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Family Law Week: A (A Child) [2018] EWCA Civ 2240

Family Law Week: A (A Child) [2018] EWCA Civ 2240 | Children In Law | Scoop.it
Home > Judgments A (A Child) [2018] EWCA Civ 2240 Appeal in care proceedings involving rival SGO contenders: a foster carer and extended family members in Ghana. At first instance, the judge made a SGO to the foster carer. Appeal allowed. These were care proceedings concerning the child "David", aged 1 at the time of the appeal. His parents were of Ghanaian ancestry. The mother's elder two children (one a half-sibling, one a full sibling) were being brought up by the grandmother under SGOs because of mental health problems that afflicted both parents. The grandmother was unable to care for David too, and the maternal family therefore proposed that he be cared for in Ghana by the grandmother's first cousin and her husband (the "Hs"). The Guardian, who was concerned at the prospect of David growing up away from his family in England and in particular his siblings, canvassed David's foster carer about the possibility of her keeping him under a SGO which the foster carer enthusiastically accepted. Both the Hs and the foster carer were positively assessed and the Court was therefore presented with two contenders for a SGO: the Hs supported by the Local Authority and the maternal family; the foster carer supported by the Guardian and the father. At first instance the only contested issue of fact for HHJ Karp to decide was the extent to which David would maintain his connection with his family in this country (which included not only his parents, grandmother and siblings, but also some uncles and aunts) if he remained with the foster carer. HHJ Karp gave a reserved judgment preferring the Guardian's analysis and balance of advantage and disadvantage to that of the Local Authority, and made a SGO in favour of the foster carer. The Local Authority appealed. The Court of Appeal allowed the appeal. Peter Jackson LJ (in a judgment with which Newey and Lewison LJJ agreed) concluded that the judge's reasoning did not have the necessary depth and detail to underpin a decision of this importance, and for the following reasons neither the Judge's welfare assessment nor her proportionality evaluation could stand: • The Judge did not show that she had sufficiently balanced the powerful arguments in favour of the foster carer's claim against the powerful arguments in favour of a placement with the Hs. • The Judge did not show that she had adequately weighed the risks inherent in each placement. • The tipping factor in the Judge's evaluation sprang from the only contested issue. This, combined with the absence of a systematic checklist analysis, leaves open the possibility that this issue was given more weight than it could properly bear. • The judgment did not sufficiently explain why it was necessary for David to grow up in foster care when he had available to him a placement in his natural family that also offers the prospect of significant time spent with close family members, nor does it explore the consequences for him of being the only member of his family to grow up outside it. It was not clear what conclusion the Judge would have reached had she addressed matters more fully and there must therefore be a rehearing before a Judge looking at the matter entirely afresh and independently. Summary by Victoria Flowers, barrister, Field Court Chambers ________________ Case No: B4/2018/1870 Neutral Citation Number: [2018] EWCA Civ 2240 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM BARNET CIVIL AND FAMILY COURT CENTRE Her Honour Judge Karp ZW17C00503 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16 October 2018 Before : LORD JUSTICE LEWISON LORD JUSTICE PETER JACKSON and LORD JUSTICE NEWEY - - - - - - - - - - - - - - - - - - - - - Between : A (A Child)              - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mark Twomey QC and Rebekah Wilson (instructed by London Borough of Enfield) for the Appellant Rima Baruah (instructed by Barnes and Partners Solicitors) for the Respondent Mother The Respondent Father was present in person Mark Jarman and Jonathan Rustin (instructed by Tyrer Roxburgh Solicitors LLP) acting pro bono for the Respondent Foster Carer Deirdre Fottrell QC and Maggie Jones (instructed by Wilsons LLP) for the Respondent Children's Guardian Hearing date: 3 October 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Peter Jackson: Outline 1. This appeal from the Family Court concerns a little boy of dual British/ Ghanaian nationality and heritage whose first birthday falls this week.  I shall call him 'David'.  His parents are of Ghanaian ancestry, the mother having been born in London to her mother ('the grandmother'), who came from Ghana in the 1960s.  The father, who arrived here from Ghana six years ago, has precarious immigration status.  2. David is the mother's third child.  The eldest, a girl who has a different father, is now 13; the second, David's brother, is aged 2.  Because of mental health problems that have afflicted both parents, these two children are being brought up by the grandmother under special guardianship orders ('SGOs').  But when David was born the grandmother could not look after him too.  The maternal family therefore proposed that he should be cared for in Ghana by the grandmother's first cousin and her husband ('the H's') with the support of their married daughter.  This couple took part in a positive special guardianship assessment carried out by a well-known independent social worker and by March 2018 planning had begun for David to be transferred to their care. 3. At this point, the Children's Guardian, who was concerned at the prospect of David growing up away from his family in England, and in particular from his siblings, canvassed the foster carer about the possibility of her keeping him under a SGO.  The foster carer, a single woman of Afro-Caribbean origin, enthusiastically accepted the invitation and was in due course positively assessed.  Meantime regular contact had been taking place with the parents under supervision and with the grandmother and siblings, supported by the foster carer. 4. The court was therefore presented with two contenders for a SGO, one supported by the local authority and the other by the Guardian.  The maternal family continued to argue for the family placement in Ghana while the father preferred David to remain in England.  The hearing before the judge 5. The matter came for final hearing before HHJ Karp in the Family Court at Barnet.  She heard evidence on 16-18 July 2018 from the social worker, the parents, the foster carer and the Guardian.  