Children law update

Michael Jones discusses a wide range of recent children law rulings from the Court of Appeal and the Family Division.

As usual, I have tried to distil months’ worth of reported cases in an easy-read update. The last few months have brought about quite a few judgments of interest, and obviously reading a case law update is exactly what everyone wants to do in their spare time (well…. it is if, like me, you are a law nerd). So without further ado, I bring you my winter case law update (drum roll please).

Let us kick this update off with the Court of Appeal decision in Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348. This is an appeal from findings made against two parents. In summary, the judge had found that the mother had forced tissue paper into the child, A's, throat in order to obstruct her breathing, with the act of respiratory obstruction was deliberate and could have been fatal, and then went on to make a finding that a chronic brain injury and multiple fractures were inflicted by either the mother or the father (a ‘pool’ finding). The father appealed.

The Court of Appeal noted that the judge had annexed an agreed ‘summary of the law’ to the judgment. This approach was not something the Court of Appeal was overly keen on.

"Whilst I fully appreciate the value of such a document to a busy circuit judge, a measure of circumspection is in my view necessary in its use. First, a document which sets out lengthy citations from cases is unwieldy and may contain much which is unnecessary. Simply setting out any significant principle with a reference to the relevant part of the judgment in question will ordinarily be sufficient. Secondly, the judge in his or her judgment still needs to identify and apply the principles of law relevant to the issue, or issues, before him or her. A boiler-plate incorporation of the established law in the form of an attachment to a judgment does not, without analysis in the judgment, help the reader to understand whether, and if so how, the law was applied to the facts and circumstances of the case before the judge."

Baker LJ then went on to consider the law in relation to uncertain perpetrator cases and scrutinised the suggestion that the Court should not ‘strain’ to identify a perpetrator;

‘The question now is, what purpose, if any, does the maxim that a judge should not strain to identify a perpetrator serve, given that in the intervening 14 years the law in relation to perpetrators, certain and uncertain, has become clear and well established, and bearing in mind the words of Lord Lloyd in Re B at paragraph [63] that "There is a danger that the repeated use of [the] words will harden into a formula which, like other formula … may lead to misunderstanding"?

In answering that rhetorical question, it is worth also noting that the Supreme Court has been unequivocal in its condemnation of an approach by courts which allows for any form of gloss being added to a legal test.

For example, in Re B (A Child) [2013] UKSC 33, the Supreme Court unanimously rejected any gloss on the test set out in CPR 1998, r 52.21(3)(a) that an appeal is to be allowed where the decision of the lower court was "wrong". The approach in the earlier case of G v G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 that the test to be applied to a review of a first instance determination based on an evaluation of the facts was whether the finding was "plainly wrong" was, it was said, "inapt". Lord Wilson said that "it is generally better to allow adjectives to speak for themselves without adverbial support". The test, he said, is "simply was the evaluation wrong?".

The evaluation of the facts which will enable a court to identify the perpetrator of an inflicted injury to a child will be determined on the simple balance of probabilities and nothing more. Having considered the matter afresh in the light of Elisabeth Laing LJ's observation, I am of the view that to go further and to add that the courts should not "strain" to make such a finding is an unnecessary and potentially unhelpful gloss which has outlived its usefulness and which was directed at a different issue as set out in paragraph [24] above.

I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding "straining to identify a perpetrator". The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.’

Baker LJ summarised the proper approach to be taken in these cases as considering;

1. Whether there was a list of people who had the opportunity to cause the injury;
2. Whether the Court is able on the balance of probability, to identify the actual perpetrator;
3. If, and only if, the Court is unable to make such a finding to the appropriate standard of proof, should the judge resume scrutiny of the list and in respect of each person on the list, consider whether there was a real likelihood or possibility that one of those individuals inflicted the injury/injuries.

In this case the appeal was allowed as the judge at first instance had;

"….completed the first of the steps set out in paragraph [49] in that he properly identified the individuals on the list as "the only individuals who could have caused the injuries were the parents". Unfortunately, rather than then moving on to consider whether the mother or the father had, on the balance of probability, inflicted the earlier injuries, the judge approached it from the other end of the telescope, namely was it so improbable that the father had inflicted the older injuries that he should be excluded as a possible perpetrator?’

