Public and Private law update (Children)

Now we are (at last) gradually coming out of lockdown and can now drink and cavort in and indoor setting (legally), I have little doubt that the Manchester and Lancashire legal community will desperately want to use up some of their spare time reading a legal update……. if you have read this far it suggests either (i) you have too much time on your hands, (ii) you have realised you haven’t read any updating case law in months, or (iii) you are (like myself) far too interested in mundane legal points. So without further ado, here is this season’s public law children update.

Re M (Special Guardianship Order: Leave To Apply To Discharge) (Rev 1) [2021] EWCA Civ 442 is a very interesting read (no really) as it clarifies the legal test for the granting of leave to apply to discharge an SGO. The judgement considers the test for the granting of leave, which turned on the construction of s.14D(5) of the Children Act 1989. The appeal also considered the circumstances in which an application for a Child Arrangements Order could be summarily dismissed. The facts involved a mother’s application to discharge an SGO that had been made in favour of her son, C’s, maternal grandmother and her partner. The mother also applied for a CAO providing for C to spend time with her. The judge at first instance refused leave and dismissed the application for contact. It was notable that the mother had, from a cursory reading of the judgment, demonstrated some notable improvements in her mental health, which was one of the central issues that lead to her having been previously deemed unable to care for C.

S.14D(5) requires a ‘significant change in circumstances since the making of the SGO’ in order for leave to apply to discharge to be granted. The Court of Appeal had to consider the correct interpretation of s.14D(5), with the lead judgment being given by Peter Jackson LJ (I know, another Peter Jackson LJ judgment in one of my articles- I am a self-confessed fan boy). His lordship agreed that the 2 stage test set out in the Warwickshire case should be applied, ie that (i) a change in circumstances is necessary but not sufficient for leave to be granted and (ii) if there has been a change in circumstances, the court has to make an evaluation in which the welfare of the child and the prospects of success should both be weighed;

‘In Re G (Special Guardianship Order) [2020] EWCA Civ 300 at [13]), it was said that, when considering an application for leave to apply to discharge an SGO, the court should follow the two-stage approach applicable to applications for leave to revoke a placement order set out in M v Warwickshire County Council [2007] EWCA Civ 1084 at [29]. That case established that a change in circumstances is necessary but not sufficient for leave to be granted and that, if there has been a change in circumstances, the court has to make an evaluation in which the welfare of the child and the prospects of success should both be weighed.

A question arises as to correct interpretation of s 14D (5), which provides that leave may not be granted to a parent unless there has been a significant change of circumstances since the making of the SGO. That was considered by Ward LJ and Wilson LJ in Re G (above) in a somewhat unusual situation. A judge had refused to grant leave to apply to discharge a SGO. He accepted that there had been change, but not that it had been significant change, and he applied the checklist of factors in s. 10 (9) of the 1989 Act, which ostensibly relates only to an application for leave to apply for a s. 8 order. Before the appeal was heard, the parties agreed that leave should be granted and the appeal was allowed by consent. Because of the legal issues, Wilson LJ gave a judgment, with which Ward LJ agreed. It was prefaced in this way:

"1. … The remarks which I will make in this short judgment must be considered in the light of the absence of adversarial argument; but possibly they will be of some use to family judges and practitioners on an interim basis pending a more satisfactory examination, at whatever level of court, of the issues raised."

and later:

"14. I suggest that, until the emergence of more robust jurisprudence in relation to the proper approach to the determination of applications for leave to apply for the discharge (or variation) of special guardianship orders, the approach should be that commended in the Warwickshire case."

I agree that the two-stage approach taken in Warwickshire is the appropriate structure for a decision about granting leave under s. 14D (5).’

