“The present case is an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case.” – Sir James Munby, President of the Family Division.

On 16 September 2014 Darlington Borough Council issued an application for a care order in respect of a little boy A, who was then 8 months old. No-one could have imagined at the time that the case would have such wide ranging implications.

On 17 February 2015 the President, perhaps just returned from a holiday in Italy, described the LA’s case as “a tottering edifice built on inadequate foundations“. As we sip our expressos in Cafe Nero, it is worth taking a little time to reflect upon how it came to be that, in the Middlesbrough Family Court, a rigorous analysis of a simple care case led to the dismissal of a seemingly impressive list of threshold allegations and a small boy being placed with his father rather than facing permanent separation from his family by way of adoption.

The facts were not particularly exceptional:

• A was born whilst his mother was serving a prison sentence. Pre-birth assessments had not identified the father or any family member as a suitable immediate placement for A. He was therefore accommodated in LA foster care under S.20 Children Act 1989.
• It then took 8 months for the LA to issue proceedings. The President described the delay as “shocking”, “unexplained” and “an abuse” of S.20. He commented “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”
• By the time of the final hearing the mother was not putting herself forward as a carer for A.
• The father put himself forward to care for A with the assistance of his mother and her husband.
• The LA and Children’s Guardian opposed placement of A with his father and instead proposed a care plan for adoption.
• The LA’s formulation of its threshold allegation was that A was likely to suffer significant harm in the care of his father by way of neglect.
• The Children’s Guardian had met the father only once, for about 45 minutes. Her final reported contained little exploration of the underlying factual basis for the LA’s case. In large part she seemed to have been content to proceed on the basis of the LA’s materials.

What was exceptional about the case was that it was listed for final hearing before the President of the Family Division, Sir James Munby. The LA’s case was, therefore, subject to rigorous analysis. No less should be expected when a care plan for adoption, involving the lifelong separation of a child from his family, is being considered. Sadly, all too often, a lack of judicial rigour allows room for sloppy practices and unfocussed allegations supported by inadequate evidence.

The President was scathing in his criticism of the LA and the CG. He declined to name the social workers involved because “ultimate responsibility for such failings often lies much higher up the hierarchy, with those who, if experience is anything to go by, are almost invariably completely invisible in court.”

He identified “three fundamentally important points” too often overlooked:

1. Reminding us of what he said in Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, “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.”, he said this carries with it 2 important practical and procedural consequences:
   1. The LA, if it is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Hearsay evidence is, of course, admissible in family proceedings but “a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself if great, or indeed insuperable difficulties if a parent not merely puts the matter in issue but goes into the witness box to deny it.”
   2. Schedules of findings sought often contain references to things that a parent “appears” to have done or that various people have “stated” or “reported” or that there is “an allegation that…”. This form of allegation “is wrong and should never be used.” The relevant allegation is not that someone ‘appears’ to have done something, it is that he ‘did’ it.
2. It is essential that the LA should link the facts relied upon by the LA with its case on threshold. It needs to demonstrate why 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.
3. It is always vital to bear in mind in these cases the “wise and powerful words of Hedley J” in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050:

“Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving securing and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

As Baroness Hale said in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 2 FLR 1075:

“We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours, which may be copied by our children. But the State does not and cannot take away the children of all the people who commit cries, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs.”

The LA’s concerns about the father, and the President’s responses to these, were that:

(A) The father “appears to have lied in an assessment about being present at a fatal accident during his childhood.”

The President criticised both the form of this allegation “appears to have lied…” and the substance. The allegation arose because the father had described in an assessment being present at a fatal railway accident that happened whilst he was at school and killed two of his friends. The social worker rang the police. Their response was recorded in the SW chronology as “there was no evidence to support that [he] had been present” and in a case note “it has been confirmed that [he] was not present.”

The President questioned whether the SW had understood the significance of the distinction between the two entries and said “Given the inadequacy of the evidence available to the LA…” it was surprising that the allegation had ever been raised and concerning it was still being pursued until counsel for the LA had abandoned it during the hearing.

(B) The father had been cautioned when 17 (his is now 25) for having sexual intercourse with a girl aged 13 and for having detained her without lawful authority.

This was not disputed by the father. However the President criticised the LA’s evidence on this matter in two respects, describing it as “quite extraordinary”. First, the SW had called the offence “immoral”. As the President said “The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality.”

He went on to say, “It is an undoubted fact of life that many youths and young men have sexual intercourse with under-age girls. But if such behaviour were to be treated without more as grounds for care proceedings later, the system would be overwhelmed. Some 17 year old men who have sexual intercourse with 13 year old girls may have significantly distorted views about sex and children, and therefore pose a risk to their own children of whatever age or gender, but that is not automatically true of all such men.”

(C) The father had had some involvement, during 2013, with the English Defence League.

In respect of this allegation the President said, “As in relation to what is said about the father’s previous sexual activity, I find much of this quite extraordinary. The mere fact, if fact it be, that the father was a member, probably only for a short time, of the EDL is neither here nor there, whatever one may think of its beliefs and policies… Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings.”

(D) The father “has numerous convictions”.

He didn’t – he had the cautions referred to in A above. As the President said “there is simply no basis for this allegation.”

(E) The father was said to have “a history” of the use of illegal drugs and alcohol.

The mother had alleged that alcohol affected the father’s temper and a police search of a property he was renting had discovered 4 cannabis plants and 18 budge.

The President’s response to this allegation was as robust as it had been to the previous ones, “I have no doubt that the father on occasion drinks to excess, but not to such an extent as to justify care proceedings. He may have taken cannabis on occasions, but the reality is that many parents smoke cannabis on occasions without their children coming to any harm. The police search was of a property which at the time was tenanted and there is nothing to suggest that the father was in any way complicit. These allegations take the local authority nowhere. Parental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.”

As for the other allegations advanced by the LA, they were described as “tangential”, matters that take the LA nowhere, matters of a largely historical nature and incidents which were not of sufficient frequency and gravity to cause any major concern.

In summary, what might have appeared to be an impressive case on paper, turned out to be “a tottering edifice built on inadequate foundations”. The Leaning Tower came to Middlesbrough and collapsed! Threshold was not established, the case was dismissed and the child was placed with his father.

Even those of us who have been working in the family justice system long enough to remember (just) the implementation of the Children Act need to stop and think about what this case means for our day to day practice. We need to look with a more critical eye on the allegations being presented to the court. Are they simply and properly pleaded? Are they rooted in the first hand evidence before the Court? Even if proven how do they found threshold? Even with the threshold crossed, can the court be satisfied that nothing else will do?

Another expresso please!