The full judgment is required reading and sets out an authoritative summary of how uncertain perpetrator cases should be approached.

Re W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118 is an interesting judgment (n.b. I have not just included this one because simply it is a Peter Jackson LJ judgment…honest). The issue in this case was an appeal made by the husband of the mother of the subject children in care proceedings against a ruling that his conviction for sexual offences against a child in a Spanish court was admissible in the care proceedings as evidence with presumptive weight, so that the fact of the conviction would stand as proof of the facts underlying it unless the husband rebutted that presumption on the balance of probability. The effect of the ruling was that in those family proceedings the foreign conviction was to be treated in the same way as if it was a conviction of a court in the United Kingdom.

This is a masterful judgment that sets out all of the statutory provisions and case law relevant to this issue. There was much debate in relation to the judgment in Hollington v Hewthorn, with the ratio from that case being that the interests of justice require a Court to reach its own conclusion about the issue before it, without regard to the conclusions of others, unless they are expert witnesses in the usual sense, because (1) without retrying the matter it is not possible to know what the earlier decision proved, and (2) it would be unfair if third parties were prejudiced by decisions to which they were not a party.

I would suggest that you have a read of the full text, but in short, the appeal was refused for the following reasons:

"The rule in Hollington v Hewthorn does not apply in family proceedings as I have defined them because such a rule is incompatible with the welfare-based and protective character of the proceedings.

In family proceedings all relevant evidence is admissible. Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person's suitability to care for children or some other issue in the case, the court may admit them in evidence.

The effect of the admission of a previous finding or conviction is that it will stand as presumptive proof of the underlying facts, but it will not be conclusive and it will be open to a party to establish on a balance of probability that it should not be relied upon. The court will have regard to all the evidence when reaching its conclusion on the issues before it.

In this case the judge was right to find that the conviction of MH is plainly relevant evidence in these proceedings and that there is no rule of evidence that makes it inadmissible. As Leggatt J said in the civil context of Rogers v Hoyle at [27], the modern approach is that judges can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules. This is all the more so in family proceedings, where exclusionary rules such as estoppel, res inter alios acta and Hollington v Hewthorn do not apply because they would not serve the interests of children and their families or the interests of justice.

As I have said, while it might be possible to distinguish the present case from Hollington v Hewthorn on the basis of identity of issues and lack of unfairness to third parties, it is unnecessary to found the analysis on these narrower and more contestable matters that depend on identifying the true ratio of the decision. Nor do I attach special significance to the inquisitorial nature of the proceedings. The important consideration is not that family proceedings are inquisitorial in form but that they are welfare-based in substance.

The outcome is not unfair to the mother. As the judge said, she is not in a position to give evidence that is relevant to the conviction. It is not conclusive and she will have an opportunity to examine any surrounding evidence.

On the basis that the conviction was admissible, the judge was right to admit it. Indeed there could have been no good reason to refuse. She asked whether it was appropriate to depart from Hollington v Hewthorn, but as she had held it to be both inapplicable and distinguishable, the real question was whether there was some other reason to exclude the evidence, and there was none. Accordingly the question of comity is not relevant, while the circumstances of the original finding or conviction and the difficulties of proof in an individual case are matters for the court to keep in mind when it comes to weigh the evidence as a whole.

Once a conviction is admitted it inevitably becomes evidence with presumptive weight, otherwise there would be no purpose in admitting it. It would be meaningless to treat it as "just another piece of evidence". Further, the court's power to reopen its own findings has no application to the question of how the findings of other tribunals should be treated."

In Lincolnshire County Council v TGA & Ors [2022] EWHC 2323 (Fam), Lieven J considered the ‘elephant in the room’ left by the Supreme Court following its decision in Re D. The Supreme Court held that it was outside the remit of parental responsibility to provide consent to what would otherwise be a deprivation of liberty for a child aged 16 or over; it did not give a definitive view in relation to the situation regarding under 16s. This is the very issue Lieven J was considering in this case.

