Update: family (children)

The Children Act 1989 (CA 1989) provides that it matters not whether the originating application is for a supervision or care order; the court can make either so long as an application for one or the other is afoot (section 31(5)).

Interim supervision v interim care

The question of which order to make was the subject of appeal in Re B (A Child) [2009] EWCA Civ 1254. The family had a long history of local authority involvement. Upon a social work visit, TA, who was six, was removed into police protection (foster care placement). The next day, the mother agreed to TA being voluntarily accommodated. The younger child, KB, aged two, was not removed when TA was. Shortly after, an application for care orders was made in respect of both children and interim care orders (ICOs) granted at the first hearing. At a further hearing listed for a contest, the parents did not oppose continuation of TA's ICO, but opposed KB's.

The local authority's evidence described a stark difference between the conditions in which TA and KB were living. It appeared that TA was subject to bare and inappropriate conditions. In addition, his adult half-sister gave a police interview which was damning to the parents' case. The trial judge rightly pointed out that these matters would have to be considered at a future juncture with the entirety of evidence and that he did not have to make any findings. However, the judge had to address the section 38(2) CA 1989 test, namely whether he could be satisfied that there were reasonable grounds for believing that the circumstances mentioned in section 31(2) CA 1989 were present in respect of KB. Clearly to arrive at an answer the evidence before the court required consideration.

Having found the test satisfied, the next question for the judge (the construction of which Wall LJ found faultless) was 'whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care'. In summary, the local authority argued that the judge's cautious approach to fact finding on an interim application under section 38 CA 1989 resulted in his minimisation of the harm TA may have been suffering. That harm, it was submitted, was 'intentional, flagrant and extreme'. The judge's balancing exercise regarding KB and the risks involved in returning to the parents' care was prejudiced and incorrect because the starting point for that was the (flawed) analysis of harm that TA may have been suffering. It was also submitted that the judgment did not provide sufficient reasoning for the decision that KB should be returned home. Wall LJ agreed with these submissions.

Wall LJ's judgment serves to remind that even when dealing with interim applications where findings are not required, detailed consideration of evidence will be necessary in order to determine whether the interim threshold test is met. Practitioners will wish to prepare cases for contest as thoroughly as possible especially in light of the difficulties which often embed once interim removal occurs and continues. The judge's task is an unenviable one as he/she may be faced with fine facts which make the balancing exercise all the more difficult. While each care case proceeds on its facts, this case demonstrates that where interim removal is justified in respect of one child (to protect or safeguard) the strong evidence relied on will likely stand firm to support removal of another child of the family at the same time where his/her welfare demands this.

Cogent reasons would be expected in all circumstances to justify a decision either to make either an ICO or ISO. In contrast, in Re N-F (Children) [2009] EWCA Civ 274 ICOs were made in respect of two children and ISOs for the other two. The local authority appealed that decision submitting that the judge's reasons were not sufficient and that the judge misrepresented the children's guardian's evidence. Unlike Re B, the Court of Appeal disagreed and found that the judge had provided reasoning for the decision which was based on findings about the mother's compliance with local authority requirements and crucially that with two children placed in foster care, the parents would be better able to cope with the two children subject to ISOs. The case provides support to submissions made in respect of:

• parents' previous cooperation;
• that however unlikely children are to remain with parents following final disposal, removal at the interlocutory stages 'is quite another thing';
• a judge has a discretion to place trust in the parents for a short period and of course that trust is also based on the fact that supervision is conducted; and
• it remains open to the local authority go back to the judge to query whether the interim order can be sustained to the final hearing.

Costs in private law fact-finding exercises

It has been long established that it is unusual to make an order for costs in children cases. The reasons are obvious and need no rehearsal. In Re J (Children) [2009] EWCA Civ 1350 the Court of Appeal was tasked with dealing with the mother's failed appeal to the circuit judge against the district judge's refusal to make an order that the father (applicant for contact order) should pay her costs of the fact-finding hearing held to determine allegations she made against the father. The circuit judge visited the rationale in Re T (Order for Costs) [2005] EWCA Civ 311 where costs were ordered and concluded that the stance taken by the father at the fact-finding hearing was not 'irrational conduct which [had prolonged] unnecessary litigation'.

