Family Law Newsletter #4718.05.21
Issue #47 of Spire Barristers' Family Law Newsletter: edited by Chloe Lee and Philippa Pudney; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
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Amendments to standard public law orders
A, B and C (Children)  EWCA Civ 451
In the Court of Appeal (Civil Division): Lady Justice Macur, Lord Justice Baker & Lord Justice Arnold
-2 separate appeals concerning findings of fact made within the context of sexual abuse allegations made by children
The substantive case concerned three female children, A (aged 8), B (aged 5) and C (aged 3). The children’s mother is G and stepfather is H. A’s biological father is J. D (aged 17) is H’s nephew. A made allegations to G and J that she had been sexually assaulted by D in 2019. J reported A’s allegations to the police and A also made similar allegations to H.
The first appeal was that of D, the juvenile intervenor in the fact-finding hearing, who criticised the process by which serious findings of fact were made against him and which he argued were consequentially flawed. The second appeal was that of H, the stepfather of A (the child alleging sexual abuse), and the biological father of B and C. He disputed the judge’s conclusions as to whether the threshold conditions of s.31 Children Act 1989 were made out.
During an interview at school in December 2019, A made further allegations and therefore all three children were made subject to the police’s powers of protection. A also took part in an ABE interview the following week. D was interviewed by police on the same day and denied the allegations. The Local Authority issued care proceedings in February 2020 and the children were subsequently made the subject of interim care orders. H and G split up and H moved into D’s family home whilst searching for alternative accommodation.
On 9 December 2020, Recorder Posner made the following findings:
1. D had anally raped A on multiple occasions during January and February 2019 at his home and once in April 2019 in the garden of A’s home;
2. H did not know or suspect that D was sexually abusing A at the time but once he became aware, he did not take any protective action; and
3. If A knew that H had been living with D since April 2020, this message would be ‘potentially emotionally harmful.’
It was held that A had suffered significant physical, emotional and sexual harm at the hands of D. It was further held that H was likely to fail to protect A, B and C from future sexual abuse by a person or persons unknown and this was likely to cause them significant emotional harm.
On behalf of D, it was submitted that the Recorder erred in her approach to his oral evidence and that the conclusions she drew from the lies she determined he had told were unsafe. In particular, attention was drawn to the analysis of D’s evidence in relation to D’s difficulties in processing and retaining verbal information, D’s difficulties in challenging an incorrect statement phrased as a question, and D’s tendency to answer questions in haste.
On behalf of H, it was submitted that there was no evidence that A suffered significant harm as a result of H’s inaction. It was also argued that there was no real likelihood that he would fail to protect B and C from abuse in future.
The Local Authority supported the Recorder’s assessment of D. It was conceded that the Judge could have said more to relate the lies she concluded D had told to his general credibility, but this did not undermine the soundness of the overall analysis. In respect of H’s appeal, it was argued that H’s response to the allegations was not a protective one towards the children in his care.
D was granted permission to appeal on the ground that the learned judge was wrong to find that he had lied to the Court in the witness box on five occasions and failed to make sufficient allowance of his age and maturity.
At , Macur LJ concluded that ‘there was absolutely no reason why D would be classed as incompetent to give evidence.’ In relation to the importance that should have been placed on D’s dishonesty, at  the Court highlighted the case of Re H-C (Children)  EWCA Civ 136, where it was held that a Lucas direction was appropriate where the lie ‘has a prominent or central relevance to the case’. However, Macur LJ made clear that a Lucas direction should be given with caution so as not to treat what a court considers to be an established propensity to dishonesty as determinative of guilt.
At  the Court established that where a Lucas direction is purported to be required then Counsel’s submissions should be sought to establish:
1. The deliberate lies upon which they seek to rely;
2. The significant issue to which they relate; and
3. On what basis it can be determined that the only explanation for the lies is guilt.
Macur LJ concluded at  that ‘none of the reasons the Recorder gives can withstand critical scrutiny’ and that the conclusions she made about D’s demeanour were not logically connected to the inferences drawn from the evidence given by D. The Court later held that whilst there was evidence upon which findings of sexual abuse could be made, the Recorder should have given regard to all of the evidence. Furthermore, Macur LJ determined at  that she was not satisfied that but for the lies the Recorder determined D had told, she would have made the findings against him. D’s appeal was, therefore, allowed and the matter remitted for a case management hearing.
In relation to H’s appeal, it was held that ‘the conclusions the Recorder made regarding the threshold criteria… have unquestionably overreached the findings she made against H.’ At , the Court decided that the Recorder’s reasoning was not comprehensible because there was too much of a “leap” from criticising H’s reaction to A’s sexual abuse allegations to concluding that he would fail to safeguard all three girls from sexual abuse in the future.
The case of Re A (Application for Care and Placement Orders: Local Authority Failings)  1FLR 1 was highlighted as it was held that parents are all likely to be imperfect in various different ways and courts should not adopt a model of perfection against which to assess the parents’ alleged shortcomings. Applied to the present case, the Court determined that the Recorder had erred in this respect when making the finding against H.
Accordingly, H’s appeal was also allowed with directions that the welfare hearing in which H sought to resume care of B and C should proceed without delay.
