Children law update: Summer 2024

August 21, 2024

Michael Jones KC discusses the latest public law children cases.

This summer’s now standard children law update is going to attempt to give you a reasonably thorough summary of all the key stuff you need to know from the ever-expanding amount of published law. I am going to do a ‘rewind-repeat’ and start this update with a topic covered in the last one; intermediaries. That is because following Lieven J’s guidance on the use of intermediaries within family proceedings (see West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam), or alternatively just read the last newsletter, which extracts the relevant bits), Williams J has handed down judgment in Re X & Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam), in which he endorsed the guidance provided by Lieven J, save for clarifying that the test for the appointment under FPR 3A is ‘necessary’ rather than ‘compelling’;

‘Previous cases which described an intermediary as an expert have been superseded by the implementation of FPR3A. However there is still a forensic link between the regime which applies to the appointment of experts because the approach mandated by FPR 3A that the court must take to making a participation direction is whether it is "necessary to make the participation direction": FPR 3A.2A(3) and 3A..4(1) and 3A.5(1).. In the context of the expert, Munby LJ said in Re H-L (Expert Evidence: Test for Permission) [2013] 2 FLR 1434 that necessary falls: "somewhere between indispensable on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand, having 'the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable. Whether that means that 'nothing else will do' would require consideration of the other means by which fair participation can be achieved.

Thus, the test remains a strict one although what is necessary will bear some correlation to the measure proposed The necessity of a direction for a screen or a break is likely to be much easier to demonstrate than a direction for an intermediary. Ultimately the court is engaged in an evaluation of what participation directions are necessary to ensure that a 'fair hearing' is achieved either in relation to a witness' evidence or to a party's participation in the proceedings. The court will have regard to 3A.7(a)-(m) which includes many factors including whether the party or witness suffers from a mental disorder or otherwise has a significant impairment of intelligence or social functioning, the nature and extent of information before the court, whether a matter is contentious, any characteristic of the party or witness which is relevant, the measures available to the court and the cost.’

Of interest procedurally is that Williams J properly identifies that an application for an intermediary assessment (or indeed, the appointment of an intermediary) is NOT made under Part 25 FPR 2010; it is not an expert assessment;

‘An intermediary assessment in most cases will not be a Part 25 Expert appointment but rather a case management direction by the court of a similar nature to the direction for the appointment of an interpreter. HMCTS have contractual arrangements with providers of interpretation and intermediary services to fulfil the courts duty to enable a party or witness to participate. Usually, HMCTS will use their contracted provider but the court may direct an alternative or HMCTS may use an alternative.’

Having dealt again with intermediaries (it is a red-hot topic as there is a massive overspend by HMCTS on intermediaries nationwide), I move on to the issue of whether or not to convene a fact finding hearing. You will all no doubt be familiar with the main authorities in this area, including Oxfordshire County Council v DP, RS and BS and Re H-D-H (Children), however P and E (Care Proceedings: Whether to Hold Fact-Finding Hearing) [2024] EWCA Civ 403 merits a read. In that case, the basic facts are that one of the subject children presented with sub-conjunctival haemorrhages and a metaphyseal fracture of the distal left tibia; care proceedings were issued and the two subject children placed with a grandparent. The local authority pleaded a threshold case of inflicted injury following receipt of an expert radiological report. A parenting assessment was completed, which was broadly positive, however noted in its conclusion the fact that the issue of the child’s injuries was yet to be determined. The Judge, at a case management hearing following receipt of the parenting assessment, determined that it was neither necessary nor proportionate to hold a fact-finding hearing, relying primarily upon positive parental engagement, the delay such a hearing would entail, and the impact of continued separation on the children. The Judge referred to Lieven J’s decision in Derbyshire County Council v AA & Ors [2022] EWHC 3404 (Fam), where a fact-finding hearing was not deemed by her ladyship to be necessary (albeit on a completely different factual basis).

The local authority and the Children’s Guardian appealed. The appeal (perhaps unsurprisingly, at least to me) was successful. The appeal was allowed, with the main points taken from Baker LJ’s analysis being the following;

‘The judge's decision in this case was a case management decision and therefore the circumstances in which this Court can interfere are limited. An appeal can only succeed if we are satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. That is a high hurdle. In my view, however, the appellants have plainly crossed the hurdle in this case.

