Mary Brodie looks at recent judgments of the Court of Appeal and the High Court in public law children proceedings.
Appeal against care orders
Re H-W (Children: Proportionality)  EWCA Civ 1451
The family make up in this case is complex. Mother (‘M’) has six children: A (21, a boy) and five girls: B(18 years) C (aged 13), D (aged 10), E (aged 8) and F (aged 1.5). There are three fathers to the children. The father to the youngest child (F3) is M’s partner.
The Local Authority had been involved throughout M’s life with the prominent themes being sexual abuse and neglectful home conditions. M herself was in care as a child.
In 2012, C complained of being sexually abused by step-siblings and by A. B and G (F3’s son) also made sexual complaints against A. Proceedings were issued in relation to this family. The children remained at home under an agreement that the father to E (F2) would not be allowed to have contact with the children.
Shortly after the birth of E, F2 was found concealed in the home and the Local Authority applied for removal. HHJ Wright refused to remove the children. A fact-finding hearing was conducted which found that the children were at risk of neglect and a number of the allegations about A’s sexual behaviour were proved. The Court also found that F2 was a sexual risk to the children. A care order was made for A and a residence order to M for B, C, D and E with a supervision order and an injunction against F2.
The Local Authority were not involved between 2015 and 2016 but the children were subject to Child Protection plans in 2018 which were stepped down to child in need plans and the case was closed in October 2019.
Concerns re-emerged in November 2019. A had been allowed to stay in the home and had sexually assaulted E during a brief period in which he had been left alone. This had been witnessed by B. M did not report this for three days and permitted A to remain in the home overnight. Following further allegations being made, proceedings were issued. There was a fact-finding hearing which found that A had sexually assaulted E and M and F3 had failed to protect the children. There were further allegations made against A but only the finding from November 2019 made.
At a final hearing in the proceedings, the Court concluded that all children were placed at risk of significant sexual harm and E had suffered significant sexual harm. He was not satisfied that the parents had learned sufficiently nor that they had the capacity to learn and understand sufficiently how to avoid this situation in the future. The Court made care orders with a plan for the removal of C, D and E into foster care. An interim order was made for F with a care plan that either she would be placed with B after a period of assessment or in a foster-to-adopt placement. A stay was granted with the children remaining at home pending the appeal.
This was an appeal by M supported by F3 in relation to the final care orders made. The two broad grounds of appeal could be summarised as:
- The court fell into error by relying on the flawed analysis of Dr Freedman as to the risk of harm to the extent it did, and was consequently wrong to rely on the evidence of the social workers and Children's Guardian that placed so much weight upon it.
- The court did not properly consider the current risks to the children and its orders are disproportionate to the risks the children currently face.
The first ground was rejected. Jackson LJ set out that the court acts only on proven facts but it is not entitled to insist on other professional disciplines taking the same approach. Provided there is clarity about what the position is, the court is able to make its own assessment of the weight that can be given to the opinion. The first instance judge did this by cautioning himself about the limited aspects of the expert’s report that were based on error or contentious information. There was nothing unusual about that.
Jackson LJ allowed the appeal on the second ground. Jackson LJ considered that the judgment did not contain an assessment of the welfare advantages and disadvantages of the rival plans. He accepted that A represents a serious sexual risk to the younger children but felt the first instance judge did not address that the protective measures had kept the children safe from sexual harm throughout proceedings. The absence of this was of particular significance when Jackson LJ considered the arguments against removal to be considerable. Jackson LJ felt instead that there was a stated conclusion that the home is unsafe (which faced the difficulties he sets out about protective measures) and the risk from A was prioritised above all other factors without attempting to synthesise that factor with others.
Laing LJ and Lewison LJ did not allow the appeal. They did not agree that the first instance judge was wrong. There was no identifiable error of law in the approach of the first instance judge. He clearly had all aspects of the case in his mind, and whilst there are criticisms of the judgment which can be made, they could not say it was wrong.
