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Are more children about to give evidence in care proceedings?

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Are more children about to give evidence in care proceedings?

Each year about 40,000 children each year give evidence in criminal proceedings; often with special measures, but the fact remains that they still give evidence. In the family court social workers, guardians, parents and indeed their advocates generally start from the perspective that children should never give evidence in court. The Court of Appeal in Re E (A Child)[2016] EWCA Civ 473 heavily criticises this practice and concludes that such a presumption is contrary both to the binding decision of the Supreme Court in Re W (Children)(Family Proceedings: Evidence)[2010] UKSC 12 and Article 6 of the European Court on Human Rights.

This issue has recently come to the fore as a result of a fact-finding hearing in care proceedings before HHJ Watson (sitting as a Deputy High Court Judge) who made a number of findings of sexual abuse against a father and his teenage son (A). The judge determined that the abuse was perpetrated against A and three other children. What the judge did not do was hear evidence from any of the children. She declined an application for the children to give evidence during the fact-finding process and determined that the issue would be kept under review during the trial. The Court of Appeal allowed the appeal against the findings and criticised the "process and procedure together with the judge's overall analysis"

So how do we change this mindset?

Well the starting point as we all know is Re W and the relevant factors as set out by Baroness Hale. These should be considered with (from paragraph 9) the Working Party of the Family Justice Guidelines on the issue of Children Giving Evidence in Family Proceedings [2012] Fam Law 79.

The Guidelines themselves set out 21 factors to which the court should have regard when determining whether a child should give oral evidence in the determination of a fair trial. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:

i)the possible advantages that the child will bring to the determination of truth balanced against:

ii)the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence’

It is very clear that the question of children giving evidence should be determined at the earliest stage and certainly not on the eve of trial. There will be have to be an evaluation of the available evidence and whether the child’s evidence would assist the court in determining the issues. This will obviously require a full consideration of the ABE evidence. This will mean obtaining it from the police as soon as possible and not simply relying on police summaries. There really should be a separate hearing on this issue, with skeleton arguments and for the advocates to have watched the ABEs (and indeed the judge) prior to this hearing. The funding for this work should make for an interesting discussion with the LAA.

Whilst it remains good practice for the court to obtain the analysis of the guardian on whether to call a child to give evidence, it is the court’s decision alone as to whether a child gives evidence. McFarlane LJ recognises in Re E that guardians often start from the premise that the child will suffer emotional harm should they give evidence. Is not this also the view of almost every social worker? The court must be alive to this argument and must thus balance this as just one factor to be weighed against the possible advantages of the child giving evidence in a determination to find the truth. Such emotional harm may be temporary as balanced against the prospect of a fair trial. What is certainly the case is that the emotional harm argument should not, as appears to be the case presently, represent the start and the finish of the argument.

The court will have to give a ‘full and sophisticated evaluation of the relevant factors and provide a judgment’. For many this will be a significant shift, but should certainly emphasis the need for this to be in the forefront of the court’s mind.

As a consequence the Court of Appeal note that, in accordance with recommendations from the President's working group on children and other vulnerable witnesses, the FPR 2010 will soon be amended to take account of the decision in Re W.

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Plain English: A Judge’s journey into the unknown

Legal commentators are rightly excited by the judgment of Mr. Justice Peter Jackson in Lancashire County Council v M [2016] EWFC 9 and others, due to its use of plain English. The judgment is clear, concise and very easy to read. These were care proceedings concerning four children, in which there was a concern that the father of the youngest two children might take them to Syria. The judgment has been kept as short as possible so that the mother and her older children could follow it.

What is perhaps so surprising is that this use of plain English is not more common. Particularly when the Plain English Campaign was set up almost 40 years ago with a campaign against gobbledygook, jargon and misleading public information. Certainly no place for legalese. Some might even suggest that a plain English campaign is completely at odds with everything that lawyers stand for. But when many of us now only communicate in 140 characters or less perhaps it is finally time for lawyers to recognise and even embrace this the new world.

