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NEWS & INSIGHTS

Public Law Update: March 2022

 

Index of cases

  1. S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 (18 January 2022)- The Court of Appeal considers a mother’s appeal against findings made against her following a finding of fact hearing-

https://www.bailii.org/ew/cases/EWCA/Civ/2022/8.html

  1. B (A Child), Re (Adequacy of Reasons) [2022] EWCA Civ 407 (25 March 2022)

The Court of Appeal considered the adequacy of a judgment leading to a placement order in respect of an 18-month-old boy.

https://www.bailii.org/ew/cases/EWCA/Civ/2022/407.html

  1. D, Re (Leave to Apply to Revoke Placement Orders) [2022] EWCA Civ 299 (10 March 2022) 

The Court of Appeal consider a mother’s appeal for leave to apply to revoke placement orders in respect of two children-

https://www.bailii.org/ew/cases/EWCA/Civ/2022/299.html

Cases

  1. S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 (18 January 2022)

The Court of Appeal considered a mother’s appeal against findings made that she had inflicted injuries upon a non-subject child.

Background: In 2019 J and his older brother had been subject to a Local Authority assessment, partly due to concerns raised about bruises and marks seen on J at school. X and Y were friends of J’s mother, A. In the weeks leading up to 18th and 19th June 2020, they had cared for J for periods of time. J was seen at school prior to the weekend of 18th, were staff did not notice any marks upon him. J went to stay with X and Y on the afternoon of 18th June. Over the next 24 hours, X and Y alleged various accidents occurred which could have led to marks on J. For example, J falling into a ditch or hitting a radiator whilst playing. Care proceedings were commenced in respect of X and Y’s child, S. Findings sought by the Local Authority included the injuries to J, domestic abuse between X and Y as well as A’s use of ketamine. The Circuit Judge found that most of J’s injuries were accidental, but some had been inflicted by A. The judge observed that X and A had “both done whatever they can to manipulate the evidence and to put each other in the frame”.

Grounds of Appeal

A appealed against the findings in S’s proceedings, relying on six grounds:

(1) Procedural irregularity/unfairness as findings were made beyond those pleaded, and that the findings were made in proceedings not relating to her child, without relevant social work evidence available;

(2) No reasoned judgment was given for departing from the expert’s view;

(3) Erring in applying the facts;

(4) Speculating to an impermissible extent;

(5) Making contradictory findings which could not reasonably be explained or justified;

(6) Failing to draw proper adverse inferences from Y’s failure to attend to give evidence.

Permission was granted on grounds 2-6, but refused on ground 1. A then sought permission to add a ground of appeal on the basis of procedural irregularity/unfairness due to A having unidentified cognitive difficulties. A had been the subject of two psychological assessments:

(1) A cognitive assessment which concluded that A did not require special measures, but would benefit from regular breaks to have information explained to her, and to have important information explained more than once. Her understanding should be checked by asking her to explain things back in her own words.

(2) The second psychological assessment concluded that A’s strength is perceptual reasoning rather than verbal reasoning and she will need support with written documents.  The psychologist questioned if she had dyslexia.  A was identified as possibly requiring an advocate or intermediary for formal meetings, interviews and assessments.

A then attended an appointment with Communicourt who recommended:

I am recommending an intermediary for [A]. As she has difficulties with:

-processing long sentences
-understanding court specific terminology
-understanding and responding to complex grammatical structures
-understanding complex vocabulary
-processing simple verbal information
-remembering key dates, and often gets the detailed confused.”

A had provided instructions to her instructing solicitors via telephone and had given evidence alone, remotely, in a room at her solicitor’s office. A’s cognitive difficulties said to not have been apparent during the fact-finding process.

Judgment:  Lord Justice Baker allowed the appeal on the revised ground, finding that a failure to identify A’s cognitive difficulties and to make appropriate participation directions amounted to a serious procedural irregularity. The Court remitted the case for directions prior to any re-hearing. This was based upon the conclusion that, had the Judge known of A’s cognitive difficulties, there is a significant possibility that her evaluation of the evidence and of A as “manipulative” and “very calculating” would have been different. Notably, the Court of Appeal stated that it was duty of all parties and representatives to identify any party or witness who is vulnerable and to assist the Court accordingly. Good practice requires representatives to “actively address” the question of vulnerability at the outset of proceedings. However, given the often urgent and difficult circumstances within which care proceedings are commenced, to comply with r3A.9, the Judge at the case management hearing should investigate whether there is or may be issues engaging Part 3A of the FPR.

