This is the first public children law digest, designed to give readers a snapshot of the important cases, issues and developments in this area of law from January to February 2015. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal development that are covered or if you think we have missed something that should be brought to the attention of public children law practitioners.
In this post, we look at the following:
- Evidence requirements.
- Speed of actions.
- Court translation services.
- Local offers.
- Female genital mutilation guidance.
Local authorities told to have direct evidence and explain the link to threshold allegations (Re A (a child))
Munby P takes practitioners back to the basic principle that evidence is needed to back up a threshold finding sought. Lawyers drafting a threshold statement need to ensure that each assertion is direct about the parent’s action and what impact this has had on the child. The use of hearsay evidence, while admissible, should be avoided where possible and the local authority should try to have the person give both direct written and oral evidence if required.
Local authorities are reminded that the accommodation of children under section 20 of the Children Act 1989 is a temporary measure and care proceedings should be issued as quickly as possible after a child is accommodated to avoid the delay experienced in this case.
Veracity assessments of children’s evidence are not usually necessary (Wigan Council v M and others)
Jackson J concluded that veracity assessments should not be undertaken after going through a fact finding hearing that involved a psychologist instructed to give an opinion on the children’s Achieving Best Evidence interviews. He held that the judge in any case is the best person to assess the credibility of a child’s evidence, being the person who hears and reads all the evidence. The judge makes the findings and says where the truth lies.
Paternity testing: DNA profile from criminal investigations cannot be used (X and another v Z (children) and another)
The children’s guardian’s creative solution to get the DNA profile of a putative father, which had been taken during criminal investigations in relation to the murder of the children’s mother, to undergo paternity testing, was considered a breach of the putative father’s right to private and family life (Article 8 of the European Convention on Human Rights (ECHR)). Disclosure of the DNA profile obtained under Part II or Part V of the Police and Criminal Evidence Act 1984 is prohibited unless it is for criminal enforcement purposes.
Speed of actions
Revocation of placement order: a reminder to LA lawyers on delay (Re R (Revocation of Placement order: Unacceptable delay))
The local authority, Calderdale Metropolitan Borough Council, delayed making an application to revoke a placement order, when the decision to change the child’s care plan to long-term fostering had been made five years before. Consequently, it was heavily criticised for insisting on waiting for the parents to make an application to revoke. The court considered that approach was unrealistic because the parents would not have qualified for public funding, they had minimal contact with the child and, because of their personal circumstances, were not in a position to make an application. The decision is a reminder that a change in care plan for a child from adoption to long-term foster care should lead immediately to an application to revoke the placement order so that the care order is revived.
Guidance on making final care orders at CMH stage (Re S-W (children))
HHJ Dodds attempted to complete care proceedings by making final care orders at the case management hearing. This decision was made despite the local authority and the children’s guardian indicating that further assessment should be undertaken and the guardian had not seen the children.
The Court of Appeal allowed the appeal, because the case management hearing was not fair and breached Article 6 (right to a fair trial) of the ECHR. The mother had not had her opportunity to dispute the threshold, assessment or placement, which she intended to. There was no final care plan before the court for it to consider and endorse. The guardian had not seen the children and had not provided a final analysis for the court. There was no notice from the judge that he intended to make final orders at this first hearing and had not provided a judgment for making the care orders. Although there is a drive to complete care proceedings quickly, the message from the Court of Appeal is that “robustness cannot trump fairness”.
Final orders should only be made at the first hearing in exceptional, unusual and rare cases, unless it is by consent of all parties.
Court translation services
Costs ordered against non-party translation service (Capita Translation and Interpreting Ltd)
Capita Translation was ordered to pay £13,338.15 costs to Kent County Council due to its repeated failure to provide a Roma Slovakian interpreter for care proceedings. Capita’s failures were deemed by the court to be extensive, which had a profound effect on the conduct of the proceedings. Despite Capita not being a party to the proceedings, it was closely connected to the litigation. It was therefore held that it was just for costs to be ordered against it.
Local Offer: consultation and content requirements (R (L and P) v Warwickshire County Council)
In judicial review proceedings, the claimants (two disabled children) challenged Warwickshire County Council’s decision to make financial savings by reducing its short break service. The cut was reflected in the council’s proposed Local Offer. Section 30 of the Children and Families Act 2014 requires all local authorities to set out what services will be available to disabled children in each local authority’s area. It was declared that the council had failed to comply with the requirements of Schedule 2 to the Special Educational Needs and Disability Regulations 2014. The council agreed that it had complied with seven of the 23 requirements.
There is a duty to carry out a consultation on the Local Offer, which consultation gives all the relevant individuals and organisations the opportunity to be involved. The court confirmed that unless the consultation process had gone “clearly and radically wrong”, it would not consider that the duty to consult had not been fulfilled.
A separate aspect of the case worth noting is that child in need assessments do not necessarily have to be undertaken by social workers. Working Together to Safeguard Children guidance could not have intended that only social workers can carry out these assessments. They can be undertaken by other trained assessors.
Female Genital Mutilation guidance
FGM will satisfy threshold criteria and practice guidance (Re B and G (Children) (No 2))
Munby P has confirmed that female genital mutilation in whichever of the four main types identified by the World Health Organisation, will satisfy the threshold criteria for a care or supervision order. However, a finding that the threshold criteria are satisfied does not automatically lead to a conclusion that the child should be permanently removed from the family. Each case will turn on their particular circumstances.
Medical examinations should be by a specialist located in one of the twelve specialist clinics in the UK. If a specialist is not available, the safeguarding consultant paediatrician can carry out the examination, which must be recorded using a video colposcope with clear notes and detailed drawings and diagrams. A clear diagnosis must be provided.