Family care and Children Team Quarterly Newsletter
Spring 2014

Article 1 - Re X and Y (Children: Disclosure of Judgment to Police) [2014] EWHC 278 (Fam) - Amy Beddis

An application by a Father to restrain a local authority from disclosing to the police transcripts of two earlier judgments in long-running care proceedings concerning two children. Mr Justice Baker refused the application.

An issue arose following two previous judgments by Mr Justice Baker concerning long running care proceedings. Care proceedings were started after a discovery that Y had sustained injuries. Following the first hearing, Mr Justice Baker concluded that it was probable that one of the parents was responsible for the injuries. He urged the parents within his judgment to be more frank with the court about what had happened to the child so that professionals could work with them in the future.

Two days after the judgment Father confessed that he had inflicted the injuries, the parents then separated. The matter was restored before the Judge and listed for a fact find. Mr Justice Baker found on the balance of probabilities in what was to be his second judgment in this matter that Father had inflicted the injuries.

This was not an end to the matter, the father’s lawyers filed an application for a order "preventing or prohibiting the local authority or any other party disclosing any material contained within these proceedings to the police or the CPS." The police had carried out an initial investigation in this matter but when it was unclear as to which parent had caused the injuries and closed the file under the heading "no further action". However, the police filed a statement seeking disclosure of any information that had come to light in these proceedings indicating the perpetrator of the child’s injuries" in order to make a decision as to whether to prosecute that person.

Mr Justice Baker took a two step approach to the application before him. The first stage would be to ascertain whether un-redacted copies of his two statements should be disclosed to the police and the second would be to consider any application by the police for disclosure of information relating to the proceedings which would be affected by his decision on the first question.

Having considered the law in great detail, and balancing the positions of all parties and the concerns regarding disclosure, Mr Justice Baker determined that the judgments should be disclosed to the police and the CPS subject to clear directions for the court restricting further disclosure. The assaults on the child were serious. Mr Justice Baker concluded there may be other cases where other factors outweigh the public interest in these matters, but this case was not one of them.

In terms of what this judgment means for future cases it clearly indicates that each case should be determined on its own facts. The balance between protecting the children, the parents and the public interest should be considered in respect of each individual case. One of the particular issues in this case was that at the conclusion of his first judgment Mr Justice Baker did not warn the parents when encouraging them to be more frank with the court regarding Y’s injuries. Mr Justice Baker stated this was just one factor when undertaking a balancing exercise. In future cases it will be interesting to see if Judges do issue a warning when addressing the parties to a case where there is no clear evidence as to which party is the perpetrator.

Article 2 - Re S (A Child) [2014] Ewca Civ 25 - Justine Gayford

This recent decision has highlighted a few issues for fact-finding hearings and "NAI". In this case a young child had suffered a head injury. At a fact-finding hearing the Judge found that the family were lying about the cause of the injury but could not find the injury was deliberately inflicted by the parents. The local authority had run their case solely on the basis of intentional infliction of injury. The local authority appealed. The appeal was dismissed.

A number of points are to be gleaned from this decision.

The term "non-accidental injury" is a tautology. An accident is something unexpected and unintentional, whereas injury involves an element of wrong, as such it may encompass negligence, recklessness or deliberate infliction. Whilst it may be helpful to be able to distinguish deliberate harm from, say negligence, such distinction is not necessary to consider whether the threshold criteria are satisfied. It is therefore clearer to focus on the statutory requirements.

Care needs to be taken by the Local Authority when putting the case to the Court so that they do not unintentionally limit their case to one potential scenario, as if the realm of potential causes is not explored with expert witnesses the Court may find "a piece of the jigsaw missing" when considering the case in the round.

Fact-finding hearings should only take place in cases where there is a stark and discrete issue which once determined would lead to an early final determination of the proceedings. Where there are other welfare or care issues which will need further determination by the Court there should not be a split hearing even if this would not effect the timetable of the case. If the Court does not hear evidence on the background circumstances to be able to put the allegations in context, such as capability, risk and factors which relate to the credibility of witnesses, it is deprived of "the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made". The passage of time from the split hearing to the final hearing may also effect the welfare assessment due to memories of the evidence fading and circumstances moving on.

Allegations do not need to be determined by the Court before any social care assessment can be undertaken as such assessment may set out what risks there may be in each of the potential factual scenarios.

The decision in Re S relates to public law proceedings and does not affect private law children cases within which fact-finding hearings are still to be considered in accordance with the guidance provided In the matter of C (Children) [2009] EWCA Civ 994 and the new practice direction 12j (dated April 2014).

