March 2014 Case Law Update
Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons)  EWHC 270 (Fam)
Appeal by a mother against the interim removal of her newborn baby.
The mother had a long history of drug and alcohol abuse and the local authority had been involved with her 7 older children, none of whom were in her care. At the time of NL’s birth, mother was residing in a specialist unit to address her drug use. When the local authority applied for an ICO on 1st November 2013, the mother neither consented to nor opposed the making of an order pending a contested hearing. The order was made and NL removed into foster care.
On 7th November, the justices heard evidence from Dr van Rooyen who had been instructed to undertake a ‘triage psychological assessment’ based on the case papers alone and without seeing the mother. She was allowed less than one working day to undertake this piece of work prior to the contested hearing. Her evidence became pivotal to the case and the justices decided to continue the ICO and continue the placement in foster care. Mother appealed. The appeal was oppose by the local authority and guardian.
Allowed the appeal and was critical of a number of procedural steps:
(1) Her Ladyship was “gravely troubled by the manner and ambit of Dr van Rooyen’s involvement” and concluded that the local authority had placed too much emphasis on finding an expert to support its care plan and that this had been at the expense of justice and a fair assessment.
(2) Her Ladyship identified flaws in the pre-birth assessment which she describes as ‘limited’ and a ‘glaring omission’ in that the local authority failed to continue to assess the mother when she moved to the specialist resource in August 2013.
(3) Although not subject to the appeal, Her Ladyship is critical of the facts and reasons from the 1st November hearing which make no reference to the test for interim removal in Re LA (Care; Chronic Neglect)  1 FLR 80, expressing concern that the first consideration should have been to consider whether NL could remain safely with his mother as a ‘holding’ position pending the contested hearing, particularly in the face of unequivocally positive reports from the maternity hospital.
(4) In relation to the contested hearing on 7th November, Her Ladyship described it as “both startling and disturbing” that one reason given for refusing to return NL to his mother’s care on that occasion was that it would necessitate a further change in his circumstances – the so-called ‘status quo’ argument
(5) Finally, her Ladyship strongly criticises the widespread practice, as occurred in this case, of the magistrates simply adopting draft facts and reasons prepared by the local authority, saying “[j]ust because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again“.
The judge made her own welfare analysis, in support of her determination that NL must be reunited with his mother ‘immediately’.
Re S (A Child)  EWCA Civ 1835
Appeal by mother against care order and authorisation to place S for adoption and permission to appeal refusal of application for direct contact with her older child Y, who had already been placed for adoption.
The mother was subject to wardship proceedings as a child and brought up by foster carers. She gave birth to her first child, C, at about the age of 14. C was adopted outside the family. The mother committed arson at social services offices in 1997, and consequently she spent around 11 years in prison. The mother’s second child, M, was born in 1998 and placed in the care of the paternal grandmother. Y was born in April 2011, and his prospective adopters have issued an application for his adoption. A was made the subject of an interim care order shortly after her birth in August 2012. The mother gave birth to a fifth child, F, in June 2013 and care proceedings are pending in respect of that baby boy.
Despite her difficulties, the mother presented positive qualities of intelligence, sound basic childcare skills, and was highly focussed on her children. However she was aggressive, unpredictable towards figures in authority and had a tendency to be dishonest with social workers. The case required careful judicial scrutiny to determine whether or not effective therapy would improve her behaviour so that each new child was not removed on the basis of her past conduct.
Appeal dismissed and permission to appeal refused
He found that the judge had demonstrated his familiarity with the case by explaining the material before him, his consideration of it and his analysis. Further, he had reflected fully upon both threshold and the expert evidence. Bearing in mind the Supreme Court decision in Re B, McFarlane LJ found that an holistic appraisal or welfare balance was inappropriate, as the only option was to see if therapy would succeed. This option also affected consideration of proportionality and whether this was a case where “nothing else will do” (per Lady Hale, Re B). Accordingly, the court had been provided with no realistic alternative than to place A for adoption. McFarlane LJ described the judgment of the lower court as “incapable of challenge at appeal” on both substance and conclusions.
Re P (Findings of Fact)  EWCA Civ 89
Appeal against finding that a child had suffered a non-accidental injury where perpetrator’s lies were used to bolster equivocal medical evidence. Consideration of interplay between medical and non-medical evidence in NAI cases.
Court considered an appeal brought by the former boyfriend of K’s mother. Findings had been against him as an intervenor in private law proceedings brought by K’s father against K’s mother where both sought residence of K and her older brother, R.