Full judgment available at: https://www.judiciary.uk/wp-content/uploads/2021/04/A-B-C-CHILDREN-judgment.pdf
Re F (Assessment of Birth Family)  EWFC 31
In the Family Court: The Honourable Mr Justice Cobb
-An application under Part 18 Family Procedure Rules 2010 to determine whether there was an obligation for the Local Authority to assess members of the mother’s “birth family”.
Ms Reagan Persaud of Spire Barristers acted for the Local Authority.
The subject of the application was F, aged 15 months. Her mother was Miss S and her father was Mr T, who had no current relationship with Miss S and did not wish to care for F. F was in foster care and had been for six months prior to this hearing. She had regular contact with her mother and her maternal grandparents. The Local Authority gave notice of its intention to return F to the care of her mother in a highly supported community setting where the mother would receive intensive therapeutic support to address her mental ill-health and emotionally unstable personality disorder.
The mother was 19 at the time of the hearing and had spent the first 4 years of her life in the care of her birth mother and father where, the Local Authority alleged, she suffered significant neglect. At age 6, she was made the subject of a placement order and adopted by Mr M and Ms N, the maternal grandparents of F, along with her younger brother. The mother suffered mental ill-health from the age of 11 and at the time of the hearing was considered to suffer ‘complex mental health difficulties.’
These difficulties progressed significantly at age 13 when her birth mother contacted her via social media and the mother reports her adoptive placement began to break down. In 2019, the mother visited her birth family over several weekends and during one of these visits discovered she was pregnant, aged 17 at the time. F was born in January 2020 and at age 2 months, the mother took her to see her own birth family. During this visit, F fell from her pram and sustained a fractured skull, resulting in hospital treatment. A Child Protection Plan was put in place under the category of neglect and the professionals involved advised the mother not to visit her birth family again. The mother agreed that her birth family were not a supportive influence and disassociated herself from them. F was accommodated in September 2020 because of a decline in the mother’s mental health and her relationship with an abusive partner.
The mother was assessed by the Local Authority for her capacity to care for F, which was positive overall but not without concerns. Mr M and Ms N did not feel able to offer a home to F due to their work commitments, age and on-going difficulties with both Miss F and her brother, so declined to be assessed.
On behalf of the Local Authority, it was argued that it was ‘incumbent on the Local Authority to assess members of the birth family’ for the following reasons:
a. they were bound to the mother and to F by a relationship of consanguinity;
b. they knew of F’s existence;
c. they were interested in F;
d. the birth maternal grandmother successfully cared for a child after the adoption of the mother and her brother;
e. the mother continued to maintain a relationship with her birth father by text and phone; and,
f. members of the wider birth family cared adequately for their children without any social work concerns.
On behalf of the mother, it was argued that no assessment of the birth family should take place for the following reasons:
a. the mother strongly opposed this assessment (seeing her adoptive family as her ‘family’);
b. the mother believed that her birth family would be unsuitable carers for F;
c. the mother had fallen out with her birth mother so conflict would be likely;
d. the mother felt that an assessment of her birth family would destabilise her mental health;
e. any assessment would create divisions within the mother’s adoptive family;
f. the mother’s birth family ceased to be her legal family when she was adopted; and,
g. the Article 8 ECHR rights of the birth family were virtually non-existent.
On behalf of the Children’s Guardian, it was submitted that there was no obligation for the Local Authority to make the assessment and given the mother’s opposition, it would be counter-productive to do so.
The case of Re A, B, C (Adoption: Notification of Fathers and Relatives)  EWCA Civ 41 was cited at , where it was held that there ‘is no statutory obligation upon a local authority to make enquiries in every case and the issue of notification is a matter of discretionary judgement in light of all the facts of the case.’ The case of Re C v XYZ County Council  EWCA Civ 1206 was also cited at , where it was similarly held that there is ‘no duty to make enquiries which it is not in the interests of the child to make and enquiries are not in the interests of the child simply because they will provide more information about the child’s background: they must genuinely further the prospect of finding a long-term carer for the child without delay.’
The Court concluded that the Local Authority was under no obligation and indeed should not embark on any assessment of the birth family. At  it was held that the mother’s birth family were her original family but were not her current family, nor were they her relatives. Furthermore, the birth family’s limited contact with F so far fell short of supporting any finding that they had acquired Article 8 rights to a family life with F as this cannot be established on the basis of biological kinship alone. Additionally, even if the birth family brought themselves within the definition of ‘family’, there would still have been no obligation for the Local Authority to inform, consult or asses them.
It was also held that there were clear reasons steering away from the birth family as a realistic option to care for F, including the fact of the mother’s adoption due to neglect, the events surrounding F’s injury in March 2020, the accepted fact the mother and her birth mother have a difficult relationship and the view of professionals that the mother should avoid contact with her birth family.
Accordingly, it was concluded that whilst there might be ‘a situation in which a birth family could properly fall to be assessed in circumstances such as these, where for instance the previously adopted parent… had reconnected successfully with his/her birth family’, but that that was not the case in the present scenario.
Full judgment available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/31.html