Public law case update September 2023

Lauren Gardner and Eleanor Suthern round up the latest public law children cases of interest to practitioners.

JW (Child at Home Under Care Order) [2023] EWCA CIV 944.

In the Court of Appeal, Civil Division, before Sir Andrew McFarlane, President of the Family Division; Lady Justic Macur; and Lord Justice Coulson

Factual background

The appeal concerned three children, aged 14, 11 and 7. In 2021, the children’s mother (“the Mother”) married “Mr P”, after meeting him the previous year. After the couple had married, the Mother was informed by social services that Mr P, in 2005, was convicted of offences of making and possessing a vast number of indecent images of children. Mr P was handed a Sexual Harm Prevention Order, which prohibited him from any unsupervised contact with children.

In October 2021, when the Mother was made aware of this information, a safety plan was signed and agreed upon which stipulated that Mr P move out of the family home. The Local Authority then became concerned that the safety plan was not being adhered to and that Mr P was having unauthorised contact with the Mother and her children.

In May 2022 and as a result of their concerns, the Local Authority issued Care Proceedings under CA 1989, s31. Throughout the proceedings the children continued living at home with their Mother under an Interim Supervision Order.

At the final hearing in November 2022, HHJ Harris-Jenkins accepted the submissions of the Local Authority and Children’s Guardian and made a Full Care Order, with a care plan for the three children to remain living at home with their Mother. The mother’s basis of appeal asserts that making a Care Order with the children at home was wrong. The Mother asserted that rather than making a Final Order, the Court should have extended the proceedings to allow the Mother’s ability to protect the children from Mr P to become further established.

The applicable law

• The court noted that the choice between a care or supervision order when a child is placed at home has not been the subject of any recent determination by the Court of Appeal since the decision of Baker J in Re DE (Child Under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001 but that this was the primary consideration.
• The court stated that, provided the threshold criteria are met, the choice of whether to make any order, and if so which, in care proceedings is to be determined by giving paramount consideration to the child’s welfare [CA 1989, s 1(1)]. The court must have regard to the matters set out in the welfare checklist in CA 1989, s 1(3) and the non-intervention principle in s 1(5):
  • “(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”
• Further, the court considered CA 1989, s 31(1)(a), which stipulates a care order places a child with respect to whom the order is made in the care of a designated local authority. The local authority shares parental responsibility for the child, but has the power to determine how any other holders may exercise parental responsibility [CA 1989, s 33].
• An English local authority may only allow a child in care to live with a parent, person with parental responsibility, or the previous holder of a ‘live with’ child arrangements order (made under CA 1989, s 8), in accordance with the Care Planning, Placement and Case Review (England) Regulations 2010 [‘CPPCR(E)R 2010’].
• An English local authority which has placed a child with a parent under CPPCR(E)R 2010, Part 4 must satisfy itself that the welfare of the child continues to be appropriately provided for by his placement [CPPCR(E)R 2010, reg 35 and Sched 7]. In particular, the local authority must provide such support services to the parent as appear to them to be necessary to safeguard and promote the child’s welfare [reg 20]. In addition, by reg 28, arrangements must be made for a person authorised by the local authority to visit the child from time to time as necessary, but in any event: (a) within one week of the start of the placement; (b) at least every six weeks during the first year of the placement; (c) thereafter, where the placement is intended to last until the child is 18, at least every three months, and in any other case, at intervals of not more than six weeks.
• Hale LJ in Oxfordshire County Council v L [1998] 1 FLR 70 and in Re O (Supervision Order) [2001] EWCA Civ 16; [2001] 1 FLR 923 laid particular weight on the need for the local authority to have power to remove the child instantly if circumstances so required it, or to plan for the child to be placed outside the family. Since Oxfordshire and Re O, the High Court (widely accepted) decision in Re DE, the local authority power, in a true emergency, to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court. The decision on removing a child from home either under a care order, or lack thereof, is procedural. The decision on removal will ultimately be taken within the umbrella of court proceedings, as opposed to administratively within a local authority, with the protection of the child being the decisive factor – however, the court must consider proportionality when making the decision between a care and a supervision order for a child who is placed at home.

Conclusion/judgment

At the Final Hearing, the concerns before HHJ Harris-Jenkins centred around the Mother’s association with Mr. P and the potential to cause significant harm to a child due to his history. The risk was not that there would be one sudden assault on the children, but rather the risk would stem from Mr. P slowly assimilating himself into the family life again.

There was no suggestion that the children be removed from their Mother’s care and the Mother was not seen to ‘slip’ in her protection for her children. However, the breaches of the safety plan were a cause of concern, and the court could not fully rely upon the Mother’s cooperation. The present Court concluded that HHJ Harris-Jenkins was correct in finding that the Mother had inordinately delayed cutting ties with Mr. P, and her separation from him, leading to divorce needing to be further tested.

