Saturday, 9 November 2013

suesspiciousminds a very good law blog

Don’t get too hung up on the lies

Posted on November 8, 2013 by suesspiciousminds


The Court of Appeal decision in Re Y (A child) 2013 
This was actually, I think the first appeal about Placement Orders post Re B-S, it has just been beaten to the published judgment case by all of the others. Anyway, in this one, the Court of Appeal determined that the judgment was deficient in the sort of rigorous analysis that is now required (notwithstanding that not all of the authorities that established the need for such analysis having existed at the time the judgment was made).

The Court of Appeal were very critical of the Local Authority final evidence.
“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 assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority.  Relevant evidence in this respect is not and should not be restricted to that supportive of the Local Authority’s preferred outcome.”
(re-emphasising, if such emphasis were needed, that a B-S compliant final statement analysising the pros and cons of each potential final option is essential)

But this bit is a development from the multitude of other Placement Orders sent back for re-hearing.

(4) I consider the case appears to have been hijacked by the issue of the mother’s dishonesty. Much of the local authority’s evidence is devoted to it.  The Children’s Guardian adopts much the same perspective.  It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case.  No analysis appears to have been made by any of the professionals as to why the mother’s particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance.
(5) This is not a case which is remitted for re-hearing merely to correct a procedural defect. The existing evidence plainly is inadequate for the purpose of the task of the judge who will re-hear the case at first instance in the light of recent authorities.
[This is of course mildly ironic, since the case that launched a thousand appeals in relation to plans for adoption, Re B, is almost entirely about the dishonesty of the parents and the disconnection between that level of dishonesty and firm cogent reasons as to why and how that dishonesty would harm the child.  It is also worth bearing in mind that the Supreme Court were 4-1 in favour of the Placement Order, notwithstanding that it was one of the flimsiest thresholds I've ever encountered]

3 Comments
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Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

3 Responses »

  1. Peter Dale | November 8, 2013 at 7:51 pm
    My understanding is that Supreme Court re B was an appeal against the Care Order, not against a Placement Order. As you say, and I entirely agree, the threshold was extraordinarily flimsy. The issue of ‘lack of cooperation’ was specific and was not generalised to a wide range of other professionals. It was also contextually focused on lack of acceptance of the need for the baby to be removed at birth, and lack of cooperation with the subsequent local authority plan for nonconsensual adoption.
    Essentially, lack of cooperation with a plan for non consensual adoption is utilised by the local authority as indicating the need for nonconsensual/forced adoption. To overwork a cliche, this is Kafkaesque.
    The Placement Order hearing is still to take place.
    Reply
    • suesspiciousminds | November 8, 2013 at 8:46 pm
      Looking at it, you are quite right. Very strange, since (although the appeal was supposed to be about threshold) almost the entire judgment is about the proportionality of the plan of adoption. Given that the Supreme Court found 4-1 in favour of upholding the Care Order with the plan of adoption (and I think even Baroness Hale reluctantly acqueised on that point once the majority decision was that threshold was crossed), it seems to me inconcievable that any later Court could refuse the Placement Order. (The ECHR of course, is a diffferent matter)
      The real issue for me with Re B was a fundamental one – there is no inherent duty on a parent to cooperate with professionals – it may very well be that once the threshold is crossed, their ability to work with professionals to reduce the risk becomes a factor in whether the risk identified becomes manageable, but I just didn’t think on everything that I have read in the judgment of the Supreme Court and the Court of Appeal, the threshold was crossed. The parents certainly had considerably unusual features, but in the absence of identifying how any of those features HAD or WOULD harm the child, I didn’t feel that the threshold had crossed. But that ship has sailed.
      I will forgive the use of Kafka – it certainly makes a nice change from the regular breaches of Godwin’s Law (which I consider, unofficially, to apply to these discussions)
      Reply

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