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Mar 24, 2015, 08:45 AM
Article ID :108871
The immortal Peter Cook once observed 'I could have been a
Judge, but I never had the Latin for the judgin’' – like Peter Cook, I never
really had a grasp on Latin, but the one bit that did resonate with me and that
I was able to hold on to was ‘res ipsa loquitor’ – the thing speaks for
itself. From the very fact that X
occurred, one can infer everything else without going through every minute
aspect.
Well, we now know from the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222
that there is no such thing as res ipsa loquitor in care proceedings.
This is a culmination of a trend in case law, having begun
long ago with Mr Justice Hedley in Re L
(Care: Threshold Criteria) [2007] EWHC 3527 (Fam), [2007] 1 FLR 2050, at para [50]:
‘society must be willing to tolerate very diverse standards
of parenting, including the eccentric, the barely adequate and the
inconsistent. It follows too that children will inevitably have both very
different experiences of parenting and very unequal consequences flowing from
it. It means that some children will experience disadvantage and harm, while
others flourish in atmospheres of loving security and emotional stability.
These are the consequences of our fallible humanity and it is not the
provenance of the state to spare children all the consequences of defective
parenting. In any event, it simply could not be done.’
Revived in popularity by it being quoted approvingly and
developed by the Supreme Court in Re B (Care Proceedings: Appeal) [2013]
UKSC 33, [2013] 2 FLR 1075.
The first is in the judgment of Lord Wilson of Culworth JSC
where he said (para [28]):
‘[Counsel] seeks to develop Hedley J's point. He submits
that:
“many parents are hypochondriacs, many parents are criminals
or benefit cheats, many parents discriminate against ethnic or sexual
minorities, many parents support vile political parties or belong to unusual or
militant religions. All of these follies are visited upon their children, who
may well adopt or ‘model’ them in their own lives but those children could not
be removed for those reasons.”
I agree with [counsel]'s submission.’
The other is the observation of Baroness Hale of Richmond
JSC (para [143]):
‘We are all frail human beings, with our fair share of
unattractive character traits, which sometimes manifest themselves in bad
behaviours which may be copied by our children. But the State does not and
cannot take away the children of all the people who commit crimes, who abuse
alcohol or drugs, who suffer from physical or mental illnesses or disabilities,
or who espouse antisocial political or religious beliefs.’
And, in part due to the transparency guidelines meaning that
Circuit Judges put their own judgments on Bailii, thrusting His Honour Judge
Jack into the spotlight.
‘I deplore any form of domestic violence and I deplore
parents who care for children when they are significantly under the influence
of drink. But so far as Mr and Mrs C are concerned there is no evidence that I
am aware of that any domestic violence between them or any drinking has had an
adverse effect on any children who were in their care at the time when it took
place. The reality is that in this
country there must be tens of thousands of children who are cared for in homes
where there is a degree of domestic violence (now very widely defined) and
where parents on occasion drink more than they should, I am not condoning that
for a moment, but the courts are not in the business of social engineering.
The courts are not in the business of providing children with perfect homes. If
we took into care and placed for adoption every child whose parents had had a
domestic spat and every child whose parents on occasion had drunk too much then
the care system would be overwhelmed and there would not be enough adoptive
parents. So we have to have a degree of realism about prospective carers who
come before the courts.’
All of these cases share a common thread that not every
piece of behaviour by a parent that might be complained of can amount to
threshold, even when it falls into categories such as domestic violence,
alcohol misuse, and as in Re A a
sexual offence against a minor.
In order to satisfy threshold, even where what is being
asserted is a likelihood of harm, the local authority have to provide evidence
that the matter complained of not only happened but that if it happened it
amounts to harm or a risk of harm to the child.
The Court of Appeal make it very clear in Re J:
The State will not take
away the children of “those who commit crimes,
abuse alcohol or drugs or suffer from physical or mental illness or
disability, or who espouse antisocial,
political or religious beliefs” simply because those facts are
established. It must be demonstrated by the local authority, in the first
place, that by reason of one or more of those facts, the child has suffered or
is at risk of suffering significant harm.
It would no longer
be sufficient, for example, for a local authority to prove that a mother has
been taking crack cocaine. They would need to show why it was that the mother’s
use of crack cocaine had either harmed this child (by way of showing the
neglect suffered or an injury suffered as a result of poor supervision) or why
it would be LIKELY to. There has to be made explicit a link between the
behaviour complained of and the harm that is said to result from that
behaviour.
The Court of Appeal
drew from
Re A and set down a set of
principles to be followed. The case
garnered less attention than
Re A
(which had in its favour when it came to publicity, both a Judge giving a local
authority what-for, and the English Defence League issues) but these principles
are worthy of note:
[All italics are the
author’s, for emphasis.]