Laing LJ highlighted that in cases which are marginal it is all the more important to trust to the wisdom and discretion of an experienced family judge, particularly one who has been immersed in the evidence, not only in relation to the welfare decision but also the prior fact-finding decision.
Lewison LJ stated that he was in the uncomfortable position of reviewing a decision which he cannot say was right or wrong. In that situation the appeal should be dismissed.
The appeal was dismissed.
Application for costs against intermediaries after a final hearing was adjourned due to the deficiencies of an intermediary
A Local Authority v Mother & Ors  EWHC 2794 (Fam)
On 6 March 2020, the Local Authority (‘the LA’) applied for public law orders in respect of three children. The case was listed for a four day final hearing on 19 July 2021.
On 26 May 2021, the father’s (‘F’) solicitors approached DM to act as an intermediary. There is no suggestion that he was not a competent intermediary. DM accepted the instruction to act as intermediary for F. DM was aware of the trial date in July.
On 14 July 2021 (two working days before the final hearing hearing), DM emailed F’s solicitors to say it was highly unlikely he would be released from a hearing where he was acting. DM said he had asked for another intermediary, MH, to ‘stand in’ for him. DM said MH had acted as an intermediary for XX numerous times and is competent and available. DM said he would completely handle the handover.
MH and Mother’s intermediary attended the final hearing.
During the hearing, MH said she had not read F’s cognitive assessment, intermediary assessment and had no knowledge of the relevant Advocates Toolkits. She later said she was not sure whether she had read them. Counsel for F and the LA informed the Court that MH was not a Court intermediary although as this judgment explains, there is no such official person or identity. It transpired that MH did not understand the role of an intermediary and only had experience of one case.
F informed the Court that he had not understood parts of the evidence and had not been assisted by MH. F made an application for a fresh hearing which was opposed by the LA and the Children’s Guardian (‘CG’). The Court concluded that the hearing could not fairly proceed and adjourned the final hearing.
The LA, parents and CG all sought their costs for the abandoned hearing. This application was transferred to the High Court and DM and MH were joined as parties.
DM produced written evidence. An email was provided by DM in relation to another case where DM had overcommitted and proposed MH in his stead. The Court found this email to be seriously misleading in respect of MH’s ability to act as an intermediary. DM suggested in the email that he had prepared MH for the role, yet MH had not read or been made aware of the Advocate's Gateway nor was she aware of the need to read the client's intermediary assessment. DM described MH as having limited experience but at the time of the email she had no experience at all as an intermediary.
The law in relation to costs orders against non-parties is set out at paragraphs 21-25. The application for costs was made under s51 Senior Courts Act 1981.
The position in respect of appointment, qualification and duties of intermediaries was described as ‘not particularly clear’. For family courts the only information is contained in Part 3A.1 FPR and the advocates toolkit. In criminal courts there is a code of ethics and practice for registered intermediaries as well as detailed guidance on their duties and functions.
Lieven J concluded that intermediaries perform an extremely important function in ensuring a fair trial for highly vulnerable people. In family courts, intermediaries are not subject to any regulatory scheme but they are paid for their services and should be subject to professional standards appropriate for the role they are being paid to undertake. It would be helpful if these standards were set out in one document similar to the MoJ Guidance in relation to intermediaries in the criminal courts. The lack of such guidance means there is no definition on who may be appropriate to act as intermediary or what checks a judge or solicitor should undertake.
It was the misrepresentation of DM that led F’s solicitors to appoint MH as F’s intermediary. It is unfortunate that the solicitors did not question MH on her experience however in light of DM’s assertions as to her experience, Lieven J did not think they can be criticised for not doing so. They were entitled to rely on DM’s assurances. However, given the facts of this case, it would seem sensible for solicitors to ask for a CV of an intermediary of whom they have no knowledge. Also, it was not incumbent on the Judge to ensure the intermediary was competent.
