Tuesday, 4 December 2007

Re C v XYZ County Council [2007] EWCA Civ 1206

This robust judgment deals with the nature of the duty on a local authority to make enquiries into a child’s family where an adoption is in prospect. The conclusion is essentially that despite its wording, s1(4) of the Adoption and Children Act 2002 (“ACA02”) does NOT impose an absolute duty to make enquiries into the capacities and feelings of the families of the child where the welfare of the child dictates otherwise.

The child was the result of a one-night stand between a 19 year old woman and a person she would not name and with whom she had no continuing relationship. The woman lived independently, worked, and had left home at 17 following a fight with her mother. She resisted the idea she was pregnant; sought medical assistance only when in labour; did not want the child; and did not feel that it would be in the child’s interests to be cared for by her family nor by the father’s. She sought for the child to be adopted. Thorpe LJ emphasised how very unusual this situation was, and noted that it had not been encountered by any of the professionals who dealt with it.

It seems that because it did not know how to conduct proceedings, the local authority sought an interim care order, the thrust of the care plan being to hold the position whilst guidance was sought from the High Court as to what to do next. Thorpe LJ criticised this course – albeit very lightly and with sympathy for the local authority’s dilemma – on the unarguable basis that the threshold criteria were not made out where the only parent involved was not proposing to play any part in the life of the child, that child having been taken from the hospital by foster carers of whose care no criticism was due. He also noted that the pursuit of an ICO, however understandable a) introduced delay; b) obscured the availability of the fast-track adoption procedure under s19 of the ACA02 and; c) probably misled the local authority and the guardian for the child as to the nature of the investigations they had to make into the birth family.

In any event, the HHJ Taylor before whom the matter came, considered the Act and in particular the welfare checklist which appears in s1 thereof.

s1(4) provides that the ‘court or adoption agency MUST (my emphasis) have regard to... (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family ... (f) the relationship which the child has with relatives... including... (ii) the ability and willingness of any of the child’s relatives... to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs; (iii) the wishes and feelings of any of the child’s relatives... regarding the child.

Nowhere does the statute expressly provide that the compulsory words of s1(4) are subject to any exceptions and HHJ Taylor concluded that in contrast with the more discretionary approach allowed by the rules prior to the ACA02, the law was now plain and simple: the local authority was obliged to make enquiries into the extended families’ ability and preparedness to care. (He also reconciled this with principle, suggesting that otherwise the child would never be able to trace her family, but that was rejected on a factual basis by Thorpe LJ)

The Court of Appeal overturned HHJ Taylor. At paragraph 76 Thorpe LJ asserted:

In my judgment the Local Authority and court still has to exercise a discretion in what Miss Hamilton QC, counsel for the mother, has called the secret birth case as to whether to place the new born on the fast track to adoption under Section 19 or to explore a family placement.

He did not further explain why that might be so, though he had previously said that he agreed with Arden LJ who gave the first judgement.

Her reasoning , though long, does not to the writer’s mind bear much scrutiny. It is;

1. the appearance of the word ‘paramount’ in s1(2), i.e. that the interests of the child are paramount, means that as a matter of statutory interpretation, all other provisions in s1 of the Act have effect subject to s1(2) (paragraph 14);
2. though the court must have regard to the matters listed in s1(4) it is not obliged to act upon them (paragraph 16);
3. the Act does not prescribe the weight to be given to any of the matters listed in s1(4) so;
4. the weight to be given to them will be dictated by the paramount consideration in s1(2) (both paragraph 17);
5. the Act [containing the word ‘must’] is not prescriptive (also paragraph 17)

The writer’s difficulty with this is that Arden LJ has elided the gathering of the information with the treatment of it. She is entirely right to indicate in terms that the court can ignore the information that has been collected under s1(4), but she does not explain how the absolute statutory requirement to acquire that information can simply be ignored. That said, it will be a very rare case indeed in which counsel will have an opportunity to distinguish the judgment on this basis.

In conclusion then, the Court of Appeal has determined that the words of s1(4) do not mean what they say, and that there will be circumstances where a local authority is not obliged to seek the views of families of potentially adoptive children.

Inevitably this case touched on ECHR rights, the court finding it unnecessary in the light of its conclusion to discuss in any depth the mother’s right to privacy. In relation to the father’s right to family life, the court dealt with this peremptorily at paragraphs 31 and 32. As he did not have a relationship with the child or with the mother and had not expressed any wish so to do, no right existed.

The mother’s parents right is dealt with in the exceedingly dense second sentence in paragraph 39. That suggests that their right to a family life with the child – they DO have one – is not breached by not being told about the child since by preventing them from knowing, the court will have decided that the child’s welfare so dictated. With respect, this should perhaps read that their right IS breached, but that that breach is justified and proportionate by reference to the child’s welfare.

