Crown Chambers


Public Law Update – January 2021

Index of Cases

Re G [2020] EWFC 94 – application for care and placement orders where mother requires professional care 24 hours a day.

A Local Authority v JK & W [2021] EWHC 33 (Fam) – LA application for permission not to disclose the existence of child (W) to his father in proposed adoption proceedings.

Salford City Council v W, X, Y & Z [2021] EWHC 61 (Fam) – Mother’s application for a prohibited steps order to prevent putative special guardians from having each of the children take the sacraments of initiation in the Roman Catholic faith of Baptism, Confirmation and Holy Communion and the healing sacrament of Reconciliation.

Re JB [2021] EWCA Civ 46 – Mother’s appeal against findings of sexual abuse where there has been significant failure to follow ABE guidance.

  1. Re G [2020] EWFC 94

Judgment of The Hon Mrs Justice Judd.

An application by the local authority for care and placement orders where mother suffers with a syndrome which causes varying symptoms, including hypertonia, learning difficulties and issues surrounding food and appetite. Mother was assessed as having a high need for support and carers 24 hours a day. She receives help with domestic tasks, does not have free access to food or money and is accompanied at all times whenever she leaves the house. Women with this syndrome are not expected to have children. The mother is the first known woman in the UK to have a child and only the fourth/fifth in the world to give birth to a child.

Father was involved in an accident when he was a child. He suffers from serious brain injury and right sided paralysis. He has mild learning difficulties and is limited in his ability to read and write. He is in receipt of support between the hours of 8am and 10pm, although his professional carers do not stay overnight. The father is on the Sex Offender’s Register as a result of a caution received some years ago following an incident with his sister.

The mother and father had difficult childhoods, suffering abuse from within their own families. Each spending time in foster care and, in the case of the father, in residential care. Each has very limited support from within their respective families and there were no identified family members willing or able to offer support with the care of their child.

The local authority PAMs assessment concluded that father could not provide safe care for G. It concluded that mother would require intensive 24 hour support after the baby was born to see whether she could develop the necessary parenting skills.

When G was born, the local authority applied for an interim care order with a plan for the mother to go to a mother and baby foster placement and, if things went well, to a residential assessment unit. The foster placement broke down and, instead of going to the residential placement, the mother was assessed in the community by independent social workers. Mother had contact three times per week, the father once every three weeks.

The local authority, supported by the Guardian, applied for care and placement orders. The mother, supported by the father, sought a further assessment to take place in her own home with G. The ‘Association’ was made intervenor and provided helpful details regarding the condition and necessary support.

The assessment of the ISW considered whether mother’s disabilities could be mitigated with reasonable adjustments and assistance. It concluded they could not. The assessment also highlighted concerns regarding the relationship between the mother and father; the mother often indicating that she would like to resume their relationship. The assessment concluded that, with teaching and support, the mother could manage in the short term. It did not consider the risks could be managed longer-term. 

Judgment – The Hon Mrs Justice Judd did not consider it to be in G’s interests to adjourn to allow for further assessment – there had been three in total. G required a stable and reliable individual who would be in charge on a day-to-day basis. Nannies, social workers and professionals were likely to come and go. The Judge opined that a lack of a stable adult in charge would seriously undermine G’s security, despite the presence of her mother. The difficulties that the mother has go beyond the short-term. There is no realistic prospect of the mother being able to provide G with the sort of care that she needs. The court made the care and placement orders.

  1. A Local Authority v JK & W [2021] EWHC 33 (Fam)

Judgment of Mr Justice Peel.

W, the child, was born 19 February 2020, now 10 months old. The mother decided to relinquish W for adoption before he was born. The mother does not want the father, or any member of the wider families, to be told of W’s birth or the adoption proceedings or to be considered as possible carers. Court of Appeal sets out considerations for whether notification should be given and the factors to consider.

Background – On 8 September 2020 the local authority applied for:

  1. An order under FPR Part 19 and rule 14.21 endorsing its decision not to disclose W’s existence to his father in the proposed adoption proceedings, or at all; and
  2. An order under the inherent jurisdiction endorsing its decision not to disclose his existence to his maternal grandparents.

The mother supported the local authority’s applications. The Guardian opposed the applications.

