The judgment following the rehearing in the case of M (Children)  EWCA Civ 61 (02 February 2016) has now been published, see Re M (No 2)  EWHC 1658 (Fam) (19 May 2016), a judgment of Newton J.
You may recall this case – it was the one in which a christian adoptive couple were successful on appeal against care orders made in respect of their two adopted sons because, in a nutshell, the judge’s analysis was inadequate. In particular, there had been an agreed threshold, but insufficient analysis of the causal connection if any between the boys behaviour (they had been harmed and traumatised prior to adoption in the care of their biological parents) and the parenting received by them from their adoptive parents. And there had been insufficient consideration of whether adequate post-adoption support had been offered or whether if now offered it might enable a rehabilitation to take place.
The parents had been represented by Christian Concern, through counsel Paul Diamond, a familiar name in cases with a (Christian) religious discrimination flavour. The position of the adoptive parents in that appeal had been that the problems were caused by the failure of the LA to provide post-adoptive support, that the children had been unlawfully removed and that they asserted that they were being discriminated against as Christian parents. Remember that position. As a result of the inadequacy of analysis they got a second try on those arguments as the Court of Appeal allowed the appeal and remitted the matter for rehearing.
The rehearing judgment is something of an eye opener. The adoptive parents do not come out of it well. Their methods of parenting are described as “strict, to the point of being ritualistic, harsh and abusive”. The mother herself gave evidence of her belief in demons and the very physical and frightening methods she used to cast out those demons (some sort of exorcism involving holding the child down, speaking in tongues). Washing the child’s mouth out with soap was also another punishment method, and the judge did not mince his words about that :
I am sorry to say it, but how any civilised adult in a modern, decent society can really argue that washing the mouth out with soap, as it has been described to me, something which may have occurred half a century or more ago, but not now, or the forcible immersion in shower is a suitable or remotely appropriate punishment, is frankly beyond me. Those are behaviours which are in no circumstances ever acceptable.
He goes on to describe just how positively destructive they were for these children, with their history of trauma and rejection, and their desperate need for acceptance and nurturing. The judge said that “As a matter of common sense, the admitted way in which the boys were treated has frankly caused them emotional harm and has, I am sorry to say, overwhelmingly clearly re-traumatised them, because it has maintained and strengthened their own insecurities.”
Although the parents had conceded threshold at the original trial, it was apparent from the evidence that they gave and the position they adopted in the rehearing that they did not in fact accept that their parenting had caused significant harm or indeed that it was really inappropriate at all – although the judge is at pains to say that he accepts that they acted out of the best of intentions. He says :
So the central question is, in fact, was there a causal link? Was there some link between the behaviour or the boys, as it transpired, and the parenting style? Does the evidence demonstrate that that is something which has caused or contributed to their behaviours? The clear, unequivocal and overwhelming answer is “yes”. The extreme nature and extent of the behaviours of the parents is such that it is obvious that the parents’ conduct has created this schism. I have no doubt that the parents had the best intentions. I have no doubt that, concentrating on the future, they endeavoured very much to try and provide a good home for them.
When the matter was reviewed by the court, now nearly 18 months ago, the court was misled as to the extent of the factual acceptance, as the evidence before me has vividly demonstrated. From the outset, the father has never really accepted the threshold triggers and did not accept, neither did the mother, that he had caused any harm.
The judge also concludes that the parents misled professionals before and after the adoption – about their parenting methods and the extent of the problems – to such an extent that if the truth were known the adoption may well not have been approved. He says that the parents misled the court about the extent of their admissions on threshold (see above). Even more astonishing is the fact that the parents position at the rehearing was utterly inconsistent with that adopted by them on appeal – and it appears inconsistent with the case led on their behalf at the outset of the retrial. This much appears to have emerged from their evidence, where it became apparent that the parents had not sought any help and had actively resisted it (and thus could not and did not assert that the LA had failed to provide requested support) – and that they no longer asserted that the removal under police powers of protection was unlawful.
There is a limit to how useful / appropriate it is to speculate about what is behind this change of position – that is a matter between the parents and their counsel – but there are of course a limited number of explanations, which range from : a change in their instructions to their counsel at some point, to their advocate acting without or contrary to their instructions or significantly misunderstanding their instructions (apparently with the client acquiescing), through to giving instructions on an agreed strategy / position but being unable to adhere to that in the moment in the box. I don’t know which applies here and I make no assertion as to which is more likely (and there are no doubt some scenarios I haven’t thought of), but any of those explanations would be of note and concern for different reasons – not least because of the material published by, on behalf of, or with the involvement / apparent approval of the Christian Legal Centre and the parents prior to the change in position but still publicly available (see below). See this passage :
At the start of this case, and indeed at its core, Mr. Diamond contended to the court on behalf of the parents, and starkly argued that the local authority had acted unlawfully and unreasonably, and had been entirely responsible for re-traumatising of the boys. A significant plank of his case in relation to support has, in fact, fallen away, in the sense that the evidence clearly shows that no report or request was ever made to the local authority, either Cambridgeshire or the originating authority, for assistance, help or support, other than a request to the general practitioner in April 2014, but was not, for one reason or another, pursued, and in any event, as counsel now accepts, is not part of the parents’ case.