Mrs H and her daughter also briefly appeared as witnesses via an inadequate video-link from Ghana.  Mr H was available but did not give evidence due to the quality of the link.  The only issue of fact for the judge to decide was the extent to which David would maintain his connection with his family in this country (which includes not only his parents, grandmother and siblings, but also some uncles and aunts) if he remained with the foster carer.  The rest of the evidence was uncontentious. 6. The judge gave a reserved judgment on 20 July 2018.  The judgment, which speaks to the care that went into its preparation, begins with introduction and scene-setting before coming to this direction on the law: "14.  …  Once the threshold for making the order is established, the court must then consider the local authority plans for the child, keeping the child's welfare as the court's paramount consideration.  I must take into account all the relevant circumstances of the case and, in particular, the matters to which I am directed in section 1(3) of the Children Act.  15.  The local authority applies for orders the effect of which contemplates the separation of [David] from his birth parents and Art. 8 and 6 of the ECHR are therefore engaged in relation to this application.  In evaluating which set of arrangements for the future are to be endorsed, David's welfare is paramount and I must not approach the task of deciding whether or not to approve the care plan in a linear way but must undertake a global, holistic evaluation of each of the options available before deciding which of those options best meets the duty to afford paramount consideration to his welfare."  7. The judge addressed in detail the evidence about the parents, whose acute health problems meant that it would be impossible to place David with them.  She then reviewed the rival contenders for a SGO.  She noted that the assessment of the H's was overwhelmingly positive and accepted that they would try to commit to coming to England for a month twice a year.  She said that she had no doubt that they would offer David a warm and nurturing family life.  She then considered the foster carer at rather greater length, finding her to be an articulate, warm and sensitive woman who would be able to put David's needs ahead of her own and to offer a high level of care.  As to the contested issue, she said this: "37… I considered the concerns and worries, in particular of the mother and maternal grandmother, that [the foster carer] might not promote contact in the future but I am entirely satisfied and accept [her] evidence that her primary motivation in seeking the order is to promote [David]'s contact with his closest relatives, his brothers and sister, grandma, uncles, aunts and great aunts, all of whom live in the UK.…" 8. The judge found the grandmother to be an impressive witness who has the role of matriarch of the family, has supported her daughter over many years and has provided a warm and loving home for the older two children.  She records that the grandmother wanted David to go to Ghana because he would be brought up by his blood relations within his own Ghanaian culture and because she feared that if he was raised outside the family network it may strain his relationship with family members and siblings.  The grandmother was also concerned about the lack of good male role models for David.  She said that she now felt betrayed by the foster carer. 9. The judge then reviewed the professional evidence.  The social worker considered that David should have the opportunity to be raised within his birth family and was concerned that the continuation of sibling and parent contact depended on the foster carer's relationship with the grandmother and parents, which had already deteriorated since the foster carer had put herself forward.  She said that while both homes could give good care, "the significant difference is that the H's are family".  The judge was critical of this professional opinion, saying that the social worker's analysis failed to give proper weight to the existing family relationships and the benefit to David of having "shared lived experiences with his siblings growing up" together with direct contact with his mother when she is well, and with his grandmother.  In contrast, the judge was impressed by the Guardian's explanation of the long-term importance of sibling relationships and she preferred her evidence as to the likelihood of the adults being able to repair and maintain a good relationship for the benefit of the children.  She said that she had no doubt that the feeling of betrayal would be healed and that the unpleasantness of the court process would be short-lived.  She accepted the Guardian's opinion, which had included the observation that a placement with the H's would in many ways be a step not very far removed from adoption.  10. The judge approached her conclusions in this way: "49. …  Sadly, it is a fact that [David] cannot be brought up by his parents, or by his grandmother with his siblings.  I have to weigh up the advantages and disadvantages of him being brought up by the foster carer, close to his family with extended contact to them, contrasted with him being brought up by more distant family who are currently unknown to him.  I am satisfied that his cultural identity will be promoted by the foster carer and will be met in addition by the time he spends with his extended family, being part of their cultural life. 50.  It is said the foster carer was unrealistic and idealistic about her role and about the emotional harm that may be caused by [David] not being placed with his extended family when they wanted him.  It is, of course, true as [David] becomes older he will have to grapple with the difficulties of knowing that he could not be brought up by his parents, and that he was not able to be offered a family placement in this country, but I find that the protective effect of him knowing that he was to be brought up close to his siblings, close to his grandmother with ongoing contact with them is likely to outweigh the benefits of him having to face knowing that he was placed away from them Ghana, even though that placement was made with the maternal family's consent. 51.  I have therefore considered [David]'s welfare holistically within the framework of the relevant limbs of the welfare checklist.  [David] is extremely fortunate in having two sets of loving potential carers available to him.  I have considered carefully the maternal family's wishes but I have to put [David]'s welfare as my paramount concern and I prefer the Guardian's analysis and balance of advantage and disadvantage to that of the local authority.  