Public law children case update: October 2022

Laura Parker rounds up the latest children law judgments of interest to practitioners.

W-A (Children: Foreign Conviction) [2022] EWCA Civ 1118

An appeal on the admissibility of a foreign conviction within family proceedings and how that should be treated within this jurisdiction.

Summary:

Unanimous decision by Jackson LJ, Bean LJ and Dingemans LJ, who confirmed that a conviction in a foreign court is admissible within family proceedings within this jurisdiction.

Background:

The matter concerned an appeal by the husband of the mother (‘H’) within care proceedings concerning 2 girls, aged 11 and 16 respectively. H appealed against the decision of Lieven J on 21 June 2022, in which she determined that his conviction for sexual offences against a child in a Spanish Court is admissible in these care proceedings with presumptive weight, so that the fact of the conviction will stand as proof of the facts underlying it, unless H rebuts the presumption on the balance of probabilities.

H disputed the reasoning of Lieven J on the basis of Hollington v Hewthorn [1943] 2 All ER 35, and submitted that this bound the court to reach the opposite conclusion, namely that the Spanish conviction is not admissible in evidence and that in consequence the burden remains on the local authority to prove the facts underlying the conviction in the same way as if he had never been convicted.

Decision:

Jackson LJ confirmed that this appeal was considered not just in relation to its application to care proceedings, but also in relation to private law proceedings, use of the inherent jurisdiction and when considering welfare under the Mental Capacity Act 2005.

It was confirmed that this is a clear case where there is tension due to the need to take account all of the circumstances and where the balance lies between the rights and interests of a child where this conflicts with the interests of others.

Jackson LJ considered that any fact-finding element of family proceedings cannot be isolated from welfare decisions, which is a difference between family and civil proceedings. It was stated that the characteristics of family proceedings speak strongly against the existence of artificial evidential constraints that may defeat the purpose of the jurisdiction.

The court confirmed that it is settled law in family proceedings that the findings of previous tribunals may be admitted into evidence and that the court will give such weight to that finding as it considers appropriate in the circumstances of the case, while remaining alert to the need for fairness to all parties in the procedure it adopts; No distinction is drawn between domestic and foreign findings and convictions, though the weight that will be given in each case may vary. It was confirmed that any other approach would severely conflict with the court’s overriding duty to ‘get at the truth’ in the interests of the child.

Jackson LJ also came to the view that the court were not bound to follow the rules within Hollington v Hewthorn as these have never applied within this welfare-based jurisdiction. The reasoning in Hollington v Hewthorn was summarised as being that the interests of justice require a court to reach its own conclusion about an issue before it without regard to the conclusions of others, unless they are expert witnesses in the usual sense, because without retrying the matter it is not possible to know what the earlier decision proved, and it would be unfair if third parties were prejudiced by decisions to which they were not a party. This case has been subject to much analysis and criticism including that the justification for the rule is not that the earlier decision of the court is irrelevant, but that the considerations should be taken into account when looking at the requirements for a fair trial.

The court confirmed that the rule in Hollington v Hewthorn does not apply to family proceedings as such a rule is incompatible with the welfare-based and protective character of the proceedings – if they were to apply it would not serve the interests of children, their families or the interests of justice. Jackson LJ confirmed that all relevant evidence is admissible; the admission of a previous finding or conviction will stand as presumptive proof of the underlying facts, but will not be conclusive. Bean LJ also concurred and explained that there was no suggestion that the foreign conviction in this case should be conclusive and that the suggestion that this evidence should not be admissible was alarming.

H’s appeal was dismissed.

Lincolnshire County Council v TGA and Others [2022] EWHC 2323 (Fam)

A case concerning a 14-year-old boy, K, who suffers from various disabilities, and whether he is deprived of his liberty where he is currently living and whether his testamentary guardians could consent to such a deprivation.

Summary:

Lieven J concluded that parents, or in this case testamentary guardians, can consent to the deprivation of liberty of a child who is under the age of 16, who lacks the competence to make a decision about his liberty. It was confirmed that parents can lawfully deprive such a child of their liberty where they make the decision to do so and no third party, such as the local authority or the NHS, consider such deprivation to be contrary to the child’s best interests.

Background:

The matter concerns a 14-year-old boy, K, who suffers from epilepsy, autism, attention deficit disorder and global developmental delay. K is accommodated by the local authority under s.20 of the Children Act 1989 and has been for some years. Both of K’s parents are deceased; by operation of his mother’s will, the first to third respondents in the case are K’s testamentary guardians.

It is common ground between the testamentary guardians and the local authority that K is appropriately placed at the Children’s Centre; the issue is whether K is deprived of his liberty at the Centre within terms of article 5 of ECHR and whether the testamentary guardians can consent to such a deprivation.

Lieven J considered whether Keehan J was correct in Re D (Deprivation of Liberty) [2015] EWHC 922 (Fam) in deciding that a parent acting within the zone of parental responsibility could consent to the deprivation of liberty of their 15-year-old son who suffered from ADHD and Asperger’s Syndrome, or whether this had been overtaken by Re D (A child) [2019] UKSC 42 and the obiter comments of Lady Hale and Lady Black.

Decision:

Lieven J took the view that there would be no difference in arguments as to whether the matter concerned testamentary guardians or the parents of a child who were exercising their parental responsibility.

The court undertook an analysis of the above cases as well as other relevant case law, including Gillick v West Norfolk Health Authority [1986] AC 112.

Lieven J concluded that deprivation of liberty does fall within the scope of parental responsibility but that any exercise of parental rights must be for the benefit of the child; if the parent was exercising parental rights, including consenting to the deprivation of liberty, in a way which was said to be contrary to the best interests of the child, then such a decision would no longer fall within the zone pf parental responsibility.

It was also confirmed that, when dealing with children whose ability to understand the issues will vary greatly not due solely to their age but also their emotional and psychological maturity, family support and life experiences, it is more appropriate to consider the characteristics of the individual child than to compare them with a hypothetical child of the same age.

Ultimately, it was confirmed by Lieven J that if a child is under the age of 16, does not have Gillick competence to make a decision as to his liberty, his parents decide to deprive him of that liberty, and no other third party considers that such a deprivations will be contrary to the child’s best interests, then the parents can lawfully deprive him of that liberty.

Laura Parker is a pupil barrister at St Mary’s Family Law Chambers.