In fact, the parents made clear in evidence that they do not rely on the way the case was put by their own counsel; that is that the difficulties which arose were attributable to the removal of post-adoption support, because (a) they had never sought it, and (b) it was evident that the difficulties which they had or lack of post-adoption support did not form, as they told me, any part of their case. The court, therefore, does not have to consider s.4 of the Adoption and Children Act. Nor does it have to consider the major plank of the argument which was placed before the Court of Appeal and which led substantially to the order for a rehearing. It is not something that was pursued in final argument before me, or indeed was pursued by the parents during the case. Their stance was an entirely different one. Whilst forming no part of my reasoning for this judgment, the Court of Appeal in those circumstances may well not have allowed the appeal.
Who knows what the explanation is, but it does not smell very nice. And, one assumes that Mr Diamond had a few awkward moments in the course of this hearing.
Mr Justice Newton makes this slightly cryptic observation immediately after setting out the change in position :
I should also record that a troubling and intrusive aspect of the case has, from time to time, surfaced, such that there were times when it seemed to me to threaten to obscure the court’s enquiry pursuant to the Children Act 1989, and indeed led to the mother interrupting the hearing, such was her anxiety about that line of enquiry; that is that the parents have an obvious and undoubted right to be assisted and represented by individuals or organisations of their choice; in this case, the Christian Legal Centre.
As before the Court of Appeal, the parents maintained, not only that they feel that they had been treated differently from the way that any birth parents would have been treated within the care proceedings, as to which, in fact, there is absolutely nothing to indicate that that is so, but also that they were the victims of state suspicion of Christian parenting, both by the authority and by the family courts. They have sought to put their case at the centre of political campaigning by the Christian Legal Centre and an associated body, asserting that they were treated with suspicion and prejudice because of their Christian faith, that they were treated as if they were not the real parents, and that the secretive nature of the family courts means that these injustices are covered up.
I am not sure that being advised and represented by a politically motivated group that believes that the courts are hostile to Christians and supports the rights of parents to behave in a particular way (particularly in relation to corporal punishment, and additionally opposing state interference in family life) has been entirely helpful to the parents’ case. There have been moments, as I say, when it appeared to take over this enquiry, but this case is not about that. This case is about the welfare of these two young, vulnerable and deeply disturbed boys, and whether or not they can be returned to the care of their parents if, as I would very much wish, the circumstances were such that the family could be reunited.
This is a familiar scenario for those of us who see parents represented or “assisted” by other sorts of campaigning groups – there is a legitimate concern (sometimes but not always realised) that the focus on the individual needs of this child will be lost amidst the need to make the bigger point. I hope that isn’t what happened in this case, and I particularly hope that it did not contribute to the parents’ inability to reflect on their own part in this very sad story, which was the determinative point in the judge’s conclusion that the children could not return home and any rehabilitation would be doomed to failure.
Newton J makes reference to material published online shortly prior to the hearing. He is (I think) referring to two things : an article published in [sorry – paywall] The Times in January 2016 (shortly before the appeal hearing) in which the Father is quoted as saying that “Social workers do seem to be trying to socially engineer families to fit their idea of how families should be. No family can conform to that ideal, so they are all at risk.” (there’s that “bigger issue”), and where the Christian Legal Centre and Paul Diamond are each quoted along the lines of the appeal as run. And secondly, to a video which is still available at the time of writing on the Christian Concern website and on YouTube, and which shows the parents, their home, the children’s belongings, and photographs of the children wearing quite distinctive clothing (all with faces fuzzed out). It has had a significant amount of views. In the video the parents give an account of the removal and their experiences. Significantly for me, they are content to tell the world that their children are dishonest (they don’t use that word but that is their very clear meaning). I hope that the video is removed before the children identify themselves and are further traumatised – no doubt the parents could secure its removal should they wish to do so. I prefer not to include the link.
The judgments of the Court of Appeal and Mr Justice Newton are freely available, and the original judgment at first instance is substantially set out in the judgment of the Court of Appeal – the complaints of the parents that “the secretive nature of the family courts means that these injustices are covered up” do not seem to hold water. This is not a case of secret justice, it is simply a case of two judges in succession rejecting the parents’ case as put by counsel of their choice.