Whilst I am satisfied that either option could meet his physical and educational needs, the special guardianship order to [the foster carer] coupled with flexible, ongoing contact to his siblings, the maternal grandmother and supervised contact with his parents will better meet his emotional needs and better meet his Article 8 rights.  I was heartened to hear the maternal grandmother saying in her evidence how he could join his siblings for traditional Ghanaian meals at her home and possibly join them when they go to church.  This would constitute a very high level of contact and lived shared experience.  It would meet his cultural and identity needs and will make his situation far closer and more similar to that of his siblings.  I find that this would be easier for him to understand as a decision as older then a decision that involves him living in Ghana. 52.  On balance, his welfare needs throughout his minority are best met by a placement with [the foster carer].  I agree with the Guardian that it is the opportunity to develop the sibling relationships, the relationship with his grandmother and the wider family relationships, through shared lived experience, that is the factor that tips the balance in this case.  Without this, notwithstanding David's clear attachment to the foster carer, I would have had no hesitation in making a special guardianship order to the H's in the hope that he would have been able to build an attachment to them in the future." She accordingly made a SGO in favour of the foster carer.  She did not consider that a contact order was required.  In the light of the maternal family's vehement reaction to her decision, she urged the local authority to arrange for mediation between the grandmother and the foster carer. 11. The local authority, having unsuccessfully sought permission to appeal, applied to this court and on 31 August I granted permission for it to proceed on some but not all of the original grounds of appeal. The grounds of appeal 12. For the local authority, Mr Twomey QC and Ms Wilson now advance three propositions: 1. The judge failed to undertake a proportionality evaluation of the necessity of state interference with the child's Article 8 rights and in particular whether placement outside his birth family was proportionate to his welfare needs. 2. The court failed to consider the welfare checklist in full and omitted other relevant factors. 3. The judge was wrong to proceed to a decision when one of the two candidates was not able to participate in the proceedings effectively and was placed at a substantial disadvantage. 13. I can dispose of the third ground at this stage.  The maternal family are understandably concerned that the H's were placed at a disadvantage by giving evidence over a video link that was functionally useless.  However, the judge cautioned herself against this colouring her impression of them, and indeed recorded an extremely positive impression.  While it was unfortunate that the H's could not participate in the same way as the foster carer, they had been fully and favourably assessed and there was no contested issue arising from their evidence.  In the circumstances, any perception of unfairness did not amount to actual disadvantage in circumstances where their position was actively championed by the local authority and the mother.  This ground of appeal therefore fails.  The real substance of the appeal concerns, in logical order, (1) whether the judge's welfare checklist assessment was sufficiently thorough, and (2) whether she made an adequate proportionality evaluation. The welfare checklist 14. At the risk of stating the obvious, where a court is considering whether to make an order such as a SGO it "shall have regard in particular" to the matters that appear at s.1(3) Children Act 1989.  The provision is therefore obligatory, flexible and open-ended, providing the decision-maker with a workbench and tools with which to devise a proper welfare outcome.  15. The welfare checklist can be helpful in several ways.  In the first place, paying attention to it tends to ensure that all important considerations are taken into account.  As Baroness Hale put it in Re G (Children) [2006] UKHL 2305 at [40]: "My Lords, it is of course the case that any experienced family judge is well aware of the contents of the statutory checklist and can be assumed to have had regard to it, whether or not this is spelled out in a judgment.  However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear.…" 16. Next, its neutral content is a reminder that the assessment of welfare is not driven by presumptions.  As McFarlane LJ said in Re W (A Child) [2016] EWCA Civ 793 at [71]: "The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged." 17. Then, the open-ended nature of the checklist allows the court to take account of other matters that may bear upon the individual decision.  For example, although the present case is not concerned with adoption, the lifelong significance of the decision might reasonably prompt the court to have regard to the matters appearing in the checklist in the Adoption and Children Act 2002 at s.1(4)(f).1 18. Lastly, the substantive nature of the entire process was described by Sir James Munby P in Re F (Children) [2016] EWCA Civ 546 at [22]: "Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law." What is instead called for is real analysis that descends into as much detail as the decision demands.  As McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 793 at [71]:  "What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options." Proportionality 19. Art. 8 of the European Convention on Human Rights of course provides that: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 20. Orders of the present kind are made in accordance with law and with the legitimate aim of promoting the welfare of the child.  The additional question that is addressed by the proportionality evaluation is whether the proposed interference is necessary in the first place and if so whether it goes any further than it must to achieve its purpose.  In CM v Blackburn with Darwen BC [2014] EWCA 1479, Ryder LJ put it this way at [36]: "The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it." 21. In every case heard in the Family Court, the children and (with occasional exceptions) the adults will hold rights under Art. 8(1).  Where there are competing outcomes, the choice of one outcome over another will commonly entail some degree of interference with those rights.  It is well-established under European and domestic law that where there is a conflict between the welfare of the child and the rights of an adult, the child's interests will predominate.  What is necessary in the individual case is to identify the nature of rights that are engaged and the extent of the proposed interference.  