Author Archives: Sarah Phillimore

What’s it like going to court? A parent’s perspective

We are grateful to our reader Sam who has been through care proceedings. She gives her view of what happens in court and some suggestions about how to make the experience less stressful.

 

What happens in court?

Its stressful – so be prepared.

For many people care proceedings are the first time they have been in court . They may have an idea from watching courtroom dramas on TV , after a couple of hearings they quickly realise that the programmes are nothing like the family court.

I can best describe the stress as similar but more severe than attending a very important job interview. In fact it is the same only that you are being assessed as being a suitable candidate to still parent your children, rather than an alternative candidate whether it’s the local authority or a family member taking over the care of them.

Just as you would for a job interview, work out the route to court and how long it will take you to get there. Dress smartly but comfortably. If you bring someone to support you make sure they are someone who will calm you down. If your hearing is early in the morning it may take another 15 minutes or so to get through security so factor this time in as well.

You should be able to find your solicitor,and barrister if you have one who after talking briefly to you and passing any paperwork to you will then be likely disappear to talk the other lawyers in an advocates meeting. Look at the paperwork and see if there is anything you disagree with. The court waiting area may be very busy and if your solicitor has found a private room it may be a good idea to stay in it. After the advocates meeting your lawyer will come back to talk to you and this is when you should point out anything wrong in the paperwork.

Rarely do you actually go into court at the appointed time, there is normally at least an hours wait quite often more and your stress level may rise at this time. It is useful to do something distracting or some relaxation exercises such as deep breathing or simply slowly counting to ten then counting back to one. It pays not to drink coffee as this as the same effect on the body as anxiety does. Keep well away from anyone who may upset you such as social workers or your ex mother in law for example.

When you are called into court ,it is in a rush so no time to pop to the loo or phone your Mum. Your phone must be switched off not put on silent.

 

Going into the court room

Normally when you go in the judge will not be there , but there will be between one or two members of court staff. You will be told where to sit . If you only have a solicitor you will sit directly behind them. If you have a barrister, sometimes called counsel, as well they will sit in front of your solicitor and the solicitor will sit next to you. After a couple of minutes one of the court staff will go and ask the judge to come in. As the judge comes in they will bow and everyone bows back. The judge will not be wearing a wig and normally does not wear robes but will occasionally. Judges are quite ofton middle aged men. They can be abrupt in their manner to both the lawyers and you. All hearings are recorded so be very careful what you say even as you leave the courtroom.

The local authority solicitor or if they have a barrister will stand up and will introduce everyone to the judge at least at the initial hearing.It all feels very formal and intimidating.

The judge is addressed differently according to what level of court you are in . Do not worry about this , you will soon catch on and you do not have to talk anyway at this stage. The local authority lawyer will make a speech to the judge , then the other lawyers will. The judge will ask some questions. It is a good idea to take a notepad to note down anything you disagree with. You communicate with your lawyer by tapping them, gently, on the back then pass them the note.

 

The First Hearing

The first hearing is about case management which is basically administration, setting dates, and talking about if experts are needed. There may be discussion on the threshold, which means whether the judge has decided that the legal test for your child being harmed has met. If it has an interim care order will be made which is likely to last to the final hearing.

You do not get to tell your story and you are likely to feel upset at being talked about like this in public. You are also going to be confused about what is happening.

After the judge has listened to the lawyers, for a second time he comes to decisions,  including the date of the next hearing. These decisions are called orders

After the hearing , your lawyer will go into a another meeting with the other lawyers to make sure the orders are written down in the way the judge said. Your lawyer will come and speak to you afterwards and explain simply what has actually happened in court.

You may be feeling emotional, once again try and contain these feelings whilst you are in the court building.

 

The Final Hearing

Care proceedings are now supposed to finish in twenty six weeks and it is not until towards the end and only if there is a final hearing that you will get to tell your story to the judge and even then it will not be what you expected.

You will be cross examined by each of the lawyers including your own. {Edit – when your own lawyer asks you questions this is called ‘examination in chief’ and they are not allowed to ask you leading questions – which is a question which suggests the answer! – but they can do when they cross examine someone}

You stand or sit in a witness box with the court bundles (lever arch files containing all the paperwork) in front of you and the lawyers will ask you to look at certain pages then ask you questions. The court staff will help you find the pages. They ask closed questions, that is basically statements which you can only say yes or no to. Such as your child did not fall off a swing you threw them down the stairs? If they think you are lying or its an important point they will ask the question again. This can go on for several hours. The judge may ask you questions directly or may make observations about you. It will feel as though you are on trial. All other witnesses such as the social worker will also be cross examined.

The lawyers make more speeches, and the judge may then tell of his decision /judgement in a speech there and then or he may decide to do so at a later date.

 

After the Hearing

Unless your children are kept at home you will be absolutely devastated. Try and get support whether from family or friends or from groups or organisations. You may have the same symptoms as person grieving.

A system in continual crisis – what happens when all you do is try to shift the blame?

The House of Lords – as they then were – discussed the inglorious history of the child protection system in 2002 in the case of S v S & Others [2002] UKHL . See para 29 of that judgment:

The Children Act has now been in operation for ten years. Over the last six years there has been a steady increase in the number of children looked after by local authorities in England and Wales. At present there are 36,400 children accommodated under care orders, compared with 28,500 in 1995, an increase of 27 percent. In addition local authorities provide accommodation for nearly 20,000 children under section 20 orders (children in need of accommodation). A decade’s experience in the operation of the Act, at a time of increasing demands on local authorities, has shown that there are occasions when, with the best will in the world, local authorities’ discharge of their parental responsibilities has not been satisfactory. The system does not always work well. Shortages of money, of suitable trained staff and of suitable foster carers and prospective adopters for difficult children are among the reasons. There have been delays in placing children in accordance with their care plans, unsatisfactory breakdown rates and delays in finding substitute placements.

30. But the problems are more deep-seated than shortage of resources. In November 1997 the Government published Sir William Utting’s review of safeguards for children living away from home. Mr Frank Dobson, then Secretary of State for Health, summarised his reaction to the report :’It covers the lives of children whose home circumstances were so bad that those in authority, to use the jargon, took them into care. The report reveals that in far too many cases not enough care was taken. Elementary safeguards were not in place or not enforced. Many children were harmed rather than helped. The review reveals that these failings were not just the fault of individuals – though individuals were at fault. It reveals the failure of a whole system.’

31. In autumn 1998 the Government published its response to the children’s safeguards review (Cm 4105) and launched its ‘Quality Protects’ programme, aimed at improving the public care system for children. Conferences have also been held, and many research studies undertaken, both private and public, on particular aspects of the problems. Some of the problems were discussed at the bi-annual President’s Interdisciplinary Conference on family law 1997, attended by judges, child psychiatrists, social workers, social services personnel and other experts. The proceedings of the conference were subsequently published in book form, ‘Divided Duties‘ (1998)….

