Public law children case update: September 2022

Ali Alzarak analyses recent cases of interest to public law children practitioners.

CV (A Child)(Placement Order) [2022] EWCA Civ 930

An appeal against a placement order based on whether a full balancing exercise of the available options had been undertaken

Background

This case concerned an appeal against a placement order made in respect of C, a three year old girl. The appeal was brought by C’s mother which was supported by the father and opposed by the local authority and the guardian. C is the youngest of four children to the mother and the father who have been in a relationship for 25 years. C’s siblings were all subject to care proceedings and had been placed with family members save their eldest child who is aged 18 and returned home.

C was noted to suffer from a number of medical conditions in particular hypopituitarism and central incisor syndrome with piriform stenosis which presented symptoms such as development delay, dysmorphic features and heart abnormalities. This requires C to take regular medication in a regime that must be followed precisely. C spent the first 16 months of her life in hospital and in March 2020 the local authority started care proceedings. The local authority raised concerns regarding the mother’s lack of control of her diabetes, the parents’ volatile relationship, and the mother’s behaviour towards professionals. C was placed in specialist agency foster care following an interim care order and has for the last 15 months been cared for by Mr D and Mrs D who had undergone training to meet C’s complex needs. Mr D and Mrs D were required to work part time in order to care for C meaning their income was significantly lowered. Mrs D and Mr D had put themselves forward to caring for C as special guardians but an agreement on financial support could not be reached with the local authority. Maternal aunts had also been considered following a positive special guardian assessment however a supplemental report reversed the positive assessment. The local authority therefore sought an amended plan for adoption and filed an application for a placement order.

The parties positions at a final hearing were as follows; the local authority sought care and placement orders; the mother proposed that C remain in her care or in the alternative remain with Mr and Mrs D in long term foster care; the father supported the mother’s position; the maternal aunts who were still parties to the proceedings supported long term foster care with Mr D and Mrs D; and the guardian was conflicted, feeling the best scenario would be to stay with Mr D and Mrs D but ultimately supported the local authority’s position as the “next best” outcome subject to a 6 month time limit to find a placement before reverting back to long-term foster care.

It was noted that the judge said if she had a “magic wand, I would be waving it incredibly hard to have this little girl stay where she is” but also stated that she cannot make that happen and therefore made the placement order.

The mother sought to appeal the placement order and asked the court to invite the local authority to amend its care plan to long-term foster care or remit the matter back to the lower court. The appeal concerned whether the judge “had identified the realistic options for the child's future care, properly analysed the advantages and disadvantages of each option, and sufficiently explained her reasons in the ex tempore judgment delivered at the conclusion of the hearing” with her judgment being addressed at para 19-25.

Judgment

Though it was noted the judge identified advantages and disadvantages of the various options she did not in the Court of Appeal’s view carry out the balancing exercise with the “clarity and particularity” required by Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146. The Court of Appeal noted it was clear Mr D and Mrs D were no longer saying they could not continue to care for C unless they received support at the current level and therefore even if at the time of the first instance decision they were not a realistic option, this was not the case now.

The appeal was allowed with the matter remitted to the lower court on the basis that the judge had wrongly concluded “nothing else would do” for the following reasons;

1. she did not have evidence that long term foster care with Mr D and Mrs D was not a realistic option;
2. she had erred in concluding nothing else would do when further information regarding the foster placement as a long term option was needed and the court was not presented with the financial information sought regarding fostering allowances;
3. she had not undertaken an analysis of whether adoption was a realistic option and the impact of delay on C if an unsuccessful search is undertaken;
4. she had failed to balance the risk of breakdown of an adoptive placement against the risk of breakdown with Mr D and Mrs D;
5. finally she had failed to press the local authority for a contingency plan if no adoptive placement was identified which would have addressed if long term foster care was a realistic option.

F And G (Children : Sexual Abuse Allegations) [2022] EWCA Civ 1002

An appeal against findings of sexual abuse of a child in which the Court of Appeal undertook a detailed analysis of the trial judge’s judgment

Background

This case involved an in-depth analysis of a judgment given that included findings made of sexual abuse of a child against an intervenor. The proceedings concerned two girls, F aged 5 and a half and G aged two. Both children share a mother but have different fathers. G’s assumed father, subject to DNA testing, was not involved in the proceedings but F’s father was a party to the proceedings. On 21 January 2021 the local authority received a referral from a GP which included that F’s father had reported that F had soreness in her vaginal area and the reason was due to sexual abuse by D; a man the mother had started a relationship with in October 2020 who was joined as an intervenor in these proceedings.

F was ABE interviewed on 30 January 2021 which the judge found was not compliant with ABE guidelines due to a number of deficiencies.

A medical examination concluded that “These clinical findings together with F's very clear disclosure of penetrative sexual abuse are very worrying. The clinical findings support F's allegation of penetrative abuse”.

In his judgment handed down on 13 April 2022 following a fact-finding hearing in December 2021 the judge made a number of findings against D including that F had been sexually assaulted by D on a number of occasions. D’s solicitors submitted a document to the judge raising 13 points of clarification for the reasons for his decision. The judge declined to expand or clarify the judgment and refused an application for permission to appeal.

