussels II revised permitted a transfer of jurisdiction for a second time. Recital 13 to Brussels II revised reads:

“(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.

The ‘second court’ was the court in England and Wales. The question arose as to what is meant by a ‘third court’: does this mean a court of a third member state (e.g. France), or does this include a numerically third court, which would include a ‘transfer back’.

Held

The issue fell to be determined by Mr D.R.L. Garrido QC sitting as a Deputy High Court Judge. He ruled that the meaning of a ‘third court’ can only sensibly be ‘a court of a third member state’ and so A15 does not preclude a transfer back to the court first seized. It was therefore open to him to request a transfer back to the Republic of Ireland if the tripartite conditions in Article 15 were satisfied.

However, on the facts, the judge ruled against the application to transfer the proceedings in relation to S back to the Republic of Ireland. Although there was some force in the arguments made on behalf of the parents that the Republic of Ireland was the better placed jurisdiction and that transfer was in S’s best interests, the court concluded that these factors were outweighed by the clear advantages of retaining jurisdiction, namely: The ability of the Republic of Ireland court to make decisions for S alongside X was a clear advantage of transfer, but the benefit to S was less persuasive because it was open to the court in England and Wales to give consideration to uniting both siblings in the Republic of Ireland; there was an evidential disadvantage of transfer that could not be mitigated; the parents would be able to fully participate in England and Wales even if unable to travel; transfer would cause unacceptable and inevitable delay that given that the final hearing was listed in January 2019; only the England and Wales jurisdiction has the power to make orders giving effect to the full range of options for S’s future placement, and in particular to make a placement order placing her with her adopted sibling in England.