Her ladyship determined that a parent can legitimately provide consent in relation to a child aged under 16, with her reasoning being as follows;

"The conclusion I have reached is that a parent can consent to a deprivation of liberty within Storck component (b) for a child under 16, who lacks Gillick competence, where there is no dispute that such a deprivation is in the child's best interests. As I have explained above, none of the previous domestic cases are binding upon me in respect of the role of parental consent for under 16 year olds. On the other hand, Nielsen expressly dealt with the point and the ECtHR found the deprivation of liberty in that case did fall within the parental power to deprive a child of his/her liberty.

I agree with Munby P that, using the language of the subsequent case of Storck, the ECtHR in Nielsen at [73] was finding that the mother could consent to the child being deprived of his liberty in the hospital. It is possible to analyse the case as finding that the mother was able to "authorise" the State, through the hospital, to deprive the child of his liberty. However, in my view, that introduces an extra and unnecessary level of complication into the analysis. It is simpler, and more in keeping with the domestic caselaw, to see Nielsen as being about the child's deprivation of liberty falling within the scope of parental responsibility.

The power of parents to exercise custody over their children, or in modern parlance, to deprive children of their liberty, has long been accepted by the common law, see Hewer v Bryant. That power in respect of under 16 year olds has not been removed by statute. There can be no doubt that in respect of very young children, as Lord Kerr phrased it, they can be restrained to a point where Storck (a) is met, whether in the family setting or in school or any other setting.

The contrast with the statutory position of children aged 16 and over is set out by Lady Hale in Re D at [26]. There are a host of statutory provisions which mark the legal importance of attaining the age of 16, and the legal separation that gives between a child's rights and those of his/her parents.

However, the position is different for a child under 16 years old, both in common law and under the ECHR. It follows that the very nature of "family life" and therefore the protections under Article 8 for the parents' rights, will be different for a younger child. It is however critical to have in mind that the exercise of any parental rights in respect of a child 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 child's best interests then such a decision would no longer fall within the zone of parental responsibility.

At the heart of the issue in this case is whether the Court should take the approach of Lord Scarman and Lord Fraser in Gillick and consider the scope of parental responsibility (and the powers inherent within it) as depending on the specific characteristics of the individual child. Alternatively, whether the Court should take the approach of Lord Kerr in Cheshire West and compare the child to a hypothetical child of the same age in deciding the extent of parental responsibility.

Lady Hale distinguished Gillick at [24] in Re D on the grounds that it concerned medical treatment and not deprivation of liberty, which as a matter of fact is undoubtedly correct. However, I am not convinced that for under 16 year olds that distinction is critical to the principles that should apply in this case. In terms of the importance of the decision in question, the decision on medical treatment can be fundamental to the child's life. In the most extreme cases it can determine whether the child lives or dies. If a parent consents to the treatment, then in the case of a non-Gillick competent child, that can lead directly to their death or to life changing medical treatment, simply on the basis of parental consent. The decision as to medical treatment can therefore be just as important, and just as much an intrusion into the child's human rights, as any decision relating to Article 5.

Lady Hale said at [48] that the parent could not licence the State to intervene in the child's fundamental human rights. However, the parent can consent in medical cases to such an intervention, so long as the clinical view is the intervention is in the child's best interests. However, it is noteworthy that there is no requirement in every case, even the most serious medical treatment cases, for that decision to be approved by the Court. It is one for the parents falling within the zone of their parental responsibility, so long as the clinicians involved are satisfied it is in the child's best interests.

In determining whether the decision is one for the parent or the child, in medical treatment cases it is established that the Court or clinicians must consider the maturity and intelligence of the particular child. It is irrelevant whether an equivalent hypothetical child of the same age would or would not be competent to make the decision.

It is not clear to me why a different approach should be taken to parental decisions about deprivation of liberty. Both Lady Hale and Lady Black relied on the fact that Gillick involved contracting the boundaries of parental responsibility, whereas Re D might have been said to be extending them. However, as explained above, Hewer v Bryant establishes the extent of such powers for parents, therefore this is not a case of expanding parental rights. In any event, it is clear, as I have set out above, that any exercise of such responsibility can only be undertaken in the child's best interests.

