Update: family (children)

Findings of fact have recently been the subject of judicial scrutiny. In Re W-P [2009] EWCA Civ 216, the local authority sought findings that injuries sustained by one of two children were non-accidental and therefore the threshold criteria for making a care order was met. It submitted that the father caused the injuries but, in the event that the judge was unable to make that finding, it sought a finding per the Lancashire [2000] UKHL 16 case that either the father alone, the mother alone or both in conjunction perpetrated the injuries.

The judge found that the father had caused the injuries recklessly, but not intentionally. The appeal by the local authority (supported by the children's guardian) contended that the judge's findings were so contrary to the weight of the evidence that the conclusions he drew could not have properly been open to him.

Wilson LJ in giving lead judgment was highly critical (for various reasons) of how the trial judges approached judgment, describing this as 'unusual and arguably unwise'. One area of concern was that the judge had departed from some of the father's own revised explanations.

The appeal court was also disapproving of the trial judge's determination that some of the injuries were recklessly caused during a nappy-changing incident where there was no evidence that the father had changed the child's nappy at the material time: the judge had 'invented the incident'.

Wilson LJ emphasises that there is a wide margin given to findings of fact; this was a rare example where the appellate court had to intervene.

In Re D [2009] EWCA Civ 472, the trial judge at the threshold hearing had found that the injuries to the children were perpetrated by the father and that the mother could be excluded as a perpetrator. The father appealed. The Court of Appeal exceptionally set aside the finding and substituted a finding that neither parent could be excluded as possible perpetrators. Wall LJ discussed Re B [2008] UKHL 35 to raise two points which he feared could be misunderstood.

The main issue was a reminder that while it is in the public interest to identity perpetrators who cause serious non-accidental injuries to children, there is nothing in Re B which requires the court to identify an individual as the perpetrator simply because the standard of proof for such identification is the balance of probabilities. Therefore, if such identification is not possible, i.e. that the judge cannot find on the balance of probabilities that A rather than B caused the injuries, but neither A nor B can be excluded as a perpetrator, then it is the duty of the judge to state that as his or her decision.

Judges hearing these cases should not start from the premise that it will only be in an exceptional case that it will not be possible to make such identification.

Care planning

The unusual case of Bury MBC v D [2009] EWHC 446 (Fam), heard by Munby J, involved a mother who was at the time of the hearing in labour and a local authority whose plan was to remove the unborn child immediately at birth.

The query before the court was the authority's concern that it had not communicated the birth plan to the mother because it believed that this would likely lead to an adverse reaction on her part, including a very real risk that she may immediately after the birth harm both herself and the child. The mother had already demonstrated a propensity to threaten violence to her children and the authority.

However, for the authority to conceal or not involve the parent fully in planning processes both prior to and following the child's birth is an interference with the parent's article 8 ECHR rights.

As the child was not yet born, there was no jurisdiction for the court to exercise powers under the 1989 Act, nor under its inherent or wardship jurisdiction in respect of children. Likewise, as there was no evidence suggesting that the mother was incompetent for the purposes of conducting litigation, there was no jurisdiction exercisable under the Mental Capacity Act 2005 by the Court of Protection or the inherent jurisdiction of the Family Division in relation to incapacitated adults.

Munby J proceeded to deal with the matter under the inherent jurisdiction of the High Court to grant anticipatory declaratory relief to sanction the appropriateness of a future course of conduct or to declare the proposed course of conduct unlawful. In reaching a decision that the authority's proposals were appropriate, indeed necessary, Munby J directed himself to both domestic and Strasbourg case law, suggesting in line with those authorities that the course of conduct had to be a proportionate response to the interference with family life. Essentially, the test was one set out in Re B [2003] EWCA Civ 786, where Thorpe LJ stated that the taking of any step must not be sanctioned by the judge 'unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children'.

While the authorities cited concerned applications for emergency protection orders or interim care orders, Munby J stated that the fundamental principles established by those cases also governed the question currently before him. This particular case was dealt with on its facts in the sense that the circumstances were highly exceptional and therefore the course adopted by the authority cannot be considered routine. Here it was imperative in the interests of the safety of the child for the court to grant the authority an anticipatory declaration that its proposed course of conduct was lawful.