The principal reason for HHJ Harris-Jenkins’ making a Care Order was that a Supervision Order did not have the necessary ‘safeguarding features’ of a Care Order, and that it was necessary for the Local Authority to share parental responsibility, and take the ‘whip hand’ if there was a falling down in the safeguarding position at any point. The safeguarding features of a Care Order in this case were not, however, identified by the previous court.

The court found it difficult to understand what additional power specifically HHJ Harris-Jenkins was considering that a Care Order would give to the Local Authority in order to maintain adherence to the safeguarding plan or add to the Local Authority’s ability to protect the children. The court found that HHJ Harris-Jenkins was in error in determining that this case was ‘exceptional’ and that a Care Order was the proportionate and necessary order to be made.

The court concluded that in a case such as this, where the risk is not immediate but slower and prolonged, and the plan for both monitoring and support would be alike under either order, and where any attempt to remove the children from home would be likely to lead to further court proceedings, there would be nothing further that the making of a care order would add to the local authority’s ability to provide protection.

The court, therefore, allowed the appeal on Ground One (that making a Care Order with the children at home with the Mother was wrong). However, Ground Two (that there should have been further adjournment of the proceedings to allow Mother to show her continued restraint from being involved with Mr P) was dismissed.

The Court instead made Supervision Orders in place of Care Orders for all three children. These were to remain in place for a period of one year and the Local Authority were directed to file Supervision Support Plans for each child.

A and B (Children- ‘parental Alienation’) (No. 5) [2023] EWHC 1864 (Fam)

In the High Court of Justice, Family Division, before Mr Justice Keehan

Factual background

This case concerns two children, Child A who is 17 years old and Child B who is 14 years old. The applicant is their father, and the respondent is their mother.

There are a number of previous judgments to read in accordance with this judgment, for context. Four of these judgments have been published under the title Re A and B (Parental Alienation) No. 1 [2020] EWHC 3366 (Fam), No. 2 [2021] EWHC 2601 (Fam), No. 3 [2021] EWHC 2602 (Fam) and No. 4 [2021] EWHC 2603 (Fam). Also referred to is the judgment of the Court of Appeal in this case reported as Re B (Children: Police Investigation) [2022] EWCA Civ 982.

Mr. Justice Keehan had previously determined that the children’s mother had caused the children emotional and psychological harm by turning the children against their father. There were a number of experts instructed in the matter, namely Dr Juliet Butler – a child psychologist, and Ms. Karen Woodall, to attempt to resolve the conflict between the parents, which was ultimately unsuccessful. The experts concluded that the mother had not achieved the degree of change required, and if the children continued to live with her then the emotional and psychological harm the children had already suffered would be further reinforced, and would be detrimental [for the rest of their lives].

Having heard all the required evidence, a transfer of residence was ordered from the mother to their father. The mother challenged that decision on appeal, and was unsuccessful.

In November 2020, the children began to live with their father. On two episodes they ran away, and the police were involved to recover the children. They then appeared to settle into living with their father. Various applications were made by the mother to join the children as parties. These were refused on the grounds that, due to the damage the children had already suffered, their real and true wishes and feelings could not be established. This decision was challenged by the mother in the Court of Appeal, which was unsuccessful.

There then followed a series of allegations made by the children against their father. They mirrored previous allegations which Mr. Justice Keehan had found to be untrue.

On 15 December 2021 after an on notice hearing Ms Bazley, then QC, invited the court to hold a hearing without notice to the mother. The previous day at a session held by Ms Woodall with the children and the father, the children had withdrawn their allegations against the father.

Ms Woodall was called to give evidence. Ms. Woodall stated that the children explained that they had been approached many times since the Spring of 2021 and put in contact with the mother. The children made reference to being approached by a ‘strange’ (referred to as ‘unknown’) man on their way to school and/or to sporting activities. The children were given tracker devices by the unknown male and given mobile phones to contact the mother and, more occasionally, the maternal grandparents, and were given cash to buy mobile telephones to have contact with their mother and maternal grandparents.

During these conversations the children were told, inter alia, to run away from the father’s home, told to make false allegations of abuse against and, as time progressed, to make more serious allegations against the father.
At the conclusion of the without notice hearing on 15 December 2021 the directions made included:

1. The children were not to attend their schools until the hearing on 12 January 2022 to prevent them being approached by the unknown male;
2. Ms Woodall was to prepare a report setting out the allegations/disclosures made by the children on 14 December 2021; and
3. The transcript of Ms Woodall’s evidence and the order made at the without notice hearing would not be made available to the mother or her legal team until the start of the hearing listed on 12 January 2022 when they would be given time to consider the same.