The judge was right to give careful consideration to the question whether a fact-finding hearing was necessary. But she took the wrong approach in reaching her decision by comparing the facts of the present case with those in the Derbyshire case. It was not correct to say that the facts of this case "very closely mirror" those in the Derbyshire case. There are plainly some similarities. In both cases, a young child sustained injuries in the care of his or her parents. The parents have been unable to provide an explanation as to how the injuries occurred. In other respects, social workers have formed a positive view of the quality of the parents' care of their children. The children are suffering harm as a result of the delay in concluding these proceedings which have already continued beyond the 26 week period in which such proceedings are expected to be concluded.

In other respects, however, there are material differences between the two cases. In the Derbyshire case, the child had sustained fractures to three adjacent ribs. Lieven J was therefore able to conclude that the fractures had been sustained in a single incident. In the present case, however, the medical evidence indicated that the injuries would have been sustained or inflicted in at least two acts through different mechanisms – one (or possibly two) involving compression of the chest causing the sub-conjunctival haemorrhage and the rib fracture and another involving a twisting and/or pulling action to the left lower leg causing the metaphyseal fracture of the tibia.

In the Derbyshire case, Lieven J concluded that there was "no evidence … to support any finding of deliberately inflicted injury". In the present case, there plainly is evidence which is capable of supporting a finding that the injuries were inflicted deliberately, although no such finding could be made without consideration of all of the evidence.’

So in essence, the Judge had wrongly placed a large amount of weight on another decision which was taken by a Judge of the Family Division in a case with an entirely different factual matrix. In the Derbyshire case Lieven J had been unable to identify any risk factors in a household where the subject child had remained in the care of the parents under an interim public law order; the situation in the current case was entirely different, with there being a history of domestic abuse and concerns relating to the mother’s mental health. The Judge also failed to consider the risk issues identified by the parenting assessment;

‘This was a fatal flaw in the judge's reasoning. The author of the parenting assessment was plainly right to say that, without a finding as to how these serious injuries to a very young baby had occurred, she could not safely make any recommendation as to how to manage the potential risk of harm to the children in future. In his submissions to this court, Mr Abberley illustrated how various possible findings might influence future planning for the children's care. Without any findings, the extent of any risk to the children remains unknown, and appropriate safeguards to manage that risk cannot be identified.’

Baker LJ ended the judgment with a useful reminder of how the relevant principles should be applied when considering whether or not to convene a fact-finding hearing;

‘There is always a danger with checklists of the sort set out in the Oxfordshire case that each factor will be seen as attracting equal weight. Some factors, however, if present, are likely always to carry greater weight. As Peter Jackson observed in H-D-H, "clearly, the necessity or otherwise of the investigation will always be a key issue." In Re H-W (Care Proceedings: Further Fact-Finding Hearing)[ 2023] EWCA Civ 149, this Court concluded that the necessity or otherwise of the investigation and the relevance of the potential result of the investigation to the future care plans for the children were, on the facts of that case, "the magnetic factors in deciding whether or not to allow a further fact-finding hearing". In my view they were also the decisive factors in the present case and the judge was wrong to reject the local authority's submission that findings were "fundamental". Of course, the adverse effect on the children resulting from a further delay in reaching decisions about their future welfare is a very important factor. The costs of the proceedings, and the impact on the expenditure of resources on other cases, are also relevant. For those reasons, if the judge had been right to conclude that the potential result of the fact-finding hearing would have no material impact on future care plans for the children, her decision would in all probability not have been open to challenge. In those circumstances, the importance of the children having a clear narrative about what happened, although a matter of importance, would probably not have justified continuing the proceedings to a full hearing. But for the reasons set out in the parenting assessment, the fact-finding hearing is necessary to provide a greater understanding of the risks of future harm and without that understanding it will not be possible to make plans for the future care of the children which safeguard their welfare.’

