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Public law children case update: August 2020

Georgina Dalton summarises the latest Court of Appeal and High Court Family Division rulings, which cover issues such as regulated placements, the inherent jurisdiction and habitual residence, and a flawed hybrid hearing during the pandemic.

Re Z (A Child) (DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam)

High Court: The Honourable Mrs Justice Judd DBE

–  A case which echoes the concerns over the lack of regulated placements as voiced by Cobb J in Re S (Child in Care: Unregistered Placement) [2020] [EWHC] 1012.

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Z, who was 13 years old at the date of the hearing (29th June 2020), was living at home with their mother and father when Z came to the attention of the local authority as a result of absconding from school and failing to return home. Matters quickly escalated and Z needed to be accommodated by the local authority.

Three placements broke down because it was impossible to meet Z’s needs or manage his behaviour, which included serious actual and threatened physical harm to others, self-harm and damage to property.

The local authority commenced care proceedings, in November 2019, and an interim care order and a secure accommodation order were made and, following renewal of the latter in December 2019, Z was placed at a Secure Unit (“the Unit”) and remained there at the date of the hearing.

Sadly, despite being in a secure environment, Z’s behaviour had escalated further and managing Z’s needs became more difficult to the extent he was unable to spend time with peers at the Unit. In May 2020, the Unit gave notice to the local authority that they wished to terminate the placement as they did not consider they were able to meet Z’s needs or keep Z safe.

The local authority undertook very extensive searches of both regulated secure accommodation and unregulated homes to find a suitable secure placement for Z, but nothing was available. Consequently, the local authority applied for a Deprivation of Liberty order as they concluded the only possible contingency plan was to place Z in a council home rented by them, together with four members of staff and draconian restrictions upon Z’s liberty.

Z’s parents were extremely concerned about Z and how nothing on offer from the local authority had seemed to improve Z’s presentation over seven months. Through their counsel, they applied to discharge the interim care order and for Z to come back home.

The Children’s Guardian supported the local authority’s “sufficiently safe and secure” plan and was firmly of the view Z’s needs were far beyond the parents’ ability at that time and they would not be able to keep Z safe or ensure the safety of others.

Z expressed a view directly to Mrs Justice Judd that he wished for life to return to being as normal as possible as soon as possible. He did not really wish to move but understood there was little option.

The legal principles derived from Re T (Secure Accommodation Order) [2018] EWCA Civ 2136 and Re B [2020] 2 WLR 568 were considered and there was no question that a deprivation of liberty existed and that the s.25 criteria were made out.

At paragraph 21, Mrs Justice Judd concluded that “to make an order that permitted a return home would be reckless with Z’s safety and welfare”. There were no creative or other solutions which would not place Z at an unacceptable risk of harm.

The more difficult question, however, was whether or not the proposed order safeguarded and promoted Z’s welfare. Mrs Justice Judd stated, at paragraph 22, it would be much better for Z to be placed in a properly registered, regulated secure accommodation with specialised staff but this was not a choice she had.

Due to the dire circumstances of this case, the Secretary of State for Education was invited to attend the hearing. The response was quite clear. There was nothing that could be done and the local authority would have to keep searching.

The Court concluded the proposed order safeguarded and promoted Z’s welfare better than any of the other available options, namely, a return to the care of Z’s parents. Permission was granted to the local authority to make the application and the declaration sought was made although Mrs Justice Judd considered that the case should be brought before her or another High Court judge within 14 days.

Mrs Justice Judd wished to add her voice to the concerns raised by Mr Justice Cobb in Re S (Child in Care: Unregistered Placement) [2020] [EWHC] 1012 less than three months prior surrounding the lack of regulated accommodation for a 15-year-old.

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/1827.html


Re: M (A Child) [2020] EWHC 451

Court of Appeal: Lord Justice Henderson, Lord Justice Moylan and Lord Justice Baker

– A clarification of the test to be applied by the court when deciding whether it is appropriate to exercise inherent jurisdiction in cases where the child is not habitually resident in England.

A is a 13-year-old British national who had been living with her father in Algeria for 12 years. A’s mother applied for a wardship order in England, stating that A was being wrongfully retained in Algeria and she was concerned about her wellbeing. A was subsequently made a ward of the court and the judge exercised parens patriae jurisdiction by ordering her return to England. The purpose of the order was so that “an assessment could be made in a place of safety as to her [A’s] best interests and living arrangements”.

