Did I mention the conference?

I possibly forgot to mention this…

The Transparency Project are once again involved in a multi-disciplinary conference about the child protection system – entitled “The Child Protection System – Where do we go from here?”. This conference, is the second held by its organisers and is intended to be a genuine conversation between professionals of different disciplines AND those whose lives the court and child protection system actually affects. It is being held on 3 June in Birmingham and will be ACE*. The conference will be opened by DJ Gailey, who is a “Diversity and Community Relations Judge” (yes, apparently that’s a thing. Possibly it is just a list of the ones the MoJ thinks its safe to let loose, or possibly it is a bit more serious and skills based than that. I’m pretty confident it’s the latter – see here) and will involve all sorts of other interesting and challenging speakers and participants (Maggie Siviter, Clare Fenton-Glynn, Dr Lauren Devine, Brid Featherstone, Louise Tickle…and bringing up the rear, petite moi).

Do take a look at the information, circulate it to colleagues and friends, tweet it like crazy and share it on all your weird facebook yahoo  google groups – and book a place!

*the author is not responsible for any difference of opinion between me and thee about what constitutes “ACE”.

Not bias but a right old mess

The Court of Appeal today handed down judgment in Re H (A Child) [2015] EWCA Civ 1284, which you will have seen in its previous incarnations here : when the original first instance decision on care and placement orders was successfully appealed : Re H (Children) [2015] EWCA Civ 583 and when Russell J subsequently dealt with the rehearing and combined adoption application in July (the second first instance decision) here : Re W (Adoption- Reunification) [2015] EWHC 2039 (Fam).

This was a case originally involving four siblings, three of whom were rehabilitated to the father’s care following maternal mental health difficulties. The child we are concerned with is the baby of the family, although the pinging and ponging of the case to the Court of Appeal twice (so far) has meant that she is now 3 years old.

This was a depressing read for a Friday night in December, so I’ll just set out a few key points, as they strike me, rather than a methodical or in depth analysis.

Firstly, in Court of Appeal Round 1 the DJ was overturned primarily because his judgment did not pass the Re B-S analysis test. Importantly, the Court of Appeal left his threshold findings of fact untouched. However, Russell J in First Instance Round 2, seemed to take the approach that the Court of Appeal had indicated that the Judge’s conclusions as to threshold were also unsound – and wrong.

This led her to criticise the LA in her judgment (pa 20) :

    In the light of the local authority’s stance in the Court of Appeal it was most regrettable that before me they continued to place emphasis in their approach to this case on the need for the father to accept their view that his own experiences as a child made him unable to accept help and advice; as exemplified by the evidence of the current social worker Lucy Wilkinson. Their view of the father seemed to remain unaltered despite the fact that he had remained separated from the mother; had been to counselling and was successfully parenting three children on his own. The evidence of Dr Willemsen, a clinical psychologist instructed to prepare a report on all four children within their current placements for the purpose of this hearing is to the contrary and I shall return to it when I come to consider the evidence before me in detail later in this judgment.

In Court of Appeal Round 2 the court analyse Russell J’s approach to this case, and remarks that she made during the course of the hearing, including to the experts in the case, demonstrated her error of approach regarding threshold. She said, for example that :

“The effect of [the decision in Court of Appeal Round 1] is that the court needs to keep in mind that, had the proper decision been made in the first place, there would have been no placement.”

