26 February 2018
January 2018 - Public Law
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- Judgment of the President of the Family Division on an appeal from an order of HHJ George who heard care proceedings in relation to ‘B’ where the essential issue was whether B should be placed with her elder full brother’s (‘H’) adoptive parents or with her father’s cousin, ‘I’, and her partner ‘R’. Judge George made care and placement orders with a view to B’s adoption by H’s adoptive parents.
- The appeal, brought by B’s father raised a point of principle relating to the ramifications of the decision in Re T (A Child) (Early Permanence Placement)  EWCA Civ 983.
- The Court examined that decision and the references within it to the case of Re A in which Wilson LJ explained the central principle: "The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her." The President stated similarly in Re T that: "The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children's guardian … who has the task, indeed is under the duty, of subjecting the local authority's care plan to rigorous scrutiny and, where appropriate, criticism." The President did also recognise that there might be an exceptional case justifying a departure from that general approach.
- The President made no criticism of HHJ George in her approach to the provisions of the Children Act 1989 and the Adoption and Children Act 2002 and judgments of Re B, Re B-S, Re R and Re W as well as her recognition of Article 8 being engaged, her acknowledgement of the principle of proportionality and that the court should make the least interventionist order.
- HHJ George distinguished Re T from the present case because B in this case had no existing relationship with the proposed adopters. She had to determine the case in the knowledge that the prospective adopters for B care for her full sibling and that a degree of comparison between the options was unavoidable in seeking to establish what B’s welfare needs were and how they were best met.
- HHJ George further stated: ‘The question in this case is whether there is an over-riding requirement pertaining to [B]'s best interests which makes adoption the right outcome for her, despite the positive assessment and viable option of a placement within the family.’
- The President found that HHJ George correctly recognised that a family placement with I and R was a viable and realistic option. She undertook an analysis of the advantages of the kinship placement and the disadvantages of a kinship placement as well as the pros and cons of an adoptive placement and concluded that an adoption order was necessary to meet B’s needs despite being more interventionist.
- The Father appealed on the basis that the judge erred in allowing her decision to become a competition between placements and did so without essential information about one of the options making it unfair and that the judge erred in prioritising B’s relationship with H over her wider family and placed too much weight on the untested nature of the placement with I and R and further focused too much on avoiding delay.
- The President found none of these grounds made out and dismissed the appeal.
- The President found that the Judge appropriately considered the possible options in a manner consistent with Re T and did not prioritise either placement but treated both as realistic and carefully evaluated the evidence before concluding.
Jurisdictional and procedural issues to be considered before embarking upon care proceedings against “otherwise unimpeachable” parents in disputes about the appropriate medical treatment and support of a child
- Proceedings relating primarily to a 4-year-old child, AB, who has a complex life-limiting neuro-metabolic, neuro-developmental and neuro-degenerative disorder and is profoundly neurologically disabled.
- Parker J in May 2016 made declarations on the application of the NHS Trust, in the exercise of the inherent jurisdiction, to the effect that the Trust would be acting lawfully and in AB’s best interests by withholding certain medical treatment.
- In June 2016, the Local Authority made a without notice application to Parker J to prevent AB’s parents removing him from the hospital. That order was discharged 3 days later on agreement that it would be in AB’s best interests to return home provided an appropriate package of care can be provided.
- In February 2017, the Local Authority issued care proceedings relying on the following allegations:
- "1) AB's parents "have been reported [to] be uncooperative, rude and aggressive and intimidating of medical and nursing staff; 2) Due to the lack of co-operation from the parents, and repeated allegations about the carers, it has been impossible to implement a care package of support for [AB]. [He] will suffer significant harm over time if the care package cannot be provided to him; 3) The parents' behaviour has led to [AB] not receiving the assessed level of care provision to meet his needs even when care staff were exchanged for nursing staff at the parents' request. The appropriate level of care cannot be given whilst [he] is in the home environment."