‘This case exhibited
many of the shortcomings that were highlighted in the judgment of Sir James
Munby P in
Re A (A Child) [2015]
EWFC 11. I wish to endorse and underline all the points of principle made and
the salutary warnings given by the President in that case.
It is a judgment that needs to be read, marked
and inwardly digested by all advocates, judges and appellate judges dealing
with care cases and particularly adoption cases.
As the judgment of the
President in that case is necessarily long and detailed, I have respectfully
attempted to summarise below the principles set out, none of which are new. I
venture to give this summary in the hope that advocates and judges throughout
England and Wales who have to deal with these difficult care cases will pay the
utmost heed to what the President has said.
Advocates
and courts are dealing in these cases with the futures of children, often very
young and therefore very vulnerable. They are also dealing with the futures of
parents who may be imperfect (as we all are) but who often dearly love the
child who is at the centre of the litigation. Separating parents and child by
placement and adoption orders must only take place if it is proved, upon proper
evidence, that "nothing else will do".
The fundamental
principles underlined by the President in
Re A, which, as I say, are not
new and are based on statute or the highest authority or both, can, I think, be
summarised thus:
i) In an adoption
case, it is for the local authority to prove,
on a balance of probabilities,
the facts on which it relies
and, if adoption is to be
ordered, to demonstrate that
"nothing else will do", when having regard to the overriding
requirements of the child's welfare.
ii)
If the local authority's case on a factual
issue is challenged, the local authority must adduce proper evidence to
establish the fact it seeks to prove. If a local authority asserts that a
parent "does not admit, recognise or acknowledge" that a matter of
concern to the authority is the case, then if that matter of concern is put in
issue, it is for the local authority to prove it is the case and, furthermore,
that the matter of concern "has the significance attributed to it by the
local authority".
iii) Hearsay evidence about issues that
appear in reports produced on behalf of the local authority, although admissible, has strict limitations
if a parent challenges that hearsay evidence by giving contrary oral evidence
at a hearing. If the local authority is
unwilling or unable to produce a witness who can speak to the relevant matter
by first hand evidence, it may find
itself in "great, or indeed
insuperable" difficulties in proving the fact or matter alleged by the
local authority but which is challenged.
iv) The formulation of "Threshold"
issues and proposed findings of fact must be done with the utmost care and
precision. The distinction between a fact and evidence alleged to prove a fact
is fundamental and must be recognised. The document must identify the relevant
facts which are sought to be proved. It can be cross-referenced to evidence
relied on to prove the facts asserted but should not contain mere allegations
("he appears to have lied" etc.)
v) It is for the local authority to prove
that there is the necessary link between the facts upon which it relies and its
case on Threshold. The local authority must demonstrate why certain facts, if
proved, "justify the conclusion that the child has suffered or is at the
risk of suffering significant harm" of the type asserted by the local
authority.
"The local
authority's evidence and submissions must set out the arguments and explain
explicitly why it is said that, in the particular case, the conclusion [that
the child has suffered or is at the risk of suffering significant harm] indeed
follows from the facts [proved]".
vi) It is vital that local authorities, and, even
more importantly, judges, bear in mind that nearly all parents will be
imperfect in some way or other. The State will not take away the children of
"those who commit crimes, abuse
alcohol or drugs or suffer from physical or mental illness or disability, or
who espouse antisocial, political or
religious beliefs" simply because those facts are established. It must be
demonstrated by the local authority, in the first place, that by reason of one
or more of those facts, the child has suffered or is at risk of suffering
significant harm.
Even if that is demonstrated, adoption will
not be ordered unless it is demonstrated by the local authority that
"nothing else will do" when having regard to the overriding requirements
of the child's welfare. The court must guard against "social
engineering".
vii) When a judge
considers the evidence, he must take all of it into account and consider each
piece of evidence in the context of all the other evidence, and, to use a
metaphor, examine the canvas overall.
viii) In considering
a local authority's application for a care order for adoption the judge must
have regard to the "welfare checklist" in section1(3) of the Children
Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The
judge must also treat, as a paramount consideration, the child's welfare
"throughout his life" in accordance with section 1(2) of the 2002
Act. In dispensing with the parents' consent, the judge must apply section
52(1)(b) as explained in
Re P (Placement
Orders: Parental Consent)
[2008] 2 FLR 625.
If these principles
are not followed, the local authority, just as in
Re A might find that
what it considered to be a comfortably made out threshold instead leaves them
without a leg to stand on.
And as we entered
this piece with Peter Cook, let us leave that way as well.
The leg division, Mr Spiggot. You are
deficient in it to the tune of one. Your right leg, I like. I like your right
leg, it's a lovely leg for the role. That's what I said when I saw it come in.
I said, "that's a lovely leg for the role". I've got nothing against
your right leg. The trouble is — neither have you.
5 MAY 2025