This cross-check prevents the choice of an unnecessary interference or one that is disproportionate to the problem. 22. The importance of identifying the actual rights that are engaged is illustrated by the facts of the present case.  Without deciding the matter, it would seem that David has 'family life' with his foster carer, qualified by the fact that she has been a professional carer providing a neutral, holding placement.  He also has important family life rights with his parents, grandmother and siblings.  As to the H's, they are the only viable placement within his birth family, but he has never met them, and he might therefore be said to have a right to private life in their regard with the potential for it to develop into family life if he was placed with them.  It is therefore important to identify not only what rights are engaged but also their short, medium and long-term significance, before going on to consider the justification for any proposed interference.  This exercise is of particular importance when the choice is between a placement with relatives and a placement outside the family, certainly where the decision is finely balanced. The parties' submissions 23. Mr Twomey QC and Ms Wilson for the local authority submit that, having made only passing reference to the welfare checklist, the judge did not address important aspects of it thoroughly or at all, and that the balancing exercise she conducted was defective.  In an effective presentation, Mr Twomey emphasises the extraordinary nature of the decision, which would decide whether a baby would grow up in Europe or Africa, with all that that entails.  When considering David's emotional needs and the capacity of each placement to meet them, he argues that the judge did not look in sufficient detail at the effect on David's identity of a long-term placement with a foster carer who could not replicate the daily experience of living within one's natural family.  Nor did the judge focus closely enough on David's age and the fact that, given his good attachment to the foster carer, he would be able to move successfully to the H's; or to his sex, and the need for a male role model; or to his background and characteristics as a child of Ghanaian heritage with parents who speak the Ga and Twi languages respectively and who belongs to a cultural heritage where extended kinship care is common.  Mr Twomey challenges the Guardian's assessment, accepted by the judge, that placement in Ghana is more akin to adoption than placement with foster carer.  He contends that the reverse is true, even if the judge's forecast for continuing contact was borne out by events.  In relation to the balancing exercise, Mr Twomey draws attention to the judge's reasoning at paragraphs 49-50, cited above.  Instead of comparing the strengths and weaknesses of one option with the strengths and weaknesses of the other, he argues that the judge in effect compared the strengths of one option with the weaknesses of the other.  Finally, he argues that the judge's conclusion at paragraphs 51-52 that the balance was tipped by the availability of a shared lived experience with family members in London was tantamount to treating the underlying claims of the foster carer and the H's as being of equal weight, and that this amounts to a direct error arising from an inadequate analysis of the full range of checklist factors. 24. As to proportionality, Mr Twomey says that it is a stark outcome to a routine care case that a child should remain in foster care when such a good family option is available.  The justification for this needed to be closely examined and spelled out.  Yet the judgment contains no reference to the significant advantages to a child of being brought up within his natural family.  The judge also failed to bring into the balance the accepted evidence that the H's intended to bring David to stay with his family in London for two months of the year.  The judge's conclusion was built upon the assessment of the Guardian, which refers to the advantages and disadvantages of a placement with the H's without remarking that the advantages are long-term while the disadvantages are short-lived.  The equivalent analysis by the social worker was, says Mr Twomey, more balanced.  Overall, he submits that the passing reference to David's Art. 8 rights in paragraph 51 of the judgment falls well short of the analysis required for a decision of this importance.  25. For the mother, Ms Baruah argues that the judge left an important element out of her evaluation, namely the impact upon David of being brought up outside of his own ethnicity and family.  The maternal family was entitled to know that its argument had been fully considered and, if it was to be dismissed, why. 26. The foster carer's case has been argued by Mr Jarman and Mr Rustin who have, to their great credit and that of their instructing solicitors, acted pro bono on this appeal.  In relation to proportionality, they observe that any placement brings about a breach of someone's Art.8 rights and that the judge was fully entitled to treat the active and important relationships that David now has with his family as the tipping point when compared with potential relationships with distant cousins.  The judge was careful not to overvalue the existing attachment with the foster carer but took account of the unusually close relationship between the family and the foster carer and their geographical proximity, which would work in David's favour.  Although the judge did not carry out an explicit proportionality evaluation, her references to Art. 8 in the judgment shows that she had everyone's rights in mind.  As to the welfare analysis, the judgment likewise shows that the judge had the relevant considerations in mind; she did enough to support her conclusion. 27. On behalf of the Children's Guardian, Ms Fottrell QC and Ms Jones accept that judgment is not as full as it might have been in relation to the welfare checklist and proportionality.  The evidence was finally balanced, and the disputed aspect related to the narrow issue of the likelihood of contact continuing under present arrangements.  The Guardian did not dispute that there is a perfectly suitable high-quality family placement in Ghana.  The judge did not treat the attachment between David and the foster carer as a trump card, but her assessment of the shared lived experience (with siblings in particular) entitled her to prefer placement with the foster carer to placement in the natural family.  In any event, the present placement was one that included a family dimension, so to refer to David as having 'contact' with his family understates matters.  