Update: children

In Re W (A Child) [2010] EWCA Civ 1535 the Court of Appeal (CoA) was dealing with a five-year-old boy, 'J', who was removed from his mother's (M) care under an emergency protection order (EPO) followed by what the court termed conventional care proceedings. A placement order (PO) was made. All of this was done without M's participation, presumably because she chose not to be involved. M became free from her drug dependency (the cause of her lack of ability to care for J) but by then, J had been placed with prospective adopters under the PO who in turn made an application for an adoption order (AO).

Due to an unfortunate error, M was not given notice of the hearing and the AO was made in her absence. M's solicitors made an application to revoke the PO (after the AO was made) which was procedurally erroneous because such an application cannot be made once 'placement' with prospective adopters takes place. The question was what to do with: (a) M's subsequent application to set aside the AO; and, if granted, (b) whether she should be given leave to oppose the making of an AO.

In the High Court, Holman J granted what M sought. The adopters appealed; supported by the local authority. Holman J held that where the AO was set aside, this left a statutory lacuna. Ultimately, he determined the position would be that the PO would continue such that M retained PR (the status quo ante). Thorpe LJ in giving the Court of Appeal's judgment endorsed this view. The difficulty for Holman J was that, as he saw it, there was no point in setting aside the AO unless he also granted leave to oppose the AO. To only do the former would create delay with no useful purpose. The CoA disagreed with this approach as the issues were distinct. It was said that Holman J (who was not sitting in an appellate capacity) should have set aside the AO (as it was procedurally flawed) and then remade it on the date he heard the case, on the basis that leave was not granted and so the application would have proceeded unopposed.

Thorpe LJ reminds us of how difficult it is for a parent to mount a challenge to the making of an AO: 'It cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that adoption orders will be set aside after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.' There are essentially three hurdles which, as Thorpe LJ explains, 'can be seen to be progressively higher fences':

• establish a change of circumstances;
• satisfy the court that in the exercise of discretion (which includes consideration of the section 1(2) ACA 2002 extended paramountcy principle) leave should be granted; and
• if leave is granted persuade the court at the contested hearing that it should not make an AO.

Thorpe LJ adds that in considering the broad discretion element for permission (the second stage) under section 47(5) ACA 2002, the judge must have regard to the impact of the grant of permission on the child (C) within the context of the adoptive family. The applicant for permission, he says, should demonstrate prospects of success which are not just fanciful or measureable but that have substance and solidity.

In a similar vein to the case above, T (A Child) [2010] EWCA Civ 1527 is a useful reminder of just how high the cards are stacked against members of the birth family where adoption orders are made. The application by the former grandmother (former, because C had been adopted) was for contact with C. The ground was fertile for disagreement as there was no firm understanding between the parties as to what the contact arrangements would be.

It was fluid in that there may be contact ifcertain conditions were fulfilled on the grandmother's part. The judge dismissed the application without hearing or even directing any evidence as to what had been said to the grandmother or the adopters by the local authority about future contact. The appeal was dismissed, however, as the Court of Appeal was satisfied that the shortcut taken by the judge to reach a decision on the grandmother's application was article 6 ECHR compliant. It also agreed that the change of position on the part of the adopters, who now were highly anxious and not supportive of contact, was relevant in that the issue was having an adverse effect on the adopters and therefore C. The paramount consideration was C's welfare and the judge was right not to become distracted by anything else. Wilson LJ reaffirms the line of the two prominent cases on this issue which simply hold that: 'The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual,' (per Wall LJ in Re R (Adoption: Contact) [2005] EWCA Civ 1128).