The court acknowledged that it did have the power to take such a step, but that it could only be taken after very careful consideration. It was a careful balancing between the severance of the child from his wider family against the potential profound and detrimental effect upon the mother of them knowing, in a case where she is sure they would not wish to be considered as potential carers in any event.

The court confirmed that applications of this nature, where a father does not have parental responsibility, should be made to the Family Court rather than under the inherent jurisdiction (SI 2020/135 rule 14.21). There is no such rule relating to wider family members and so the application must be brought under the inherent jurisdiction. The court accepted that the consequence was rather unsatisfactory – there must be two separate applications made under different jurisdictions for matters which are inextricably intertwined. Mr Justice Peel invited the Rules Committee to review rule 14.21 to consider whether it could be enlarged to include other family members.

In the present case, the mother had a history of depression and did not feel able to care for W. The mother advised that the father also had a history of mental health issues and she had previously terminated two pregnancies with the father’s agreement. She felt he would agree with her decision regarding the adoption. The mother also stated that the maternal grandmother had mental health and learning difficulties.

The local authority, belatedly, filed an application under Part 19. On 16 August 2020, HHJ Marston directed that the local authority was not under an obligation to inform the father or wider family members of W’s birth. The Guardian appealed.

The Court of Appeal reversed HHJ Marston’s decision. The CA considered that he did have Article 8 right, by virtue of his long and during relationship with the mother. The CA was not clear whether the father’s rights under Article 8 had been considered. The CA did not believe that HHJ Marston had sufficiently justified his decision to keep the father in the dark about the birth of W. They did not consider that the mother’s account provided a strong enough basis for discounting him as a potential carer without further investigation.

The appeal was allowed.

The CA set out the factors which should be taken into account when determining whether notification should or should not be given:

  1. Parental responsibility – if the father has PR which entitles him to withhold consent, compelling reasons are required before withholding of notification can be justified,
  2. Article 8 rights – does the father or wider family have an established relationship with the mother of the child? The right to a fair hearing will be engaged unless withholding of notification can be justified,
  • The substance of the relationships – consideration must be given to the substance of the relationship between mother and father, the circumstances of conception and the significance of relatives. i.e. what degree of objective justification might such a person complain if they later discover they were excluded from the decision?
  1. Likelihood of a family placement being realistic alternative to adoption – where a family placement is unlikely to be worth investigating or where notification might cause significant harm to those notified, there will be a favour in maintaining confidentiality. Anything less than that will point the other way.
  2. Physical, psychological or social impact on the mother or on others of notification – where this would be severe, for example because of fear of rape or violence, ostracism or family breakdown or significant vulnerability, these must weight heavily in the balancing exercise. Excessive weight should not be given to short term difficulties.
  3. Cultural and religious factors – conception and concealed pregnancy might give rise to particular difficulties in some religious and cultural contexts. These might mean a greater risk from notifications, or conversely, a greater need to maintain family ties.
  • Availability and durability of the confidential information – the mother cannot be coerced into providing information to identify the father.
  • Impact of delay – such an application will undoubtedly postpone permanent placement. This must not distract from the importance of the decision, but needs to be considered if an especially suitable placement might be lost.
  1. Any other relevant matters – mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and the family. All relevant matters must be considered.

  1. Salford City Council v W, X, Y & Z [2021] EWHC 61 (Fam)

Judgment of Mr Justice MacDonald.

Agreement that five siblings should be placed with their maternal aunt and uncle under a special guardianship order. The mother, although in agreement with the final order sought, applied for a prohibited steps order to prevent the putative special guardians from their intention of having each of the children take the sacraments of initiation in the Roman Catholic faith of Baptism, Confirmation and Holy Communion and the healing sacrament of Reconciliation.

Background: The matter regard the case of B (aged 11), C (aged 8), D (aged 9), E (aged 6) and F (aged 4). There were three applications before the Court. These were the local authority’s application for care orders pursuant to s31 CA 1989, mother’s application for a Prohibited Steps Order and an application filed by the maternal aunt (putative Special Guardian of the children) for a declaration under the Inherent Jurisdiction of the High Court regarding the children’s legal status for the purposes of Part III of a CA 1989. The Mother is referred to as W. The father is X, the putative guardians are Y and Z.