In relation to the first stage, the Court considered whether the word ‘significant’ added anything. The conclusion reached was as follows;

‘Rather than being an error of drafting, it is coherent with the statutory scheme for the drafter to have set out to buttress an SGO from challenge by requiring any change in circumstances to be significant. There is no reason why the test should be the same across SGOs, placement orders and adoption orders. An application relating to an SGO is an attempt to disturb what is intended to be a long-term status, while the other applications concern impermanent situations were a child has not yet been placed or adopted, as the case may be. Moreover, the drafting of the two Acts shows that the word 'significant' has real meaning in this area of the law. In the welfare checklists in s. 1 of both Acts, the reference is to harm, while in the threshold condition in the 1989 Act it is to significant harm. In our context, the fact that change is not described as significant does not mean (pace Wilson LJ) that it is insignificant. As a matter of ordinary language, change can be described as significant or insignificant, or it can just be described as change. The absence of an adjective does not imply the presence of its opposite – a person who is not described as happy cannot be assumed to be unhappy.

I therefore conclude that the requirement under s. 14D (5) for a change in circumstances to be significant means what it says and, to this extent only, I would not follow the provisional reasoning in Re G. If more is needed, 'significant' in the context of the s. 31 threshold condition means 'considerable, noteworthy or important', according to the dictionary definition cited in the Guidance when the 1989 Act first came into force (The Children Act 1989: Guidance and Regulations (Volume 1, Court Orders) (HMSO 1991)), as approved by Baroness Hale in Re B (Care Proceedings: Appeal) [2013] UKSC 33at [185]. As Ms Cabeza says, it does not mean trivial or unimportant, and neither does it mean exceptional, immense, or insurmountable.’

So ‘significant’ can be considered to mean ‘considerable, noteworthy, or important’, but does not mean ‘exceptional, immense or insurmountable’.

In relation to the second stage of the test, Peter Jackson LJ was satisfied that what broadly had to be shown was a ‘real prospect’ of success, applying the Warwickshire judgment. The greater the prospect of success, the more cogent the welfare arguments must be if leave is to be refused.

In relation to contact, the Court concluded that a parent has an unfettered right to apply for contact with a child who is subject to an SGO. The judge at first instance was wrong to summarily dismiss the mother’s application as there was insufficient evidence available to reach a conclusion on the issue. As for the refusal of leave, the appeal was allowed for numerous reasons, including the judge ‘speculating’ that the granting of leave may lead to placement breakdown in the absence of evidence, and reaching conclusions in relation to the mother’s mental health without ‘deeper assessment’.

Also of interest on the subject of special guardianship is F & G, Re (Discharge of Special Guardianship Order) [2021] EWCA Civ 622, in which the Court of Appeal confirms that the care order and a special guardianship order can co-exist, albeit there would be a limited category of cases in which it would be appropriate for the two orders to run alongside each other (n.b the SGO would need to be made first on the basis that the making of an SGO itself, discharges any care order already in place by virtue of s.91(5A).

In the private law domain, H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2) [2021] EWCA Civ 448 has received a large amount of attention for understandable reasons. It considers four conjoined appeals in relation to the interpretation of PD12J and the circumstances in which finding of fact hearings are necessary in cases where there are allegations of parental domestic abuse. The judgment is required reading and is particularly lengthy, however in order to satisfy those who do not have time to read a 50 odd page COA judgement, the headlines are as follows;

In relation to the interpretation of PD12J, the proper approach to decide if a fact finding hearing is necessary is;

i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).

ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.

iii) Careful consideration must be given to PD12J.17 as to whether it is 'necessary' to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.

iv) Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is 'necessary and proportionate'. The court and the parties should have in mind as part of its analysis both the overriding objective and the President's Guidance as set out in 'The Road Ahead'.

In relation to Scott Schedules, the Court saw force in the criticisms made that these schedules list specific factual incidents and therefore detract away from what may be a pattern of coercive and controlling behaviour that is likely to have a cumulative impact upon its victims. It also noted the danger in limiting allegations to be tried and thereby having the effect of reducing the Court’s vantage point of the quality of the alleged perpetrator’s behaviours as a whole and, importantly, removing consideration of whether there was a pattern of coercive and controlling behavour;

‘The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes. In practice that work is likely, in the first instance, to be done through the Private Law Working Group together with The Harm Panel's implementation group whose final recommendations may in turn lead to changes to the FPR or in the issuing of fresh guidance through the medium of a Practice Direction.’