Concerning a very different aspect of a local authority's involvement in public law proceedings, Re A [2009] EWHC 865 (Fam) saw the justices make an interim care order and an order under section 38(6) CA 1989, directing the authority to place the child with the paternal great-grandmother and aunt for the purpose of an assessment; both as to how they would cope with the child and their ability to cope with and supervise the child's contact with her parents.

In making that order they accepted the view of the guardian that the court would require, before making a final order, evidence of how the child had settled with those prospective carers. In the meantime it was important that the authority should retain parental responsibility which was something that could only be achieved by the making of a further interim care order as opposed to a supervision order.

On appeal, the authority attacked that order stating that the justices had no jurisdiction to make the section 38(6) order and that essentially the justices had made this order to ensure the authority placed the child with the prospective carers in their home. The authority believed that this was otherwise an unregulated placement because the great-grandmother had a conviction which would disqualify her under the relevant Fostering Services Regulations.

In giving judgment, Munby J reminds us that once a final care order has been made it is for the authority, not the court, to decide how to meet its parental responsibility for the child. However, in making an interim care order the court has the power to interfere with the authority's exercise of parental responsibility by virtue of section 38(6).

Munby J dismissed the appeal on the basis that it was not the case that the justices were seeking to go behind the fact that the prospective placement was likely to be considered an 'unregulated placement', as the placement was one that was very much regulated: by the court. It will have assured itself that the in situ assessment with prospective carers was appropriate, required and safe. The court 'will no doubt take steps to ensure that the assessment is properly monitored or supervised as it proceeds '“ as it was in the present case, for, after all, the very purpose of what the justices directed was that A should be observed in the family setting by both the guardian and the social worker'.

Electronic tagging

In Re A [2009] EWHC 710 (Fam), Parker J dealt with the relatively unfamiliar territory of electronic tagging arrangements in family proceedings. This case is highlighted as it sets out the procedure for making such arrangements where these are appropriate.

The parties agreed that when the child was to be with the mother, the mother should be subject (for a period) to a curfew supported by electronic tagging. The practicalities of making such arrangements are set out in paragraph 8 of the judgment based on the information provided by the President's Office. A helpful specimen order for electronic tagging is annexed to the judgment. It remains to be seen whether there will be any wider use made of electronic tagging, especially in light of the new sanctions for breach of contact orders resulting from the Children & Adoption Act 2006.

Interim contact orders

The case of SS v KS [2009] EWHC 1575 (Fam) will be of interest, especially to London practitioners as it deals with what is now an increasingly familiar situation facing the court and its users in contact proceedings.

The appeal was brought by the mother against the district judge's interim order for contact (on a supervised basis) to the father. The fact finding hearing which had commenced to deal with the mother's allegations had only been part heard and the matter would only return some four months later.

Hedley J stated that it was recognised that the case might not have concluded on that date and even if it did then there would have to be a welfare report and risk assessment by Cafcass with a possible final hearing taking place in October. If that was right then at that point over a year would have passed since the initial directions hearing on the father's application.

The unfortunate set of circumstances leading to the delays within the family justice system were caused by several factors, including the practice direction on residence and contact orders concerning situations of domestic violence and harm. Hedley J referred to the Court of Appeal having made it clear that 'it is only where the truth of allegations have a significant impact on the question of what order is made in respect of contact, that a fact finding hearing is required, the prevailing culture is very much of 'playing for safety' and that the number'¦ of such hearings continues to grow'.

In this case the judge made the order as to interim contact despite the findings of fact having yet to be determined. Hedley J continued to say it is a fair inference from the judge's comments that he would not have made such an order were it not for the circumstances of delay affecting the court.

Hedley J describes the conceptual problem: if an order for interim contact is made it almost answers the core question within the proceedings, namely whether there should be contact at all. Against this consideration is that the best interests of the child are not served by delays in ordering contact (if indeed contact should be ordered).

Although Hedley J recognises that the allegations in the case were serious and that the interim contact order could not address the issues of emotional harm to the children, those issues requiring assessment by a welfare officer, he concludes that while it may only rarely be justified to make an interim contact order in the midst of unresolved allegations of domestic violence or harm, he is unable to say that the judge's decision fell outside of the generous breadth of discretion afforded to a trial judge.