Russell J referred to the presumption that children should be raised by their parents. The Court of Appeal are clear in drawing the distinction between private law cases (where there is said to be no presumption, only the paramountcy principle – although there is of course a “presumption” of sorts now enshrined in s1 CA, albeit this is weak and is about “involvement” not care), and public law cases where at threshold stage there IS a presumption, but (my words) that presumption is displaced once the threshold for state is crossed. Although we all often gaily sprinkle a little Hedley J wisdom into our skeleton arguments at the point of welfare decisions in care cases, the Court of Appeal reminds us that in fact his “tolerating diverse standards of parenting” spiel relates to the crossing of threshold – and what is significant enough to open the door to a public law order. In the light of Re B, Re B-S this is counter intuitive, but I suppose one could say that to apply a presumption would be to adopt a linear analysis, only starting at the other end of the line. One could argue conversely : what else is “nothing else will do” than a presumption against adoption (which is of course not quite the same as a presumption of parental care)? However, this is a philosophical debate that I am not quite up to tonight so I will leave you to ponder it. The practical point is that Russell J seems to have sort of ignored the fact that the original DJ had found that threshold was crossed and that those findings still bound her.

The impression one has from this judgment is that there was quite a lot going on in the interstices. The appeal was in part based on judicial bias. However, the Court of Appeal did not think that Russell J had evidenced bias, she had been guilty of having a fixed (and wrong) view of the meaning of the Court of Appeal judgment from the outset (which led to the judgment being unsound), rather than having a fixed view of the outcome from the outset. One imagines, having read the Russell J and Court of Appeal judgment, that such a nice distinction may have been difficult for the trial advocates to hold in mind in the moment. One can get a sense of how “rancorous” the hearing may have been (to use the Judge’s own word) by reading the passage from her own judgment relating to the Guardian :

          He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.
          I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.

One can see in this passage the seeds of the bias complaint. In fairness to the Judge, it appears it was subsequently accepted that the Guardian’s analysis was not up to scratch, but the tone is striking. This judge is what my mother would describe as “very minty”. Counsel before Court of Appeal Round 2 chose their words carefully when describing their experience at trial, and ultimately the Court of Appeal listened to the transcripts. Whilst the transcripts did not entirely bear out the recall of the advocates there is a reference to the advocates indicating that “you had to be there”. I have to say, I’m not sure you do – I read Russell J’s judgment and though “owch”. The grounds of appeal asserted that :

The judge was over influenced by her disapprobation of the stance taken by the local authority to such an extent that this clouded her judgment and prevented her from forming a balanced view of the totality of the evidence

In the event, whilst the Court of Appeal did not run with the bias argument, it rolled up all these “tonal” issues into one – the Court of Appeal concluding that various aspects of the judge’s handling of the case were of concern, unnecessary and unhelpful – implicitly if not explicitly accepting (I think) an appearance of bias.

The other significant point is the “unedifying” moment when the Court of Appeal discovered that sloppiness with the rules on communication with experts and a failure to think through what information was going to the experts had potentially contributed to the expert’s change of position in oral evidence (from supporting adopters to supporting rehabilitation to dad), having been given an imperfect explanation of the import of the Court of Appeal judgment by means firstly of an attendance note summary of the judgment made by one party, and subsequently by the judge’s own inaccurate summary of its import during his evidence. It happens too often. Red faces all round when everyone realised nobody had checked what information the expert had been given on this critical point.

Anyway, exactly as with Court of Appeal Round 1, court of Appeal Round 2 have concluded not that Russell J was wrong necessarily but that the flaws of approach were such that the Court of Appeal could not be confident that the decision was sound. And so, back downstairs it goes once more, for a third try at making a decision which can withstand the scrutiny of the Court of Appeal or (miracle of miracles) manage not to be appealed at all. Not the Family Court’s finest hour. Must be awful for the the biological and adoptive families. Presumably the child herself is currently blissfully unaware of the maelstrom all around her, but of course one of the sources of much angst in the course of the hearing was what on earth she would think when she was older and adults tried to explain all of this to her. Goodness only knows. One can only imagine that she is likely to be distressed and angry whether she is living with her current family or her biological family, for either way she faces loss and a terrible pulling in different directions. Maybe it is cheap to say she can at least take comfort from the knowledge that she was loved very much by two families, but perhaps that will be comfort all the same.