The death of Victoria Climbie and the Laming Report

The pressures on the child protection system increased from the time of Lord Laming’s report in 2003 into the death of Victoria Climbie. Victoria was only 8 in 2000 when she finally died from the many injuries inflicted upon her by her adult carers, despite involvement from four different local authorities, hospitals and the NSPCC.  The Laming report

 …discovered numerous instances where Climbié could have been saved, noted that many of the organisations involved in her care were badly run, and discussed the racial aspects surrounding the case, as many of the participants were black. The subsequent report by Laming made numerous recommendations related to child protection in England. Climbié’s death was largely responsible for the formation of the Every Child Matters initiative; the introduction of the Children Act 2004; the creation of the ContactPoint project, a government database designed to hold information on all children in England; (now defunct after closure by the government of 2010), and the creation of the Office of the Children’s Commissioner chaired by the Children’s Commissioner for England.

Children’s social care services were combined with education to form children’s services departments, most of which were headed by Directors with no experience of social care (thus it is no longer accurate to refer to ‘the SS’ as many who dislike the system do).

Local authorities were required to introduce the Integrated Children’s System (ICS), a computerised system for recording casework and decision-making for children, with the consequence that social workers spent more time in front of screens and less time with families.

The death of Peter Connolley

In August 2007 Peter Connolley died as a result of the severe injuries he had received over months from his adult carers. He was 17 months old. In 2008 the criminal trial and conviction of the adults who killed him provoked a media storm quite unlike any other that had been seen before, probably because Peter also died under the watch of Haringey, one of the local authorities who did not act to protect Victoria.

Much blame was generated which became focused on Haringey and its social workers, rather than the police or the medical profession, despite their significant contributions to a system that failed to protect Peter.

The first Public Law Outline (PLO) was then introduced in the autumn of 2007 to try and speed up care proceedings. This brought in new and onerous requirements for LAs in terms of case preparation.

As a consequence of all these pressures, some LAs had enormous difficulties in recruiting and keeping social workers. There is still heavy reliance in many areas on expensive agency staff to try and fill high vacancy rates. Of course, it is not just the LAs that are under pressure. The courts are too, there are often difficulties in listing cases quickly or maintaining judicial continuity.

2008 then saw a substantial rise in the number of applications for care orders, called by some ‘the Baby P effect’  – suggesting that LAs were now over cautious and issuing unnecessary proceedings.

However, research from the University of Bristol in 2011 thought it was more likely to be a consequence of the PLO:

The significant increase [in care proceedings] from November 2008 is likely to be a result of the delay of applications occasioned by the introduction of the PLO with its substantial pre-application requirements. The continued increase may reflect a change in the operational threshold but the greater scrutiny which is now required before applications are made means that the local authority will have been advised that the threshold is met, and social work managers will have taken the view that proceedings are required.

Whatever the reason(s) behind the rise, it was significant and had an impact on the entire system. As Baker J commented in 2013, with reference to the serious negative consequences that can flow from failure to appoint a guardian at an early stage in care proceedings:

A crucial feature of the guardian’s role has been the early appointment, right at the outset of the proceedings. So often it is decisions taken at that stage that have a defining influence on the eventual outcome as well as a fundamental impact on the child. An experienced guardian is able to come fresh to a case and bring the wisdom of their expertise to bear on the immediate decisions that have to be made at the outset of proceedings … In cases where the social worker, advocates and the tribunal may lack much experience, the guardian’s role is vital….The rise in public law cases following Baby P accelerated a crisis that had been threatening for some time so that Cafcass was no longer able to provide a service at the outset of proceedings and vital decisions were being taken without their input.

The Munro Report

In June 2010 Professor Eileen Munro was asked by the Department of Education to report on the state of the child protection system in England and Wales. Her third and final report came out in 2011. The first report identified the ‘four key driving forces’  that had shaped problems in the system, following the pressures and challenges outlined above. These forces had:

come together to create a defensive system that puts so much emphasis on procedures and recording that insufficient attention is given to developing and supporting the expertise to work effectively with children…

The Driving Forces

  • the importance of the safety and welfare of children and young people and the understandable strong reaction when a child is killed or seriously harmed;
  • a commonly held belief that the complexity and associated uncertainty of child protection work can be eradicated;
  • a readiness, in high profile public inquiries into the death of a child, to focus on professional error without looking deeply enough into its causes;
  • the undue importance given to performance indicators and targets which provide only part of the picture of practice, and which have skewed attention to process over the quality and effectiveness of help given.

The Munro report made a variety of recommendations to reform the system particularly to:

remove unnecessary or unhelpful prescription and focus only on essential rules for effective multi-agency working and on the principles that underpin good practice. For example, the prescribed timescales for social work assessments should be removed, since they distort practice.

The Inquiry into the State of Social Work Report 2013

However, there are concerns that the Monro recommendations have simply been sidelined and the system continues along a target driven path which focuses on ‘rescuing’ children rather than trying to support families.  See the Inquiry into the State of Social Work Report in 2013 published by the British Association of Social Workers on behalf of the All Parliamentary Group on Social Work. The report commented:

Excessive bureaucracy continues to work against, not in support of, practitioners. ICT systems remain not fit for purpose. Dangerously high caseloads for too many social workers mean serious risks for the people who need their assistance.

Low morale is not unique to social workers but if it is endemic across the profession, as some witnesses describe, then the ability of these practitioners to provide high quality services to families themselves confronting depression, poor self-esteem and even despair, must be questioned.

The inevitable consequences of a culture of blame

The list of children killed when known to children’s services and the inquiries into their deaths is now long indeed. See for example the serious case reviews collected on the NSPCC site.

The same mantra is repeated every time: ‘lessons will be learned’. However, it is difficult to see what lessons are being learned other than how best to attempt to shift blame once a crisis has occurred.

It sadly seems that despite the wealth of investigations and inquiries over the past 20 years, children remain badly served by a system supposedly designed to keep them safe.  The most recent depressing example is found in the criticism by the Children’s Services Development Group of the Department of Education not using data to adequately reform the commissioning of children’s services. Spokesperson Lizzie Wills commented that lines of accountability for vulnerable children remained unclear:

“Senior representatives “passed around” responsibility for ensuring placement stability and positive outcomes, revealing an overwhelming and fundamental lack of coherence in the care system for looked after children,” she said.

But while the focus after a child’s death remains fixed on finding who we can ‘blame’  –  will we ever see a shift? This is well explored by Ray Jones in ‘The Story of Baby P’. He comments:

For the child protection system more generally, it is now creaking at the seams, and at or near the point of collapse. Workloads have rocketed…The fear and threat that was now a burden on every social workers’ shoulders that they, too, could become a target of The Sun and others has, in part, led to more children being removed through the courts from their families. Others then, such as The Times and the Mail castigate social workers for taking children from their families. The media know how to have it both and every way…

…This book reflects my horror at how good people  who undertook distressing and difficult – and sometimes dangerous – work to protect children were attacked and abused by powerful media forces, with other powerful forces getting drawn into the process. But the greatest horror is what happened to a little child, Peter Connelly, and my concern is that the campaigning by The Sun and others has done nothing to make it safer for children like Peter.

Is the Child Protection System fit for Purpose?

Proposed Multi Disciplinary Conference, 1st June 2015.

Please see this post from the Transparency Project. 

Policing Parents, Protecting Children and Promoting Adoption: Do we get the child protection system we deserve?