The Court held that DM acted inappropriately in putting MH forward as an intermediary given her very limited experience and complete lack of training or preparation for the role without at the very least fully explaining the position to the solicitors. His failure to act appropriately in this regard directly led to MH being appointed and in turn to the hearing collapsing.
The Court applied the test in s51 Senior Courts Act 1981 and found there were exceptional circumstances to justify an award of costs against DM for the wasted costs. There were no orders made against MH as it was clear she had no idea what the role entailed or what she was getting herself into as DM failed to instruct her as to the role.
Judgment of Lieven J considering the need for a separate fact-finding hearing and taking into account the current climate.
Lincolnshire County Council v CB & Ors  EWHC 2813 (Fam)
Judy Claxton and Vickie Hodges of St Mary’s Chambers represented parties at this hearing
On 22 January 2021, a child (XE) died at 11 years old. On 26 January 2021, the mother (‘M’) gave her consent for her three children to be accommodated under s.20. On 3 February 2021, the Local Authority (‘the LA’) applied for care orders in respect of the children and on 18 February 2021 interim care orders were made.
The main issue before the Court at this hearing was whether the matter should be listed for a 5 day composite final hearing or whether the matter is listed for a 20 day fact finding hearing albeit with the possibility that the time estimate might well reduce closer to the hearing. The parents argued that some 29 witnesses were required as to what the parents said in the immediate aftermath of XE’s death and the parents’ demeanour as well as a teacher to be called about M’s care of the children. The parents argued that the time estimate of 5 days is too short.
The LA’s threshold findings went beyond the particular facts of XE’s death and extended to the drug use by the parents, emotional harm and failing to meet the children’s needs.
There is no dispute that XE died from drowning in the bath. XE had cerebral palsy and could not walk, move, hold his body weight and was non-verbal. XE’s father (‘F’) was arrested for murder. M was arrested for manslaughter. The police decided not to charge either parent with these offences.
F says he put XE into the bath and turned off the taps. F says he informed M that XE was in the bath and went out to deliver some ‘cookies’ for M. M says F told her he had put XE to bed. She denies that she turned on the taps in the bath.
The Judge set out that there are two areas of factual dispute: 1) what F said to M before he went out and 2) who left the taps on.
At paragraphs 17-19, the Judgment sets out the law to be considered for these case management decisions. It refers to FPR rule 1.1, Re H-D-H (Children)  4 WLR 106 and A County Council v DP  2 FLR 1031.
The Judge considered that an inevitable consequence of ordering a lengthy fact finding hearing will be considerable delay and that will be severely detrimental to the children. The children, especially the two older children, will have to wait longer for the counselling to deal with the extreme trauma they have been through as this could not meaningfully commence until they are in a long-term placement.
The Judge held that the true question is whether the fact finding is truly ‘necessary’ for the ultimate welfare decision that the court has to make. She drew attention to the need to consider the impact upon the Court’s resources and to ensure this test is properly applied.
The Judge set out that the factual dispute between the parents in relation to XE’s death is narrow. None of the other witnesses who the parents seek to call can give direct evidence on the matters in dispute. There is body worn camera footage and recordings of the 999 calls so the Judge will have the direct and thus best evidence of the parent’s immediate responses at the time of the incident. In any event, the Judge said that the demeanour of the parents, including what they said immediately after XE’s death, carries relatively little forensic weight as it is well known that people react in very different ways to tragic events. The evidence of the 20 or so other witnesses was therefore not necessary.
The Judge stated that separate fact finding hearings will relatively rarely be necessary or proportionate. The Judge considered it unnecessary to have a separate fact finding hearing in this case where threshold findings sought go well beyond the factual dispute of what happened on the night of XE’s death.
The Judge determined that this case did not warrant a listing of more than 5 days. She said it is essential that the court uses the time available more effectively and individual hearings take less time. In practice this means more focused cross examination, less repetition and careful scrutiny of witness templates. It will put more pressure on advocates but it is the only way to achieve the President’s intention of individual cases taking less time.