On the issue of fact-finding hearings in private law cases, Re O (Appeal; Duty To Consider Fact-Find) [2024] EWHC 839 (Fam) is of interest. This was a successful appeal against the decision of a Recorder to provide for a younger child’s contact with their father to progress to unsupervised, community based, despite allegations having been made of domestic abuse and coercive controlling behaviours by the mother. The grounds of appeal were as follows;

Ground 1: It was a procedural irregularity not to hold a 'ground rules' hearing prior to the final hearing.
Ground 2: The judge was wrong in failing to implement participatory directions and to ensure that during the hearing the parties did not see each other to assist the mother, a vulnerable party and victim to give her best evidence pursuant to the Domestic Abuse Act 2021 and Part 3 FPR 2010 and PD3AA.
Ground 3: The judge failed to specifically address Part 3 FPR 2010 and PD3AA, which includes an obligation on the court to consider mother's vulnerabilities and how she could be assisted to give her best evidence.
Ground 4 The judge was wrong in failing to determine the mother's wider allegations of domestic abuse and coercive and controlling behaviour which were relevant to the welfare decisions for the children.
Ground 5 The judge was wrong in making child arrangements orders without applying PD12J given the father's admission that he threatened to slit the mother's throat in front of the children and mother's wider allegations of domestic abuse and coercive and controlling behaviour.

Henke J allowed the appeal on Grounds 1-3 and found Ground 4 and the remainder of Ground 5 to be made out in so far as the Recorder should have considered himself whether or not there should have been a fact-finding hearing. Henke J did not go as far as to say that the Recorder should have determined the allegations. Again, this judgment acts as a further reminder of the need to rigorously adhere to the provisions of PD12J and FPR Part 3A when considering allegations of domestic abuse made by a vulnerable party; failing to convene a proper ground rules hearing constitutes a serious procedural irregularity that is likely to result in a successful appeal. The judgment also reminds practitioners that a previous decision not to convene a fact-finding hearing can be re-visited and should be kept under continuing review;

‘I conclude that the Recorder should have considered the issue of whether to make findings of fact in relation to coercive and controlling behaviours alleged by the Appellant and should not have relied upon any prior determination either in November 2022 or earlier by the Lay Bench. He should have kept the matter under continuous review. The issue of the determination of the allegations was clearly on the facts of this case a matter before him. At paragraph 10 of his judgment the Recorder sets out that no application for a fact-finding hearing was made before him on behalf of the Appellant. Given the Appellant's expressed unhappiness at the first instance hearing, it is regrettable that no application for a fact-finding hearing was made on her behalf before the Recorder. However, that failure did not absolve the Recorder of his obligation to consider whether a fact- find was necessary to resolve the allegations in this case.’

Moving on to Re X and Y (Revocation of Adoption Orders) [2024] EWHC 1059 (Fam). I found this a particularly interesting case, given the fact that there are a number of previous High Court authorities in which the inherent jurisdiction has been used to revoke an adoption order. The applicant in this case was made by the adoptive mother of two children aged 16 and 17; the adoption had broken down, albeit there was still some form of ongoing relationship between the children and the applicant. Both children met the Judge; Y supported the application for revocation as did X, who was noted to be ‘more reserved’. On the issue of whether the inherent jurisdiction can be used to revoke an adoption order, her ladyship concluded as follows;

‘The first issue in this case is whether I have power to revoke the adoption order made under the ACA on the grounds of the welfare interests of the two children concerned. In my view I do not.

The ACA sets out a detailed and comprehensive scheme for the making of adoption orders. It is clear that those orders are intended to be lifelong and puts the parent/child relationship in the same situation as birth parentage, which is self-evidently irrevocable save through an adoption order. The statutory scheme does cover revocation, but only in one very narrow category of case, legitimation.

The proposition being advanced by the parties, and accepted by Theis J in AX, is that the inherent jurisdiction of the High Court can be used to create a much wider category of revocation, namely where there is a welfare ground to do so and the case is considered "exceptional".

The Court of Appeal has accepted a power to revoke under the inherent jurisdiction in cases where there has been a "fundamental procedural irregularity", see Webster. It is not entirely clear why those are not cases where an appeal against the order could not have been allowed out of time, on the grounds of breach of natural justice.