Examinations of sexual abuse injuries

A Local Authority v C [2011] EWHC 231 (Fam) was a care case heard over some 11 days. The judgment given by Theis J runs to 43 pages and deals with the evidence extensively. Interestingly, the case is primarily concerned with injuries suffered by C to her vaginal area which were said to have only taken place on one occasion but had led C to suffer bleeding from that area. The parents denied any form of abuse and C had been taken to hospital that night. At an earlier hearing Ryder J joined three of the paediatricians involved in examinations of C as interveners in the proceedings. Theis J deals with the established law, which the following is of note:

• Individual pieces of information in sexual abuse cases cannot be viewed in isolation, but each needs to be assessed and weighed in the context of all other pieces.
• The assessment should take into account all aspects of the case including the account and demeanour of the parents, assessment of the family circumstances and general quality of the parenting.
• Medical assessment of physical signs of sexual abuse has a considerably subjective element. Unless there is clear diagnostic evidence of abuse, purely medical assessments and opinions should not be allowed to predominate.
• Clinicians can express clear and genuine professional opinion and still be mistaken.
• Frame by frame analysis of a recorded examination can be forensically very important.
• Such cases have the potential for a grave miscarriage of justice.
• Failures to follow the ABE guidelines reduce, but by no means eliminate, the value of the evidence. So in this case, the same applied to any failures to follow the Royal College of Paediatrics and Child Health guidelines, The Physical Signs of Child Sexual Abuse (the RCPCH guidelines).

Theis J endorses comments from A London Borough Council v K [2009] EWHC 850 (Fam) that: (1) examinations of pre-pubertal children suspected of having been sexually abused must (if possible) be done by doctors who have relevant experience; (2) examinations should be DVD recorded; (3) clinicians conducting examinations should inspect the DVD recording before completing their written record of the examination. They should note what the DVD demonstrates and whether it conforms or contradicts what they saw with the naked eye; and (4) the written record should include a note of the anatomical configuration of the hymen.

Although the RCPCH guidelines state that it is not intended to be a guideline for the diagnosis of child sexual abuse, Theis J made it plain that in her view compliance with terminology and written records should be the norm:

• Precise terminology is essential when describing injuries to the genital area. The recommended terms in the RCPCH guidance should be used.
• Detailed written recording of the examination (including line drawings) is essential. This is particularly so if an examination is conducted in the context of a potential disagreement between clinicians and/or anticipated legal proceedings (criminal or family).
• Anyone who does this type of work must not only be familiar with the RCPCH guidelines but the expectation should be that it is followed, in the absence of good reason.

Further assessment

JD and others v City and County of Swansea [2011] EWCA Civ 34 reminds all involved in family cases quite how important expert assessment evidence is to the court. This comes at a time when the Family Justice Review's interim report has been published and advocates for the court to have a tighter rein on expert evidence. In this case the father (F) had been convicted of four serious sexual offences, he served time in prison and when released resumed his married life with M who then became pregnant. Only a year and a half after the parents told the Home Office Public Protection Unit (who in turn told the local authority) did the council arrange for a risk assessment. F then moved out prior to the assessment starting at the LA's request. Care proceedings commenced.

The risk assessment by the Lucy Faithful Foundation was favourable to the parents, as was the clinical and forensic psychological risk assessment of Dr X. Still not satisfied, Mr Cullen (a former probation officer and an experienced practitioner specialising in the assessment of risk posed by sexual offenders) was instructed. He recommended a system for the protection of C could be put into place in the home allowing for F to return. He also recommended short term and long term pieces of work with the parents. The judge rejected the evidence and concluded that F's risk was unmanageable. She refused to allow the 16-week adjournment sought for further assessment.

The Court of Appeal commented that the judge herself recognised that making a full care order meant a significant interference with the rights of C and the parents under article 8 ECHR. Effectively this meant that C was deprived of an upbringing by both her parents and effectively that would be the breakdown of the parents' marriage. Wilson LJ stated that the trial judge's decision had to be one of last resort: 'Having ruled that contributions from Dr X and Mr Cullen were necessary, the judge in effect jettisoned them; she appears, in the light of her supplementary response, to have proceeded by reference to a level of risk unsupported by expert evidence.'

The Court of Appeal stated that in light of those circumstances, the judge should not have denied herself the chance of further assistance from Mr Cullen, which could have been obtained without significant detriment to C and was plainly wrong to have shut the case down at that stage, unsupported by the experts, without properly allowing an enquiry into the prospects of achieving an acceptable level of management of any risk that F posed to C.