All parties were in agreement that the children should remain in the care of Y and Z under a special guardianship order. Prior to the making of the SGO, mother applied for a Prohibited Steps Order preventing Mrs Z from her stated intention of having each of the children take the sacraments of initiation in the Roman Catholic faith of Baptism, Confirmation and Holy Communion and the healing sacrament of Reconciliation. The mother’s application was opposed by the children’s guardian and Y and Z. The local authority remained neutral.

The local authority did not accept the children remained ‘looked after’ and, therefore, stated that they had no obligation to pay renumeration to Y and Z as former local authority foster carers pursuant to Reg. 7 of the Special Guardianship Regulations 2005. Mrs Z sought a declaration under the Inherent Jurisdiction that a duty on the local authority under s 20(1) of the CA 1989 arose in respect of the children that have been ‘looked after’ for the purposes of Part III of the 1989 Act. The local authority argued that the Court should not exercise the jurisdiction – the appropriate forum being the Administrative Court.

The court was required to determine the following questions: Is it in each of the children’s best interests for the court to make a Prohibited Steps Order prior to, or upon, the making of the Special Guardianship Order, thus prohibiting Mrs Z from allowing the children to take the Roman Catholic initiation sacraments of Baptism, Confirmation, Holy Communion or Eucharist and the healing sacrament of Reconciliation until they are aged 16 years old and may decide for themselves?

The Children’s Guardian, Y and Z all asserted that the children consider themselves to be devoted Roman Catholics. They lived in close proximity to other children who were equally devoted to the Roman Catholic faith and who had already taken Holy Communion. Mrs Z stated that the children had been asking when it would be their turn to take Holy Communion.

Mrs Z’s assertions were corroborated by the children themselves. They had expressed their own wishes and feeling through the Guardian that they enjoyed attending the Roman Catholic Church. The social worker noted that each of them wore a cross around their necks, these being proudly shown to her during a home visit. Each of the children had informed the social worker that they enjoyed attending church and were keen to take Holy Communion.

The mother did not oppose the children attending Roman Catholic school or attending church. She argued that the children should be prevented from taking the initiation sacraments until they reached 16 years of age and were able to decide for themselves.

The court considered the practical implications of making a prohibited steps order upon the children – that they may not be admitted to a Catholic School where a school has more Catholic applicants than available spaces (this was the evidence of the chosen school before the court). Psychological implications were considered – it was highly likely that the children would be treated differently from other children in their community. They would not be able to participate fully in events with the immediate family and would be excluded from attending ceremonies that are a fundamental part of the history and culture of the family that cares for them.

The court determined that, to exclude the children from participating in these rites of passage is likely to cause emotional harm and psychological harm to the children now and in the future for reasons of feeling excluded from the family that cares for them. Restricting their participation in these rites also renders the mother’s consent to them attending church meaningless.

The court was further satisfied that to make the orders would undermine the placement from the outset, particularly in circumstances where the SGO is to confer parental responsibility onto the special guardians. The court refused the mother’s application for a prohibited steps order.

  1. Re JB [2021] EWCA Civ 46 –

Judgment of Lord Justice Baker.

An appeal in care proceedings following findings of sexual abuse against a mother. At first instance, the Judge acknowledged that those investigating the allegations did not follow the ABE Guidance. Notwithstanding that, he made findings sought by the local authority. The issue for the Court of Appeal was whether the trial court was right to do so. The Court of Appeal considered the deficiencies in the investigation were on such a scale that no court could properly make the findings of abuse against the mother and the findings were set aside.

Background: An appeal in care proceedings concerning a child, J (aged 17 months). The appeal was brought by his mother against findings made in the proceedings that she sexually abused J’s older half-sisters. The “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses and guidance on using special measures” (“ABE”) was not followed. The Judge recognised and accepted this but made findings of sexual abuse against the mother. The issue for the CA was whether he was right to do so.

J’s older sisters are E (aged 11) and C (aged 10). Their parent’s relationship was characterised by drug use, excessive drinking and domestic abuse. In 2012 their father and their maternal uncle were convicted of serious sexual offences and violence and were sent to prison for nine years. The children were made subject to CP plans at that stage. In August 2013 the local authority started care proceedings in respect of the two girls and they were placed with foster carer, Mr and Mrs W, under ICOs. They have not lived with their mother since that date.