On one analysis the orders were never validly made because of procedural error and therefore are either void or voidable. Revocation is one legal mechanism to achieve this result. If the order is void in public law terms, then there would have to be some legal mechanism to set it aside. In any event, the caselaw is binding upon me, and there is therefore undoubtedly a category of case where the power to revoke or set aside an adoption order under the inherent jurisdiction exists.

The grounds of the application in the present case are entirely different. They do not relate to the validity of the adoption orders when made, but are based on a subsequent change of circumstances, namely the breakdown of the adoption. The application is made solely on welfare grounds, and not on any procedural irregularity, and therefore falls outside the scope of any of the binding Court of Appeal authorities.

In my view it would be wrong in principle to use the inherent jurisdiction in the way being sought, essentially for the reasons given by Sir James Munby P in FS v AM, albeit in a different context.

As Sir John Donaldson said, the inherent jurisdiction is the "great safety net" to protect the interests of children, but it should not be used as an unprincipled and unlimited safety net. It is very tempting to use the inherent jurisdiction in this case because it is almost certainly in Y' best interests to revoke the adoption order, although I am less sure about X. However, if there is no power to do so, the issue of best interests does not arise.

It is clear from the caselaw cited above that the inherent jurisdiction cannot be used where there is a statutory scheme which covers the same ground, see FS v AM, but fundamentally going back to the principle set out in in De Keyser Royal Hotels. That cannot mean that there has to be a statutory provision that covers precisely the same issue, or there would never be a need to use the inherent jurisdiction. The point of the cases referred to is that where Parliament has created a comprehensive scheme, then the Courts cannot use the inherent jurisdiction to add provisions which "cut across" that scheme. The words "cut across" come from Lord Sumption in Re B, where he was dissenting, but the point he was making there is not itself controversial. Effectively the same point is made by Sir John Dyson YC in CPAG when he says that the inherent jurisdiction cannot be used when it would be "incompatible with" the statutory scheme.

In the present case the ACA is a comprehensive scheme, which covers the entire process of legal adoption. Critically in my view, it expressly deals with revocation of adoption orders, but only in a very limited category of case, that of legitimation. This must have been a deliberate choice by Parliament and fits with the overall scheme of adoption being a lifelong status. The entire tenor of the statute, and the "mischief", or to put it another way, the fundamental philosophy, of the ACA is that it creates a permanent and irrevocable change of legal status for both adoptive parent and child.

This is not a situation where it can be argued that Parliament simply did not contemplate the problem which the inherent jurisdiction is being relied upon to address. Although adoption breakdown may perhaps be an increasing issue, it will certainly have been well within the contemplation of Parliament in 2002 and indeed when Parliament considered earlier adoption statutes.’

Whilst noting that at least three High Court Judges had used the inherent jurisdiction to revoke an adoption order, Lieven J noted that none of those judgments considered the restrictions on the use of the inherent jurisdiction, which she had identified. Lieven J also observed that adoption breakdowns unfortunately do occur (citing that 4-9% of adoptions break down) and are becoming more common; there is accordingly a real question as to how an adoption breakdown can prima facie be described as ‘exceptional’. Lieven J also concluded that s.31F(6) of the Matrimonial and Family Proceedings Act 1984 (‘the MFPA’) was never intended to apply to the revocation of adoption orders under the ACA. Her ladyship did however, conclude by granting the application to change the surnames of both girls back to that of their birth mother, in line with their wishes and feelings.

I have always found the use of the inherent jurisdiction interesting and I think that this is a welcome judgment in reminding practitioners that there are clear limits in its use; as Lord Sumption observed in Re B some years ago, it cannot be used to circumvent or cut across a statutory scheme designed by Parliament. I hear on the grapevine that this case is now going to be heard by the Court of Appeal (watch this space).

The next case I am going to cover is one I deem to be really important, which relates to hair strand testing; Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498. This was an appeal against interim removal from the care of a maternal grandmother sanctioned by a Circuit Judge based on the reports of hair strand testing companies. There were a number of reports provided in relation to hair strand testing of the subject children and of the mother; the content of the reports were significantly more complex and nuanced that the opinions/summaries provided by the experts in their narrative sections. Added to this was the fact that the position statements prepared by the parties at the hearing before the Judge, cited the summaries of the reports as opposed to actually analysing their content, thus it was ‘all the more regrettable that the application was presented on all sides in a manner which failed in material respects, to explain the evidence fully and fairly’.