  1. B (A Child), Re (Adequacy of Reasons) [2022] EWCA Civ 407 (25 March 2022)

The Court of Appeal considered the adequacy of a judgment leading to a placement order in respect of an 18-month-old boy.

Background:

The parents began a relationship in 2009 and married in 2011. The mother had an older child, C from a previous relationship. The parents had three children together who, along with C, were adopted. During proceedings relating to C and the parents older two children, HHJ Lea found that C had been assaulted leading to bruising. The parents, along with Mr K, were found to be within the pool of perpetrators In proceedings relating to parents third eldest child, HHJ Lea found that parents had refused to accept the reason for removal of the older children, making final care and placement orders.

E was born in August 2020 and proceedings were commenced by the Local Authority. The threshold relied upon related to previous findings, parents’ refusal to accept those findings, father’s cannabis use and parents’ inability to work openly and honestly with professionals. During proceedings, a residential assessment concluded that it was not safe for E to return to live in the community with parents. A psychological risk assessment of both parents prepared by Mr Marshall further concluded that they posed a risk of harm to E and further that parents would need to demonstrate a sustained period of change before they could be re-assessed.

A four-day final hearing was heard before Recorder Sanghera in November 2021. The reports of the residential placement, Amber House and psychologist, Mr Marshall that had been prepared at the beginning of the year were relied upon. During evidence, Mr Marshall clarified that by ‘period of sustained change’ referred to within his report he meant that a period of one year would equal a significant reduction in risk and a period of two years would mean risks were classed as historical. Mr Marshall accepted that the balance of risk had shifted. Both the Local Authority and the Guardian maintained that adoption was necessary.

The case put forward by the parents was that they had demonstrated significant change since the residential and psychological assessments.

Grounds of Appeal:

[1] that the judge did not conduct an adequate analysis of the evidence (including the oral evidence) and [2] that the judge’s welfare analysis was legally in error. Both parents relied upon the fact that the Judge had relied heavily upon reports from Amber House and Mr Marshall, prepared around 12 months earlier and placed little reliance on the oral evidence heard during the final hearing. Further, parents maintained that the Judge had failed to place adequate weight to demonstrable improvements made by both parents, including the father’s abstinence from drug use.

The Judge did not deal explicitly with those threshold findings sought by the Local Authority that the parents did not accept.

Judgment:

Allowing the appeal, the Court of Appeal described it as a ‘matter of concern’ that the learned Judge had not identified within his judgment the basis upon which the threshold criteria under Section 31 Children Act 1989 was met. Sir Andrew Macfarlane P stated that ‘the task of evaluating threshold goes to the core of the judicial exercise in every case’ and that unless the Court has made detailed findings as to the harm from which a child must be protected from, then ‘it is unlikely the Court will be able to undertake a focused and bespoke evaluation of any plan to protect that child from harm’.

In relation to the Judge’s failure to engage with oral evidence, the Court of Appeal described a ‘significant omission’ in Recorder Sanghera’s judgement in relation to the lack of consideration given to the parent’s evidence or the case put on their behalf more generally. Unfortunately, a transcript of the hearing was not available to the Court of Appeal. However, based upon the Judge’s written judgement, the Court of Appeal concluded that the Judge had failed to engage with the central issue in the case and therefore had failed to adequately assess the future risk of harm.

Further, the Court of Appeal considered whether the welfare analysis should have been undertaken under Section 1 of the CA 1989 or Adoption and Children Act 2002 (ACA). The Court found that the Judge, faced with the stark choice of placing E with his parents of pursuing the Local Authority care plan of adoption, had erred in conducting the entire welfare evaluation under CA 1989.  The presence of adoption in the range of realistic options dictated that ACA 2002, s 1 was the relevant provision, and the judge was in error in making any reference to CA 1989, s 1 in that context. Sir Andrew Macfarlane P further explained that, even if the Judge had been correct in considering the welfare provisions under CA 1989, by Section 31(3A) the Court must consider the permanence provisions of the Local Authority care plan. At no point did the Judge consider the plan of adoption during the evaluation of the care order application.