The Transparency Project is pleased to announce a proposal for a multi-discliplinary conference, provisionally arranged for 1st June 2015, which will invite views and perspectives from experts, lawyers, social workers, parents and care leavers in an attempt to re-position the current unhealthily polarised debate around the child protection system.
We hope to be joined by Dr Lauren Devine of UWE who is currently undertaking research into the evidence base for our current system and by Brigid Featherstone, co-author of ‘Re Imagining Child Protection’.
The venue and full list of speakers will be confirmed over the coming months.
If you are interested and would like to be kept informed about developments, or if you have any suggestions for topics or speakers please contact [email protected]

EDIT – Topics for afternoon discussion

Suggestions are coming in for the issues most likely require debate/discussion. Please feel free to contact us to add more.

  • Section 20 agreements – the drift and delay problems. Are there adequate mechanisms in place for review of these? What’s the IRO doing?
  • The anti-authoritarian parent – does disagreeing with or failing to co-operate with a social worker equate to being a ‘bad parent’? What can be done to improve relationships between parents and social workers? These issues are highlighted in the recent Hertfordshire case and discussions over at suesspcious minds.
  • Perception of experts as independent – what should happen if experts in a case are on a ‘paid retainer’ with a LA? also an issue raised in the Hertfordshire case above.
  • Problems with ‘working together’ – example of recent disjunction between family and housing law discussed by Nearly Legal. How do we make sure family courts have the best information about issues they may not be familiar with nor fully understand?
  • Opening up the family courts – the impact on children. Is it likely to be a serious as some fear? What lessons can we learn from other jurisdictions?

End of Year Review 2014

How did we do? What else can we do?

We think our first nine months have shown a clear demand for this site – and worryingly that some of the most popular searches and posts have been do to with section 20 agreements, which suggests that these are both widespread and not well understood or explained.

We hope to expand the activities of the site next year – The Transparency Project will be hosting a multi-disciplinary conference on June 1st, asking if the child protection system is fit for purpose. CPR will also be going to the 2nd Joint Nordic Conference in Helskini in June where Sarah Phillimore will deliver a paper entitled ‘The courage to communicate and the necessary building of relationships between social workers and parents.’

Please let us know what we could be doing better/differently/more or less.

Contact us at [email protected] or via Twitter @C_P_Resource.

This site would not have been possible without the very generous contributions of their time and expertise from a great many people in many different fields. As ever, enormous thanks and gratitude is due to them all.

Overview 1st March – 22 December 2014

  • Sessions                                           35,119
  • Users                                                25,742
  • Pageviews                                        60,763
  • Pages / Session                               1.73
  • Avg. Session Duration                    00:02:25
  • Bounce Rate                                    75.07%
  • % New Sessions                              72.68%
  • New Visitor/Returning Visitor       27.3%/72.7%

 

Where did our audience come from?

We had visitors from all over the world, but the vast majority from the UK, as reflects the site’s content.

  • United Kingdom 31,158 (89%)
  • United States 1,418 (4%)
  • Australia 371 (1%)
  • Ireland 232 (0.66%)
  • Canada 217 (0.62%)
  • Brazil 193 (0.55%)
  • Netherlands 108 (0.31%)
  • Germany 78 (0.22%)
  • Finland 74 (0.21%)
  • France 74 (0.21%)

Where in the UK?

  • London 8,579 (24%)
  • Bristol 1,551(4.%)
  • Manchester 843 (2.%)
  • (not set) 796 (2.%)
  • Birmingham 712 (2.%)
  • Newcastle upon Tyne 683 (2%)
  • Liverpool 582 (2%)
  • Leeds 546 (1%)
  • Cardiff 504   (1%)
  • Sheffield 417 (1%)

How did people find us?

71% of traffic came from internet searches. Other sites have linked to us.

  • mumsnet.com 1,943 (33%)
  • Facebook 1,198 (20%)
  • Twitter 1,066 (18.%)
  • suesspiciousminds.com 290 (5%)
  • netmums.com 213 (4%)
  • familylawweek.co.uk 81 (1%)

 

What did they want to read about?

Top Ten internet searches

Annoyingly easily the most popular term was ‘not provided’ at 20,598 being 83% of the total. Of the other keywords, these were most often used:

  • interim care order 175 (0.71%)
  • section 20 care order 84 (0.34%)
  • section 20 child protection 61 (0.25%)
  • child protection resource 38 (0.15%)
  • section 20 agreement 32 (1%)
  • threshold criteria care proceedings 32 (0.13%)
  • forced adoption 29 (0.12%)
  • interim care orders 26 (0.10%)

What posts were the most popular?

The most popular was not set at 8,817 views (15%).

  • category/the-law/key-legal-principles/section-20-agreements/ 4,087 (7%)
  • tag/interim-care-orders-2/ 2,879 (5%)
  • forced-adoption/ 2,459 (4%)
  • category/the-law/key-legal-principles/threshold-criteria/ 2,311 (4%)
  • If I report mental health issues / 2,093 (3%)
  • category/the-law/key-legal-principles/interim-care-orders/ 1,627 (3%)
  • category/the-law/key-legal-principles/significant-harm-key-legal-principles/ 1,591 (3%)
  • common-concerns-we-hear-from-parents/ 1,521 (3%)
  • category/placement-and-adoption-orders/ 1,057 (2%)

Charity helping families stay together faces closure

On December 16th we got an email from someone who has been helped by Families in Care and who is very worried that they might close due to lack of funding. This is just the kind of initiative that could help people all around the country and we hope that it can achieve its fundraising goal.

Happy Christmas EDIT! as of 22nd December, the charity has raised £5K!

She writes:

This is a very small charity which supports, advocates, and advises North East families who are faced with Child Protection Proceedings. It is a very unique charity, but without which my child would not be in my care now. From the first day I contacted them for help … they have advocated for me – fought my corner when I could not, came to every court hearing – and sat holding my hand throughout – and every meeting with the LA, held me up through the darkest of days when it seemed like all hope was lost … and taught me to put one foot in front of the other and keep going.   I receive weekly counselling… Pat, the CEO, has taught me mindfulness, assertiveness, and her unwavering belief in me has had an enormous impact on my self esteem.

Pat has given me confidence enough to apply to University to retrain as a Social Worker, with a view to working as an advocate for Families In Care, and for parents that cannot do it for themselves… Each member of the team has been there day and night, weekdays, weekends and holidays.   They have students – both Law and Social Work – who come in on placement, and many stay on to volunteer… There is a Parents Group for parents who have lost children to adoption, gently supporting them through their own disenfranchised grief process, and Families In Care help parents with Letter Box Contact.

I truly believe this service should be rolled out nationwide and intend to dedicate the rest of my working life to that end. In short, this is a rare gem, a beacon of hope to parents faced with the most horrifying of times.

However, Families In Care are struggling. Having had their funding removed from a particular source, they are now in a position where they face imminent closure. This just cannot happen. It just can’t. So many families rely on their presence, their hands to hold, and their commitment to ensuring parents are heard and fairly treated.

Families In Care have made an Urgent Christmas Appeal for help.  They need £3,000 before January 2015 or they will close.