In relation to the Court’s approach to coercive and controlling behaviour, the Court noted that cases must still be heard and with an increased focus on controlling and coercive behaviour as identified earlier in this judgment. It accepted that judges will inevitably be faced with difficult case management decisions as they balance the need for a proper application of PD12J with the damage caused to children by delay;

‘As part of that process, we offer the following pointers:

a) PD12J (as its title demonstrates) is focussed upon 'domestic violence and harm' in the context of 'child arrangements and contact orders'; it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court;

b) PD12J, paragraph 16 is plain that a fact-finding hearing on the issue of domestic abuse should be established when such a hearing is 'necessary' in order to:

i) Provide a factual basis for any welfare report or other assessment;

ii) Provide a basis for an accurate assessment of risk;

iii) Consider any final welfare-based order(s) in relation to child arrangements; or

iv) Consider the need for a domestic abuse-related activity.

c) Where a fact-finding hearing is 'necessary', only those allegations which are 'necessary' to support the above processes should be listed for determination;

d) In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.

Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J, paragraph 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).’

Finally, the Court cautioned once again, of the need to avoid importing criminal concepts into family law;

‘The primary purpose of criminal law is the prosecution of criminal behaviour and the punishment of offenders by the state. The purpose of family law, in the present context, is to resolve private disputes between parents and other family members, which may include the need to protect the vulnerable and victims of abuse and, where the upbringing of a child is in question, the need to afford paramount consideration to that child's welfare.

When considering domestic abuse, it will not infrequently be the case that the alleged behaviour will be such that it is capable both of being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures. The criminal law has developed a sophisticated and structured approach to the analysis of evidence of behaviour, to enable the criminal court to determine whether the guilt of the alleged offender has been proved to the requisite high standard. This raises the question of the degree to which the Family Court, if at all, should have regard to and deploy criminal law concepts in its own evaluation of the same or similar behaviour in the different context of Family proceedings.’

Re F (A Child : Adjournment) [2021] EWCA Civ 469 involves a successful appeal against the decision to proceed with a listed a 10 final hearing in care proceedings, in circumstances where the mother would be heavily pregnant during the course of the final hearing. Peter Jackson LJ (again, I know!), referred to page 170 of Equal Treatment Bench Book, new edition 2021 with reference to pregnancy, which reads that;

"29. Consideration should always be given to accommodating pregnant women and new and breastfeeding mothers in any proceedings, whether they are parties, witnesses or representatives. This may require sensitive listings, start and finish times, and breaks during the proceedings, sometimes resulting in a case going part-heard.

30. A woman who is heavily pregnant or has just given birth should not be expected to attend a court or tribunal unless she feels able to do so. Although every woman is different, this is likely to apply at least to the month before the birth and at least two months after the birth. This period would be longer if there were complications at birth. Even a telephone hearing may be too difficult if the woman is looking after the baby on her own. This may mean that a hearing has to be adjourned."

Whilst this was an appeal against a case management decision, Peter Jackson LJ highlighted the judge’s failure to sufficiently grapple with the mother’s pregnancy in the context of the overriding objective, the significant nature of the care and placement order applications, and the provisions set out within the Equal Treatment Bench Book;

‘Any postponement in this highly overdue case is regrettable, and making arrangements for a hearing in J's case after the birth of the baby will not be easy. Planning for J's future will be further delayed. How significant that will be for him will depend on what the plans are. But, as was said in Re A at [12], in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for a child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing. For the reasons I have given, the decision in this case fell outside the range of reasonable ways of proceeding that were open to the court. There was no good reason to require the mother to participate in this important hearing at such an advanced stage of her pregnancy and her application to adjourn the hearing should have been granted.’

Another decision of interest to my readers may be Keehan J’s judgment in YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam) (the title immediately drew my interest). There are no new statements of law, but the narrative judgment in relation to the conduct of the local authority in this case is fairly jaw dropping. It acts as a serious reminder to local authorities of the parameters of the exercise of its parental responsibility under s.33 of the 1989 Act (among other things).

