The Transparency Project has blogged on aspects of how the family courts treat allegations of harm and abuse recently, mainly in the context of private law cases between separating parents: Mum’s Torment and What about Henry.

The origins of our interest are to be found at Child Protection Resource, for example here and here as well as Pink Tape here. Some organisations such as Women’s Aid have expressed concern that poor decision-making in child arrangement order applications for contact is endemic with an attitude of ‘contact at all costs’. (See the ‘Nineteen Child Homicides’ Report 2016 here). Others have suggested the situation is more complicated than this and difficult to extrapolate from individual cases with very limited information. (See Pink Tape here).

The recently published case of L (A Child) 2016 EWFC 52 therefore interested us as an example of a local authorities investigation into alleged harm and risk (and the courts case management), going very wrong in the context of care proceedings. (Fortunately here set ‘back on track’ by a High Court Judge, who really just happened on it by chance).

The Court Case

This was meant to be the final hearing of care proceedings brought by a local authority, on whether a 6 year old girl could safely go back to live with her father or required the local authority to make plans for her to live permanently away from her family.

They had removed her temporarily by agreement with the parents under s.20 after an injury to her head she said her father had caused by pushing her (that she must not tell about), alongside a pattern of marks that paediatricians said were not consistent with accidental causes, including some to her arms and shoulders consistent with ‘grip marks’.

She had been living with her father under a Residence Order for several years since an earlier court case when her parents split up.

By the time of this hearing her mother accepted she could not care for her daughter but her father wanted her to return home and said the head injury was from an accidental fall and the marks (if he had even caused them) must have been from over rough ‘horseplay’.

The Father had admitted cannabis use at the time of the incident. He also admitted an ongoing long-term anger management problem though had been asking for anger management treatment or therapy. A letter had also just been sent to social workers from his sister after a family group conference, expressing concern about 4 years of abuse and violence from him to her and the impact on her child of his shouting during the Family Group Conference. The child psychologist in the proceedings had said: In my view, anger difficulties, especially those that have existed over a prolonged period of time, are a surface problem arising from emotional psychological difficulties and personality factors. With this in mind, it is the underlying root cause of the difficulties that would need to be addressed, rather than the anger difficulties themselves.

Despite this the local authority proposed a final order for the child to return home to her father with a 12 month supervision order. (Presumably the Father had been willing to agree that the legal threshold for state interference by making of either a care or supervision order, was met on the basis of some agreed facts that established nothing in respect of the injuries beyond his admission of accidental horse-play.)

(A Supervision Order gives the local authority no decision-making rights but directs them to “advise and assist” for a period. It can include a level of monitoring or very little, depending on how rigorously it is implemented. Some people worry that sometimes supervision orders result in very little assistance or monitoring in some overstretched and struggling councils)

The Guardian disagreed with the local authority but her/ his objections are not detailed in the judgment.

Holman J happened to have the case transferred to him because of a cancellation. It would have been more usual for the case to have stayed with the original District Judge because continuity of case management normally helps good management of cases.

What Holman J said:

 Holman J expressed concern that “the case may not have been treated by the local authority as having the potential gravity which, in my view, it does have”. 

“It seems to me crystal clear … that before this child could safely return to live with her father, and maybe even have periods of overnight staying with her father, there needs to be a much more thorough investigation into, and much more clarity about, first, the events which led to the marks and injuries observed on 21 March 2016; and, second, his underlying emotional or psychological state, and whether or not he can be helped to control his temper and anger. As things stand, quite frankly, it would be a far too risky and dangerous leap into the dark simply to allow this child to return to live with her father. I stress yet again that I do not rule that out in the future; that will be entirely a decision for another judge on another day.”

In particular he pointed out that:

• The local authority had failed to send the fathers response that the marks were caused by accidental rough ‘horse-play’ to the paediatricians who had said they were consistent with non accidental injuries for their further response;
• A fact finding hearing essential in a case like this had not taken place;

“In my view, marks and injuries of this kind require very careful investigation and fact finding by a court. As I have said, in themselves and with the possible exception of the swelling to the forehead, none of them are, or were, in the least serious. However, a very fine line indeed, and frankly a large element of luck, can separate marks of this kind to a child from very serious, if not catastrophic injury”

“The concern in this case must be that there was a loss of control on, or during the weekend before, 21 March when something happened, which mercifully caused no significant harm to this child, but which might have led to very great harm indeed.”

• The local authority had delayed for 3 months between removing the child under s.20 CA1989 (‘voluntary accommodation’) and issuing the care proceedings with the effect that there wasn’t a formal response from the father to the allegation that he had harmed the child, other than by accident, until months after the incident and medical examination.

• Specialist assessment of the father’s anger management, cannabis use and psychological functioning to inform decisions about his parenting capacity / risk he might still pose to the child and whether or not things could be made safe enough for the child to return home had not been obtained

How Holman J put the case back on track

 Holman J made clear “it would be dangerous and very irresponsible simply to return this child to the care of her father in the immediate or near future.”

He adjourned the final hearing and arranged for it to be heard from now on by a judge of at least circuit judge level.

He suggested an independent paediatrician be jointly instructed to review the evidence on the marks and injuries and that irrespective of delay, the father required assessment by an adult psychologist in respect of his personality and functioning.

Discussion

It’s alarming to think that what might have happened had the case not been moved by chance, is a return home of the child without a fact finding hearing or psychological assessment of the father. On the other hand the Guardian may well have been persuasive on behalf of the child or appealed if necessary.

It may also be worth noting that in care proceedings like this the child had the extra protection provided by an automatic Guardian and solicitor through legal aid. And both parents having legal aid.

Whilst little can be extrapolated from an individual case except that sometimes things do go wrong (which we know already), it’s worth noting that it was unusual for us to see this and had the case proceeded as sought by the local authority we would not have seen the judgment at all. The President’s Transparency Guidance on publication of judgments does not apply to Judges below circuit level and District Judges very rarely elect to publish their case judgments.

It’s also reasonable to speculate that the position of the local authority here might reflect a perverse incentive on a target driven council to adhere inappropriately to the requirement that care proceedings be completed within 26 weeks so long as this coincides with the interests of justice and the particular child’s needs. As Holman J’s decisions reflect, the timetable can and must be extended where it doesn’t.

The whole point of practice direction 12J which applies not just to private law proceedings but all cases involving allegations of domestic abuse that might affect outcomes, is to avoid this kind of unfocused treatment of allegations of risk or harm that are likely to (or should) affect the outcome of decisions about where a child lives or contact arrangments etc.

The Transparency Project intends to publish a detailed Guidance Note soon about how allegations and evidence of domestic violence and abuse are treated in the family courts through funding recently granted by the Legal Education Foundation. We are also working towards an event in the new year.