Achieving best evidence and use in Children Act cases

This post began life as a paper delivered by Sarah Phillimore at the St John’s Chambers conference on 4th December 2014: ‘Family Justice: universal access and fair process’. It has been updated to take into account more recent case law; most particularly the case of A (A Child) [2015] and Re BR (Proof of Facts) [2015]. No doubt the updating process will continue in light of our continued and collective inability to get to grips with this most essential issue. 

With thanks to Dr Harrington for the introduction to Sapir/Whorf

‘We have a system that places the proof of facts at the centre of care proceedings’

Baker J November 2013

Overview

  • The importance of good evidence
  • The consequences if we get it wrong
  • How can we do it better?

 

Why is evidence so important?

Mr Justice Baker addressed a family law conference in 2013 asking the question – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation. There will always be a proportion of cases that will require the court to intervene.

He said this:

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

Children cases are not fully adversarial because the court retains ultimate control of what is and is not litigated. The level of this control will vary. But fundamentally we have a system which puts proof of facts at its heart.

What do we mean by proof of facts in a court?

See Re BR (proof of facts) [2015]

Mr Justice Jackson commented:

It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence…

He set out some general principles:

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns. Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred?
  • Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters the standard of proof required. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case.
  • Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.

What happens when we get it wrong?

A tottering edifice built on inadequate foundations…

Baker J said further:

It goes without saying that this process depends crucially on the skill and experience of a range of professionals – social workers, police, guardians, doctors, psychologists, lawyers and advocates. The judge is dependent on those professionals in coming to the right decision. In the end, judges can only decide the cases that are put before them.

 That last sentence is the crucial one and explains the court’s rage when they are faced with poor quality evidence and asked to make such serious decisions as whether or not a child should be adopted. No doubt the words of the President of the Family Division continue to ring in our ears from Re B-S (Children) [2013] EWCA 1146 at paras 39 and 40:

Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

When evidence is poor the risks are not simply just a stern dressing down from a senior judge but that the court is deprived of the evidence it needs to make the best decision for the child.

And it’s not just a burden on the lawyers who gather and present the evidence; the burden is also upon the Judge to carefully analyse the evidence, particularly in a finely balanced case.

See for example Re B (Children: Long Term Foster Care) [2014] when the Court of Appeal found that the Judge had not sufficiently analysed the evidence before him and in such a finely balanced case, he should have carried out “a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment.”  

Worst of all – lying in court by professionals

Or worse than all of this – when professionals lie on oath in court. The Judge commented that this case was ‘exceptional’, and I hope he is right about that. See this post by Suesspiciousminds for consideration of the case involving Hampshire CC.

So how can we do it better?

Active thought at the outset of a case about its evidential basis

I will examine some general propositions which hopefully will apply to any case. Particular groups of vulnerable witnesses, such as children, may have other quite specific needs and the interviewing/evidence gathering process will need further adjustment to make sure that these needs are taken into account and unfairness avoided.

There are three useful sources that highlight issues for us to consider:

  • Achieving Best Evidence guidance
  • Case law
  • Linguistic theory

From these sources we can derive the following general principles:

  • Watch out for the language you use;
  • Allegations which are denied or not proven are NOT ‘facts’
  • Test your hypothesis, don’t seek to confirm it
  • Distinguish ‘fact’ from the ‘processing of facts’
  • Be clear about what ‘facts’ are being challenged.

Watch out for the language you use

Allegations which are denied or not proven are NOT facts

I will examine these two principles together because they are closely inter-related. The language you chose to discuss the evidence can have a very powerful effect on how you think about that evidence and how you go on to treat it. You may also have a different understanding of the words you use than others do and can end up talking at cross purposes.

For example:

  •  if a child makes an allegation of sexual abuse there is a tendency to call this a ‘disclosure’. Disclosure means what it says – a secret fact that is made known. So you have assumed the truth of what is said at the outset. This can be very dangerous.
  • If you say you have ‘refuted’ an allegation, I understand that to mean that you have provided proof that the allegation is wrong. But many others would simply hear that you ‘disagree’ with an allegation
  • Use of the word ‘paedophile’ to describe a man who is attracted to girls aged 14-16 and the emotional reactions that word triggers.

Theories about linguistics can shine more light upon this.

The Sapir Whorf Hypothesis

Edward Sapir was an American anthropologist-linguist, who was born in Poland in 1884 and is widely-considered to be one of the most important figures in the early development of the discipline of linguistics. Benjamin Whorf was his student. To refer to a ‘hypothesis’ is a misnomer because the two never co-authored anything, and never stated their ideas in terms of a hypothesis. But their work has continued to intrigue many.

What people have taken from their work is the two concepts of linguistic relativity and linguistic determinism. i.e.:

  • that meaningful and distinct concepts in one language system are not necessary encoded in the same way or even at all when compared to another language system; and
  • speakers of a language are acculturated into particular ways of seeing the world and manipulated into it by the systems that are in place.

As Dr Kate Harrington of Exeter University says:

The words used to describe a reality can have a significant effect on how others perceive and categorise that reality. When this happens in a legal context then such language can have a serious impact on legal outcome.

There is also some very interesting research from a Yale Law School professor, Dan Kahan who wrote a research papers called ‘Motivated Numeracy and Enlightened Self Government’ in 2013. This examined the impact of political passion on people’s ability to think clearly.

I haven’t read the paper in full, but an article by Marty Kaplan of Alternet provides an interesting window into its conclusions:

partisanship “can even undermine our very basic reasoning skills…. [People] who are otherwise very good at math may totally flunk a problem that they would otherwise probably be able to solve, simply because giving the right answer goes against their political beliefs.”

In other words, say goodnight to the dream that education, journalism, scientific evidence, media literacy or reason can provide the tools and information that people need in order to make good decisions.

It turns out that in the public realm, a lack of information isn’t the real problem. The hurdle is how our minds work, no matter how smart we think we are. We want to believe we’re rational, but reason turns out to be the ex post facto way we rationalize what our emotions already want to believe

Therefore, it appears that given the influences that may be operating upon us without our full awareness, the best approach to any allegation from any source, is to treat it seriously and with respect BUT to try to avoid making firm assumptions about its strength or weakness – until of course you have had an opportunity to look at a wide range of evidence that both goes to support or challenge any particularly theory of the case.

Examples where this goes wrong in practice

I have unfortunately had experience of a great number of cases where achieving the best decision for the children was significantly delayed – or even utterly thwarted – by a failure to abide by these principles.

A particularly horrible example is D v B and others (flawed sexual abuse enquiry) [2006] EWHC 2987 (Fam). It is worth reading in full. For further useful commentary on the use of ‘veracity experts’, see this post by suespcioussminds.

The Judge in D v B commented on the development of the case in this way:

Thereafter, the therapist formed the view that the allegations that the father had abused EB were true and fed that belief into the social care system in Surrey. A social worker in Surrey was influenced by the therapist and accepted her view. Groups of professionals met in Surrey and debated wide issues about their beliefs about the allegations, some believing them, some not. There was discussion about a number of issues, which were simply floated without resolution… Information was kept from the father lest it should interfere with EB’s therapy…

The County court judge dealing with the matter in the beginning…however found ‘mother’s account of events truly extraordinary, well exceeding his comprehensive fifteen years experience’. The Judge hence directed further investigations and advises the father to upgrade his contact application to a fully-fledged residence application…The former social worker applied censorship and imposed non-disclosure of minutes of some professionals meeting by means of solicitor instructions. The reasoning given was that it ‘could compromise working relationship with mother’.

