Update: family (children)

The Court of Appeal in Re W (Children) [2010] EWCA Civ 57 dismissed the father's appeal against the refusal of the trial judge to grant a direction that his step-daughter be called to give evidence. The step-daughter's allegations were serious and of a sexual nature and had precipitated the local authority's application for care orders in relation to the step-daughter and four younger children. The Court of Appeal dismissed the appeal, effectively reaffirming case jurisprudence that the starting point for considering such requests was that it was rare to make a direction of the kind sought. The court did, however, express concern that a time for change in approach might be upon us. It vowed to send a copy of the judgments to the president of the Family Division. Nevertheless, the father sought permission to appeal further.

Within one month of the Court of Appeal's judgment, the matter came before the Supreme Court in what is likely to be one of the most significant family cases it will hear this year. Hale LJ gave the court's judgment in Re W (Children) [2010] UKSC 12 on 3 March (Solicitors Journal 154/9, 9 March 2010). The primary submission made by the father was that the current approach does not give sufficient weight to the ECHR rights of all concerned and therefore the presumption '“ that it will be rare for a direction to be made that a child give evidence '“ should be scrapped. The rights involved are the article 6 (fair trial/hearing) rights of the parents who face the possibility of losing their children and the children who correspondingly may lose their parents (if the allegations are proved). The children may face further abuse or harm if they remain in their parents' care (if the allegations are not proved). Article 8 (family/private life) rights come into play and again impact both children and parents who are involved in care proceedings.

When considering the dilemma from a rights-based context, the current presumption affords the child's article 8 rights the competing edge against that of the parents' article 6 rights. The father argued that by retracting the presumption, the competing rights can be dealt with by 'an intense focus on the comparative importance of the specific rights being claimed'. In wishing to preserve the status quo, the local authority's submission was simple: the antithesis of proceedings which exist to protect children would seek to involve them in a way which may traumatise them.

The Supreme Court held that the ECtHR's approach to competing convention rights is to seek to strike a fair balance between those rights. Hence, it held that if a child in care proceedings is not called to evidence, this will be as a result of fair consideration rather than a presumption which was not rebutted. In deciding the question of a child giving evidence, the two considerations are: (1) the advantages of that to ascertainment of the truth; and (2) the damage it may do to the welfare of that or any other child. In deciding upon the advantages, the court will look at these factors:

• The issues in the case. In some, decisions can be made without the need for findings on particular allegations.
• The quality of the evidence already before the court. It may be that the findings can be made on the current evidence irrespective of whether or not the child is cross-examined.
• The quality of any achieving best evidence (ABE) interview and the nature of the challenge which any party may wish to make. The court is unlikely to be helped by cross-examination which is motivated by a fishing expedition.
• The age and maturity of the child andthe length of time since the events in question.

The last points are also factors which need to be analysed when considering the second part (damage to welfare of the child). Additional factors will be the child's own view about giving evidence, those of the children's guardian and any others with parental responsibility and the quality of the child's support network. Hale LJ stated that an unwilling child should rarely, if ever, be obliged to give evidence. Other general considerations are the 'no delay' principle, specific risks to the child (e.g. having to give evidence twice '“ in family and criminal proceedings) and the fact that the court has to give less weight to the evidence of a child who has not been called '“ that being potentially damaging to the child if the result is that the local authority cannot prove its case and the child returns to possible abuse/harm from the family.

Hale LJ states that the risk of harm is a factor which the court must give great weight based on the present evidence, but which does not require expert evidence. She does not elucidate on why this is the court's view. It seems likely that arguments on expert evidence on risk of harm and any potential refusal by the courts to accept/allow such evidence will result in satellite litigation to clarify the point.

Finally, Hale LJ explains that while the court's consideration of the question in private law proceedings will be the same as in public law, some caution is required given the different nature and dynamics involved and not least the greater number of litigants in person in such cases. The court made it clear that ultimately the test is whether justice can be done to all the parties without further questioning the child. The court's own prediction is that where called to conduct the balancing exercise of competing rights, the additional benefits to determining the truth (first consideration) will usually not be outweighed by the additional harm to the child (second consideration).

