Darlington Borough Council v M and Others
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 17 February 2015 |
| Neutral Citation | [2015] EWFC 11 |
| Docket Number | Case No: MB14C01592 |
| Court | Family Court |
| Date | 17 February 2015 |
In the matter of A (A Child)
[2015] EWFC 11
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: MB14C01592
IN THE FAMILY COURT
Sitting at MIDDLESBROUGH
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Crispin Oliver (instructed by the local authority) for the applicant (local authority)
Mr Alan D Green (of Hewitts) for the first respondent (mother)
Mr Martin Todd (instructed by Freeman Johnson) for the second respondent (father)
Mr Keith Leigh (of Teesside Law Limited) for the fourth respondent (child)
The third respondents (the paternal grandmother and step-grandfather) appeared in person
Hearing dates: 26–28 November 2014
Sir James Munby, President of the Family Division:
I have before me two applications by Darlington Borough Council, the first, issued on 16 September 2014, for a care order in relation to a little boy, A, who was born on 11 January 2014, the second, issued on 14 November 2014, for a placement order. Various aspects of the case have caused me great concern and, unhappily, require to be explored in some detail.
In the event I have come to the clear conclusion that both applications should be dismissed. A should be returned to the care of his father (the mother does not put herself forward as a carer for A and supports the father's position).
The law
There was no dispute as to the legal principles I have to apply.
It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. It is for the local authority, since it is seeking to have A adopted, to establish that "nothing else will do": see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. See also Re R (A Child) [2014] EWCA Civ 1625. As Baroness Hale of Richmond said in In re B, para 198:
"the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."
This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:
"family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained."
In considering the local authority's application for a care order I must have regard to the 'welfare checklist' in section 1(3) of the Children Act 1989 and, since the plan is for adoption, also to the 'welfare checklist' in section 1(4) of the Adoption and Children Act 2002: see In re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29–31, Re R (A Child) [2014] EWCA Civ 1625, para 51. Likewise I must treat as my paramount consideration, in accordance with section 1(2) of the 2002 Act, A's welfare "throughout his life." In deciding whether or not to dispense with the parents' consent I must apply section 52(1)(b) of the 2002 Act as explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.
I add two important points which I draw from the judgment of Baker J in Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam), paras 56, 59. First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?
Some fundamental principles
In the light of the way in which this case has been presented and some of the submissions I have heard, it is important always to bear in mind in these cases, and too often, I fear, they are overlooked, three fundamentally important points. The present case is an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case.
The first fundamentally important point relates to the matter of fact-finding and proof. I emphasise, as I have already said, that it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. I draw attention to what, in Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26, I described as:
"the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation."
This carries with it two important practical and procedural consequences.
The first is that the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second—or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, 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. As I remarked in my second View from the President's Chambers, [2013] Fam Law 680:
"Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority's files."
It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority's concern about something. If the 'thing' is put in issue, the local authority must both prove the 'thing' and establish that it has the significance attributed to it by the local authority.
The second practical and procedural point goes to the formulation of threshold and proposed findings of fact. The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that "he appears to have" lied or colluded, that various people have "stated" or "reported" things, and that "there is an allegation". With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words "he appears to have lied" or "X reports that he did Y" mean? More important, where does it take one? The relevant allegation is not that "he appears to have lied" or "X reports"; the relevant allegation, if there is evidence to support it, is surely that "he lied" or "he did Y".
Failure to understand these principles and to analyse the case accordingly can lead, as here, to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations.
The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts. Here, as we shall see, the local authority conspicuously failed to do so.
In the light of the local authority's presentation of this case, it is important always to bear in mind, and again, I fear, it is too often misunderstood or overlooked, the point made by Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337, para 7, in a judgment agreed by both Arden and Ryder LJJ:
"(3) In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not...
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