There then developed two systems running in opposition. The court in Taunton made orders requiring the mother to make TD available for contact. Orders were backed with penal notices directed at the mother. The NSPCC and the social worker in Surrey gave support to the mother on the basis that the allegations were true. The case was not returned to the court for a fact finding hearing. The opposing systems continued to run in counter-measure.

The Judge further commented:

I have read (and re-read) the relevant passages from the Cleveland report (pages 204 to 214) and the Orkney reports (pages 272, para 15.21 to 275, para 15.32) during the currency of my involvement in these proceedings. I am very well acquainted with the document called ‘Achieving Best Evidence’, which is an everyday working tool for those who practice within the family justice system…I find it very difficult to understand how the history that has emerged reflects that acquired learning.

 A (A Child) v Darlington Borough Council [2015]

Another horrible example of failure to get to grips with what are or are not ‘facts’ can be found in the case of A (A Child) in 2015 where the President of the Family Division did not hold back on fierce criticism of the LA handling of care proceedings. See for example paragraph 28 but the entire judgment should be read in full:

First, there was very little analysis, let alone any very rigorous analysis, of the factual underpinning of the local authority’s case. The truth is that the local authority’s case was a tottering edifice built on inadequate foundations.

The President identified 3 fundamental principles at paragraph 8 onwards of his judgment.  Failure to abide by these will have serious implications for the successful pursuit of an application in court

    • Facts must be drawn from evidence, not suspicion or speculation; LA must provide proper evidence, direct whenever possible and LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
    • Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
    • Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed the conference ‘Is the Child Protection System Fit for Purpose’  on 1st June 2015 and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

It is depressing, to say the least that 9 years divides the two authorities cited above – yet it appears no ‘lessons have been learned’ about how NOT to conduct care proceedings.

See further the case of Re J (a Child) [2015] EWCA 222 where the Court of Appeal endorsed the President’s judgment in A (A Child).  It was held that it was ‘impossible’ to detect the process of analysis by the Judge, the threshold criteria contained very little by way of ‘fact’ but made very general observations which no one analysed to show the link between these generalities and the risk of significant harm.

 At the beginning – test your hypothesis, don’t seek to confirm it

This is useful guidance from Achieving Best Evidence. Good interviews don’t seek to ask questions to confirm an existing hypothesis but rather test it. Good interviews also encourage free narrative so that there is less risk of the interviewer imposing his or her own assumptions – which can be particularly dangerous when you are interviewing a child.

If you start to gather evidence operating from one perspective, its inevitably going to impact on the course of that process. Its probably inevitable that we will form a theory of a case at an early stage but be wary of allowing your theory to harden into fact without proper investigation and analysis.

For example, the police appear to now recognise the danger of proceeding with investigations on the basis that they ‘believe’ the complainant after many high profile investigations into historic child sex abuse allegations hit the buffers.

We need to distinguish between fact and the processing of facts.

We can also get some useful guidance from the courts. One such helpful overview is the case of P (A Child) [2013] EWCA Civ 963. This was a case that went wrong. A father appealed against the making of care and placement orders and the refusal to further assess him. The LA’s concerns were not about either parents ability to provide physical care for their child but rather the impact of issues around violence and conflict in the relationship.

The father complained that:

  • The LA assessment was so flawed to be unreliable
  • The nature of the father’s aggression was not reliably established
  • The judge had overstated the nature of the aggression

The Court of Appeal unanimously allowed the appeal and gave general comments about the need for active though at the outset of a case about its factual and evidential basis. These are set out from paragraph 112 of the judgment. The court stresses that these are not rules, but they are certainly useful guidance.

As the court considered:

Care cases involve “professional evaluation, assessment, analysis and opinion” brought to bear on facts. As the President said we need to distinguish clearly between what is fact and what falls into the other category…the processing of facts. The assessment and opinions of …professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts’.

Be clear about what ‘facts’ are being challenged

This is another way the waters can get muddied quite quickly. If a parent says ‘I don’t accept that assessment’ we need to be clear exactly what they are objecting to. Are there mistakes about dates and times? Or is this a fundamental disagreement with the assessment’s conclusions? If so, what is the basis for this disagreement?

The PLO aims to assist with this process in care proceedings by creating different categories of LA material:

  • Evidential documents which are served with the application form; and
  • Decision making records which are only disclosed on request

Further, the early case management hearing should identify key issues and the evidence required to resolve those key issues. Its obviously essential that proper consideration is given to what alleged facts are actually relevant to a decision and which of those alleged facts are in dispute.

Further Cases

  • M (A Child: Failure to comply with Achieving Best Evidence) [2014] EWFC B141
  • Impact of ‘wholesale and serious’ breaches of the ABE guidelines Re W and F (Children) [2015] EWCA Civ 1300
  • W (fact finding) [2014] EWHC 4347 – almost everything that could go wrong with this case did, to the point that it defied credulity.
  • H (A Child) Analysis of Realistic Options and SGOs) [2015] EWCA Civ 460 – where non compliance with rules and practice directions meant a case was not fit to be tried and judge did not carry out the necessary analysis of the options.
  • 24th November 2015  the case involving Hampshire CC  – where social workers were found to have altered reports and lied about it in court.
  • E (A Child) [2016] EWCA Civ 473 The reasons for the appeal succeeding were summarised at para 98 of the judgment and included wholesale failure to acknowledge and analyse ‘numerous and substantial’ deviations from good practice with regard to interviewing children. 
  • AS v TH (False Allegations of Abuse) [2016] EWCH 532 – Where the Judge commented at the very outset of his judgment that it was disappointing that several witnesses appeared ignorant of the Cleveland report (and concluded at the end that hysteria had taken over)
  • J (A Minor) [2016] EWHC 2430 – ‘the boy forced to live as a girl’; another example of failure to evaluate what was actually happening to a young child and imposition of a particular narrative orthodoxy by professionals contributed to significant emotional harm.
  • Re V (A Child) [2016]-  poor decision making and botched assessments meant a child had no contact with his father for about 10 months.
  • GD & BD (Children) [2016] EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’.
  • H v D (Appeal – Failure of Case Management) [2017] – concerns about case management and the court’s approach to the cross examination of an alleged victim by alleged abuser.
  • L (A Child), Re [2017] EWHC 3707 (Fam) (22 December 2017) – significant failure of police investigation and guidance offered from para 110 about police disclosure.
  • M v Y (Children) [2018] Successful appeal against a finding of fact when trial judge did not properly assess credibility of child’s account in light of discrepancies in her evidence.
  • A (Children) [2018] EWCA Civ 1718 (25 July 2018) – failure by judge to properly consider all the evidence on a wide canvass (that previous genital injury made subsequent death of child by ligature much more likely to be a deliberate killing) and reliance on ‘pseudo maths’ to determine balance of probabilities. Also initial failures by police to secure evidence at the scene and then to disclose police evidence into family proceedings.