Article 3 - Practice Direction Amendments -

The new Bundle Practice direction FPR PD 27A on preparation of bundles is attached. It comes into force on 22nd April 2014 and seems to have slipped under the wire. There are some notable changes, eg no double sided photocopying in a bundle without permission, and where a bundle is made up of double sided copies it is limited to 175 pieces of paper. Just big typing and big spacing? - Really? It is worth reading the practice direction in full, else beware of sanctions. I was a jibbering hysterical wreck after reading this one - have a glass of wine/ a bar of chocolate and sit somewhere quiet to read this one. The practice direction is attached.

Article 4 - Re Z (Independent Social Work Assessment) [2014] Ewhc 729 (Fam) - Patrick Goodings

Care proceedings - Non-accidental injuries - Independent social work assessment This case was in respect of a two year old child "Z". The child’s parents were born in the Punjab and came to the UK shortly before the child’s birth. Following the child’s admission to hospital due to reports that she was generally unwell, further examination revealed multiple serious injuries. These injuries left the child significantly disabled. Shortly after this Z was discharged from hospital and resided with foster carers. The Local Authority applied for care and placement orders. Part of the evidence the Local Authority sought to rely upon was that of a Social Work assessment conducted by "RD". Overall the assessment was negative, because of this there was no parenting assessment of father undertaken.

The Mother accepted that she had caused the injuries to the child. At the hearing the issues for the Judge to determine were as follows;

  • Whether the evidence supported a finding sought by the local authority that Z's father failed to recognise or respond appropriately to her injuries
  • Whether the Judge should have allowed the father's application for an independent parenting assessment
  • If the Judge did not grant the father's application, whether it was appropriate, proportionate and in Z's best welfare interests for the court to make the orders sought by the local authority.

For the purpose of this case analysis I will focus on the father’s application for an ISW.

The father applied for an independent assessment by a social worker pursuant to Part 25 of the FPR 2010 with a view to being considered as a long-term carer for the child or failing that, ongoing contact to enable him to be a part of the child's life.

Ultimately the Judge was satisfied that a parenting assessment of the father by an independent social worker was 'necessary' and that the assessment should be undertaken on the basis that, if successful, the father would parent Z in England.

The Judge held that any assessment of a parent must be, and must be seen to be, fair, robust and thorough. In this case the Judge found that the assessment, simply, was not. At paragraph 131 of the Judgement the Judge sets out the factors he relied upon in reaching that conclusion.

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD's observation of contact and reading the contact supervisor's notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z's care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z's injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports - or more likely some parts of those reports - read to him in Punjabi. To this must be added the local authority's failure to give the father opportunity to meet with any of the health care professionals responsible for Z's care.

(5) The local authority's social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

In a Judgment that continually bore in mind the ever-present guidance as set out in Re B-S (Children), the Judge held that the Local Authority’s assessment did not enable any conclusions to be arrived at as to the nature and extent of the father in the child’s life [paragraph 132]. He found that the Local Authority’s planning in the case had been unimaginative and the assessment wholly inadequate.

On considering any delay the Judge stated at paragraph 133;

The course I am proposing to take will lead to some further delay. That is regrettable. However, as Z is settled and well-cared for with FC and as it is the local authority's intention that that placement should continue for the longer term, I am not persuaded that that delay will be to the detriment of Z's welfare.

This Judgment again emphasises the duty of Local Authorities to ensure a holistic analysis of all options takes place within care proceedings, simply ruling out parties without properly evidencing a thorough examination is unlikely to be seen as adequate. The Judge’s conclusions at paragraph 131 provide helpful guidance for those making, or responding to, Part 25 applications for Independent Social Workers.

Article 5 - The President’s judgment in Re S (a child) handed down on 16th April 2014 - Anthony Hand

The facts - This was a case where I acted on behalf of the Local Authority before The President.

S was the mother’s fourth child. The mother’s elder three siblings had been removed from her care a number of years ago. The mother is a vulnerable woman who struggles to care for herself, she has mental health problems, an anxiety disorder and low IQ.

S was born in October 2013. By the time of the final hearing care proceedings had been running for approximately five months. The Court had the benefit of a Local Authority parenting assessment in respect of the mother and also a psychiatric assessment from an independently instructed expert. The Local Authority plan, supported by the Guardian, was to place the child with an extended family member with a view to a Special Guardianship Order being made following a trial placement.

The mother was opposed to such a placement and she made an application for residential assessment under s.38(6) CA 1989.

Residential assessment application- The President, Sir James Munby reviewed the case law with regards to section 38(6), and went on to consider the amendments made by the Children and Families Act 2014.