Finally, there are a couple of loose comments which I anticipate might be employed by local authorities or guardians to oppose family placements and promote adoption. These appear at paragraphs 15, 42 and 43 but in the writer’s view cannot be relied upon for what they appear to say.

Arden LJ at paragraph 15 wrote;

s1 does not privilege the birth family over adoptive parents simply because they are the birth family.

Later she wrote;

42. The local authority goes on to say that the ordinary rule should be that the near family and father should be identified and informed unless the court is satisfied that such enquiries would be inappropriate. The local authority submits that there is a growing trend towards involving the natural family and the father in such cases. It is no doubt true to say that there are a substantial number of cases where a child who would otherwise be placed for adoption is offered long term care by a member of the family.

43. I do not consider that this court should require a preference to be given as a matter of policy to the natural family of a child. S 1 does not impose any such policy. Rather, it requires the interests of the child to be considered. That must mean the child as an individual. In some cases, the birth tie will be very important, especially where the child is of an age to understand what is happening or where there are ethnic or cultural or religious reasons for keeping the child in the birth family. Where a child has never lived with her birth family, and is too young to understand what is going on, that argument must be weaker. In my judgment, in a case such as this, it is (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that can be done.

It is this last paragraph which contains the proper analysis. Case law would tend to suggest that in ALL cases the birth tie is important, not because of the interests of the family but because of the interests of the child to have its identity reflected in the family in which it grows up. So whereas what Arden LJ wrote in paragraph 15 is literally true, it would be wrong to argue that there is no trend in favour of birth families in adoption cases. Perhaps all the Court of Appeal should have said is that that trend will not be followed where it threatens the welfare of the child or introduces delay (s1(2) and 1(3)).

Tuesday, 9 October 2007

Re W (A Child) [2007] EWCA Civ 102

Re W (A Child) [2007] EWCA Civ 102 is an example a) of where the Protocol can cause the wrong result and b) the extent that it cannot come before the law.

A child was taken from the mother at 11 months old in May 2005 and at a final hearing in February 2006 a care order was made with the mother’s consent and not opposing a freeing application. On the 9th of March 2006 the mother and child saw each other for the last time.

(I pause to wonder what quality of advice she was being given at this point, particularly as she was of restricted intelligence. The court repeated one of my favourite admonitions in the course of this judgment from Re L (Children)(Threshold Criteria) (2006) that the courts of this country do not take children of parents for being unintelligent, but because s31 is met)

Despite the mother’s position, the matter went to the Court of Appeal and the orders were set aside for reasons which need not concern us here, and on the 18th of October HHJ Onions made another care order and freeing order despite a number of comments by him that indicated that properly considered, the threshold criteria were not satisfied.

He seemed to be driven on by the need to come to a determination, and reached one.

Further procedural steps followed and mercifully the child was not adopted despite the mother accepting the recommendations of her assessment and the Guardian and not opposing the making of a freeing-order.

And so, in February 2007, the child then being two and a half years old, the case was back at the Court of Appeal again, the care order set aside because there was no jurisdiction to make it in the first place (the local authority having failed to make out its case) and an interim order made.

As the case was remitted we cannot know what happened next but the point is that even well after the point that one might have thought that all argument must cease as the child’s need for placement would predominate, the court properly stopped the case in its track because the basic issue of the threshold criteria had not been properly determined.

Re R (A Child) [2007] EWCA Civ 943

Regular readers/insomniacs will recall I discussed Re W (A Child) [2007] EWCA Civ 102 indicating the dangers of judge’s being overawed by the constant advice to progress cases.

Another less common but related error is found in Re R (A Child). The principal error into which the judge fell in this case was to look at the case from the adult’s point of view. Having effectively forgotten the welfare principle, he nonetheless remembered the need to press on and make an order.

A father against whom findings of fact had been made of domestic violence and inappropriate physical chastisement to the child sought what the judge described as ‘modest’ contact of two half-hour sessions during the Summer holidays. But though from the father’s perspective the contact was modest and the court would in normal circumstances be almost bound to order it, from the daughter’s it was not. She was partially blind, had Asperger’s Syndrome and exhibited extreme behaviour at school, where she was not settled.

Moreover, CAFCASS had observed a contact session with the father and had reported that the effect on the child was such that it was not appropriate to continue. The CAFCASS and a doctor’s report both recommended that it would be prudent to allow the child to settle into school before trying again and CAFCASS went further to say that even then, contact should not take place without a positive school report. One was not available at the disposal and neither expert was cross-examined.

The Court of Appeal, overturning the judge’s order, found that at the child’s stage of development, the two half-hour sessions were ‘an enormous leap’ and the benefit of waiting as suggested by the experts outweighed any disbenefit to the relationship with her father. The Court of Appeal seems to have been reasonably polite given that the judge a) effectively ignored the welfare checklist &/or b) gave disproportionate weight to the need to conclude matters swiftly and c) gave no consideration to the fair trial rights of the mother who opposed the making of the order but had no opportunity to re-examine the experts who agreed with her, as they had not given evidence.

