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Family Law

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Court of Protection Practice and Procedure Conference 2016

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24 MAR 2015

View from the Foot of the Tower: Nothing speaks for itself

View from the Foot of the Tower: Nothing speaks for itself
The immortal Peter Cook once observed 'I could have been a Judge, but I never had the Latin for the judgin’' – like Peter Cook, I never really had a grasp on Latin, but the one bit that did resonate with me and that I was able to hold on to was ‘res ipsa loquitor’ – the thing speaks for itself. From the very fact that X occurred, one can infer everything else without going through every minute aspect.

Well, we now know from the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222 that there is no such thing as res ipsa loquitor in care proceedings.

This is a culmination of a trend in case law, having begun long ago with Mr Justice Hedley in Re L (Care: Threshold Criteria) [2007] EWHC 3527 (Fam), [2007] 1 FLR 2050, at para [50]:

‘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 security 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.’
Revived in popularity by it being quoted approvingly and developed by the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075.

The first is in the judgment of Lord Wilson of Culworth JSC where he said (para [28]):

‘[Counsel] seeks to develop Hedley J's point. He submits that:

“many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

I agree with [counsel]'s submission.’

The other is the observation of Baroness Hale of Richmond JSC (para [143]):

‘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 crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs.’
And, in part due to the transparency guidelines meaning that Circuit Judges put their own judgments on Bailii, thrusting His Honour Judge Jack into the spotlight.

North East Lincolnshire Council v G & L [2014] EWFC B192

‘I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.’
His Honour Judge Jack’s comments were cited approvingly by the President in Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11 (the case that some have dubbed ‘the welfare of the bundle is the Court’s paramount consideration’ case…).

And again in Re J, by the Court of Appeal.

All of these cases share a common thread that not every piece of behaviour by a parent that might be complained of can amount to threshold, even when it falls into categories such as domestic violence, alcohol misuse, and as in Re A a sexual offence against a minor.

In order to satisfy threshold, even where what is being asserted is a likelihood of harm, the local authority have to provide evidence that the matter complained of not only happened but that if it happened it amounts to harm or a risk of harm to the child.

The Court of Appeal make it very clear in Re J:

The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm.
It would no longer be sufficient, for example, for a local authority to prove that a mother has been taking crack cocaine. They would need to show why it was that the mother’s use of crack cocaine had either harmed this child (by way of showing the neglect suffered or an injury suffered as a result of poor supervision) or why it would be LIKELY to. There has to be made explicit a link between the behaviour complained of and the harm that is said to result from that behaviour.

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The Court of Appeal drew from Re A and set down a set of principles to be followed. The case garnered less attention than Re A (which had in its favour when it came to publicity, both a Judge giving a local authority what-for, and the English Defence League issues) but these principles are worthy of note:

[All italics are the author’s, for emphasis.]

‘This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (A Child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case.  It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that "nothing else will do".
The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:

i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that "nothing else will do", when having regard to the overriding requirements of the child's welfare.

ii) If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".

iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.

iv) The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.)

v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]".

vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare. The court must guard against "social engineering".

vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

viii) In considering a local authority's application for a care order for adoption the judge must have regard to the "welfare checklist" in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child's welfare "throughout his life" in accordance with section 1(2) of the 2002 Act. In dispensing with the parents' consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625.

If these principles are not followed, the local authority, just as in Re A might find that what it considered to be a comfortably made out threshold instead leaves them without a leg to stand on.

And as we entered this piece with Peter Cook, let us leave that way as well.

The leg division, Mr Spiggot. You are deficient in it to the tune of one. Your right leg, I like. I like your right leg, it's a lovely leg for the role. That's what I said when I saw it come in. I said, "that's a lovely leg for the role". I've got nothing against your right leg. The trouble is — neither have you.

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