Friday, 14 September 2007

Update 24th of July 2007

This week:
· a case demonstrating the durability of the rule in G v G (that on appeal in the family courts’ system an appellant will only succeed if the judge subject to that appeal is plainly wrong) and on case management;
· a case illustrating the unique considerations relevant to an application for leave to defend an adoption;
· a reminder of counsel’s duty to the court where a judgment is deficient and;
· a re-statement of the propositions for the court to consider when deciding whether to allow or forbid medical treatment to a child.
As ever, I should be grateful to hear from anyone prepared to submit an article for dissemination throughout the Family Law Team.
Somerset v D
In Somerset County Council v D & ors [2007] EWCA Civ 722 the President sat with Sedley & Wilson LJJ on an appeal from a decision each of us will have wanted to hear.
HHJ O’Malley sitting at Taunton had heard a case in which two drunkards had had their six children taken off them. The care plans before the judge in February were for adoption.
Despite the local authority having the full support of the Guardian and the parents problems being fairly chronic, the judge refused to make care orders, expressing the view that the parent’s should be given further opportunity to succeed, so made interim care orders. (This confirms my theory that the further you go from London the bolder judges are prepared to be) When the matter came back before him in March he made further interim care orders and was appealed on the basis that he had given insufficient reasons for that decision.
The Court of Appeal felt on balance that his reasons, though brief, were adequate, but that the appeal would succeed because the judge had entirely failed to give directions of sufficient formality &/or structure which would allow the adjournment to have a useful function: all parties needed to know what was expected of them and the standards against which they would be judged.
But – and this is the G v G point – the court did not make the final care orders which the local authority sought as it felt it could not find that HHJ O’Malley was wrong enough. In paragraph 8 the court spoke of the high regard in which the judge was held and that this judgment showed the depth of his compassion ‘and perhaps also... his courage’. That, to my mind, is as close to saying that he got it wrong without overturning him as it is possible to get.
The practical application of the judgment must be limited as one has to start with a judge brave enough to do what he personally thinks is right without thought to how it will look elsewhere. But as I have said, it is testament to the endurance of G v G.
Re P (A Child)(2007)
A less happy case is Re P (A Child)(2007) [2007] EWCA Civ 616 in which Thorpe and Wall LJJ and Hedley J sat.
The point on appeal was rather simple: when the court is considering the exercise of its discretion under s47 of the Adoption & Children Act 2002 (i.e. should the parents be able to defend adoption proceedings in the light of changes of circumstances) are the interests of the child or children paramount (as is suggested by s1 of the same Act)? The question being simpler than the answer, it was necessary that this be dealt with as there did not appear to be any guidance from the higher courts as to the interrelationship between the two sections and therefore, how judges at first instance should proceed. The answer provided by the Court of Appeal was ‘Yes’: the child’s interests were paramount and this is the principal significance of the judgment as a precedent.
The judgment at first instance was, in my view, a harsh one. The baby in question had been taken from its parents when just two days old. A few months before the adoption application was to be heard they had had another baby. They entered a residential assessment with that child which was successful and though the child remained on the child protection register, no proceedings were initiated nor in prospect.
The judge held that in the light of his fairly dim view of the progress made by the parents (which he described as ‘...inchoate... to be applauded but not finally crowned...’) they had not shown a relevant change of circumstances so did not satisfy s47(7). The Court of Appeal commented that had he stopped there, they might have been minded to overturn him.
Unfortunately for the parents, the judge then continued that even if he were wrong, the other circumstances of the case, including the bond built with the prospective adopters, meant that it would not be in the child’s interests for her parents to defend.
In my introduction I mentioned a unique feature of applications to defend, and it is this: applications to become involved in proceedings are normally under s10(9) of the Children Act 1989. As such the only relevance of the interests of the child/ren is where the admission of a party carries a risk that it will ‘disrupt... the child’s life to such an extent that he would be harmed by it.’ (s10(9)(c)) whereupon the party should not be admitted. The applicant’s prospects are irrelevant, to some extent so is delay, and the application is to be dealt with on the basis of fairness to the applicant rather. The same reasoning applies to applications for Special Guardianship Orders under s14A of the CA 89.
