January 2014 Case Law Update
A Local Authority v DB & Others  EWHC 4066 (Fam)
Fact finding hearing to consider whether a child died as a result of non-accidental injuries and if so, to consider who the perpetrator of the injuries was.
19 month old child was taken to hospital from his home where it was found that he had suffered massive brain damage. Life support was withdrawn and he died 3 days later. Mr Justice Keehan considered the law relating to fact findings which can be summarised as follows:
1) The standard of proof is the balance of probabilities, nothing more, nothing less – Re B (Care Proceedings: Standard of Proof)  2 FLR 141
2) The medical expert evidence is but one part of the evidence available to the court at a fact-finding – Re U; Re B
3) If it is clear that identification of the perpetrator is not possible, then the judge should reach that conclusion – Re D (Care Proceedings: Preliminary Hearing)  2 FLR 668
4) Re T (Abuse: Standard of Proof) EWCA Civ 558  2 FLR 838 at paragraph 33 Butler- Sloss P. said that “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”
5) “A person comes within the pool of possible perpetrators where the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in issue: North Yorkshire CC v. SA  2 FLR 849″
6) The need for judges to give themselves a Lucas direction when considering witnesses credibility.
Keehan J was satisfied on the balance of probabilities that the child was a victim of inflicted head trauma and that this was the only explanation for his injuries and further, found that the injuries were caused by either the mother or her partner but was unable to determine further who the perpetrator was.
Re A (A Child)  EWHC 3502 (Fam)
Judgment in a retrial of a fact-finding hearing in which guidance is given for such hearings when one or other parent suffers from a learning disability.
The Father had successfully appealed to the Court of Appeal against a finding that his child’s head injury had been inflicted non-accidentally by him. The Court of Appeal held that the judge at first instance had failed to make appropriate provision for the father’s learning difficulties and that, as a result, he had not received a fair hearing.
Baker J gave the following guidance when dealing with parents who suffer from a learning disability:
(a) There is duty on those acting for the parent(s) to identify their client’s need for assistance in responding to questions and giving instructions, which must be considered by representatives at the outset of their instruction. Any need for support must be addressed at the earliest opportunity.
(b) When this is known prior to the outset of proceedings, on issuing, local authorities should draw the issue of competence and capacity to the court’s attention. In turn, on the day following issue, the court will give directions for the appointment of a litigation friend. The new PLO envisages that in those circumstances the court should give directions for special measures at the case management hearing to take place by day 12 of the proceedings.
(c) When the issue of capacity and competence is not identified at the outset, it should be addressed fully at the case management hearing. At that hearing, those representing the parents should apply for special measures, where the case for such measures can be made out without any expert advice. Alternatively, where expert advice is necessary to identify the existence or extent of the learning difficulties, they should make an application in accordance with Part 25 of the FPR for an expert to carry out an immediate assessment of the capacity and competence of the party.
(d) The legal representatives should normally by the date of the case management hearing identify an agency to assist their client to give evidence through an intermediary or otherwise if the court concludes that such measures are required. If the court is satisfied that an expert report is necessary to determine whether the party lacks capacity or competence and/or as to the extent of any special measures required, it may direct a further case management hearing to take place once the expert has reported so that detailed directions can then be given for the instruction of an intermediary and/or such other assistance as may be necessary.
(e) So far as funding is concerned, there is a distinction between the cost of obtaining a report from an expert as to capacity and competence, and the cost of providing services from an intermediary. The former will, subject to the approval of the legal aid agency, whereas the latter, as a type of interpretation service, will be borne by the Court Service. Those representing the relevant party should address these funding issues at the earliest opportunity. They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty’s Courts and Tribunal Service that the services of an intermediary are likely to be required.
Re HA  EWHC 3634 (Fam)
Care proceedings in which the local authority sought a final care order and placement order in respect of a mother’s fourth child.
The mother had 3 older children; two boys who had died and a girl already subject to final care and placement orders. The court had previously found that the mother was not responsible for the death of the boys but that she had neglected all three older children. Her fourth child, HA was born during the previous proceedings.