The judge had accepted the strong view of the Guardian about how much David is loved by his family and the importance of the sibling relationships that now exist, factors that favour him remaining in England.  A change in circumstances would diminish these relationships, while his cultural identity can be maintained.  However, Ms Fottrell also realistically accepted that the judgment does not explicitly set out the significant advantages for the child of a placement in his natural family; she accepts that the judge must have regarded the prospect of David spending some two months of the year in England with his siblings as also amounting to a shared lived experience and that the absence of this element from the balancing exercise was a deficit.  However, she argues that, taking the judgment as a whole, any shortcomings are not fatal to the decision that was reached. The statutory framework 28. Although it did not feature in the proceedings below, we invited the parties to address us on the statutory framework within which the court was considering the competing proposals for SGOs.  Section 14A of the Act provides two routes by which a SGO can be made:  • The first is under ss. (3), where an order can be made on the application of an individual (a) who is entitled to make it, or (b) has obtained the leave of the court to make it.  • The second route is under ss. (6) where an order can also be made in any family proceedings following (a) an application made via ss. (3), or (b) where the court considers that an order should be made even though no application has been made.  In this case, no application having been made, the court was following the second route and its order was made under ss. (6)(b). 29. It is worth noting the provisions that govern the entitlement to apply for a SGO.  These appear in ss. (5), which includes two subparagraphs relevant to the present case.  • Subparagraph (c) entitles a person to apply if they come within s. 10(5)(b) or (c).  Section 10(5)(c)(ii) refers to a person who has the consent of the local authority where the child is in the care of a local authority.  The definitions in sections 105 and 31(11) provide that a child is in the care of a local authority if subject to care order or, as here, an interim care order.  • Subparagraph (d) entitles a local authority foster carer to apply if the child has been living with them for at least one year immediately preceding the application. Consequently, the H's would have been entitled to apply for an SGO with the consent of the local authority, while the foster carer would have required the court's permission under s. 14A(3)(b).  Given the support of the Guardian, that permission would surely have been granted if it had been requested.  It is nonetheless the case that the Act contains specific provisions for relatives on the one hand and for foster carers on the other, including under s. 22C, which sets out the priorities for local authorities when seeking placements for children in their care. Conclusion 30. I again acknowledge the care taken by the judge in this difficult case, and the caution with which this court must review an evaluation of this kind.  Nonetheless, my conclusion is that the judge's reasoning does not have the necessary depth and detail to underpin a decision of this importance and that if my Lords agree the appeal must therefore be allowed.  31. The reasons for my conclusion are these: 1. The judge rightly acknowledged the powerful arguments in favour of the foster carer's claim, and in particular the fact that it is the only way in which David can grow up in the same country as his immediate family and benefit fully from his British heritage.  However, she did not show that she had sufficiently balanced these against the powerful arguments in favour of a placement with the H's, notably the benefits of growing up embedded in his ethnic Ghanaian culture of origin, the opportunity to remain in touch with close family members by visiting, and the important feature that the placement had the support of a maternal family that had shown itself capable of making very satisfactory arrangements for the older two children. 2. Nor did the judge show that she had adequately weighed the risks inherent in each placement, including the potential disadvantages to David of growing up between two households with different cultural backgrounds, particularly if 'contact' was to become fraught or even to break down, as against the disadvantages of growing up at a distance from his close family, particularly if visits to England did not materialise. 3. The tipping factor in the judge's evaluation sprang from the only contested issue.  This, combined with the absence of a systematic checklist analysis, leaves open the possibility that this issue was given more weight than it could properly bear. 4. The judgment does not sufficiently explain why it is necessary for David to grow up in foster care when he has available to him a placement in his natural family that also offers the prospect of significant time spent with close family members; nor does it explore the consequences for him of being the only member of his family to grow up outside it. 5. For these reasons, neither the judge's welfare assessment nor her proportionality evaluation can stand.  29. It is not clear what conclusion the judge would have reached had she addressed matters more fully.  There must therefore be a rehearing.  Arrangements have been made for a four-day hearing to begin on 26 November before a circuit judge sitting as a s.9 judge.  The parties should submit a draft order containing directions to ensure that this hearing will be effective.  These should include provision for the evidence to be briefly updated and for there to be clarity about the extent to which the H's are expected to participate in the hearing, whether as witnesses or as parties. 30. Finally, I refer to the danger that a decision overturning one outcome on appeal might be misinterpreted as providing support for another outcome at a rehearing.  That must not happen here.  This court holds no view as to whether the judge made the right decision or not: its investigation has only been concerned with her reasoning.  The judge conducting the rehearing will look at the matter entirely afresh and independently determine the appropriate arrangements for David's future. Lord Justice Newey: 31. I agree. Lord Justice Lewison: 32. I also agree. 1 1(4) The court or adoption agency must have regard to the following matters (among others)—  …   (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, (iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
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More children in England at risk of abuse or neglect