Monday, 8 October 2007

Leman-Klammers v Klammers [2007] EWCA Civ 919

A silly case this, surrounding the efforts of a man to avoid his wife divorcing him. Its use to practitioners is a) to be reminded that the jurisdictional rules in Brussels II are absolutely clear b) that our courts are not inclined to revisit the Brussels II decision of another jurisdiction and c) the almost absolute nature of the discretion in the rarely-contested decision to grant a decree absolute.

The Klammers had issued proceedings on the same day in England and France and Mr Klammers then went before a French court arguing that it had jurisdiction to the exclusion of the courts of England & Wales. Unfortunately for him evidence was not produced that his proceedings were issued earlier in the day: worse still, that was incapable of remedy by his representative as the rules of the French court forbade evidence being given by a maitre (barrister). The French court therefore decided that the English & Welsh courts had jurisdiction.

The husband was not giving up, so invited the English court now vested with jurisdiction to revisit the French decision and send the proceedings back to France. No Can Do, said the court: the matter has been determined, and a decree nisi followed.

The husband had meanwhile had the idea of appealing the decision in France which, according to the evidence produced here, is a Byzantine process of indeterminate length and uncertain prospects. Pending his appeal, he argued, there should be no change in the status of the marriage. He delicately did not mention that he wanted to avoid the consequences of an English distribution of assets. (To be fair, this is the writer’s unsupported suspicion: there was no matrimonial home but given the lifestyles and incomes of the parties, one imagines there was something to fight about, at least until the legal costs of this process were incurred.)

Singer J went along with this to some extent, ordering that the decree should not be made absolute until the earlier of a) the outcome of the appeal or b) further order of the court. The diligent husband then appealed that decision but was refused by the Court of Appeal.

A request for a further order as allowed in Singer J’s order came before Baron J who was therefore dealing with a contested application for a decree absolute.

And quite simple it was too, as despite the small disadvantage to the wife involved in having to wait a little longer for a divorce (again, no-one mentioning the money) the husband had conducted himself with such desultoriness (the delay being described by the Court of Appeal as ‘extravagant’) that he had whistled away all the sympathy the court might have had for him.
The Court of Appeal, repeatedly emphasising the ‘unquestionably wide’ discretion that Baron J had available to her, decided that she had been right to take into account the husband’s failure to move his French appeal on, despite urging from Singer J and entirely within her rights to grant Mrs Leman-Klammers’ application.

Charging assessment/contact costs to the Legal Services Commission

Readers will be aware of the horse-trading that precedes the making of an order for assessment and the incurring of costs for experts’ reports. They will also be mindful of the phenomenon of a publicly-funded party’s certificate bearing the whole cost of a report or supervised contact sessions where the other side is privately-funded.
Though the general mechanism for this is for the court to specify that it is a proper disbursement on the funding certificate in question, readers should be aware that in the view of the LSC at least, that apportionment is subject to the scrutiny of the costs assessors of the Fund. (I have not read Lambeth v S, C, V & J and the LSC [2005] EWHC 776 Fam, which purports so to find) The consequence of that is that solicitors could find themselves having paid a bill of several thousands of pounds and never recovering it from the LSC. Worse still, they could recover it, have it spotted in an audit and lose their franchise as a consequence of having over-billed.

It is responsible in the writer’s view for counsel to remind themselves of the relevant guidance which appears at http://www.legalservices.gov.uk/docs/civil_contracting/Vol1PartDSection5.6FINAL49.9KB.pdf.
This gives the Commission’s view on the effect and consequences of the Calderdale guidelines (Calderdale v S [2004] EWHC 2529). Two moot points which it is useful to have the Commission’s view on are a) that just because a party is interested in a particular part of an expert’s report, it does not follow that they should share in the costs of the whole report (see para 5.8.4 (where, maddeningly, the LSC state that ultimately the apportionment is a matter for the judge (i.e. conflicting with the overall thesis that the costs assessor is the ultimate authority)) and b) that apportionment should be divided between the parties including each child i.e. if there are four parties and one child, a five-way split; four parties and three children, a seven-way split.

On the discrete point of contact centre fees, readers should not miss the short guidance at paragraph 5.9 of the paper and in particular the three bullet-points which suggest to the writer’s mind that the LSC might have in mind a tightening up of this growth area of expenditure. This area does not, happily, bear the risk that the fees cannot be paid (as for those associated with 38(6) assessments, even if ordered) but there remains the risk that they will not.