Further reading

Careless Talk and the Duty of Confidentiality

this post is by Sarah Phillimore, a barrister. 

Unbelievable having lunch at my usual cafe , 2 social workers discussin case at the next table laughing and joking , making me feel sick. This is private stuff and I’m not the only one who can hear there discussion.

Parent, posting on Facebook Group UK Social Services

Reading that comment from a parent made me feel very uneasy. It’s common for groups of lawyers and social workers who know each other well to take their discussions at court outside, for a coffee.

A frequent complaint made to me from parents is just how difficult it is for them to see lawyers and social workers laughing and chatting together; even if it isn’t a particular case they are discussing.

But its more than just insensitive to have these kind of relaxed ‘chats’ within ear and eyeshot of traumatised parents; it could also land you in very hot professional water if you carelessly breach confidentiality.

For example, it is one of the ‘Core Duties’ of the Barristers’ Code of Conduct that:

you must protect the confidentiality of each client’s affairs, except for such disclosures as are required by law or to which your client gives informed consent.

Further:

The duty of confidentiality is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, the information will be privileged and not disclosed to a court… Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required by law.

The Professional Practice Committee (PCC) of the Bar Council considered the issue of what may or may not be disclosed by a barrister and advised that a barrister should tell the client as soon as possible about the broad ambit of his or her professional duty:

  • Counsel’s role is to represent the client and to present the client’s case to the best of his or her ability;
  • Counsel has a duty of “full and frank” disclosure in respect of relevant material that is disclosed by the client and which impacts upon the welfare of the child;
  • Counsel is not in a position to conduct a trial or proceedings whilst withholding or concealing relevant information from the parties and the Court;
  • The duty of confidentiality to the client owed by Counsel and contained in the Core Duties at CD6 may be overridden as permitted by law. In particular, any information which reveals a serious risk to the welfare of a child, or serious harm to a third party, may have to be disclosed even if Counsel’s instructions are discontinued.

The PCC consider that the duty on family lawyers to make ‘full and frank’ disclosure of issues that relate to the welfare of a child have given rise to a particular ‘culture’ in family proceedings that the client is advised to consent to disclosure of information that might be unfavourable to the client, because:

  •  that whilst the advocate has a duty to present the client’s case to the best of his or her ability, the advocate has a higher duty to the court to disclose relevant material to the court even if that disclosure is not in the interests of the client;
  • that full disclosure of relevant material will result in a fair and proper assessment of the child’s welfare and will assist the court in arriving at the best possible outcome for the child (usually their child);
  • that full and frank disclosure is more likely to result in parents’ and/or carers’ needs being properly identified, which in turn will have a positive impact upon the child if they are considered able to care for the child;
  • that if relevant information were to be withheld (such as a new relationship with an unsuitable partner), then almost invariably it would emerge during cross-examination or further investigation within the proceedings, and the client might then be heavily criticised and his or her case damaged because of his or her failure to be honest and open with the court at the earliest possible stage;
  • that in acting for a client counsel cannot mislead the court in any way.

The PCC make it clear that if a client doesn’t accept the advice that it is best to be up front about unfavourable information which relates to the welfare of a child,  the barrister will probably need to withdraw from the case, given the risks that this runs of misleading the court.

Privileged information

There are two types of ‘legal professional privilege’ which may operate to keep some information confidential, even taking into account the duty of ‘full and frank disclosure’.

  • Legal advice privilege covers communications between a client and his legal adviser and is available whether or not proceedings are in existence or contemplated;
  • Litigation privilege is wider, covering for example communications between a legal adviser and potential witnesses. These communications are privileged only where proceedings are in existence or contemplated.

The courts have decided that litigation privilege does not apply in care proceedings as they are meant to be non-adversarial. Thus all reports obtained from third parties should routinely be disclosed.

However information may still be privileged if the documents under scrutiny were prepared for the purposes of criminal proceedings (see S County Council v B [2000] 2 FLR 161 where the court held a parent could claim legal professional privilege in care proceedings in respect of communications with medical experts who had been instructed solely for criminal proceedings).

Communications between a client and his legal adviser remain privileged in family proceedings. This is considered a very important principle for the administration of justice –  a client must be free to consult his legal advisers without fear of his communications being revealed.

There is one exception to this – if the communications reveal a crime has been committed or is intended to further a criminal purpose.

 

A Barrister’s obligations to the court where there are concurrent care and criminal proceedings.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam):

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

With regard to the risks parents might be running in giving statements in care proceedings that might go on to be used in criminal proceedings, see this post by suesspicious minds. 

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014].

What’s the difference between adoption and fostering?

But why have adoption at all? What is wrong with fostering? Then mistakes can be put right later.

A child in foster care will be placed with parents’ consent under section 20 of the Children Act or because a care order was made. The parents will retain their parental responsibility. Foster carers are trained professionals who are not providing a ‘family’ for a child in the same way adoptive parents would. That is the key distinction between adoption and fostering. 

In the case of Re V [2013]  the Court of Appeal decided that a Judge was wrong to agree that long term fostering would best meet the child’s needs. The Court of Appeal set out the key differences between the adoption and long term fostering.

  • Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.
  • Once an adoption order is made, it is made for all time.
  • Contact arrangements are different between fostered and adopted children. LA has a duty to allow reasonable contact with a child in care.
  • An adopted child is not subject to any further LA intervention and can live ‘normal’ family life without any ‘stigma’ of being child in care.

It is clear that adoption is currently seen and has been seen for some time by our domestic courts as the ‘gold standard’ of outcomes for children.  But this isn’t a view shared by all – we certainly seem to be out of step with the rest of Europe.

Mostyn J commented in Re D (a Child) [2014]

The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. (NB However, Mostyn J has got this wrong – every European country permits adoption without the parents’ consent – see this post from the Transparency Project).

Critics of the current system further ask why there needs to be adoption at all, why can’t children go into foster care so they can return to their parents if it is later found that they shouldn’t have been removed from home in the first place or if the parents can make changes to the way they parent?

The problem that we have is the near universal agreement from child psychologists and other experts about the crucial importance to a child of finding a permanent home and being able to become securely attached to his or her adult carers. You can read here about some of the problems children face if they can’t develop a secure attachment to their adult carers.

If a child has been away from his or her birth parents for many months or even years and particularly if that child has now formed a secure attachment to an adoptive family, there is serious concern about the emotional harm that would be done to the child if he or she was removed from the adoptive family to return to the birth family.

Suggestions have been made that the birth families and adoptive families could ‘parent together’ in such cases but that would require a degree of emotional maturity and an ability to put bitterness and recrimination to one side, which may be beyond most people’s abilities.

This explains why very sadly, the Websters weren’t able to get their children back, despite a court concluding that they ‘probably’ were the victims of a miscarriage of justice because their child’s injuries may have been due to scurvy, but this wasn’t recognised at the time.

However, the Council of Europe reported in 2015 about different European countries and their attitudes to adoption and commented unfavourably about the UK’s refusal to reverse adoption orders in such circumstances; para 74:

My attention has been drawn to a handful of cases which are extremely tragic and concern miscarriages of justice. In several of these cases, an underlying medical condition of the child such as brittle- bone-disease or rickets was overlooked, and the children were placed for adoption (without parental consent). The tragedy is that even when the parents finally win in court, and can prove their innocence, they cannot get their children back, because a flaw in the English/Welsh legal system means that adoption orders cannot be reversed in any circumstances – in a misunderstanding of the “best interest of the child” who actually has a right to return to his/her birth family.