This type of judgment is long overdue. I appreciate that there is a balance to be struck between setting out the legal test, the analysis and indeed the basis for the judgment; but in care cases there also needs to be recognition of the parties involved and their understanding. Decisions made in care proceedings are life changing; for both the adults and the children. I have often sat with clients who comprehend the odd word here and there, in dare I say, somewhat long winded judgments: listening patiently and desperately simply to know if their children are coming home or not. Where more and more litigants are facing court without the assistance of legal representatives it imperative that more tribunals keep it as simple as Mr. Justice Peter Jackson.

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A question of bias: from the children's guardian?

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A question of bias: from the children's guardian?

For a whole variety of reasons, it is not uncommon for parents in care cases to allege that the children’s guardian is biased against them. Over the years, I have had many parents tell me that the guardian has ‘taken against us’, ‘will not listen to us’ or simply ‘does not believe a word that we say’. More colourful language is not uncommon.

A similar argument recently came before Mr Justice MacDonald in QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam).

Mother applied for the termination of the guardian on the basis of an allegation of bias. The matter related to the living arrangements of a child adopted in Nepal by British citizens. 

The mother’s complaint was that prior to receiving all of the evidence, a position statement had been filed on the guardian’s behalf expressing a view as to the child's best interests. The mother also made wider generalised assertions of unfairness.

The mother considered that the position statement appeared to favour the father's case. She therefore applied for the termination of the appointment of the children's guardian pursuant to FPR 16.25(1)(b). Mr Justice MacDonald dismissed her application, considering it to be misconceived.

He first reminded himself that where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered; namely "whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". 

Thus the issue of apparent bias arose in the context of the conduct of a person occupying a judicial or quasi-judicial role. This however is not role of the guardian. The guardian does not make a determination, simply a recommendation. Whilst the guardian is under a statutory duty to advise the court, he or she is not the decision maker in the process - that responsibility lies with the tribunal.

The court further acknowledged that the right to a fair trial guaranteed by Art 6 is not confined to the 'purely judicial' part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730). However, where it is said that biased or unfair conduct on the part of a person under a duty to advise the court will lead to bias or unfairness in the proceedings, a causal link must be demonstrated.

In reality this will be extremely difficult to prove. You would have to show that this person would impose his or her influence on the tribunal.

The court reiterated the role of the guardian - they are not a “neutral” party nor do they have a “special” status within the proceedings. Whilst this is perhaps trite, there are many guardians and indeed tribunals who forget this but ultimately the court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

In this case Mr Justice MacDonald held that there was no real likelihood that the approach of the guardian would lead to unfairness in the proceedings such that it required the termination of his appointment.

The court's discretion to terminate the appointment of a children's guardian was one that should be exercised sparingly; taking into account the need to deal with cases justly having regard to the welfare issues involved.

This decision should not come as a surprise but it perhaps reminds us of two points.

1.It is perhaps a case to have to hand, simply sometimes to remind tribunals of the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children's guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses. Far too often tribunals appear to forget this and perhaps, dare I say, take their word as gospel.

2.And for advocates everywhere to remember the words of Ward LJ in Re J (Adoption Appointment of Guardian ad Litem) [1999] 2 FLR 86 where he re-iterated that frequently, a children's guardian holding a certain view can be persuaded under cross-examination to change their minds, that the "flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations". Whilst I am not sure I can agree with the word ‘frequently’, let me assure you that it can and does happen: sometimes.

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Back to basics - from A to J

The President of the Family Division has once again shown his frustration with those involved in public law work. Not for the first time this year the President (endorsed by the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222) has stressed that pleadings need to be drafted properly, threshold matters and a failure to comply is simply unacceptable.

As set out in Re A (A Child) [2015] EWFC11, it is necessary for the Local Authority to link the facts it relies upon with the conclusion that the child has suffered, or is at risk of suffering, significant harm. This might not be obvious, for example in relation to emotional harm. A Local Authority might plead that a parent does not co-operate with professionals but why does this establish significant harm or the risk of significant harm?