The father appealed this decision on the basis that the judge failed to exercise great circumspection when ordering A to return to England and such an order conflicted with s.2(3) of the Family Law Act 1986 because it was dealing with A’s care or “living arrangements” under the inherent jurisdiction.

The question for the court was whether the Deputy High Court judge was right to order that A should be brought to England. This would be addressed by determining what the test or guide is for the court when deciding whether it is appropriate to exercise inherent jurisdiction.

Moylan LJ conducted a detailed analysis of the law on inherent jurisdiction, considering the case of Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 in which the rarity of cases where inherent jurisdiction was utilised in such circumstances was noted by Black LJ.

The judge in the present case found that the jurisdiction for making orders for a child not habitually resident in England does still exist, though it is subject to the very significant limitations of the 1986 Act. Moylan LJ respected the position in Re B that exercise of the jurisdiction should not be confined to the “extreme end” but did not consider that this resulted in there being no test other than the use of the jurisdiction being approached with great caution.

At paragraph 105 of the judgment Moylan LJ, set out his position on the threshold for the exercise of inherent jurisdiction in these circumstances as follows: “there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction”.

Based on this threshold test, Moylan J concluded that the judge was wrong to exercise inherent jurisdiction and make an order requiring A to be brought to England. There were several identifiable failures which led to this conclusion including, a lack of consideration as to why it was necessary for the English court to exercise its jurisdiction, a failure to consider material evidence and no analysis of how the provisions of the 1986 act impacted on the decision.

The substantive threshold required to justify the exercise of inherent nationality jurisdiction was not crossed in this case, in that the circumstances did not require the court to act to protect A. The judge’s order conflicted with the limitations on the court’s powers imposed by 1986 act. The appeal was allowed and the judge’s order set aside. Proceedings were also dismissed.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/922.html

C (A child) [2020] EWCA Civ 987

Court of Appeal: Lady Justice King

– A case which involved a hybrid hearing mishap is dealt with by the Court of Appeal

This case concerned an appeal from an order made by Mrs Justice Judd whereby she refused to accede to an application that she recuse herself from continuing to hear care proceedings.

The hearing before Mrs Justice Judd was a fact-finding hearing to determine whether the death of A, a child of the Appellant, was caused by inflicted injuries and if so to identify who had caused those injuries.

The trial was to be conducted by way of a hybrid hearing which would involve the majority of the case being conducted remotely by Zoom.  There were however provisions for the Appellant to be physically present in the court room to give her evidence before the judge, together with her legal representatives.

During the Appellant's evidence, she told the court she felt ill and was subsequently sent home by the judge. It was agreed the rest of her evidence could be conducted remotely.

The court rose and an associate took the judges closed laptop to her room, however the remote link remained open. During this time, the judge could be heard having a private conversation about the Appellant. Several comments were made about the Appellant including that she was attempting to avoid difficult questions. At no point did the judge express a view surrounding the circumstances of A’s death.

The Appellant later made an application that the judge recuse herself, which was refused and an appeal on that decision was denied. The judge openly described her comments as ‘robust’ and ‘critical’ however contended that they did not cross the line. Further her reasoning involved consideration of the fact that the comments were made privately to a person not directly involved in the case and that the comments did not make reference to substantive issues in the case. A further appeal came before the Court of Appeal the following day.

The Court of Appeal set out the test for perceived bias “whether the fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the judge was biased. If so the judge must recuse him or herself” (Porter v Magill [2002] 2 AC 375).

The question for the court in this case was whether the judge was wrong to conclude that her comments did not constitute bias. Lady Justice King described what had happened as a consequence of the pressure under which family judges find themselves at present. Based on the objective test from Porter v Magill, the judge concluded that the comments did fall on the wrong side of the line. That the comments were intended to be private had no bearing on this determination. The nature of the case was serious and the judge had made highly critical remarks about the Appellant’s honesty, therefore demonstrating a real possibility of bias.

The appeal was allowed and the case was remitted to the Family Division for directions on the future conduct of the proceedings before a fresh judge.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/987.html

Georgina Dalton will be commencing pupillage at Spire Barristers in September 2020.

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