Public law children update: December 2023

Chris Wells rounds up the latest public law children cases of interest to practitioners.

Re EY (Fact-finding hearing) [2023] EWCA Civ 1241

This case concerned a 14-year-old child E. The local authority applied for a care order but the judge found that Section 31 (2) threshold was not crossed.

Background: E had an older sister S who turned 18 during the proceedings. The parents separated before E was made with S initially remaining in the care of her mother. For many years both children then lived with their father. In 2017 concerns were raised about the number of visitors to father’s home including vulnerable young people. An allegation was made that a 15-year-old girl had been raped in the property by an older visitor, and that the children had observed adults having sex in the home. The local authority became involved but closed the case in 2019.

In 2022 there were further referrals including in respect of sexualised statements made by E. Both children were placed in foster care. Proceedings were issued. There was no application for the children to give evidence. Dr Timberlake was instructed to provide a psychological assessment of the family. A final hearing took place from 5-7 June 2023 at which only the social worker, father and Guardian gave evidence.

The judge was concerned that although the local authority did not ultimately seek to establish the truth of numerous allegations, the social worker and psychologist had not engaged properly with that reality, commenting: “if the pattern is the fundamental building block of the local authority case and the local authority are not seeking to prove the allegations that form the pattern, there is no pattern to rely on”.

The court went on to make a number of findings, including that a number of concerning comments had indeed been made by E, but did not consider the “limited nature of the findings” to cross Section 31 (2).

The Court of Appeal: Ground 1 dealt with the expert’s evidence. The first part of Ground 1 (paragraphs 48-51) is, I would suggest, of particular importance to practitioners in the current climate, where courts are robustly scrutinising the necessity of experts attending for cross-examination. It was alleged that Dr Timberlake’s assessment should be treated as unchallenged as he was not required for cross-examination. The Court of Appeal cited Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, [2022] 1 WLR (“uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole. Uncontroverted evidence may be compelling, but it may not be: it may be inherently weak or unhelpful or of little weight for other reasons”) and concluded that the court is not obliged to accept expert evidence simply on the basis they had not been required for cross-examination.

However the appeal on Ground 1 was allowed for a number of other reasons including:

• The judge wrongly concluded that Dr Timberlake had strayed beyond the terms of his instruction.
• The judge was wrong to criticise Dr Timberlake for making enquiries relevant to the court’s fact-finding exercise.
• The judge was wrong to conclude that the expert’s report was based principally on the evidence of the local authority rather than his own substantial interviews with the father.
• Dr Timberlake’s opinions were based substantially on his own conversations with the father and the judge was therefore wrong to conclude that an alleged lack of insight was dependent on the local authority proving the background facts.
• The judge was wrong to reject the link made by Dr Timberlake between the facts in the case and satisfaction of Section 31 (2).

Ground 2 concerned whether the judge fell into error by failing to evaluate the facts in the round. Paragraph 65 sets out the findings which were made. Because the local authority had abandoned some allegations, and were not seeking to prove the truth of some of the things the children had said, the court considered there was no “pattern”, and discounted other findings as historic. The appeal was allowed on Ground 2 with the court noting:

• Evidence cannot be evaluated and assessed in separate compartments.
• The findings have to be considered in the context of the totality of the evidence, including that of Dr Timberlake.
• The findings made are plainly capable of establishing 31 (2).

Ground 6 concerned the scope of the Judge’s findings, which amounted to the appellants seeking to criticise the Judge for failing to make findings he was never asked to make; an argument the Court of Appeal considered to be “hopeless”. However paragraph 70-73 provides a useful summary of the relevant principles where the court is considering departing from the local authority’s pleaded case, as follows:

• Civil litigation is generally conducted on an adversarial basis and the court does not dictate the issues to the parties.
• But care proceedings are different and the court is required to identify the key issues. A judge is obliged to scrutinise the finding sought. If they are unnecessary, the judge should say so. Conversely if the threshold does not address relevant issues adequately, the judge should also say so.
• A judge is not required to “slavishly” adhere to a schedule of proposed findings.
• However, the process must be fair. If the judge is departing from the “known parameters” of the case, a party against whom findings could be made must be given a fair opportunity to challenge them.

H (Children: Placement orders) [2023] EWCA CIV 1245

This case concerns the not uncommon scenario where a court has made a placement order for an older child, whose parent goes on to have - and keep - a subsequent child, and then attempts to revoke the placement order for the older child.

Background facts: The case concerned two boys (aged 3 and 4) whose father is F 1. There were manifold concerns in respect of exposure to domestic abuse, mother’s lifestyle and neglect. At the end of 2021 the court made placement orders. In July 2022 potential adopters were found. In August 2022 the mother gave birth to G (by a different father, F 2). Repeated applications for interim care orders and removal were refused. In January 2023 the mother applied to revoke the boys’ placement orders and that application was granted at a hearing in May 2023.

The judge’s decision: The mother’s case was not for immediate rehabilitation of the boys, but consideration of this within six months.

In respect of G the judge made a supervision order, and found the risks associated with mother’s relationships and lifestyle to be limited.

In relation to the boys:

• The judge accepted their position is “very different”.
• The judge did not consider the “overload” factor (mother caring for three children) to be central as basic parenting was not the main issue.
• The judge did not consider the boys to be at an increased risk of harm compared with G.
• The judge considered the confusion caused to the boys in having a different plan to G.
• The “core consideration” was the prospect of the mother caring for the boys within a reasonable timeframe, and the judge considered the prospects were “good” (subject to her making specified progress).
• The judge considered that “it will be a rare case in which one young child returns but to other young children must face compulsory adoption”.
• The judge approved a plan for return of the boys to the mother within around six months, and revoked the placement orders.

The appeal: In respect of G, the appeal was refused, with the court concluding that following an “analytical judgement”, leaving G in the care of her mother was an option open available to the court on the evidence.

However in respect of the boys the appeal was allowed for two reasons.

Firstly, the significance of the history for the welfare assessment in the boys’ case. G’s placement at home remained “in the balance” but overall the context was “not encouraging”. Given the boys’ urgent need for a permanent family who could provide skilled parenting, and given they have been kept waiting for over two years and had said goodbye to their birth family, their plan could “only sensibly be sacrificed in favour of a plan for rehabilitation if the evidence showed that success could be predicted with a high degree of confidence”. At paragraph 46 the judge spelled out the likely practical steps required to facilitate a plan of rehabilitation, before concluding that “the amount of delay and uncertainty inherent in this program is so obvious that the Judge was bound to confront it squarely before preferring it to a plan of adoption that could be put into effect immediately”. The court considered that the prospect of successful rehabilitation was “no more than speculative”.

Secondly, the nature of the respective risk assessments. The Court of Appeal said that whilst the risks within the home may have been similar for the boys and G, the consequences for the children were not: the court noting the significant delay, uncertainty and risk of a failed attempt at rehabilitation. The court’s decision had been “unduly influenced by a perception that it would be unusual for older children to be adopted while a younger child remains at home”. Instead, the risk assessment had to relate to the “actual situations of these children” and address the potential harm of an abandoned adoption plan. The plan for adoption was approved.

Chris Wells is a barrister at St Mary’s Chambers.