Finally, the Court found that the Judge had considered and dismissed the option of restoration to parents before considering the prospect of adoption. At no point did he balance and weigh up the one option against the other.

  1. D, Re (Leave to Apply to Revoke Placement Orders) [2022] EWCA Civ 299 (10 March 2022)

The Court of Appeal consider a mother’s appeal for leave to apply to revoke placement orders in respect of two children

Background

On 20th November 2020, following a contested hearing, District Judge Jabbitt found the threshold conditions under Section 31 CA 1989 satisfied in that the children A, now aged 6 ½, and B aged 4 ½ had suffered emotional harm and neglect and were at risk of suffering physical harm due to mother’s alcohol use. B suffers from developmental delay and autism. The Judge then considered whether return to the mother’s care was a realistic option, concluding that “I am firmly of the view that the risks of emotional, and indeed physical harm, to the children would be so significant, that I am unable to consider [the mother] as a realistic option, to care for the children.”

At a further hearing in February 2021, the Judge then considered the two options put forward for the children, long-term foster care or adoption. By this time, the mother no longer put herself forward to care for the children. The Judge, having considered the evidence in the case and the welfare checklist, including A’s expressed wishes and feelings that she wished to return to her mother’s care, approved the Local Authority’s care plan of adoption and made care and placement orders.

The children remained in foster care until October 2021 when the Local Authority identified prospective adopters. At the same time, the mother applied to discharge the care order. In November 2021, the mother further applied for leave to discharge the placement orders, submitting that there had been a significant change in her circumstances since proceedings had concluded in February, including evidence of abstinence from drugs and alcohol and engagement with cognitive behavioral therapy. The children’s guardian made Part 25 applications for updating psychiatric and parenting assessments of the mother.

The Local Authority opposed the application for leave to apply on two grounds. Firstly, the mother had relapsed following a demonstrated period of change in August 2019 and therefore the Local Authority remained concerned that the children would be at risk of future harm if returned. Secondly, the Local Authority relied upon the difficulties they had faced in identifying an appropriate adoptive placement, particularly given the age of the children and the additional needs of child B. In essence, the prospective placement was described as the children’s only chance to be adopted.

The children’s guardian, supporting the position of the Local Authority, the risk of the mother relapsing continued to be ‘highly likely’.

Grounds of Appeal

       Section 24 ACA 2002 provides:

“(1) The court may revoke a placement order on the application of any person.

(2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless

(a) the court has given leave to apply, and

(b) the child is not placed for adoption by the authority.

(3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.”

The grounds of appeal effectively relied upon two propositions: firstly, the recorder set the bar far too high when considering whether there had been a change of circumstances. Secondly, as the prospects of the mother achieving a revocation of the placement order were more than merely fanciful, it was in the children’s interests for leave to be granted. It was submitted on behalf of the mother that the Judge had failed to account for the positive features of change the mother had demonstrated since February 2021. By concluding that the change was “largely a repeat of what had happened previously” the Judge had set the bar too high.

As to the second ground, it was submitted that, with adoption as an order of “last resort” and only where “nothing else will do”, the progress the mother had made represented an opportunity for the children to be raised by her. Therefore, it was in the best interests of the children that leave was granted.

Judgment

Allowing the appeal, the Court of Appeal concluded that although the learned Recorder had conducted a careful balancing exercise, his reasoning was flawed in relation to both limbs of the test.

Lord Justice Baker concluded that the Recorder had taken DJ Jabbitt’s conclusion that ‘the weight of the evidence is that she will return to using alcohol’ as a starting point, failing to consider the report of Dr Mayer within the initial proceedings that ‘the longer the mother remained abstinent, the better her chances of staying so in the future…it would be reasonable to assess her prospects after a period of six to twelve months of abstinence’. In order to consider a change in circumstances, the Court must have sufficient information about the circumstances in which the placement order was originally made. The Recorder had simply compared this period of abstinence with previous periods, without taking into account the length of the most recent period. Particularly given the period of 12 months was such that Dr Mayer had concluded would be reasonable to re-assess the mother. The Recorder effectively set the bar too high; the Recorder was not considering the substantive application but merely an application for leave, hence the evidence would necessarily be incomplete. Lord Justice Baker concluded that had the Recorder given proper consideration to the mother’s period of abstinence in the context of the report provided by Dr Mayer, he would have concluded that it was of such a nature and degree to open the door to the exercise of discretion.

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