The law

• In the context of a private law, domestic abuse case, Poole J summarised the approach to fact-finding hearings as follows:
  • Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing)[2021] EWHC 1367 (Fam) at [17]:

“The following principles apply to this finding of fact hearing:

1.  
   1. The burden of proof lies on the party that makes an allegation of fact and identifies the findings they invite the court to make.
   2. The standard of proof is the balance of probabilities.
   3. Findings must be based on evidence not suspicion or speculation – Lord Justice Munby in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12.
   4. The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence – see Dame Elizabeth Butler-Sloss, President observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838.
   5. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress. The fact that a witness may have lied does not necessarily mean they are guilty of the matter alleged against them and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB 720.”

• Re A (A Child) (Fact Finding Hearing: Speculation) [2011] 1 FLR 1817 and Re A (Application for a Care and Placement Orders: Local Authority Failings) [2016] 1 FLR 1: Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on mere suspicion, surmise, speculation or assertion.

• When considering the allegations made by Child A and/or Child B, the following was considered and applied:
  • The greatest care needs to be taken if the risk of obtaining unreliable evidence from a child is to be minimised. Children are often poor historians and many are suggestible: Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] 2 FLR 1071 at paragraphs 34 to 35, 37, 40 and 42 to 43;
  • The 2022 revision of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures;
  • The court must acknowledge and carefully analyse material where there are numerous and substantial deviations from good or acceptable practice in ABE interviews or other procedures adopted for interviewing children and must consider whether or not flaws in the ABE process are so fundamental as to render the resulting interviews wholly unreliable: Re E (A Child) (Family Proceedings Evidence) [2016] EWCA Civ 473 at paragraph 35; and
  • A court considering the hearsay evidence of a child must consider what the child has said, the circumstances in which it was said and the circumstances in which any alleged abuse might have occurred: R v B County Council ex parte P [1991] 1 FLR 470 at page 478.

Findings of fact sought

The father sought a number of findings of fact against the mother.

These included, but were not limited to; the mother instructing the children to take heed of only her instructions and not that of Ms. Woodall’s, thereby undermining her work; the mother informing the children that they may see her less, and told them that if a transfer of residence was ordered they are to run away and ‘keep running’; the mother gave the number of a solicitor to Child A and told them to ‘instruct’ this solicitor to act for her and Child B in these proceedings.

In around April 2021, a man (unknown to the children) on instruction from the mother/her family, approached Child A with a picture on his phone of the mother’s parents with a poster saying “we miss you”, that poster being designed to induce Child A into trusting this man, and that a man on instruction from the mother/her family approached Child B in a way similar to the above near the location of Child B’s judo classes, and this man informed the children that he had assisted in foiling a kidnapping gang, and that this was designed to persuade the children that they were being held as captives by the father/the High Court.

Expert evidence

Ms. Woodall produced two recent and relevant reports, dated 4 October 2022 and 27 April 2023. Brief oral evidence from Ms Woodall was also heard.

Within her reports, Ms. Woodall referenced balancing the harm caused by the children having no contact with their mother to their majority, against the harm caused by having to manage their mother’s likely continued belief that they are being held captive by their father, or brainwashed by Ms. Woodall. The latter was deemed to outweigh the former, due to their mother showing no signs of understanding or accepting her role in the harm caused to the children.

Ms. Woodall was praised by the judge for her professionalism and dedication.

Conclusion/Judgment

On the evidence, the father had proved, on the balance of probabilities, ‘each and every one’ of the allegations.

The mother has had and continues to have, a very distorted and false view of her children, her abusive role in their lives and the devoted care given to them by their father. The mother’s actions amount to coercive and controlling behaviour towards the children, and towards the father. The mother orchestrated the (a) tracking [of] the children, (b) by making covert contact with them directly and through third parties and (c) of forcing them to make false allegations against their father and/or telling them to run away from the father, she has seriously abused Child A and Child B emotionally and psychologically.

It was found that, should the mother continue to have a role in her children’s lives, by contact or other means, her abusive behaviour would be repeated with no regard for the children’s well-being and welfare. Alongside the children’s agreement, the judge concluded that it is in their best interests if their mother plays no future role of any description in Child A and Child B’s lives.

Regarding costs, the father had previously been awarded a costs order against the mother, however these were still outstanding. The father sought another costs order and was awarded £240,954. The Judge was satisfied that the mother had clearly demonstrated reprehensible behaviour, and an unreasonable stance. The judge ordered liquidation of the mother’s assets, in order to meet the costs orders, either partially or in full.

Lauren Gardner and Eleanor Suthern are barristers at Spire Barristers.