More children in England at risk of abuse or neglect | Children In Law | Scoop.it
A rise in protection plans for children leaves councils claiming they are pushed "to the brink".
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Freedom versus responsibility when the press report on care proceedings: Round Two. | The Transparency Project

Freedom versus responsibility when the press report on care proceedings: Round Two. | The Transparency Project | Children In Law | Scoop.it
On 22nd October 2018 the Sun published a second in its line of ‘investigative reporting’ into the child protection system, titled ‘Parents who’ve lost kids in shadowy secret courts slam ruthless millionaires cashing in on UK’s fostering crisis’  The similarities with an earlier article, on which we also commented, are striking. A serious point is raised – here the undoubted crisis in recruitment and retention of foster carers – then lost in some sadly familiar lazy reliance on our old friend the ‘shadowy secret court’. It is interesting to note that, yet again, The Sun demonstrate only minimal curiosity about the parents they interview and there is clearly a great deal in their background that would assist the reader draw more reliable conclusions about the reasons why these parents were investigated and why the State felt they couldn’t care for their children – reasons which had nothing to do with ‘lining the pockets’ of any fat cat millionaires.  However, I accept that such background information may be impossible to put into the public domain without risking a contempt of court and possible prison sentence. While it is easy to criticise journalists who mistake cliche for reporting, we have to appreciate the position that we have put our journalists in. As Louise Tickle is demonstrating in her crowd funding efforts to challenge the family court the current system is putting enormous obstacles in the way of responsible journalists who wish to discuss actual facts. I think there is a real risk that objections to such journalism are not based on consideration of the necessary legal principles, but rather a nervous clinging to the status quo. Those who continue to argue against increased transparency and wider availability of information about the child protection system need to consider their position in light of such articles by The Sun. People wish to and have a right to know what is being done in their name.  We have to accept that there are now very serious concerns about the credibility of a system that continues to resist scrutiny whilst apparently offering little reasoned explanation for why this is lawful. So what is wrong with this article? Into the gaps and silence left by this failure to acknowledge the corrosive impact of lack of scrutiny comes The Sun and legions of other publications on social media. The article begins promisingly, by raising the issue of private firms that earn large sums of money from operating foster care agencies. It is indeed a matter of urgent public concern that profit making organisations have anything whatsoever to do with child protection. Various governments appear to hold fast to the belief that – despite all evidence to the contrary – private firms are the most efficient and cheapest way to run essential services. They are not. Any organisation whose driving force is profit has no place here. This is clear from the fees that such private agencies charge local authorities who are already facing considerable pressures in maintaining even essential services. The Sun says: Charities and parents have branded the profiteering private equity funds who make millions in profit off the back of families’ trauma as “disgusting”. I agree. However surrounding this type of legitimate and necessary comment, we find this: Thousands of parents across the country are being dragged into secretive courts each year where social services are removing children in record numbers. Again The Sun rely on their deeply misleading reporting of the ‘ice cream’ case in support of this contention. The child case was NOT removed because his mother didn’t buy him an ice-cream. In fact, he was already in care. This was his mother’s application to discharge the care order – and she succeed. No one who actually read the judgment in that case could support in good faith the Sun’s interpretation. This is bad, irresponsible journalism and should be condemned. It does not advance the necessary debate and it will only serve to frighten people for no good reason. The article then moves on to making another good point – concern about the rising numbers of children taken into care. There has been a considerable amount of responsible investigation into this; for example see the discussions at CPConf2018 and the report of the Nuffield Family Justice Observatory on 10th October 2018. However, who are the parents that The Sun rely upon to prove their point about ‘shadowy secret courts’? We have met Jill before in the previous Sun article where concern about a ‘tiny’ fracture was held up as some unjustifiable reason for the State to intervene. I repeat what I said then: This swelling was in fact a fracture. As 10 week old babies are not able to injure themselves, broken bones are either the result of some pre-existing condition or somebody has hurt that baby – either by accident, a momentary loss of self control or something more disturbing and deliberate. It is inconceivable that as a society we should fail to investigate how this happened and to protect the children if we need to. No doubt The Sun would be among the first to raise the loudest cries for more social workers’ heads on plates if another baby dies on their watch. The other parents are Sam Brown and Bhupesh. The reasons for their sons being taken into care is given simply as she had a low IQ and ‘dad Bhupesh had been aggressive towards their staff’. There is a judgment relating to these parents which would cast an entirely different light upon why these parents lost their children. I accept that the Sun cannot easily link to that judgment in this case as the parents are named and their photograph displayed. But again, its a disturbing lack of curiosity about the parents on whom they rely. Details of the father’s criminal convictions are in the public domain. Conclusion It is a great shame that The Sun has chosen to intermingle some detailed and worrying reporting about the impact of profit making private firms on the foster care system with reliance on the same old same old. They don’t need to do this. It detracts rather than supports the serious points they wish to make – and which need to be made. However, I have to accept that currently there are many obstacles in the way for journalists who do want access to the actual facts. I will be watching the progress of Louise Tickle’s challenge to the family courts with interest. Featured image: ‘Être homme, c’est précisément être responsable’ by Vassilis L. via Flickr creative commons, reproduced with thanks.
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Fighting secrecy in the family courts, a Personal Causes Crowdfunding Project in South Woodchester, Gloucestershire, England on Crowdfunder

