Abstract
Judicial concern about lack of legal aid
Re K & H (Children: unrepresented father: cross-examination of child) [2015]
Family Court at Leicester, HHJ Clifford Bellamy
5 January 2015 [2015] EWFC 1
In private law proceedings involving two young children their 17-year-old half-sister, Y, made allegations of sexual abuse against the children’s father. The father wanted Y to attend court for cross-examination about the allegations, which he denied. He was not represented in the proceedings as his income exceeded £734 per month and so rendered him ineligible for legal aid on financial grounds. The court referred to the Family Justice Council’s Guidelines in relation to children giving evidence in family proceedings, which suggests that a child should never be questioned directly by an alleged perpetrator.
The court considered various possibilities – that the judge would put questions to Y on behalf of the father, that the Bar Pro Bono Unit would provide an advocate, that the evidence of Y should be accepted without challenge if the father could not pay for an advocate to cross-examine her, or that a guardian should be appointed to represent the children – but dismissed them all as either impractical or in breach of the father’s Article 6 right to a fair trial. The Lord Chancellor was granted leave to intervene and claimed that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was the exclusive code for the public funding of legal representation. The judge dismissed this argument and held that it was the duty of the court to ensure that proceedings were held fairly. In this case fairness required that Y be cross-examined about her allegations, but not by the father directly. Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 gave the court a duty to assist a party who was unable to cross-examine a witness effectively. Using this section, the judge ordered that HM Courts and Tribunals Service bear the costs of legal representation for the father, limited to the preparation and cross-examination of Y only.
High Court application for an adoption order opposed by both parents and an older sibling in which post-adoptive contact also at issue
The Prospective Adopters v FB and Others [2015]
Family Court at Swindon, Moor J
3 February 2015 [2015] EWHC 297
E was born in January 2015. His father was a recovering heroin addict who also abused alcohol and had a significant criminal record for dishonesty and domestic violence. E was the fifth child of his mother, who was a recovering alcoholic who had also used illegal drugs. She had some psychological difficulties caused by an abusive childhood. The mother’s history was one of engagement with alcohol services, leading to improvements in her care of her children but regrettably always followed by relapses. Her relationship with E’s father was marked by physical violence and threats, resulting in his imprisonment and a restraining order. The mother, however, continued the relationship while he was in prison and on his release, becoming pregnant with E. The local authority (LA) agreed that they would not take proceedings to remove E from his mother as long as she had no contact with the father. The mother did not keep to the agreement and E was removed in July 2013.
Care and placement orders were made and E was placed with prospective adopters in January 2014. In March 2014, the adopters issued their adoption application and the mother sought permission to oppose. The mother’s application was heard in September 2014 and the court was satisfied that she had made significant changes which gave her a realistic chance of opposing the adoption. A final hearing was listed for November 2014 but was vacated and moved to the High Court when an older sibling, CB, successfully applied to be joined as a party.
Adoption to circumvent immigration requirements
FAS v Bradford MDC & Another [2015]
High Court Family Division, Mostyn J
13 March 2015 [2015] EWHC 622 (Fam)
MW was born in November 1996 in Pakistan. In September 2012, his father brought him to the UK on a visitor’s visa to see family. Various accounts were given of events once in the UK, but at the end of October he was left with a cousin, FAS, a British citizen. On 6 November 2012, FAS instructed a solicitor to prepare an adoption application and MW’s father provided her with MW’s birth certificate and his consent. The application was issued by Bradford County Court on 13 November 2012. There were various procedural difficulties with the application: it was for a Convention adoption although Pakistan is not a signatory to the Hague Convention, the father’s consent was not provided in the proper form witnessed by a Cafcass officer and there was no consent from MW’s mother. The application was transferred to the High Court and was served on the Home Secretary, who objected to the adoption on the basis that it was being used as a way to gain British citizenship without meeting the immigration requirements.
The judge referred to In Re B (A minor) (Adoption order: nationality) [1999] 2 AC 136 in which the House of Lords allowed grandparents to adopt a 14-year-old who would otherwise have had to leave the UK. In that case it was made clear that adoption would not be allowed where the only benefit to the adoptee would be the right to remain in the UK as an adult. Mostyn J considered whether this approach was still appropriate in the light of the new welfare checklist in the 2002 Adoption and Children Act, which requires the court to consider the welfare of the child throughout its life. He concluded that in enacting the enhanced welfare test Parliament cannot have intended to open up a significant loophole in the tightly regulated area of immigration control. He also found it ‘extremely curious’ that Parliament had allowed for an adoption order to be made after the adoptee’s 18th birthday, as the effect of adoption is to transfer parental responsibility from birth parents to adopters, and parental responsibility is a concept that has no meaning or effect for an adult.
The court found that the only reason for the application for an adoption order was to achieve British citizenship and the right of abode for MW, so the application was refused.