The appeal was allowed, with Cobb J giving the lead judgment. His lordship observed as follows;

‘The evidence laid before the Judge by the Local Authority at the hearing on 26 March 2024 raised obvious concerns; specifically, Reports #1 and #2 strongly suggested exposure of the children to topiramate, cannabis, and Class A drugs over a period of time. Given the alleged withdrawal of co-operation by the maternal grandmother and uncle with the Local Authority's Special Guardianship Order assessment in the early part of 2024, against the backdrop of Reports #2, the wellbeing and indeed the safety of the children appeared to be under threat.

However, on closer analysis, the evidence was not in my judgment as stark or as disturbing as it had been presented to the Judge, or as she had understood it.

First, it seems likely that the Judge misunderstood the full import of Reports #2; she appears to have understood them to disclose significant exposure of the children to Class A drugs until the end of October 2023. As my short illustrative review of the reports above (§23) reveals, the outline summaries of the toxicologists do not reflect fully or perhaps appropriately the material qualifications provided by the data on which they are based.

Aligned with this, I detect that the Judge had failed to appreciate, either fully or possibly at all, that the hair samples on which the Reports #2 test results were based had been taken from the children altogether some five months before the hearing (i.e., on 26 October 2023). I have in mind the following comments from her judgment:

"…it is of heightened concern that we have these drug testing results that go back to January, and [the Children's Guardian] is concerned that the children have continued to be exposed to such drugs for what is now getting on for another three months" [i.e. from October – January].

And later (as I earlier referenced at §32 above) she says:

"… insofar as the hair strand results from January indicate ongoing exposure of the children to these drugs in the home of their maternal grandmother" (Emphasis by italics in the original and by underlining added).

It may be that she was, in part at least, encouraged to this view (albeit inadvertently) by the comment in the Position Statement of the Children's Guardian which referred to "the children's recent positive drugs test results" (see §45 above).

Secondly, the Judge appears to have treated the evidence from the hair strand test reports as determinative of the issue of exposure of the children to illicit drugs in the period under review. Specifically, in concluding her judgment, she stated that "the seriousness of the findings in that [January 2024] drug test" which led her to the view that "the children's safety does require their removal". She was, in my judgment, wrong to attach such presumptive weight to the test results for at least four reasons:

i. The decisions of Islington v M and Re H shine a light on the recognised and inherent occasional anomalies in hair strand testing science which should be factored into judicial evaluation of this issue in all cases, especially at an interim stage where the court is working – as here – without the benefit of independent expert review. In this case, Dr Douse had specifically recommended that the children submit samples of hair for a second set of tests by an independent laboratory to verify or otherwise the results from Reports #2 but this had not yet been done; his important professional view that "the results from various providers can vary and hence duplicate analyses can provide vital additional evidence" (see §25 above) was regrettably ignored;

ii. The data contained deeper within each of the reports reviewed by the Judge (Reports #1 and Reports #2) painted in some, and highly material, respects a different (certainly more complex or nuanced) picture than the plain opinions/summaries offered by the experts in the narrative sections of the reports suggested;

iii. The Judge did not consider sufficiently "the context of the broader picture" (Islington v M) of evidence, and/or that the "test result is only part of the evidence" (Re H). As I have indicated above (see §10 and §11) the maternal grandmother and uncle had attracted glowing reviews from the Local Authority for their care of the children over a period of time. The Judge rightly described the care that they were providing as "very good", and reflected the likelihood of emotional harm to the children by a removal from their family. Thus, one could have expected the Judge to have given this evidence more weight in her overall review. Other than the toxicology results, there were in fact no indicators in the wider evidence before the Judge on 26 March to suggest that the children were exposed to illicit drug taking in the care of the maternal grandmother and uncle. There was no social work or professional suspicion that the maternal grandmother or uncle had ever been under the influence of illegal drugs; the maternal grandmother continued to work in a primary school; the children were good attenders at school, and presented well there without concerns. The social worker and Children's Guardian raised no negative assessment of the welfare of the children in this placement.

iv. There were yawning gaps in the evidence to which I have referred above at §26 which will inevitably have impaired the Judge in her ability to reach an informed assessment of risk. It is not apparent that she was invited by the advocates to look more widely across the evidential piece; they should have done so. In any event, such was the Judge's focus on the hair strand tests of the children, that she did not herself do so. Had she considered, for instance, the negative test results of the mother (Report #3) she may have queried the positive findings from the samples of the children relating to periods while they were in her care.’