Fighting secrecy in the family courts, a Personal Causes Crowdfunding Project in South Woodchester, Gloucestershire, England on Crowdfunder | Children In Law | Scoop.it
To help fund an appeal against a gagging order made by a family court judge.
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Research project to look at quality of online advice for children cases

Research project to look at quality of online advice for children cases | Children In Law | Scoop.it
The abolition of legal aid for most private law family matters back in 2013 has left huge numbers of litigants struggling to find legal help, and therefore at the mercy of those who peddle biased or incorrect advice.
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Public law data

Data about Care Order applications, length of time taken to complete proceedings and the rate of care order applications by local authorities.
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Assessment Guide - Family Rights Group

Assessment Guide - Family Rights Group | Children In Law | Scoop.it
We have developed a set of forms for social workers who are assessing family and friends carers. These forms are currently being piloted by 12 loca
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I fought the law – what are the implications of section 12 of the Administration of Justice Act? | Child Protection Resource

I fought the law – what are the implications of section 12 of the Administration of Justice Act? | Child Protection Resource | Children In Law | Scoop.it
I was asked by the journalist Louise Tickle to consider whether or not she would be in contempt of court if she published a blog post detailing her frustrations with the way the family court had dealt with a recent application made by a number of journalists. In brief, the journalists attended a final hearing which had come about due to a decision made by the Court of Appeal that has already been reported and is in the pubic domain. That judgement names the relevant LA and social worker and provides personal detail about the mother, including her ethnicity and the date of birth of her child. What the journalists wanted to do was to report on the final hearing but also link in their reporting to this published judgment as otherwise it was difficult to understand how the case had taken the shape it had. The Judge at the final hearing was not minded to permit publication of anything that might identify the ethnicity of the mother nor the identities of any professional parties – which poses the immediate problem that no reference could then be made to the prior judgment already published which contained that information. Louise was unhappy with this outcome and I had to agree it was deeply unsatisfactory. I have not held back criticising journalists who refuse to link to judgments or even read them and end up publishing something partial and inaccurate. Therefore I am troubled to be told that journalists who wished to report by reference to the actual facts already in the public domain were being told that they may not – and even worse, that their right to freedom of expression from Article 10 of the ECHR, did not appear to be given any proper consideration by the Judge or the other advocates. I read Louise’s proposed blog post and ran this past my understanding of the consequences that followed from applying section 12 of the Administration of Justice Act. My analysis of the law follows below. I don’t think Louise is going to be hauled before a Judge and found in contempt of court for publishing her blog. But I didn’t feel that I could offer robustly confident advice that she would not. It is clear that each case will turn on its own facts and thus there is very little guidance for the lay person or lawyer who doesn’t deal with such matters on a regular basis – which I imagine is all of us. For so long the family court have operated without public scrutiny that I do not think it is common place for Judges to be asked to consider relaxing the requirements of section12 AJA in general run of the mill family cases. I hope I am right about all this. But I am not sure. It seems a rather unsatisfactory state of affairs that public comment about the family justice system should operate under such a climate of fear. Being found in contempt of court is a serious business; one possible punishment is the loss of your liberty. When facing serious consequences, the law that imposes them needs to be clear and it needs to be accessible. Lawyers need to understand and apply the necessary balancing exercise between Articles 8 and 10. How many do? I do not think that our law about reporting matters in the family court is clear, accessible or consistently applied and .I will follow developments here with interest. Louise has launched a crowdfunder to raise the costs of her proposed appeal. My view of the law. Section 12 of the Administration of Justice Act 1960 forbids the publication of information relating to proceedings under the Children Act 1989 or the Adoption Act 2002. There is no time limit so the prohibition operates even after proceedings end. Sub section (2) of the AJA exempts ‘the publication of the text or a summary of the whole or part of an order made by a court sitting in private’ UNLESS the court expressly prohibits the publication. There is no other exemption or explanation of terms offered by the statute. We therefore need to look to case law and other general principles to understand what is meant by ‘information’. With regard to publication, something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. A blog post published on the internet would thus clearly meet the definition of publication and by publishing a general blog, Ms Tickle could not avail herself of the defence that she is communicating to a professional. Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. What is meant by ‘information’? Munby J (as he then was) considered this in Re: B (A Child) (Disclosure) [2004] 2 FLR 142. He identified classes of information falling into this category as likely to be [para 66] : accounts of what has gone on in front of the judge sitting in private documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, Transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment. (I emphasise that this list is not necessarily exhaustive.)… likewise…extracts or quotations from such documents…also the publication of summaries The identity of witnesses in care proceedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness. Section 12 does not prevent publication of the fact that proceedings are happening, or Identification of the parties or even of the ward himself. or the comings and goings of the parties and witnesses, or incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. However. at para 77 Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’. It is likely to be this question that is of most interest to Ms Tickle. He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words: “Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.” Wilson J commented: I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded. Munby J agreed with this observation and concluded: Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. Consideration of the case law when applied to Ms Tickle’s proposed blog For a lawyer asked to give advice, the heart sinks upon encountering the phrase ‘every case will, in the final analysis, turn on its own particular facts’. This clearly makes it difficult to offer firm advice. It is my view that the thrust of the blog post is very clearly to highlight Ms Tickle’s understandable frustration with what seems like a wholly inadequate approach by the court to the necessary balancing exercise of ECHR Articles 8 and 10. I do not think that anything she proposes to publish will fall foul of the distinction identified in X v Dempster. The ‘dispute’ which she wishes to highlight is in fact removed from the actual facts of the care/placement proceedings before the court and is a dispute about an ancillary matter; the relaxation or otherwise of reporting restrictions given that risk (I assume) of jigsaw identification once any reporting of this matter is linked to an earlier Appeal Court decision already in the public domain. I must stress to Ms Tickle that in offering my opinion as I do, cannot be seen as any kind of guarantee that she would NOT face proceedings for contempt arising out of her blog post. It may be that my opinion is not shared by a Judge hearing this matter. However, I reflect upon the fact that she has clearly taken great care to strip any identifying details from the blog. In my view it is unlikely that any such proceedings would be bought; I would consider them wholly disproportionate in all the circumstances. In my view, the LA is the only party likely to consider such action and I would hope they have better things on which to spend their time and money.   Further reading The opposite of transparency – an appeal against a reporting restrictions order Louise Tickle’s post on the Open Family Court website. For a more general discussion of the principles around transparency in the family court see this post  Or visit The Transparency Project website.
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W.X.Y.Z. (Care Proceedings -NAI- EDS -Von Willebrand Disease) [2018] EWFC B62 (19 September 2018)

W.X.Y.Z. (Care Proceedings -NAI- EDS -Von Willebrand Disease) [2018] EWFC B62 (19 September 2018) | Children In Law | Scoop.it
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Family Law Week: Number of children in need rises by 4 per cent since last year