Endorsing interim care plans

The perennial issue of what, if anything, the court can do when faced with a local authority's interim care plan which presents the court with some concern, was the subject of an application for permission to appeal to the Court of Appeal in Re M (A Child) [2009] EWCA Civ 1486. That application was made by the child's guardian following a failed appeal (against the justices' decision) to the county court. The Court of Appeal refused permission to appeal on the basis that the lower tribunals had applied the law correctly and therefore an appeal was doomed to fail.

It was common ground that the child could not, at this stage, live with her mother. The child had been placed with specialist foster carers. The assessment of her mother had been concluded and the local authority's clear position was that the child could not be returned to the mother. She had been accommodated pursuant to section 20 CA 1989 and when that came to an end the local authority applied for a care order. The guardian's position was that she should remain in her current placement until the conclusion of the proceedings. Wall LJ commented that this was an entirely proper position for her to take. It was based on conventional child welfare principles that having formed attachments a change of placement was undesirable until the ultimate change was required, be that a move back home or to new (hopefully) permanent carers. The local authority, however, wished to move the child to alternative local authority foster carers. What are not clear from the judgment are its reasons for that position, although these will have been set out in the interim care plan itself.

As Parliament had legislated in such a way as to give the local authority the eventual say on where a child would be placed if an interim '“ and, indeed, final '“ care order is made, the court will continue to be presented with the stark options of: (1) making the order and, if not in total agreement with the placement proposal, limiting its duration thereby requiring the local authority to go away and think again; or (2) refusing to make the order if confident that that would be better for the child.

Given that the problem faced in this case by the child's guardian and the mother '“ both of whom disagreed with the placement proposals within the interim care plan '“ is not uncommon, family practitioners will need to turn to the possibility of judicial review as a course of action. It probably cannot be said that the family court's limitations (in these situations) were well known prior to Re M, but the case does expound the problem. Appeals are likely to fail and will cause further delay. Even seeking an adjournment in the hope that the local authority will think again needs to be weighed up properly considering the delay involved and the prospects of the local authority changing its mind. When faced with this issue, solicitors may need to give thought to the following:

• undertaking an early assessment of the issue (merits of the various options);
• seeking counsel's advice on the prospects of success of an application for judicial review; and
• seeking an expedited hearing on any application and requesting that, when listed, the matter come before a judge in the Administrative Court who also holds a ticket to hear care cases.

The judgment in this case and the commentary provided in this update will apply as much to any aspect of the interim or final care plan. Commonly, placement issues give rise to most disagreements but other aspects of care plans should not be overlooked.

When is a child 'placed' for adoption

The process to revoke a placement order is not an easy one. The first hurdle is to seek and be granted leave to make the application to revoke. An application for revocation, by a parent, may not be made unless the court has granted leave to apply and the child has not yet been placed (section 24, ACA 2002). Naturally, the question of when exactly a child is placed is of central importance particularly to those advising parents in such situations.

The question was considered on an application for judicial review in R (W) Brent Borough Council [2010] EWHC 175 (Admin) by Coulson J. The judge concluded that the placement became 'fixed and certain' when all the necessary decision-making bodies had confirmed the placement. That point would have been reached when the agency decision maker had approved the panel's recommendation. Later, however, the judge stated that the introductions could not begin until the local authority had placed but then went on to add that the child was placed for adoption 'when all the relevant legal formalities had been concluded and the introductions process began'.

It appears that Coulson J viewed the introductions to be an important part of the entire process, but nevertheless the placement took effect at the conclusion of the formal processes. Practitioners should carefully explain to parents in any final advice following the making of placement orders of the need to: (1) ensure that the social worker keeps them appraised of developments with panel meetings, the matching processes and of any formal internal steps to be taken; (2) understand the test for revocation (change in circumstances); (3) seek advice early if minded to seek revocation; and (4) inform the social worker if revocation is being considered.

As for solicitors instructed in revocation proceedings, a full consideration of the judgment is crucial so as to avoid the mistakes made by the claimant's solicitors and referred to by the judge.