On 19 May 2022 notice of appeal in respect of the findings made was filed on behalf of D with the grounds of appeal being that the judge had erred in giving weight to certain factors whilst ignoring others. The factors which the judge was asserted to have not given adequate weighing or analysis included; the context in which F’s allegations were made including the potential influence of F’s father; multiple professionals concluding that F did not have an understanding of the difference between truth and lies; the maternal grandmother’s evidence that F had said “her daddy has told her to tell” professionals that D and the maternal step-grandfather had hurt her; the credibility and consistency of F’s allegations; the significance of F’s behaviours; and D’s credibility.

Judgment

The Court of Appeal undertook a detailed analysis of the judge’s judgment and dismissed the appeal. In respect of the deficiencies of the investigation into the sexual allegations, though it was noted the judgment did not contain a comprehensive list of the deficiencies in the initial conversation between the social worker and the police officer, the judge had demonstrated he was fully aware that the conversation was not compliant with ABE guidance and the judge had made reference to the importance of this by emphasising a series of reported cases. The judge had also demonstrated that he had engaged with the issues and arguments and had provided an explanation of the reasons for the decision. A similar finding was made about the deficiencies of the ABE interview, namely that though a comprehensive list of the deficiencies was not referenced, the judge was aware of the departures from the recommended ABE guidance and the judge was not wrong to conclude that despite the deficiencies, the interview contained evidence he could rely upon.

Dealing with the matter of truth and lies the Court of Appeal stated that the judge had once more demonstrated he was engaged with the issue and had taken into account the difficulties F had in expressing her understanding of truth and lies. The judge’s finding that F’s allegation on the whole was cogent and clear given it had come at the beginning of the interview and in contrast to statements given later in the interview, did not support the assertion that the judge had not adequately weighted the evidence.

The matter relating to the maternal grandmother was in relation to an email stating F had said “her daddy has told her to tell' professionals that D and her maternal step-grandfather had hurt her”. The Court of Appeal agreed this was an omission to the judgment which could have been addressed by a response for clarification and therefore the question was whether the omission was sufficient to allow the appeal. The Court of Appeal considered the judge’s view on the credibility of F and was satisfied he had provided sufficient reasons for concluding that F’s allegation was reliable.

The ground that the judge had not given adequate weight to the child’s behaviour because such behaviours could be attributable to other causes was also rejected on the basis that;

“It is, however, axiomatic that the assessment of evidence, and the apportionment of weight to be attached to each piece of evidence, are matters for the judge at first instance. This Court will not interfere with findings of fact by trial judges unless there is a very clear justification for doing so. Surveying the whole cloth, as Mr Rowley put it, the recorder was entitled to conclude that the reports of F's behaviour provided corroboration of the allegation that she had been abused. In any event, as I read the judgment, the recorder's decision turned ultimately in his acceptance of the child's allegations as reliable, supported by the medical evidence. His conclusion about the interpretation of the observed behaviours was not essential to his decision. I do not consider that the judge's treatment of this aspect of the evidence gives rise to a sustainable ground of appeal”

Dealing with the final ground, namely D’s credibility, it was held that there was no merit in this ground of appeal as though the judge’s summary of D’s evidence was brief, he had provided a sufficient explanation for his findings. On behalf of D reference was made to a number of pieces of evidence which was argued to point away from findings that D was a perpetrator of sexual abuse and that the judge had not made reference to that evidence in the context of assessing D’s case. This was felt to be a complaint rather than a form of substance. It was held that the judge had referred to the relevant evidence at different points in his judgment and the fact he did not set that out in one place and explain how it affected his view of D could not undermine the judge’s conclusion.

The Court of Appeal heard submissions regarding the judge’s refusal of the request for clarification. The Court of Appeal made reference to guidance since the decision of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605, namely Re A and another (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205 ("the Practice Note") and Re I (Children) [2019] EWCA Civ 898. The procedure under the Family Procedure Rules 2010 Practice Direction 30A paragraph 4.6 to 4.10 was also highlighted. The Court of Appeal noted;

“In the three years since the judgment in Re I was handed down, there has been little if any discernible restraint in the practice of seeking clarification of judgments. Meanwhile the pressures on the family justice system have grown ever greater and King LJ's observations about the burdens imposed on judges having to deal with such requests are of even greater relevance than they were in 2019”

The Court of Appeal held that though it was not critical of D’s Counsel for the carefully crafted and detailed points of clarification requested, the points of clarification sought went beyond what was intended by the authorities and therefore the judge was not obliged to answer them. This was not a ground of appeal and the Court of Appeal stated that even if it were, it would not have been successful.

The Court of Appeal provided further guidance at para 59 of the judgment;

“When giving judgment in a complex children's case, no judge will deal with every point of evidence or every argument advanced on behalf of every party. The purpose of permitting requests for clarification to be submitted is not to require the judge to cover every point but rather, as the Practice Note emphasised, "to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process." It is therefore rarely if ever appropriate for counsel to enquire as to the weight which the judge has given to a particular piece of evidence. If, as frequently happens, a judge draws together various strands of the evidence in giving reasons, it is neither necessary nor appropriate for counsel to separate out each strand and enquire what weight the judge has or has not attached to each piece, unless it can be said that in giving his reasons in a general way the judge has failed to address material parts of the evidence, or has created an ambiguity, or failed to provide sufficient reasons for his decision.”

Ali Alzarak is a barrister at St Mary's Chambers.