Family Law Week: Number of children in need rises by 4 per cent since last year | Children In Law | Scoop.it
Home > News Number of children in need rises by 4 per cent since last year Number of child protection plans rises by 5 per cent The number of children in need at 31 March has increased this year, from 389,040 in 2017 to 404,710 in 2018, an increase of 4.0%. The number of episodes of need starting in the year has risen by 1.7% from 400,110 to 406,770, whereas the number of episodes ending in the year fell by 1.3% from 353,860 to 349,130. The figures are revealed in a statistical release by the Department for Education. The number of child protection plans at 31 March has increased this year, from 51,080 in 2017 to 53,790 in 2018, an increase of 5.3%. The number of child protection plans starting and ending during the year both continue to increase. The number of child protection plans starting has increased by a larger percentage (3.6%), than those ending (0.8%). The gender split of children in need at 31 March 2018 was 53.0% male, and 45.0% female, with 2.0% being unborn or of unknown gender. The age split of children in need at 31 March 2018 remains broadly similar to previous years, with the largest age group being those aged 10-15 years, who account for 31.7% of children in need. Children aged under 5 account for 22.5%. Of the children in need whose ethnicity is known, 72.6% were white, followed by 8.6% that were black or black British, and 8.4% who were of a mixed ethnic background. The percentage of children in need at 31 March with a disability recorded has decreased this year from 12.9% in 2017 to 12.3% in 2018. This percentage has fluctuated over the last six years, however there has been an overall decrease, from 13.8% in 2013. The Local Government Association has responded to the figures by warning that the increase in children on child protection plans shows the massive demand that is being placed on councils at a time when resources are being reduced, and highlights the growing number of children and families needing support from children's services. Council leaders say these figures prove why it is vital the Chancellor announces new funding for children's services in Monday's Autumn Budget. For the full statistics, click here. For the Local Government Association's response, click here. 26/10/18
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Local Government Lawyer - LGA urges extra funding as child protection plans show biggest rise in four years

Local Government Lawyer - LGA urges extra funding as child protection plans show biggest rise in four years | Children In Law | Scoop.it
The Local Government Association has called on the government to provide greater funding for children’s services in Monday’s Budget, after Department for Education figures showed that the number of children supported through a child protection plan increased by more than 2,700 over the past year. The LGA said this was the biggest annual increase in four years, with 53,790 (up 5.31) now supported this way. The numbers also represented an 84% increase in the number of children on plans over the past decade, it added. Child protection plans are started by councils to support families and keep children safe when it is thought they are at risk of significant harm. This is a different arrangement to taking a child into care. The plans can be initiated for a range of reasons, including neglect, physical, sexual or emotional abuse. Cllr Anntoinette Bramble, Chair of the Local Government Association’s Children and Young People Board, said: “It is absolutely vital that councils are able to support families and help children who are at risk of significant harm, but it is also important that help is available before problems escalate to that point. “But this is being put at risk by the huge and increasing financial pressures children’s services are now under, with many councils being pushed to the brink by unprecedented demand.” Cllr Bramble added: “Councils have done all they can to protect spending on children’s services by cutting services elsewhere and diverting money, but despite this, they have been forced to reduce or stop the very services which are designed to help children and families before problems begin or escalate to the point where a child might need to come into care. “We are absolutely clear that unless new funding is found in the Autumn Budget, then these vital services, which keep children safe from harm and the worst abuses of society, will reach a tipping point.”
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Delays inflicted by other public bodies

Delays inflicted by other public bodies | Children In Law | Scoop.it
  Much as Patrick Swayze and his gang wearing masks and brandishing shooters might proclaim when busting into a bank dragging a hapless Johnny Utah in their wake, “We are the Ex-Presidents” this is a judgment from the Ex-President.  (He was still the President at the time of the judgment)     Re ...
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Parents slam ruthless millionaires cashing in on UK's fostering crisis

Parents slam ruthless millionaires cashing in on UK's fostering crisis | Children In Law | Scoop.it
The UK's £1.7billion foster industry has seen a growth of firms backed by huge private equity funds raking in taxpayers' cash. They are cashing in on the anguish felt by parents who lose their children into care.
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Local Government Lawyer - Statutory duties for children’s services up 50% in seven years: research

Local Government Lawyer - Statutory duties for children’s services up 50% in seven years: research | Children In Law | Scoop.it
There are now almost 300 local authority statutory duties in relation to children’s services, up from around 200 in 2011, research by the Association of Directors of Children’s Services has found. Matt Dunkley, Chair of the ADCS Resources and Sustainability Policy Committee, said the list of legal responsibilities for councils in relation to children, young people and families was “lengthy and growing”. He said: “This is in stark contrast to a 50% reduction in funding for local authorities since 2010 and an increasing number of children and families in need of help and support, facing evermore complex problems. Local authorities have worked hard to make savings, but now there is nowhere left to go, except cutting preventative services that reduce demand. “We hope this ever-increasing list highlights the urgent need for a sufficient, sustainable core funding strategy for children’s services – without this our ability to make good, safe decisions in the best interests of children and families will increasingly be compromised.” The list of duties can be viewed here.
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The Child Impact Assessment Framework and its development

The High Conflict Practice Pathway (HCPP) is a practice framework being developed tby Cafcass to help our practitioners assess cases.
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Family Justice Council - 12th Annual Debate Covert recordings in family law

Family Justice Council - 12th Annual Debate Covert recordings in family law | Children In Law | Scoop.it
The Family Justice Council is holding its 12th Annual Debate and panel discussion in Leeds on Monday, 3rd December 2018, from 5.00pm to 7.00pm.The topic for this year’s debate is the use of covert recordings in family law.  The … Read More »...
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