What does seem to be very clear is that we need more and better consideration of issues such as contact with birth families after an adoption order is made;  see Re W [2016] and the comments of McFarlane LJ in the Bridget Lindley Memorial lecture October 2016 (mentioned below).

The ‘push’ for adoption.

There are serious concerns that an ideological ‘push’ for adoption is masking proper consideration of statistical trends and that adoption is being over promoted as the best outcome for children. An example of how the best interests of the child got over looked in a quest to find her an adoptive placement, see this case involving the London Borough of Hillingdon. Family Law Week reported:

The LGO found that during her time in care the council has spent two years looking for a family to adopt the girl, who has autism and other developmental delays, but none was found. She has been living with her current foster family since May 2011. The council asked the current foster carers to become special guardians, which would mean a more permanent arrangement, but the family told social workers they would need the extra long-term support they would receive if she remained a looked after child, and declined to become special guardians.

Because of the family’s refusal social workers carried on looking for an alternative permanent family, despite all evidence that this was not in her best interest. This uncertainty about her future has caused the girl significant stress and anxiety, damaging her welfare, her emotional wellbeing and her ability to learn.

The girl’s advocate contacted the LGO complaining that the council was not listening to the wishes of the girl to stay with her foster family.

The Adoption Leadership Board was concerned by the significant reduction in the last 12 months of placement orders made and decisions by LAs to pursue plans for adoption. Lucy Reed discusses this in her Pink Tape blog:

So what sort of beast is the Adoption Leadership Board? Well, it’s terms of reference are here and are pretty unobjectionable. It is not a body designed to promote adoption as an end in itself : only for those children for whom it is the “best way of achieving permanence”. It is not “adoption is a good thing” dot com. And yet…it strikes me that the title “Adoption Leadership Board” somewhat loses the nuance of the terms of reference and tends towards the idea that adoption is a good generally to be promoted. And the impression created is important. Coupled with the plain assumption that a fall in adoption numbers must be “a bad thing” the impression ain’t great. If you wanted to feed the “adoption targets” / “babies for sale” conspiracy theories this would be a good starting point.

Further reading

Family Law Class at the Bristol Civil Justice Centre

 

 

The Bristol Civil Justice Centre is going to be trying different ways to help people involved in family law cases who can’t get access to legal representation or who want to understand more about what is going on .

One part of this initiative is the proposal for ‘Family Law Classes’  The first will be held on 4 December 2014 from 10:30 -12 noon.

HHJ Wildblood QC, some lawyers and some Court staff will hold a meeting for members of the public at which they will explain the law and procedure

The class will take place in Court 2, 2nd floor,

Bristol Civil and Family Justice Centre, 2 Redcliff Street, Bristol, BS1 6GR.

Please e-mail [email protected] if you would like to attend the class.

 

Disclaimer

Please note that whilst we can give an overview of family law and explain court processes and forms, we cannot give legal advice on individual cases.

Care proceedings and children from other European Countries

What happens when a child has a particular connection with another European country but is in care proceedings in England?

Just as we must respect and trust the competence of other member states, so must they respect and trust ours.

EDIT May 2021 – the landscape of these cases will have shifted following Brexit. We need to see how law and policy respond to these changed circumstances and will update. In the interim, treat with caution any assertions about the applicability of European law as this post was mainly written pre Brexit. 

EDIT JANUARY 2025 Guidance from the President of the Family Division: Transfer of proceedings – Courts and Tribunals Judiciary

Article 8.1 of Council Regulation (EC) No 2201/2003 known as ‘Brussels II revised regulation’ or ‘BIIR’ sets out the primary rule that a child’s case should be heard by a court in the country where that child is ‘habitually resident’ (i.e. the country where the child is integrated into social and family life). BUT under article 15 the courts of the country of habitual residence can transfer the case to another country IF that court would be ‘better placed’ to deal with it and such a transfer is in the best interests of the child. 

This is an increasingly important issue for care proceedings in England as free movement of families within the European Union has led to many children living in countries which are not where their parents were born. Sometimes those children come to the attention of Children’s Services because there are concerns about how they are being parented. 

BIIR is discussed in more detail below, along with the two important cases of  Re E (A Child) [2014] EWHC 6 (Fam) and the Supreme Court decision in Re N [2016] which set out the principles an English court must use to determine if such a case should be heard in England or should rather be transferred to the European country from which the parents’ originate. 

The Court of Appeal considered the issues in Re N in 2015. See further our post with regard to the timing and content of that judgment

Brussels II revised – what is this?

Brussels II Regulation (EC) No 2201/2003 is a European Union Regulation setting out what should happen when there is a ‘ conflict of law’ between member states in family law; in particular those issues relating to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000. It is usually referred to by the shorthand ‘BIIR’.

BIIR will be important to consider when the court deals with care proceedings involving people from different European countries who may not wish to accept the jurisdiction of the court of England and Wales.

The court has confirmed that it does NOT apply to adoption or measures preparatory to adoption, see paragraphs 19-23 of the judgment in  CB (A Child) [2015] EWCA Civ 888, a long running case involving direct intervention from the Latvian authorities as the LA had not informed them of the care proceedings in 2012, when they should have done.

The intent behind BIIR is that disputes about children should be dealt with in their country of habitual residence wherever possible. See Recital 12:

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.

So when can the courts in England and Wales have jurisdiction?

The usual approach in the family courts used to be that if a child is habitually resident or even just physically present in England and Wales, the court had jurisdiction to deal with care proceedings about that child. (See Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449).

However, that has changed fundamentally with the application of BIIR.  The courts now hold that this applies even if the other country is NOT a member of the EU.

Article 8(1) of BIIR sets out that the jurisdiction will depend on habitual residence and this must be the starting point of any inquiry into jurisdiction. However, a court can make orders if the child is physically present but his habitual residence cannot be established  – see Article 13(1).

Habitual residence – what does this mean?

This will be decided looking at the principles set out in the case of A v A and Another (Children: Habitual Residence) [2013] UKSC 60. See paragraph 54 of the judgment. See also the Supreme court decision in Re B (A Child) [2016] UKSC4.

To be ‘habitually resident’ in a country you will require some degree of integration in that country, such as going to school there. Whether or not a child is ‘habitually resident’ in a particular country is essentially a question of fact:

  • habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  • The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
  • The test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.
  • The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
  • The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  • It is possible that a child may have no country of habitual residence at a particular point in time.

Urgent cases

This is dealt with by Article 20 of the Regulation, which allows a court “in an urgent case” to take “provisional, including protective, measures” until the courts of the Member State with jurisdiction has taken the measures it considers appropriate.

See further Re B (A Child) [2013] EWCA Civ 1434,  where the mother’s appeal was allowed against a decision that a court had jurisdiction to make orders with regard to her child who was habitually resident in Sweden. Instead, the Court of Appeal made a declaration under Article 17 of BIIR that the court had no jurisdiction.