K suffered a fit on 30 April 2011 while she was alone with the mother’s boyfriend. After K exhibited continuing drowsiness and vomiting, an MRI scan two weeks later revealed she had acute bilateral subdural collections and prominent subarachnoid spaces. A consultant ophthalmologist also saw a retinal haemorrhage in one eye. The medical evidence was essentially that the fit could have had a number of causes, consistent with both traumatic and non-traumatic events.
Other evidence from the police and social services showed that the boyfriend had given two different explanations for how K had sustained the injury. Recorder Judd QC found that he had lied about the first incident and embellished the second. She gave herself a “Lucas” direction (people lie for reasons other than guilt) but concluded that the boyfriend told these lies to conceal a more serious incident of trauma on 30 April.
It was submitted on appeal that the reliance on the boyfriend’s lies involved a reversal of the burden of proof and that it was wrong to use this evidence to strengthen the case where there were a number of uncertainties in relation to the medical evidence.
Black LJ giving the leading judgment
The ambivalence of the medical evidence should have led the judge to question to a greater degree the import of non-medical evidence that was not particularly robust in nature. However it was not found that the judge had reversed the burden of proof, asserting that the evidence had to be taken as a whole and in appropriate cases, non-medical evidence could be used to bolster ambivalent medical evidence.
Re C (A Child)  EWCA Civ 70
Second appeal to Court of Appeal on the basis of procedural irregularities involved in the first appeal from District Judge of the Principal Registry to High Court Judge
The local authority sought care orders in relation to two children, aged 5 and 14 and a placement order in respect of the 5 year old. Their mother was incarcerated and their father had also served a prison sentence for his part in fraudulent activities initiated by the mother. At first instance, a District Judge of the Principal Registry had made care orders in relation to both children but refused the application for a placement order in relation to the younger child. The local authority appealed the refusal to make a placement order.
At the hearing of the appeal, which came before Keehan J, neither of the parents were represented due to the withdrawal of the non-means tested legal aid to which they had been entitled during the proceedings at first instance. Keehan J allowed the local authority’s appeal on the basis of five grounds which are summarised at paragraph 18 of Macur LJ’s judgment; the mother appealed to the Court of Appeal.
Macur LJ giving the leading judgment
Granted permission to appeal on the basis of there being a compelling reason for the Court of Appeal to hear the case under CPR 52.13, namely that there had been a “significant procedural irregularity” in the hearing of the first appeal; there had not been before Keehan J any transcripts of the oral evidence provided at the first instance hearing and, furthermore, some documents contained in the trial bundle had been removed from the bundle in the appeal. Macur LJ recalled the speech of Lord Hoffman in Piglowska v Piglowski  1 WLR 1360 concerning the need for appellate caution in reversing the trial judge’s evaluation of the facts. She further (paragraph 25 ) noted Lord Wilson’s expansion on this principle in Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33 at paragraph 42, where he held that this principle applies all the more strongly to an appeal concerning the future of a child. In light of these principles, Keehan J was held to be unable to exercise his appellant function properly, let alone to substitute his own order for that of the trial judge.
Macur LJ had a full transcript of the evidence at the trial. She concluded, in summary, that the judgment of the District Judge had not been wrong to make the order he had. The Court of Appeal therefore allowed the appeal against the placement order, remitted the case to the District Judge and directed that the local authority file an updated care plan in the light of the dismissal of the application for a placement order.
The Court of Appeal also ordered the Local Authority to pay the Mother’s costs of the Appeal. It was held that the appeal had emanated from the Local Authority’s failure to address the issues correctly before Keehan J.
Prospective Adopters v IA & Others  EWHC 331 (Fam)
Application by father on the basis of a change of circumstances caused by judgments in Re B and Re B-S for (i) permission to oppose the making of an adoption order and/or (ii) stay of the application pending determination of his application to the ECtHR.
A six-day hearing, both the father and his mother, with whom he lived, were ruled out as long-term carers. The judge also rejected the application of the paternal grandmother for further assessment, which decision was then unsuccessfully appealed. Once the local authority panel had approved a plan for adoption, the matter came back before the same judge. The paternal family continued to oppose and some mention was made, but no application, of a special guardianship order. The judge dispensed with parental consent and made final care and placement orders. The father and paternal grandmother sought permission to appeal the orders which was refused on paper. The application was renewed orally, now featuring for the first time the issue of special guardianship. McFarlane LJ gave permission to appeal on the basis that he was concerned that the distinction between special guardianship and adoption was not analysed clearly enough. A 3-judge Court of Appeal dismissed the appeal, stating that the issue of special guardianship had not been actively argued before the judge. Leave to appeal to the Supreme Court was refused, first by the Court of Appeal and then by the Supreme Court.