The Court found that the test for interim removal of the children was not established, also commenting on the fact that the Guardian had failed to gage the wishes and feelings of the children in relation to the issue of removal (with one child being 13 years of age). The Court of Appeal’s judgment demonstrates for me, that evidence taken from hair strand testing must be approached with caution. In all cases involving this type of evidence, the Court found that it is vital that the advocates:

Draw the Judge's attention to what the science can and cannot tell you, as explained in Islington v M and Re H;
Carefully examine the hair strand test reports in full; as far as it is thought helpful or appropriate to do so, they should distil their contents accurately so as to provide with Judge with a reliable summary, not just a rehearsal or précis of the general 'Summary' or 'Opinion' section;
Assist the Judge to consider the hair strand test results in the context of the whole of the evidence, including:
1. The statements of those who are alleged to have exposed the children to the drugs identified;
2. Other evidence (i.e., from observation) which may suggest drug use within the home;
3. Other evidence which may suggest that drugs are not used within the home;
4. The presentation of the children and the adults;
5. The history of the family generally.

This is all the more important of course, in cases where the test results are in the lower range. The Court also made observations relating to the fairness of process, in a situation where the children’s removal from the care of their grandmother had been sanctioned without the grandmother present or represented, without the children being given the opportunity to participate in the process, with there being uncertainty relating to the extent of disclosure that had been provided to the grandmother, and with there being no oral evidence to ‘test out’ the amended interim care plans.

A further case of interest is that of Re D and A (Fact-Finding: Research Literature) [2024] EWCA Civ 663. This is a case in which an appeal was allowed against findings made by a Judge in relation to an infant head injury, it is a lengthy judgment that requires reading in full, not least because it acts as a timely reminder as to why experts must be called and cross examined in cases where there is a dispute as to whether injuries are accidental or inflicted. The judgment for me stresses the need to avoid over-reliance on research literature, something particularly of note in the context of infant head injury, an area in which there remains various differing opinions and continuing uncertainties. In the case in question, the Judge placed reliance upon a research paper that was not actually ‘put’ to the experts in evidence with Baker J observing that;

‘My reading of the paper is that it provides reliable support for the unanimous view of the expert witnesses as to the timing of injuries. The judge's reading of this paper led her to downplay the significance of their evidence as to timing. I recognise, of course, that, in putting forward my interpretation of a paper which was neither considered by nor put to the experts, I could be said to falling into the same error as the judge. The real problem is that the paper was not properly part of the evidence because it was not considered by any of the expert witnesses. This is particularly important because the judge attached significant weight to it when reaching her conclusion that the child had suffered an earlier acceleration/deceleration event at some prior to the sofa incident.’

It goes without saying that there are inherent difficulties in placing reliance upon research papers, either in judgments or in submissions, which have not actually been explored with experts instructed in the case. A further point that can be taken from the judgment is the need to avoid falling into the judicial trap of failing to reach a decision on the totality of the evidence; it is critical that the likelihood of injuries having been inflicted (when causation is disputed) must be assessed against the wider canvas of the evidence about the family in question.

Finally, Re O (Care Proceedings) [2024] EWCA Civ 696, is a Court of Appeal decision in which an appeal was allowed against a case management decision to discount a mother as a ‘realistic option’ in terms of placement, prior to the final hearing stage. Whilst it remains the case that a so called ‘North Yorkshire’ finding can be made in certain circumstances, ruling a parent out prior to final hearing stage, this remains an area in which any Judge contemplating such action should be extremely cautious. In this particular case, the decision was deemed to constitute a procedural irregularity, with the mother not having been given the opportunity to give oral evidence relating to her aspirations to care for her child and have this tested.

Michael Jones KC is a barrister at Deans Court.