Child placed with adopters pending appeal
Re S (A child) (No 1) [2015] EWFC 19 & Re S (A child) (No 2) [2015] EWFC 20
Family Court at Newcastle, Munby P
6 March 2015
Care proceedings were issued in respect of S in September 2013, when he was six months old. The mother had a troubled history and accepted that she would be unable to care for her son. The father was committed to caring for S but had a history of offending, domestic violence and alcohol abuse. The magistrates accepted the LA’s case that the father could not offer adequate care to S and granted care and placement orders. The father instructed his solicitors to appeal and they wrote to the LA indicating this intention and asking that S not be placed for adoption pending resolution of the appeal. Significant delays then ensued, including the magistrates taking a month to provide the reasons for the care order, which they had read out in court, but not providing their reasons for the placement order and the father’s legal aid application not being granted for two months. Although the care and placement orders were made in April, the application for leave to appeal out of time was not issued until 30 July. In the meantime, the social worker having checked with the legal department that there was no appeal lodged, S was matched with and placed with prospective adopters. The parents were not told of the placement, partly due to uncertainty about their current address and partly because of concerns about the safety of workers delivering the notification to the father.
The appeal was granted on the basis of the lack of evidence from the LA about possible supports to the father should S be placed with him and the lack of welfare analysis in the court’s reasons. The care and placement orders were set aside and the case remitted to a judge for rehearing.
On rehearing the case, Munby P found that despite efforts made by the father to address his alcohol abuse, the underlying difficulties remained. He was not convinced that the father really understood the impact of his actions on the baby and was driven to accept the case put forward by the local authority. He emphasised that he was not basing his decision on the belief that S would have a better life if adopted, but that he judged that S would not be safe if returned to his father’s care.
In his second judgement Munby P identified instances of poor practice in this case, which he set out in the hope that they would not recur. Firstly, a four-month delay in lodging the appeal was unacceptable – the father should have lodged his application in person while the solicitors sought legal aid and the magistrates’ reasons. The solicitors should have followed up their original letter to the LA to ensure that it was understood that the appeal was being pursued and to obtain confirmation that the child would not be placed for adoption in the meantime. The LA should have acknowledged the letter and acted on it, and it is incumbent on the LA to check the position regarding a proposed appeal before placing a child for adoption.
The child was placed at the beginning of July and the LA was given notice of the father’s appeal at the end of the month. The LA decided not to tell the adopters until the appeal had been heard. When the appeal was granted the adopters were on holiday and the decision was made not to tell them until they returned. While Munby P accepted that the information was initially withheld for the best of motives, the end result was greater distress for the adopters: ‘Complete frankness was surely called for from the outset’.
Comment
LAs are placed in a difficult position when a placement order is made but the parents indicate an intention to appeal. They have their order, and a duty to avoid delay in placing a child, but must be aware of the risks to a child in making a placement that may later lead to a further move if the appeal is successful. Appellant parents seem rarely to make an application for stay of the placement order pending appeal, and it may be possible for an LA that considers it appropriate to take the risk of placement pending appeal, to give the parents notice that they intend to do so unless the parents do apply for a stay of the placement order.
Damages for breach of human rights
Northamptonshire County Council v AS & Others [2015]
High Court Family Division, Keehan J
19 December 2014 [2014] EWHC 199 (Fam)
DS was born in January 2013 to a Latvian mother. His home conditions were poor, he was moved between homes several times and his mother had a new partner, a heroin addict who was aggressive towards her. The LA was concerned about DS’s physical safety and his mother’s engagement with professionals. They placed DS with foster carers when he was 15 days old, with the consent of the mother, although no interpreter was involved in that agreement. The LA made the decision to initiate care proceedings in May, and finally issued in November, after DS had been in section 20 accommodation for nine months. The case was transferred to the High Court and there were then further delays in arranging assessment of the maternal grandparents in Latvia and paternal grandmother in Spain. At the final hearing in October 2014, travel arrangements were in place to move DS to Latvia under a special guardianship order (SGO), but the making of the order had to be postponed because of the lateness in filing of LA evidence and the need for a comprehensive SGO support plan. The final hearing took place in December 2014. The LA accepted that it had breached the mother’s and DS’s Article 6 (right to a fair trial) and Article 8 (right to a fair trial) rights. DS had had eight allocated social workers, the first being inexperienced in care proceedings. Contact arrangements had not been adequately made and followed; assessments of the wider family were set up late, one being cancelled at short notice because the financial policies of the LA had not been followed; court orders for the filing of evidence were not obeyed.
The court was highly critical of the use of section 20 accommodation for such a young child and for such a long period, which deprived DS of the benefit of an independent guardian and of the court’s oversight of planning for his future. Keehan J quoted some of the more trenchant judgements of the President and others concerning the need for LAs in particular to comply with court directions, and emphasised that the Family Court will not tolerate any party ignoring court orders. He awarded a total of £17,000 damages to DS, his mother and the grandparents who are now caring for him.