In July 2014 the proceedings finished and E and C remained with Mr and Mrs W under an SGO. The girls had occasional contact with their mother, but this came to an end in 2016 when mother and Mrs W had an altercation. E’s behaviour deteriorated. She was noted to be lying, damaging and stealing property, falsely accusing people of hurting her and dramatizing injuries.

In 2017 Mrs W informed the local authority that E had been sexually abusing her sister, injuring the family pet and urinating on property. A further allegation that E had been sexually abusing her sister came a few weeks later. In December 2017, Mrs W told the local authority that E had made an allegation that she had been sexually abused by her mother when she had been living in her care.

E was seen by a social worker and a police officer at school for under an hour. A decision was then taken to ABE interview her. In the lead up to the interview E wrote a series of notes in which she described acts of sexual abuse she said were perpetrated by her mother. On 22 December 2017 the ABE interview took place. In March 2018 the mother was interviewed under caution and denied all allegations of sexual abuse. In June 2018, E alleged that she had been sexually abused by mother’s brother, PB. A further ABE interview took place in August 2018. Following this, the police decided not to take any further action against mother or PB.

In 2019 the mother, by that stage in a volatile relationship with another man, JW, became pregnant. The local authority started proceedings following the birth of the child. On 5 August 2019, the mother gave birth to J. The local authority obtained an ICO. Drug and alcohol testing carried out demonstrated that the mother was taking drugs. Initially, M and J were placed together in a residential placement and then moved to the maternal grandparent’s home. Due to ongoing concerns, J was removed in March 2020 and placed in foster care. At a later date, he moved to live with relatives where he remains to date.

HHJ Greensmith heard the case over 13 days in September 2020, conducted by Microsoft Teams. The local authority relied on the findings made in the earlier proceedings and sought new findings against the mother and PB in respect of E’s allegations. The principal focus of the hearing was on E’s allegations. No application was made for E to give evidence. The Court made the findings and mother appealed.

The Court of Appeal considered the police interviews. In the interview which took place on 22 December 2017, there was no rapport phase as recommended in the Guidance. There was no detailed exploration of the child’s understanding of truth and lies. It seems, from the transcript, that there may have been earlier conversation between the officer and E regarding the issues, but there is no recording of their earlier conversation. The rest of the interview involved the officer reading E’s hand-written notes. There was no free narrative.

During the interview of 14 August 2018, E produced a further hand-written note. That note was not retained. E was reluctant to answer questions about what she had written and so the officer invited Mr and Mrs W to come into the room. Mrs W then encouraged E to speak. It is noted that the trial Judge found that Mrs W encouraged E to write the note in the first instance.

The Judge ultimately made the findings. During the request for clarification, HHJ Greensmith advised that “insofar as the guidance has not been followed, the breaches were not of sufficient magnitude as to discredit the process of the evidence collected thereby which formed part of the overall picture”.

During the appeal the parties adopted the following positions:

Mother – the whole process failed to comply with the ABE guidance in a number of crucial respects and that, as a result, the evidence was insufficient to justify the findings made against the mother.

Local Authority – the local authority accepted that there had been significant departures from the guidance but submitted that it was nonetheless open to the judge to make the findings having carried out a careful analysis of the evidence. He understandably relied on the principle that it is the trial judge who is best placed to evaluate the evidence. In this case, the judge was well aware of the deficiencies in the investigation but nonetheless, in the light of all the evidence and in particular that given by Mrs W, he was entitled to make the findings.

Court of Appeal – upheld the appeal.

Baker LJ considered that the interview on 22 December 2018 departed from the guidance to such an extent that it could not properly be considered an ABE interview at all. It did not include any rapport phase, the ground rules for the interview were not explained, there was no confirmation that E knew the difference between truth and lies, there had been earlier discussions between E and the officer which were not documented. The Court of Appeal considered the most important part of an ABE interview – the free narrative stage – had been entirely absent. On that basis, the weight which the Court could attach to what E said during that interview was “extremely limited”.

The Court of Appeal allowed the appeal. The deficiencies in the investigation were considered to be on a scale such that no court could properly make the findings of abuse against the mother sought by the local authority. The findings were set aside.



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