The President reminds us that it is for the Local Authority to prove its case on the balance of probabilities. If its case is challenged on a factual point, it must adduce proper evidence. Hearsay evidence, though admissible, may not be sufficient to establish a fact against the firsthand, oral evidence of a parent.

The President makes a point of referring to hearsay evidence in social work chronologies and case recordings. Often through sheer repetition of hearsay evidence, the Local Authority and other professionals working with a family, accept it as fact. As the President stated:

“a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it.”

It will be interesting to see how this develops where Threshold remains an issue at final hearing. It suggests that a significantly greater number of witnesses will need to be called than hitherto. 

An all too familiar plank of a Local Authority's case against a parent is their lack of insight or acceptance of a concern. The President makes the perhaps obvious point that if this ‘thing’ or concern is in issue, the Local Authority must both prove the ‘thing’ itself and also show why it has the importance attributed to it by the Local Authority.. 

The President offers strong guidance on how threshold and proposed findings of fact should be drafted. Findings that someone has “appeared” to do something or that another person have reported something are wrongly formulated. 

The President reminds social workers, children's guardians and family judges of the case law which establishes that society must be tolerant of diverse standards of parenting, that the courts are not in the business of social engineering and that we must have a degree of realism about prospective carers.  

The President stressed the words of HHJ Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam)

 " 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."

The Court of Appeal in Re J (A Child) [2015] EWCA Civ 222, considered that the question of whether a young, immature couple was likely to cause significant harm to their baby required a far greater degree of analysis that it had received from the Local Authority or indeed the Judge. It stressed that even where Threshold was met, there needed to be a similarly thorough and clear analysis of the evidence to determine the welfare outcome. One does not simply follow the other.

 

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TOIL

Perhaps the three witches in William Shakespeare’s Macbeth had it right all along when they chanted their hymn of “double, double toil and trouble: fire burn and cauldron bubble”. Their reference of course had nothing to do with TOIL being an acronym for Time Off In Lieu – the latest weapon in the work – life balance for many employers.

But perhaps in hindsight  the witches had it right all along, as for many employees whilst the gift of TOIL has been conceded by their employers is it in the best interest of their career to claim or is that in fact just going to cause them a lot of trouble down the line.

TOIL is the latest concept in the current debate over the work-life balance. TOIL is already used within the civil service and across the public sector. However even big businesses such as BT plc see the benefit of a happy and stress free work force.

TOIL arises where an employee has worked their contractual hours and rather than receiving overtime for any additional work they can simply claim TOIL. They can tot up the extra hours which they work and use them when it is of more benefit to both them and the employer.  If you work an extra hour you get an extra hour at a more mutually convenient time. Hours can be added up at the end of the week or month and the accrued time taken as additional holiday. Travel can also be included within your TOIL timetable where the travel in is addition to your standard travel. It is most unusual for ordinary journeys to and from work to be included, but if you are working away from the office or taking extra time in meeting clients then this additional time can be included. As too can any additional time you spend working at home writing reports or even checking e-mails. TOIL is not a statutory benefit given as of right, but something to negotiate with your employer either at the start of a contract or at the most appropriate time.

So TOIL seems great. An excellent way for employees to receive proper recompense for putting in those extra hours. If the employer can not afford to pay overtime then the employee can earn a few extra holiday days. Or put more simply get back the time they put into the employer’s business. But the dilemma is do you actually take your TOIL time or do you just knuckle down and give the time freely to your employer in the hope that you get noticed for the right reasons and are rewarded not with extra days of holiday but with a cash bonus and promotion.  If you do take your TOIL and the rest of the team does not avail themselves of taking their time off are you really seen as a team player or the sort of person that the company is looking for? When it comes to promotion is the employer going to give the post to the person who works the overtime freely or the one who meticulously marks up the extra time and claims it as TOIL?

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