Applications to defend an adoption however fall foul of s1(7)(b) of that Act and are thereby subject to the paramount interests of the child and it is for this reason that the Court of Appeal found that the judge at first interest was entirely within his jurisdiction to proceed as he did.
Which leaves two interesting questions to my mind:
firstly, though in paragraph 52 et seq the Court addressed the question ‘Was the hearing fair’, it did so with reference only to the materials available to the court, the state of knowledge of the judge and so on. It did not address, nor does it appear to have been invited to address, the apparent conflict between the guidance in Re L (Care Proceedings: Fair Trial) and the outcome of the reasoning on s1 of the ACA 02 in this case (readers will remember Munby LJ’s Portia-like comments to the effect that the quality of Article 6 fairness could not be subsumed by the Article 8 or other rights of a child)
second, I see no reference in the judgment (nor in what it repeats from the first instance judgment) to the importance of placement within the family. At the time of the application to defend, the first and subject child was just 20 months old. That she had bonded with the prospective adopters was unquestionable and probably not surprising as she had never had an opportunity to bond with anyone else. I am unsettled to see mentioned in paragraph 2 of the Court’s judgment that the application by the parents was opposed by the prospective adopters as the ACA 02 does not involve them (see s1(4)), nor can I think of any principle of law which would do so. As I wrote last week, it may be that the emphasis on placement within the family may soon be restated in forthcoming legislation. In this case that emphasis seems to have been sidestepped by a very quick placement at the beginning of the child’s life and which set the pattern of her being brought up by (no doubt perfectly-competent) strangers.
Re S (Omission from Judgment) [2007] EWCA Civ 694
In this judgment the Court of Appeal reminded practitioners that it was not appropriate for counsel to ask for permission to appeal from a judgment just delivered without first discussing with the judge the flaw which had been spotted and inviting him or her to remedy it. Though slightly depressing that we should have to be reminded of this rather obvious point, here it is re-stated.
The NHS Trust v A [2007] EWHC 1696 (Fam) 18/07/07
This is of course of academic interest to me as I am unlikely ever to be involved in such matters, but readers may be interested to know that Holman J sat on this slightly unusual human-interest case and in doing so restated his principles for decision making which he had promulgated a year before (An NHS Trust c MB)
The parents were educated and professional people whose Christian faith was much in evidence throughout the proceedings. The judge evidently felt a special responsibility as their respect for the law made it likely that they would abide by his decision notwithstanding that they might fundamentally disagree with it (and as it turned out, did so disagree).
I have described this as unusual for two reasons: firstly it was a case in which the Trust wanted to carry out a procedure to prolong life whereas the parents opposed it; secondly because the options were certain death without intervention and anything up to a full recovery and ordinary life (with a question mark about fertility alone) with intervention.
The judge at paragraph 40 repeated his propositions of which two are operative rather than administrative. They are vii/viii – that there is a strong presumption in all such cases that life should be prolonged (that presumption being rebuttable) and ix – that each case is fact specific.
The child had been born apparently healthy but had rapidly deteriorated and spent time in a Paediatric Intensive Care Unit. This was a horrible experience for the parents and, in anyone’s view but particularly theirs, for their daughter. The Trust sought to execute a bone marrow transplant which would involve about two months’ treatment. It would undoubtedly be painful and could perhaps lead to a painful death, but on the one hand, without it she would die, and on the other, if it worked she would have an entire life with a normal span and without complications save the likely loss of fertility.
In conclusion it seems that the parents were overwhelmed by the hideousness of what they had seen and did not feel they could allow anything similar to happen again. They had a slightly exaggerated view of how long the intervention would last but no-one was likely to criticise them for that. But in the end, the proposition that life should be prolonged and the unusually high potential benefit to the child meant that the court felt that it had to rule in favour of the Trust carrying out the treatment.
In the circumstances of reporting this case I will now abuse my position and ask that any member who does not currently give blood consider doing so. Bone marrow may also be taken by the National Blood Transfusion Service if tissue types match. London members may visit the donor centre any week day at Margaret St W1, and all members may find a peripatetic session by going to