All the assessments of the mother in respect of HA were negative, including a detailed ‘Capacity to Change’ assessment.
Baker J applied Re B, Re B-S. In his judgment, Baker J applies these decisions in a structured way so as to show that he had applied the ‘balance sheet’ approach and weighed up the pros and cons of the two alternative placements (adoption or a return to the mother’s care). He concluded unhesitatingly that HA’s welfare required him to make the care and placement orders.
Re A (Children)  EWCA 1611
Appeal by Local Authority against care and placement orders where the judge had set out in her judgment and recorded in the order that adoption would only be in the children’s best interests if the placement satisfied seven specific criteria, including no other children in placement and continued direct sibling contact. Cross-appeal by the mother against the placement orders in the event the LA’s appeal was successful.
The judge at first instance was considering the future of five children. The parents accepted the children would not be returning to their care and, eventually, accepted the plan for final care orders and long-term foster care for the older three boys. The LA sought care and placement orders for the younger two boys, M and K (aged 6 and 3 1/2 by the time of the appeal); the Guardian recommended long-term foster care for the younger two.
The evidence included that of a child psychologist who was clear that firstly, the two boys M and K should not be separated and secondly, M was so attached to his older siblings that he should continue to have direct sibling contact. There were issues around M’s behaviour which at times was disturbed and difficult. Her evidence was that as a pre-requisite to placement for adoption, prospective adopters to be suitable must be two in number, energetic, free from attachment difficulties of their own, experienced carers, fully appraised of the children’s background, attachment difficulties and placement needs for the duration of their minority and willing to undergo specific training so that they will be able to cope with M in particular, there must be no other children within the home and finally, ready, willing and able to promote direct face to face contact with their brothers preferably four times per year but at least a minimum of twice per year.
McFarlane LJ gave the leading judgment
LA’s appeal allowed – the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order and further, ordering that any future applications should be reserved to herself amounted to overseeing the implementation of the care plan in a manner which is impermissible.
However, the mother’s cross-appeal was also allowed and the placement order discharged;. Applying Re B, adoption is only required if nothing more will do. There was plainly evidence before the court that long-term fostering would do. Accordingly, the court did not have jurisdiction to dispense with parental consent to adoption since, ‘[t]he court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.’ (ACA 2002, s 52(1)).
AND FINALLY, TO SET THE RECORD STRAIGHT….
COURT OF PROTECTION
Re AA  EWHC 4378 (COP)
The case that was widely publicised in the tabloid press, claiming that a ‘secret court’ had forced the mother to have a caesarian.It actually concerned an application by a NHS Trust under the Mental Capacity Act 2005 for a declaration that an expectant mother lacked capacity to consent to medical treatment relating to the delivery method of her baby, as well as in relation to her ante-natal and post-natal treatment.
The NHS Trust sought declarations that it was in AA’s best interests for her baby to be delivered by means of planned/elective caesarean section, under sedation by general anaesthetic if deemed appropriate, and with the use of reasonable restraint if deemed necessary and appropriate. The application was supported by expert evidence from a consultant obstetrician and the mother’s own treating psychiatrist. The mother, ‘AA’ had been detained under the Mental Health Act as she was suffering form a significant mental disorder, psychotic in nature. She was represented by the Official Solicitor who did not oppose the application.
Mostyn J determined that, whilst not concerned with the unborn baby’s interests, the risk of harm following a ruptured womb applied both to AA and her unborn child and further, that it would be in AA’s best interests that her child should be born alive and healthy and that such risks attendant should be avoided. He duly made a declaration that AA lacked capacity in relation to this decision and the declarations as sought regarding the delivery by caesarian etc. However he did suggest to the Local Authority that it would be heavy handed to seek to remove the baby under Police Protection but rather, that they should apply for an interim care order at a hearing where AA could be represented by the OS. These declarations were made on 23rd August 2012.
Care Proceedings concluded on 1st February 2013 in Chelmsford County Court with Care and Placement Orders being made. The mother has never appealed in the English courts however, made a number of unsuccessful applications in the Italian courts to have the child returned to her care.