Shortly before the adoption application was issued, the paternal family registered a further application with the ECHR, alleging violation of their human rights and, (relying heaving on decisions in Re B  UKSC 33 and Re B-S (Children)  EWC Civ 1146), alleging lack of proper consideration of all the options available to the court.
The father now applied for permission to oppose the making of the adoption order and for a stay pending determination of his application to the European court. He cited the effect of Re B and Re B-S as the relevant change of circumstances.
Heard the applications and granted permission to oppose the adoption order and consequently, the application for stay dismissed as unnecessary.
Moor J concluded that it was impossible to say the judge had applied the test in Re B, such test not having been available to him at the time. Importantly, the judge had found adoption to be “the best solution” rather than “the only solution”. He concluded that argument in the Court of Appeal and the Supreme Court had concentrated on whether the judge had been asked to consider special guardianship, whereas case law had subsequently made clear that he should have considered it in any case. He therefore concluded that there had been a change of circumstances and turned to the question of whether the father could show that his prospects of success were more than just fanciful. He could not say that it was inevitable that an adoption order would be made. The judge reassured that applicants that there was no prospect of N being removed from their care and that the issue was solely between special guardianship and adoption.
Re H (a child) (2014)
A maternal grandmother’s appeal against a decision ordering only indirect contact with her 9 year old granddaughter
X lived with her mother (M), the appellant grandmother’s (G) daughter. G had extensive contact with X until she was 7 years old when the G and M parted company because G disclosed to the authorities that X had made allegations against her step-father. X denied that anything improper had occurred or that she had made any allegations. The family had since been estranged.
G applied for direct contact with X. In January 2013, a judge held that it was in X’s best interests to have contact with G and for the damage within the family to be repaired. Two trial direct contact visits, facilitated by X’s guardian, were ordered, but X refused to attend them. G applied to enforce the direct contact order and appeared before a second judge in May 2013 as a litigant in person. The judge accepted that the trial contact had been unsuccessful and that it was not in X’s interests to pursue G’s application further. She weighed up the emotional harm to X of not seeing G against the harm in forcing her to see G against her wishes and concluded that direct contact was not practicable. The judge ordered that G have indirect contact with X through cards and small presents.
G contended that (1) the second judge had failed to follow the January 2013 order putting direct contact in place, contrary to the requirement to adhere to the principle of judicial continuity; (2) she had not been given the opportunity to give evidence, although the guardian had; (3) the second judge had provided insufficient instructions in respect of the indirect contact order. The guardian submitted that it was clear from his detailed discussions with X that she remained opposed to direct contact with G, that it would not be in X’s best interests to pursue the matter further, and that, given her trust in him, he was unwilling to ask her further questions unless so directed.
(1) Since G had had a de facto family life with X, her rights under Art 8 ECHR were engaged and any interference with them, by denying her direct contact, had to be justified and proportionate: Re A (A child) (Intractable Contact Dispute: Human Rights Violations)  3 FCR 257 applied. The second judge had conducted a reasonable welfare exercise which could not be criticised, although there was an arguable procedural error arising from the lack of judicial continuity. The guardian had made repeated efforts to effect the January 2013 order but the second judge found that it had failed. Children’s wishes and feelings were not determinative: their welfare was. In the circumstances, it was highly unlikely that a further contested hearing would achieve more than the current inadequate resolution and the risk of harm to X was obvious. There was nothing the court could or should do and the May 2013 order was maintained.
(2) G’s complaint that she had not been given the chance to make submissions to the second judge had to be rejected. The judge had striven to hear from all the relevant adults. Since litigants in person were now the rule rather than the exception, judges should have every party sworn in before they made their submissions so that their contentions were a matter of evidence.
(3) The instant court had explained to G the standard advice given in indirect contact cases. CAFCASS would be of assistance in answering any further queries.
(4) Although the appeal had to be dismissed, the door was not closed on direct contact in the future. X might later develop a more independent mind and the balance of harm might change. Direct contact might later be feasible. There had to be a mechanism in place for X inform the relevant persons if she changed her mind. The guardian was to inform X quietly and appropriately that G still wished to see her, and that if she ever wanted to see G she should tell her school or CAFCASS.