More fundamentally, when dealing with children, whose ability to understand the issues will vary greatly depending not simply on their age, but on their psychological and emotional maturity, their family support and their life experiences, in my view it is more appropriate to consider the characteristics of the individual child than try to compare them with a hypothetical child of the same age. Whereas it is appropriate to assume that someone over the age of 16 will have capacity, and therefore there is a benchmark to compare the non-capacitous adult with, that is a much more difficult and arguably less possible exercise for children under 16. For that reason, I prefer the approach of Gillick to consider the characteristics of the particular child."

I would still suggest that this is a complex area, particularly given the decision of Keehan J in Re AB, in that the question of whether a parent can provide consent depends on a number of issues including the child’s competence to provide consent on their own motion, and whether the parent has been able to demonstrate an ability to legitimately exercise their parental responsibility (for example it would appear highly unlikely a parent whose child is subject to an interim or full care order, is going to be able to provide legitimate consent on the child’s behalf).

On the subject of DOL authorisations, there is an interesting judgment in Re E (A Child) [2022] EWHC 2650 (Fam) which notes the impact of funding issues for parents in DOL cases. Basically in that case, the Court had to engage on a multi-day contested hearing with two parents appearing as litigants in person as they were not entitled to legal aid funding. The judgment notes that, had they been represented, the hearing would have been substantially shorter and would have resulted in substantial financial savings taken up by the costs of representation for the local authority and child, in addition to the Court resources involved.

In other words, the government attempting to save money by restricting legal aid entitlement is a completely false economy. Someone please tell the lord chancellor this (I can’t actually remember who the LC is now, we have had so many recently!).

A recent judgment from our FDLJ Mr Justice MacDonald in London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam) is a case of note when considering issues of jurisdiction, habitual residence and relevant date for determining this issue in the context of cases where the provisions of the Hague Convention 1996 apply. The facts of the case, which involved care proceedings relating to one child, H, do not necessitate repetition here, with the central ratio relating to the issues of jurisdiction under the provisions of the Hague Convention 1996 in the context of public law proceedings, and the relevant date for determining habitual residence.

Within the judgment, his lordship determined that the provisions of the 1996 Hague Convention in relation to jurisdiction, do apply to proceedings involving a noncontracting state, however if the Court was to conclude that it did not have jurisdiction in respect of
a child under Art 5 of 1996 Hague Convention, the Court's jurisdiction arising out of the presence of the child in the jurisdiction would subsist for the purposes of care proceedings pursuant to Part IV of the Children Act 1989;

‘It follows that the Court would not be limited in such circumstances to taking measures under Arts 11 and 12 of the 1996 Hague Convention but could exercise its jurisdiction based on H's presence in the jurisdiction. Whether the court would proceed to exercise the jurisdiction based on presence is a separate question, to be determined in due course. I make clear that I have reached no conclusions on that question or the prior question of habitual residence.’

In relation to the issue of the date for the determination of habitual residence, MacDonald J found this to be the date of the hearing listed to determine the issue, as opposed to the situation which was present under the provisions of BIIa, where the relevant date for determining habitual residence was the date upon which the Court was seised of the proceedings;

"…..whilst the 1996 Convention is silent on the point, I am satisfied that reading Art 5(1) in its proper context, which includes the absence of the principle of perpetuatio fori, and having regard to the objects and purpose of the Convention, which seeks to ensure that it is always the jurisdiction with the closest factual connection to the child's family and social life that takes decisions concerning the child's welfare, the relevant date on which H's habitual residence falls to be determined in these proceedings for the purposes of Art 5(1) of the 1996 Convention will be the date of the hearing and not the date the court was first seised of the proceedings on 18 August 2021.

As this court noted in Warrington CC v T, this position does risk the question of habitual residence, and therefore jurisdiction under the 1996 Hague Convention, being determined by mere effluxion of time over the course of protracted proceedings, particularly where a litigant is seeking to gain advantage by causing delay in proceedings. In cases concerning children who arrive in this jurisdiction, that risk is particularly acute where the court determines upon the issue of proceedings that it has only jurisdiction to take urgent measures under Art 11 of the 1996 Hague Convention. Within this context, as this court observed in Warrington CC v T, it is vital that the question of whether, and on what basis, the court has jurisdiction is determined at the outset of the proceedings and that thereafter the proceedings are resolved in a timely manner based on that determination. It also further emphasises the need for robust case management generally in order to avoid a situation where substantive jurisdiction is ultimately determined by procedural default."