"19.Later this month, the amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 will be brought into force. Sections 38(7A) and (7B), inserted by section 13(11) of the 2014 Act, provide as follows:

"(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to -

(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b) the issues with which the examination or other assessment would assist the court,

(c) the questions which the examination or other assessment would enable the court to answer,

(d) the evidence otherwise available,

(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f) the cost of the examination or other assessment, and

(g) any matters prescribed by Family Procedure Rules."

20. The language of section 38(7A) replicates, in all material respects verbatim, the more general provision in section 13(6) of the 2014 Act which applies to the calling of expert evidence (and which in turn replicates, with the addition of the word "justly", the language of FPR 25.1). Likewise, the language of section 38(7B) is very similar to that of section 13(7) of the 2014 Act.

21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is "necessary" to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word "justly" only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So "necessary" in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3."

So practitioners must be aware that s.38 (7A) and (7B) are now imported into the test for residential assessment. A key component in deciding the application is whether the proposed assessment is necessary to assist the court in resolving the issues ultimately to be determined at the disposal hearing? In this context "necessary" means the same as in the decision in Re TG - "what is "necessary" sets a hurdle which is on any view significantly higher that the old test of what is "reasonably required", Sir James Munby in Re TG.

The outcome was that the President agreed with my submission that residential assessment was not necessary, and the application was dismissed.

Scope to extend beyond 26 weeks - The President in Re S also considered the wider context of the case. The timescale of proceedings had already taken five months.

The President considered the new provisions of the 2014 Act:

23. Section 14 of the 2014 Act amends section 32 of the Children Act 1989 so that from later this month section 32 will in material part read as follows:

"(1) A court hearing an application for an order under this Part shall "

(a) draw up a timetable with a view to disposing of the application -

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with the day on which the application was issued; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to."

(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to -

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here "ensuing timetable revision" means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

(10) Rules of court may provide that a court -

(a) when deciding whether to exercise the power under subsection (5), or

(b) when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules."

No rules have been made pursuant to section 32(10) and none are proposed to be made for the time being.

Regarding the new statutory framework he made a number of points:

  • The 26 week time limit is a mandatory limit which must be complied with, subject to the statutory exception set out in s.32(5). He reiterated his message that deadlines can and must be met.
  • However, he approved of Pauffley J’s judgment in Re NL (A child) that "justice must never be sacrificed upon the altar of speed".
  • The President in Re BS had dealt with the possibility of extension beyond 26 weeks in a potential adoption case if the court was not properly equipped to make decisions. In Re S he said at paragraph 27 "That approach, which is entirely compatible with the requirements of section 32, applies not just in the particular context under consideration in Re BS but more generally".
  • Whether a case would warrant a s.32(5) extension must be determined on a case by case basis. But by way of illustration, it may be appropriate in drug abuse/alcohol abuse cases or cases involving parental mental ill-health to consider an extension beyond 26 weeks to see if a parent can make changes within the child’s timescales. However, extensions should not be granted in the hope that something may turn up. But rather: "Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale?" Para.38 Re S.

Article 6 - The single Family Court - Anthony Hand

Good bye County Court, farewell Family Proceedings Court. Its not a long, long way to 22nd April and the single Family Court is here!

Without a fanfare to announce it, the new single Family Court is here as of 22nd April. With no salute, tear or goodbye party the Family Proceedings Court is now a matter of history. But what will it mean in reality?

Firstly, we have to get used to the name. Should it be the Single Family Court, or single (small "s") Family Court or just the Family Court? It is the latter. But not the Bournemouth Family Court or the Southampton Family Court, for pedants like me the proper title is "The Family Court sitting in..." whichever town or city. That’s the way orders and documents should be titled.

Upon issue there will be an allocation exercise, and cases will be allocated according to complexity to a level of tribunal. Ie this case will be heard by a lay bench, this case will be heard at District Judge level, this case will be heard at Circuit judge level. As for High Court, it will be "this case will be heard by a High Court judge sitting in the Family Court". For existing cases, when you next have a hearing, you need to add into the order the new proper allocation level (and don’t forget to change your headings).

We will also have some new judges hearing our cases. Some Employment Tribunal judges are being ticketed to hear family cases at District Judge level. I think this is a response to the downturn in employment work, and the increase in time it is taking to hear family cases due to the rise in litigants in person.

The aim of the process is to ease administration. So apart from changing names I wonder how much change there will actually be? One thing is for sure, the back office staff will be rushed off their feet for the next few weeks whilst the changes bed in. Further, whilst I am not a betting man I wonder if I could convince Ladbrokes to give me the odds on whether the ushers will have a Family Court stamp on Tuesday 22nd April to put on my FAS form?

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