Friday, 21 September 2007

Child Maintenance and Shared Care

by Catherine Le Quesne

The subject of child maintenance was in the news this summer when barrister and father of five Michael Cox was imprisoned for 42 days by magistrates for refusing to pay maintenance calculated by the Child Support Agency. Cox argued that since he and his ex wife had a shared care arrangement and the children spent equal amounts of time with each of their parents, he should not have to pay any child maintenance. He was freed after 14 days on appeal.

Cox’s case highlights the difficulties surrounding child maintenance when there is a shared care arrangement. The courts have been more willing to make shared residence orders since the case of D v D (Shared Residence Order) [2001] 1 FLR 495, when the Court of Appeal held that, contrary to earlier case law, it is not necessary to show that exceptional circumstances exist before a shared residence order may be granted. The provision of child maintenance is still governed by the Child Support Act 1991. Under that act, one must first determine which of the parents is the ‘non-resident parent’(NRP) and which is the ‘person with care’(PWC). Maintenance is then calculated and paid by the NRP to the PWC. Where both parents provide day-to-day care to the child and there is nothing to choose between them, the deciding factor is who is in receipt of child benefit.

The amount of maintenance payable by the NRP is reduced according to how many nights the child spends with him or her:

Number of nights Fraction to subtract
52 to 103 one-seventh
104 to 155 two-sevenths
156 to 174 three-sevenths
175 or more one-half

If the one-half threshold is reached for any given child, the maintenance is reduced by a further £7 a week. Therefore if care is shared equally, the maintenance payable is reduced by half and then by £7 a week for each child. The fairness of a system in which even when care is split down the middle, one parent must still pay maintenance to the other, must, it is submitted, be questionable.

The government is about to overhaul the child maintenance system and the Child Maintenance and Other Payments Bill was published on 6th June 2007. This would replace the Child Support Agency with the Child Maintenance and Enforcement Commission. Measures contained in the bill are intended to encourage parents to make their own arrangements for child maintenance and to simplify how maintenance is calculated. Tougher enforcement powers to collect arrears are also introduced. It is regrettable that the government have not used this opportunity to introduce a more equitable basis for the calculation of maintenance in shared care arrangements when such arrangements are being favoured by the courts.

Thursday, 20 September 2007

Oldham MBC v GW, PW and KPW [2007] EWHC 136 (Fam)

Digging a little further into the archive, this case illustrates the sort of difficulty one can get into when dealing with cases at the cutting-edge of medical knowledge. Though few of us will expect to encounter such extraordinary circumstances, it is well to consider this judgment in its recommendations at paragraphs 91 to 100 which have more general application to the role of experts.

This was a particularly tragic case as paragraph 76 illustrates, but the court refused to criticise any one party, preferring to suggest that there was a general, systemic failure of the system to serve justice. Though one can well understand the court’s wish not to put the physician whose diagnosis caused the wrongful removal of the child from her parents, it should in my view have answered the question posed at paragraph 79(ii) explicitly.
Essentially a baby presented with highly unusual symptoms in that there was no visible indication of what might otherwise be thought to be brain injury through abuse. Though the parents appeared to be beyond suspicion, the doctors quite properly referred the case to appropriate specialists, resulting eventually in the opinion from an eminent expert that non-accidental injury could not be ruled out. By reason of his expertise and seniority, none of the other doctors who had formerly not thought this to be an option felt able to disagree.

There were three problems though: firstly the expert himself had very little experience of what he was observing but did not say so; secondly he was simply unaware of research in the field, later confirmed by a professor whose expertise was sufficiently rare for him to have to be traced to his institute in Sweden; thirdly, he expressed himself too absolutely by saying that the presentation was pathognomic (i.e. illustrative of cause by) NAI.

What we learn from this is to be eternally sceptical of evidence. The third point was characterised by the court as the expert having taken upon himself the role of decision-maker, compounded by the court not realising that it had failed to guard that role at its own. It seems to me that there must be some criticism of the representatives in the case for allowing that to happen and rightly so: it is vanishingly rare that an expert can properly say that an injury or physical insult was caused by an event unless there is some supportive evidence (i.e. a witness saw a knife being used to stab) Experts should in the main be restricted to saying whether an observation is consistent with or not consistent with a hypothesis: the decision as to whether the whole evidence supports a finding is for the court alone.

Whether one can ever succeed in uncovering the second error described above is a matter of research and luck combined, but the first is a live issue in every case. One rarely encounters an expert in care proceedings who is not eminently well qualified in their discipline but it does not follow that they will be an expert in the particular symptoms/injury/circumstances presented in an individual case. The doctor in this case agreed on reflection that he could have more forcefully brought the unusual features of the case – that is, those which were inconsistent with his diagnosis – to the attention of the court. That he did not do so was accepted to have resulted from his human and professional wish to protect a child about whose diagnosis he could not actually be sure. This reminds us to invite an expert a) to reflect on their issue-specific experience and knowledge and b) to accept that they might not actually know the answer.