This case has been much reported in the press over the last 48 hours or so. I have been asked specifically to write about it via twitter, so here is a bit of context to help people understand what it’s all about. I don’t know any more about the case than is publicly available – what is reported in the news appears primarily to be drawn from this press release on the Garden Court Chambers website, which is the chambers of defence counsel in the criminal proceedings. There is therefore only so much I can usefully say about it without descending into guess work.

What we know is this :

In April 2012 a baby its as taken to hospital to injuries to it’s frenulum (a little bit inside the mouth), and this led to the apparent discovery of several fractures. Those injuries were thought to be suspicious, or “non-accidental”. This led to two things :

  • care proceedings to decide if the baby could safely stay with his or her parents
  • a criminal investigation and prosecution process which seems to have been very lengthy in part due to the sequential production of various different expert reports.

The parents are named as a result of them being defendants in criminal proceedings. Under Family Court rules it is not permitted to identify the child or his / her adopters unless the court allows it.

The prosecution

Let’s deal with the criminal side of it first. On 7 October 2015, shortly after a report was received from a defence expert, the prosecution offered no evidence. That means they dropped the case because they didn’t think they could get a conviction i.e. they didn’t think they could prove the case beyond reasonable doubt. It appears from the press release that the expert evidence produced by the defence team was pretty clear in casting doubt on the suggestion the parents had caused the injuries by giving an alternate cause for them – but because the prosecution dropped the case that evidence was never tested in court through cross examination. [update 5pm 9/10/15 – I’ve just seen a news report suggesting the case was dropped half way through the trial and that Dr Fairhurst denied again and again” the suggestion the injuries were not caused by child abuse. It seems possible therefore that at least some of the evidence was tested]. We are told that the “expert’s opinion…concluded that he was doubtful there were any fractures at all.” So, doubtful, but not certain. That’s about as much detail as we have.

The family court case

Next, the family court side of things. We know that care proceedings were begun, probably immediately after the hospital admission, when the baby was very young (6 weeks old). We know that the court at some stage found that the parents had caused the injuries, and that in reaching that conclusion it had the benefit of an expert report from a paediatrician, Dr Fairhurst. We don’t know but it is likely that this expert was instructed jointly by all the parties rather than having separate “defence” and “prosecution” witnesses as in criminal cases. The judge in the family court controls the use of expert evidence, and must give permission for it. The test now for allowing expert evidence is that it must be “necessary”, but depending on when the decision was made in this case it might have been under the earlier, slightly less strict test of “reasonably required”. The family court operates on a different standard of proof to the criminal court – that is to say something is proved in the Family Court (like all other civil courts) if it is “more likely than not” that it happened. Put another way it is 51% or more likely – the local authority (social services) must prove the case and tip the balance to “more likely than not”. They appear to have done so successfully in this case. It is quite possible for someone to be acquitted in a criminal court because a jury can’t be “satisfied so it is sure”, but for something to still be “more likely than not”. Imagine a juror saying “well I think it probably happened but I can’t be sure”. That juror would have to go “not guilty”, but if he was judging the case in the Family or Civil Court would say that the thing was proved, because it probably happened.

We know that the court approved a plan for adoption, by making care and placement orders. We don’t know when, but it is likely (based on other cases of this sort) that it was done within a year – say by the middle of 2013 (the fact that contact continued for around 2 years after injury could suggest that the case was not finalised until later, but it is difficult to say). In some cases the Family Court will await the verdict in a criminal trial before finalising a Family Court case, but it depends on the circumstances. If the court waits for a conviction means that there is no need for those facts to be tried again in the Family Court – put simply the parents are stuck with it. If however there is an acquittal the Family Court would still have to go on and look at the evidence and decide if the thing was proved on the balance of probabilities (more likely than not) – and in that scenario a child would end up spending longer hanging around in foster care waiting for a decision. We don’t know what stage the criminal proceedings had reached by this point, but it is reasonable to assume that the Family Court felt that the decision could not wait. We don’t know what, if any, argument was had about this at the time.