Interestingly, his lordship did also make reference to the observations of Peel J in H v R;

"Finally, I am also conscious of the observations of Peel J in H v R regarding the potential for the relevant date for determining habitual residence under the 1996 Hague Convention to allow unscrupulous abductors to take advantage of delay, and his further observation that the fact that, as made clear in the Explanatory Report, national law takes over if a Contracting State loses jurisdiction under Art 5(1) may help to prevent that situation. However, in contradistinction to this case and the case of Warrington CC v T, in H v R the children had been taken from the jurisdiction of England and Wales to a non-Contracting State. This case, and the case of Warrington CC v T, concern the opposite situation to that which arose in H v R. In a case in which the subject child is already in England and Wales, the extent to which the fact that national law takes over following a loss by the Contracting State of jurisdiction under Art 5(1) may act to mitigate the risk of delay attendant on the relevant date under the 1996 Hague Convention, if at all, will depend on the facts of the case. In the circumstances, and where the point does not arise on the facts of this case, I propose to say nothing further in this regard."

A final case of interest is A Local Authority v Mother & Ors [2022] EWHC 2793 (Fam). This is a judgment from Williams J in relation to the re-opening of findings of fact made against a child, C’s, parents. Williams J allowed the application made by the parents to reopen the findings due to the ‘fair hearing’ issues raised. The application was also based upon an argument that there was  inadequate consideration of the medical evidence in relation to the causes of subdural and retinal haemorrhaging, however this element of the mother’s application was dismissed. Ultimately the application was permitted on the basis of a failure to fully implement ground rules, the evidence of the vulnerability of both parents, and the lack of intermediary support:

"The father's application to reopen the findings based on the failure to fully implement the Ground Rules identified on the basis of the evidence as to vulnerability, then before the court and based on the fresh evidence of Dr Radcliffe and Lucy Turner, is allowed. The transcript of the evidence shows the Ground Rules relating to breaks were not sufficiently implemented. Other issues relating to the hearing of the parents' evidence including their not being present for each other's evidence, the absence of consideration of the impact of the father's cognitive difficulties on his credibility in the judgment and the significant impact that the judge's evaluation of his credibility had on the decision support both the occurrence of a procedural irregularity and an arguably material impact on the fairness of the process. The expert report of Dr Radcliffe and intermediary report of Lucy Turner (not of Communicourt) amount to fresh evidence which was not available, is credible and which, if it had been available to HHJ Backhouse would have been likely to have had an important influence on the conduct of the hearing. Had it been available it is likely that the father (and the mother) would have had the assistance of an intermediary. What the ultimate impact of that would have been is indeterminable and for the purposes of an application to reopen based on fairness of process grounds it is not a requirement to demonstrate solid grounds for believing that the outcome will be different. As it happens it is clear from the judgment that HHJ Backhouse considered that the quality of the father's evidence was poor and had deteriorated over the course of the hearing; whether that was because of an absence of credibility of his evidence per se, or whether it was as a result of his vulnerability and the ineffectiveness or absence of appropriate Ground Rules is not determinable now. The mother and father's credibility will fall for consideration in a re-hearing at which their participation will be supported by an intermediary and (I hope and expect) the implementation of appropriate participation directions."

After the previous findings had been made, the mother was subsequently assessed as requiring intermediary assistance, with Williams J concluding that "it is most unlikely that she did not require it only 18 months previously" (during the care proceedings). Williams J noted that the assessment of the parents undertaken by the Court instructed expert within the care proceedings was "not thorough and was poorly recorded and poorly executed when compared with the very thorough and well-reasoned report of Sarah Smith of Communicourt, herself an accredited psychologist with specific expertise in communication difficulties".

An assessment undertaken within the care proceedings did not identify the need for an intermediary but gave advice in relation to various matters, namely ground rules including the use of simple language and regular breaks; these were not sufficiently implemented during the hearing and Williams J concluded that the parents were unable to participate fairly in the hearing and to give their best evidence.

The case stresses the importance of all legal representatives and the Court in ensuring that vulnerable parties within the definition of PD3AA are able to fully participate in proceedings and that ground rules are properly considered and implemented alongside participation directions.

Michael Jones is a barrister at Deans Court Chambers.