The Court of Appeal decision in Re TT (Children) [2021] EWCA Civ 742 (Jackson LJ again….) has confirmed the legal test that should be applied when considering the discharge of a care order. It clarifies that the approach taken in GM v Carmarthenshire is not correct and that the issue of threshold is irrelevant for the purposes of s.39. The correct legal principles to be applied are;

(1) The decision must be made in accordance with s. 1 of the Act, by which the child's welfare is the court's paramount consideration. The welfare evaluation is at large and the relevant factors in the welfare checklist must be considered and given appropriate weight.

(2) Once the welfare evaluation has been carried out, the court will cross-check the outcome to ensure that it will be exercising its powers in such a way that any interference with Convention rights is necessary and proportionate.

(3) The applicant must make out a case for the discharge of the care order by bringing forward evidence to show that this would be in the interests of the child. The findings of fact that underpinned the making of the care order will be relevant to the court's assessment but the weight to be given to them will vary from case to case.

(4) The welfare evaluation is made at the time of the decision. The s. 31(2) threshold, applicable to the making of a care order, is of no relevance to an application for its discharge. The local authority does not have to re-prove the threshold and the applicant does not have to prove that it no longer applies. Any questions of harm and risk of harm form part of the overall welfare evaluation.

Finally, the judgment of our FDLJ in W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam) is also required reading, as it clarifies the obligation on local authorities to apply for immigration statement under the UK’s European Union Settlement Scheme in relation to all children who are subject to care orders and interim care orders. The guidance provided in full is as follows;

‘I am satisfied that the following points must be borne in mind by local authorities with respect to the question of immigration status under the EUSS for children who are looked after by the local authority, care leavers and children in need:

i) The deadline for applications to the EUSS is 30 June 2021. The necessary application must be made in a timely manner so as to ensure the relevant deadline is met and to minimise uncertainty for the subject child. It is not acceptable to leave children in a position of 'limbo' with respect to their immigration position.

ii) Reliance should not be placed on the discretion afforded to the Secretary of State for the Home Department to admit late applications after the expiration of the deadline on 30 June 2021 as a reason for failing to act in a timely manner. A late application will result in the child becoming undocumented for a period, with the concomitant impact on access to services and benefits and liability to immigration enforcement. Even a short period undocumented can have an adverse impact on a child or young person.

iii) Issues of immigration status with respect to looked after children must in each case be addressed early as part of any assessment and care plan, including establishing the child's current immigration status and, where necessary, seeking legal advice about appropriate action concerning immigration status having regard to the care plan in respect of the child.

iv) The obligation on local authorities to identify children who are eligible to make an application under the EUSS and provide support to those children is a mandatory one.

v) The obligation on local authorities to identify children who are eligible to make an application under the EUSS and provide support to those children extends beyond those children who are looked after by reason of being the subject of a care order to children who are looked after by reason of being accommodated by a local authority pursuant to s.20 of the Children Act 1989, to children who are the subject of placement orders, care leaves under ss. 23A to 24D of the Children Act 1989 and the Care Leavers (England) Regulations 2010 or Care Leavers (Wales) Regulations 2015 and to any other children in receipt of local authority support, including children in need and children who are lost or abandoned.

vi) With respect to children who are looked after by reason of being accommodated by a local authority pursuant to s.20 of the Children Act 1989, care leaves under ss. 23A to 24D of the Children Act 1989 and the Care Leavers (England) Regulations 2010 or Care Leavers (Wales) Regulations 2015 and any other children in receipt of local authority support, including children in need, the local authority must follow the guidance issued by the Home Office and in particular remain cognisant of the obligation upon it to ensure that those with parental responsibility for the children are aware of the need to make an application to the Scheme, signpost them to the Scheme, explain its importance, offer practical support and monitor closely the progress of any application.

vii) With respect to children who are lost or abandoned for whom there is no one with parental responsibility, the local authority must discharge fully its duties under s.22(3) of the Children Act 1989 in assisting eligible children who are lost or abandoned to secure immigration status under the EUSS.