So, the court had Dr Fairhurst’s report. It decided the allegations were proved. We are told that “no real challenge to the science was made” in those proceedings, but it’s not clear what that implied criticism is getting at. For example, we don’t know if the court was asked but refused to permit the instruction of a further expert either as second opinion or from a different discipline (an endocrinologist for example, as this is the discipline which seems to have been critical in the decision to drop the prosecution) – or if no such request was made. We don’t know if the remark is referring to a failure to properly cross examine Dr Fairhurst. So at this stage it is unclear if the focus of challenge / criticism is likely to be of the parent’s legal team or of the court – or of Dr Fairhurst – or a combination of all three.

The suggestion is that the new defence experts considered both ricketts and Von Willebrand’s disease, and implicitly that this had not been properly considered in the Family Court. From my experience I can say that Von Willebrand’s disease is something about which there is a good level of general awareness in the Family Court. It is often asked about when reports of this sort are commissioned. Ricketts too is now “on the radar” in the Family Court, particularly since the case of London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam), which was major news in April 2012 (exactly the time the care proceedings were likely to have been commenced in this case) and really raised the profile of rickets as a potential cause of injuries that might otherwise be thought suspicious. So it would be surprising if both of these potential innocent explanations for the apparent injuries had not been raised in the Family Court in some shape or form – for example through questions to Dr Fairhurst or a request for an expert of a particular specialism that could deal with those issues, or specific tests to be carried out to rule such conditions in or out.

The steps in the adoption process

The process for non-consensual adoption is this. The court makes a care and placement order, which authorises the local authority to place a child for adoption with prospective adopters. Once this happens a search begins and the child is matched to appropriate adopters. With a baby or young child with no disabilities one would normally not expect this to take very long – in this case we can guess the baby was in fact about 2 years old by the time he or she was placed. Until the child is placed with adopters a parent may apply for permission to try and have a placement order revoked, for example if there is a change in circumstances that makes it no longer appropriate.

Once a child has been placed for adoption a period of time must elapse before the adopters can apply for a final adoption order. A parent is not usually entitled to raise any opposition to that application, but in recent years there has been an increase in applications for permission to oppose the making of the adoption order, and (I think) an increase in the numbers of applications that are successful. Even if a parent is permitted to oppose the adoption the court can still (if appropriate) go on to confirm the adoption. Once an adoption order is made the biological parent has no legal connection or entitlement in respect of the child at all and it is extremely rare for an adoption order to be overturned once made. The 2009 case of Webster demonstrates the position. See : Couple vow to fight adoption ‘miscarriage of justice’.

The adoption process in this case

Back to this case. We don’t know when the child was placed with adopters, although we do know he or she has been placed, and that therefore the window to apply to revoke the placement order has closed. We know that the parents continued to have contact for two years after the injuries, which we can estimate at April 2014, some 18 months ago. It is likely that the point at which the contact stopped was not long before the placement with the adopters (contact is usually reduced and stopped before this happens) and that therefore the child has been with his or her adopters for over a year. Although the press release says the child has been “adopted” this is sometimes used colloquially to mean that the child has been placed for adoption but not necessarily that the adoption order has been made. It is likely, given that the press release is written by lawyers that “adoption” means adoption orders have been made – in which case the parents here appear to be in a similar position to the Websters, who were unsuccessful in challenging an adoption 3 years after the event. Here, our best guess is that the child has been with the adopters for maybe a year to a year and a half – so there are some differences of degree. If the adoption order has yet to be made the parents could potentially apply for leave to oppose the adoption order on the basis of a change of circumstance – but they cannot do this until an adoption order application is made.