- In April 2017, HHJ Tolson QC made a care order in relation to AB, rejecting the parents’ argument that the case had become an end of life treatment case and should be dealt with under the inherent jurisdiction, but granted the parents’ permission to appeal.
- That appeal was allowed and remitted for rehearing on all issues.
- Prior to the IRH in September 2017, the Local Authority emailed the President seeking to withdraw the s31 application in light of the medical evidence and after a consideration of the issues but on the basis that the child remains at home subject to a child protection plan.
- The President in making orders to that effect set out four obiter observations:
- Local authorities need to think long and hard before embarking upon care proceedings against otherwise unimpeachable parents who may justifiably resent recourse to what they are likely to see as an unnecessarily adversarial and punitive remedy.
- A local authority does not need any specific locus standi to be able to invoke the inherent jurisdiction
- A local authority will usually be ill-advised to rely upon its parental responsibility under section 33(3)(a) of the 1989 Act as entitling it to authorise medical treatment opposed by parents who also have parental responsibility
- If a local authority is thinking of embarking upon care proceedings with a view to removing the child from the parents, it needs to think very carefully not merely about the practicalities of finding an appropriate placement, whether institutional or in a specialised foster placement, but also about the practicalities of ensuring that the parents have proper contact with their child during what may be its last few months or weeks of life.
- On 27 June 2014, the local authority issued care proceedings in relation to C, a boy born in February 2014. His parents brought C to hospital on 20 June 2014 which resulted in a full skeletal survey that identified no fewer than 26 fractures affecting all four limbs, the ribs and shoulder blades. The fractures had occurred on at least two separate occasions.
- At a fact-finding hearing, the parents denied inflicting the injuries and relied on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in C’s bones.
- The doctors agreed that extensive investigations did not show that C had a medical condition that might explain fractures.
- Having heard the medical and non-medical evidence over seven days, the Court found that C did not have a known or unknown medical condition predisposing him to fractures and that the fractures and other appearances were caused by the application of excessive force and that one of the parents was responsible but it was not possible to say which.
- Following the fact-finding and three-day welfare hearing, on 23 September 2015, the Court made a care order in relation to C.
- At the time of the family proceedings, the parents were facing criminal charges. They obtained two expert opinions not before the family court. These were from Dr Ayoub, who disagreed with the previous interpretation of the x-rays, and Professor Nussey, who raised the possibility that a rare condition or interplay of polypharmacy might be relevant. The parents were acquitted after the cross-examination of the prosecution medical witnesses.
- In July 2016, the parents applied for an appeal out of time in relation to the findings and to discharge the care order.
- Peter Jackson LJ stated that the reopening of settled findings is a serious matter. When considering an application to reopen findings the court must first be satisfied that the applicant has shown a solid case to justify the step and then it must ensure that the scope of the rehearing is appropriate.
- His Lordship decided that the review should proceed by way of a rehearing of the medical evidence. The previous findings are the starting point, the parents must present evidence to challenge those findings but the legal burden of providing its case on the balance of probabilities remains with the local authority throughout.
- The Court heard evidence from all five experts.
- It was not disputed that Dr Ayoub would not have been approved by the Family Court to be an expert witness because, firstly, he does not have the necessary expertise to offer an opinion to the court on the origin of radiological appearances in infants as he has no clinical experience. Secondly, his approach is shot through with the dogma that child abuse is over-diagnosed.
- In summary, Peter Jackson LJ’s conclusions were that he was unable to accept that C’s condition resulted from an identified metabolic cause. The other conditions ruled out in 2015 remain ruled out in particular rickets or vitamin D deficiency. The investigation has been exhaustive and he was satisfied that no other known condition has been overlooked. Therefore, C’s condition is the result of a pathology beyond present knowledge or the result of force inflicted by an adult, or both.
- His Lordship concluded that it was more likely than not that C had normal bones and that he suffered inflicted injuries. Therefore the findings on which the care order was based remained and the parents’ application was dismissed.