viii) In respect of each child looked after by reason of being the subject of a care order or who is the subject of a placement order who is also an EU, EEA or Swiss national, a local authority is required to consider whether or not to apply immigration status under the EUSS on behalf of that child or to assist the child to do so and, if necessary, to seek the documentation necessary to make such an application, namely a passport from the child's country of nationality or other acceptable form of national identification. In making applications under the EUSS, the local authority should apply the guidance issued by the Home Office.

ix) The question of whether an application should be made for immigration status under the EUSS for a looked after child who is the subject of a care order is a matter that is properly within the remit of the IRO having regard to the functions of an IRO as set out in s.25B of the Children Act 1989 and Part 8 of the Care Planning, Placement and Case Review (England) Regulations 2010 which includes monitoring the performance by the local authority of its obligations with respect to a looked after child.

x) Ordinarily, in respect of a child for whom it holds parental responsibility under a care order or a placement order, the local authority will be able to proceed to make the application under the EUSS pursuant to the power conferred upon it by s. 33(3) of the Children Act 1989 or s.25 of the Adoption and Children Act 2002. It is ordinarily neither necessary nor appropriate for a local authority to refer the matter to the High Court where a parent opposes the grant of settled status to a child for whom the local authority holds parental responsibility.

xi) Ordinarily, in respect of a child for whom it holds parental responsibility under a care order or placement order, the local authority will likewise be able to proceed to make an application to renew a child's passport or national identity card pursuant to the powers conferred on it by s.33 of the Children Act 1989 or s.25 of the Adoption and Children Act 2002, subject to being able to fulfil the legal requirements for such an application laid down by the State authority responsible for issuing the passport. It is ordinarily neither necessary nor appropriate for a local authority to refer the matter to the High Court where a parent opposes the issue of a passport or national identity card to a child for whom the local authority holds parental responsibility.

xii) The process under s.33(3) of the Act or s.25 of the Adoption and Children Act 2002 is not however, merely an administrative one. In exercising its statutory power in each case the local authority must satisfy itself that, where the child is looked after by reason of being the subject of a care order, an application for immigration status under the EUSS and, where necessary, an application for a passport or national identity card will safeguard and promote the welfare of the subject child pursuant to s.33(4) of the 1989 Act and, where the child is the subject of a placement order, that an application for immigration status under the EUSS and, where necessary, an application for a passport or national identity card, is in the best interests of the child pursuant to s.1(2) of the Adoption and Children Act 2002.

xiii) The child's wishes and feelings should always be considered. Where of sufficient age and understanding, children should be made aware their entitlement to independent advocacy support and the local authority should facilitate this access where required.

xiv) Whilst parents' views should be obtained and appropriately considered with respect to both applications for immigration status under the EUSS and for the provision or renewal of passports or other national identity documents, those views should not be viewed as determinative unless they have a real bearing on the child's welfare.

xv) In cases where parental opposition or absence mean that the procedural requirements of the State authority responsible for issuing the passport or national identity card include a requirement that the application be supported by a court order then, before issuing an application for such an order, the local authority must first seek to confirm with the Home Office Settlement Resolution Centre whether the any documents that the child already has available are sufficient for the purposes of the EUSS application. Only if they are not, and no other acceptable documents exist, should an application to court under the inherent jurisdiction be contemplated by the local authority.

xvi) There may be a very small number of cases in which proceeding under s.33 of the Children Act 1989 or s.25 of the Adoption and Children Act 2002 with respect to an application for immigration status under the EUSS will not be appropriate. In this context, whilst the vast majority of cases will be suitable to be dealt with under the power conferred by s.33(3) of the 1989 Act or s.25 of the 2002 Act, local authorities must remain alive to the possibility of cases that do, exceptionally, require the intervention of the court.

xvii) Where a parent opposes the course chosen by the local authority pursuant to the power conferred upon it by s.33(3) of the Children Act 1989, and whilst recognising the inherent difficulties for often unrepresented parents for whom English is a second language, it remains open to the parents to make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under s. 8 Human Rights Act 1998 to prevent the applications being made or determined before the matter comes before a court for adjudication.’

In order to allow space for the other articles in this newsletter, I will bring this update to a close. Keep well and stay safe all.