An important point

It is clear that there is substantial new evidence that was not available to the Family Court when it made it’s findings, but those findings do still stand at the moment. It may be that in order to challenge the adoption the parents will need to challenge the findings by applying for them to be set aside – and possibly through a rehearing of them, taking into account the subsequent evidence. The fact that the prosecution ditched the criminal case does not necessarily mean that the findings in the Family Court will just be written off or overturned. Potentially they could be, but much would depend on the specifics of the case. If there did have to be a rehearing that would cause delay, which of course would weigh against the placement with the adopters being disrupted (for all the reasons in Webster).

Quite apart from their desperate wish to get their baby back, the parents are young and are likely to want more children. As long as the findings stand they are likely to face the scrutiny of the court in respect of those children. It is possible that the court will be asked to look at the findings again now or at the point when any future child is born for that reason, even if one ignores the obvious relevance to the existing child.

What will happen?

I make no predictions about what will happen in this case. It is very sad and awful for all involved – the biological parents and the adopters – and potentially the child (Although hopefully he or she is blissfully oblivious).

It is likely that in due course the judgments in the original family proceedings will be published. They were probably delivered prior to the publication of guidance encouraging the publication of more judgments from this sort of case, but the obvious public interest in this case may mean that a request is made for release of those judgments retrospectively. It is likely that publication of any judgment would have been postponed until the end of the criminal trial to avoid contamination or prejudice to the parents, and to avoid the identification of the child through jigsaw identification – and of course it is only very recently that this prosecution has gone away.

It may well be that as with the Websters any future judgment about these issues in the Family Court is delivered in open court with the parents (but not adopters) identified.

If any judgment is released I will update this post with a link.

One final point

The Garden Court press release says a few things I don’t quite understand :

This tragic case highlights the real dangers of the Government’s drive to increase adoption and speed up family proceedings at all costs. 


what of the savage legal aid cuts, rushed adoptions and restrictions on expert funding in the family courts leading to such skewed evidence being the only evidence presented to the family courts.

It is absolutely right to say that there has been tightening up of the use of expert evidence to the point that last year Parliament specifically legislated to say it must be “necessary” (previously it had been only set out in court rules). It is also right to say that there are regularly difficulties with the funding of experts in family proceedings, particularly in suspected non-accidental injury cases where experts in highly specialised fields often have an hourly rate way above the rate permitted by the Legal Aid Agency. There is often an enormous problem with this.

Leaving aside legal aid cuts to the rate of payment for experts as above, legal aid cuts have not primarily affected this sort of family case (“public law” i.e. care proceedings). These sorts of cases still attract automatic legal aid regardless of means or merits (although this will not necessarily apply to any application the parents make now), and although the lawyers rates have been progressively cut over the years parents are still represented.

As to the “rush for adoption” point – there has been a drive to speed up the court process and to make decisions about whether children should be adopted more quickly – and a drive to speed up the process of finding them adopters once that has happened. We don’t really know in this case whether the general pressure to deal with proceedings more quickly had an impact on the way the family case concluded. If, for example, the parents sought a second opinion or further expert report but were refused on grounds of delay – one could see the argument for saying so. I expect we will find out more about this in due course.

[UPDATE 12.37 : Just seen this in the Independent : Couple wrongly accused of abuse ‘unlikely to see their child again,

which says :

Lawyers for the couple said Ms Cox and Mr Carter had been refused legal aid to fight the adoption in the Family Court and criticised the decision to finalise adoption before the criminal court had made its ruling.

As I indicated above legal aid is not automatically available after care orders are made – and in this case it appears to have been refused. What this quote also tells us is that the adoption order has been made final (or at least that leave to oppose the application has been refused), and so as I thought was likely the parents are in a Webster-like scenario. The article gives us a bit more detail on the chronology however, which suggests that the contact only stopped a year ago – a year is still a long time in the life of a toddler though, so it is unclear how much difference that comparatively short period of time will make. It isn’t clear if the parents went to court alone and argued unsuccessfully that the court should wait for the verdict in the criminal court. It’s not clear where the evidence was pointing at the time the application for leave to oppose the adoption / the adoption order was made.]