Wilson LJ stated that the district judge had failed to exercise his discretion correctly and the circuit judge herself fell into error in not recognising that failure. Wilson LJ continued that the district judge 'should at least have adverted to the nature of the enquiry, the seriousness and relevance of the allegations made by the mother, the extent to which the father admitted them, and, most importantly, beyond what the father admitted, the extent to which they had been found proved, as well, of course, as the extent to which they had not been found proved'.

The judgment is interesting because while the Court of Appeal accepted that the case was to an extent distinguishable from Re T insofar as the father's conduct during the hearing was not irrational, it carried on to order the father to pay two-thirds of the mother's costs of the fact-finding hearing. Wilson LJ stated that it 'would be wrong to consider that the discretion in relation to costs is so fettered that an order can be made only against a party whose conduct has been irrational'. This seems to be somewhat of a departure from the principles in Re T where Wall LJ said that the judge in the lower court had set out the principles on costs correctly. Wall LJ repeated these at paragraph 36. The significant principle being: 'The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the 'unreasonableness' must relate to the conduct of the litigation rather than the welfare of the child.' That is essentially the irrational conduct factor.

Wilson LJ does stress that he would be concerned if the court's consideration of the case was to be taken to indicate that costs in these cases would be decided by reference (in whole or part) to determination of historical facts. Yet the lower court's determination of the facts was indeed the major factor which led the Court of Appeal to order costs against the father. Wilson LJ lists (paragraph 19) the features of the fact-finding exercise which leads him to describe the mother's costs of the hearing as forming part of a 'separate and unusual category'.

Practitioners are likely to take the view that they have been faced with these features collectively in several cases and perhaps that these are not unusual. Naturally, it will be difficult for future courts to distinguish such features from Re J making successful applications for costs in private law fact-finding hearings more common. Of course where both parties are publicly-funded there will be no utility in making costs orders against parties.

Section 38(6) applications: a few reminders

In Re W & M (Children) [2009] EWCA Civ 1278 the Court of Appeal adjudicated on the lower court's refusal to grant parents in care proceedings a direction for a residential assessment under section 38(6) CA 1989. These applications beleague the courts because the assessments involved are generally expensive and often applications are made as last-ditch attempts to garner supportive evidence on behalf of parents. Permission to appeal was granted but the appeal failed. Consideration of facts are not essential but the principles which Coleridge J explains are as follows. First, the judge is at liberty to conclude having considered all the evidence and the issues that 'the assessment would in the overall circumstances of the case only be of limited use' especially where in this case its service to the court was superficial given that the central issue was the parents' ability to remain drug-free. Secondly, the delay involved would justify refusal of an assessment where the overall prospects of success 'are weighed in the balance together with the effect of the disruption to the children's lives in carrying out the assessment'. The Court of Appeal reiterated in Re J (A Child) EWCA Civ 1210 (heard only days later) that the question to be formulated in these applications is not one of the parents' right to the assessment but rather whether the assessment will assist the court in undertaking its decision-making task.

Two stages of a whole process

The case of Re E (A Child) EWCA Civ 1238 is a useful reminder that once the court has conducted a fact-finding in hearing in private law proceedings, the case, at that stage, is part heard and awaits the second stage of the process: disposal. The trial judge stated that he found the allegations of the mother against the father were proved. He went on to express the view that these were of such a serious nature 'so as to impact very substantially on the question of contact' between the father and child. Upholding the father's appeal, Ward LJ stated that had the trial judge stopped there and directed a further hearing on contact, no criticism could be levelled. The judge fell into error when he continued, absent any argument or submission on contact, to say that it seemed to him that the father's applications were bound to fail. Ward LJ found this approach procedurally irregular because the matter had not been the subject of full or any argument and in addition the father was given no opportunity to address the opinions which the judge offered.