Article 15 transfer – Asking another country to get involved.

See paragraph 5 of the Supreme Court judgment in Re N. Even if the court does have jurisdiction under BIIR, article 15 allows it  to request the court of another Member State to take over the case, via its Central Authority IF:

  • the child has a particular connection with that other State – for e.g. the child is a national of another country.
  • the other court would be better placed to hear the case, and
  • it is in the best interests of the child – this is the crucial issue which was subject of argument before the Supreme Court in re N and is discussed further below.

The Vienna Convention – what is it?

The Vienna Convention on Consular Relations of 1963 is an international agreement that sets out  a framework for consular relations between independent countries. It is clear that prior to 2014, LAs and lawyers were not aware of their obligations under the Convention. Hopefully that situation is now remedied. In care proceedings no court should stand in the way of  free communication and access between a party who is a foreign national and the relevant consular authorities of that foreign state. A consul normally operates out of an embassy in another country, and performs two functions:

  • protecting the interests of their citizens who are in the host country; and
  • promoting the commercial and economic relations between the two countries.

Article 36 of the Convention is headed “Communication and contact with nationals of the sending State.” It states that:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Guidance relating to the Vienna Convention in care proceedings

In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

Further, whenever the court is sitting in private it should normally allow any request from either the foreign national or from the relevant consular authorities for an accredited consular official to:

  • be present at the hearing as an observer in a non-participatory capacity; and/or
  • to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

Whenever a party, whether an adult or the child, who is a foreign national

  • is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
  • is detained

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so without delay.

However the Vienna Convention does NOT impose a duty in all circumstances to inform the foreign state – see the case of Re O in 2021 for an example of a case where it would be directly contrary to the child’s welfare to give information about her to the DRC.

Re E 2014 – Slovakia

Re E involved a 12 year old boy of a Slovakian mother and a British father. E had lived in the UK all his life but had Slovakian citizenship. During the care proceedings, his mother went back to Slovakia.

The Slovakian Central Authority made a request to the English Central Authority seeking information pursuant to Article 55 of Brussels II Revised (BIIR). Article 55 provides that countries co-operate on matters relating to parental responsibility for children. The Central Authorities in Member States must collect and exchange information on the situation of the child, on any procedures under way, and on decisions taken concerning the child. Central Authorities must also help the courts in different countries communicate with one another.

The request referred to the fact that a media campaign had been started in Slovakia and that the case had become “extremely sensitive” and “a focus of attention”. It sought information about the outcome of a forthcoming court hearing.

The court ordered the LA to disclose information to the Slovakian Central Authority and the Head of the Consular Section of the Embassy of the Slovak Republic in London was allowed to be present in court as an observer.

The Central Authority in this case confirmed that it did accept the jurisdiction of the court. However, there have been other cases where the right of the English court to make orders regarding children from other European countries has provoked considerable controversy, particularly as a particular myth has grown up that only three countries in Europe permit ‘forced adoption, being the UK along with Croatia and Portugal. (This is untrue – every European country permits adoption without the parents consent. See further discussion in this post by the Transparency Project). Thus the President set out guidance with regard to the following issues:

  • Brussels II revised [BIIR]
  • Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963.

The President stated at paras 13 and 14 of his judgment:

Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.

In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.

He made it clear that good practice will from now on require that in any care proceedings with a European dimension, the court must set out clearly in both its judgement and order:

  • the basis upon which it either accepts or rejects jurisdiction,  in accordance with the relevant provisions of BIIR;
  • If the court decides to exercise or refuse to exercise its powers under Article 15, what are the reasons for this.

The lesson for UK family practitioners – the ‘sins of insularity’.

The President repeated what he had said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.

Re N [2016] – the real ‘best interests test’.

Interestingly, the Supreme Court took a rather more bullish approach to the issue of respect for other jurisdictions. As Lady Hale commented in para 4 of that judgment:

It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between member states …. this principle goes both ways. Just as we must respect and trust the competence of other member states, so they must respect and trust ours.

The issue which was at the heart of the judgment was what exactly was meant by ‘best interests’ when looking to transfer a case to another country under article 15. The first judge to hear Re N decided that it should be transfered to Hungary as the country where the children’s parents came from. The local authority and the Guardian appealed as they thought it would be better for the children to be adopted by their current foster carers and they had lived in England all their lives. The Court of Appeal decided to uphold the first judge’s decision to order a transfer and thus a further appeal was made to the Supreme Court.

Lady Hale identified the key question at para 28 of her judgment:

What on the true construction of article 15 are the requirements before the English court can make a request to transfer a care case to another member state?

The court was critical of the development in the case law of the ‘attenuated welfare test’ which appeared to have arisen out of considering what ‘best interests’ meant in regard to a different article entirely (article 12.3). Lady Hale commented in para 44

The court is deciding whether to request a transfer of at the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different but it is wrong to call it ‘attenuated’… there is no reason at all to exclude the impact upon the child’s welfare, in the short or longer term, of the transfer itself….

Therefore the Supreme Court were clear that the first Judge was wrong to accept that because he found the Hungarian court was better placed to hear the case, that it necessarily followed it would be in the best interests of the children to transfer it. He should have addressed the short and long term consequences of the transfer. The short term consequences of transfer were:

  • the children would be removed from where they had lived for most of their lives where they were happy and settled;
  • they would be transferred to a Hungarian foster placement about which the court knew nothing other than the carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to them.

Also, when considering long term consequences, it was wrong to present the case as involving simply two options – foster care in Hungary or closed adoption in the UK. The Supreme Court noted that there were ‘several other options’ in between.

Will the CJEU (European Court of Justice) decide that article 15 apply to care proceedings where the care plan is for adoption?

This issue is yet to be determined by the CJEU who are currently considering a case referred by the Supreme Court of Ireland. But the Supreme Court took the view they would continue on the basis that article 15 does apply otherwise the considerable delay already incurred in these proceedings would continue. Watch this space.

Further Reading

For an example of what goes wrong if the issues of jurisdiction aren’t grappled with at an early stage, see the case of Re F (A Child) [2014] EWCA Civ 789.

See this post from the Transparency Project about the discussions at a workshop dealing with cross-border child protection issues, hosted by Dr Claire Fenton-Glynn and Dr Lamont in November 2015.

See the advice from the Department of Education in July 2014: ‘Working with foreign authorities: child protection cases and care orders’

This advice is non-statutory and is not meant to be a complete statement of the relevant law. It was intended to be reviewed before July 2015. It sets out:

  • a set of principles for social workers working on child protection cases and care orders, where the child has links to a foreign country;
  • a summary of the main international legislation;
  • guidance on agencies and organisations that social workers can seek help and advice from, or provide information to when working on these cases; and
  • sign-posts to other relevant guidance.

The International Child Abduction and Contact Unit (ICACU) has published a form and guidance notes where co-operation into and out of the jurisdiction under either Brussels IIa or under the 1996 Hague Convention is required in care proceedings.

For a case involving a ‘relinquished baby’ where the parents wanted an adoption in the UK but the Latvian authorities disagreed see in the Matter of RA [2016]. This case considers the impact of ‘limping adoption’, i.e. adoption orders recognised in the UK that may not be in other European countries.