Re: A (2015) - a further Munby message to local authorities
Evidence, Threshold and “Good Enough” Parenting
(The President sends a further message to Local Authorities - or the latest weapon for parents’ lawyers?)
Re A (A Child) [2015] EWFC 11
In a “must read” judgment handed down on 17th February 2015, the President of the Family Division, Sir James Munby, provides further clarifying dicta to care practitioners on the fundamentals for local authorities in establishing their case. In a case described as, “a textbook example of how not to embark upon and pursue a care case”, the President was highly critical of the local authority’s lack of evidential clarity when seeking to establish their case, pursuant to s31 of the Children Act 1989.
The President provided guidance in three distinct areas:
1. Prove the Assertion!
The President first deals with a perceived failure of local authorities to properly establish the matters upon which they rely (emphasis added):
“The local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it.
It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.” (Para 9).
2. Plead Threshold Properly!
The second matter the President takes issue with is the pleading of the threshold findings sought (emphasis added):
“…The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”. (Para 10)
The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, 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… the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect.” (Para 12).
3. Are Local Authorities/Courts Setting the Bar Too High?
Lastly, the President restates and approves various authorities on the standard of care expected of parents. The President asserts that it is “vital always to bear in mind in these cases” and to recognise the “diverse standards of parenting” that must be tolerated by society. The President cites Baroness Hale in Re B at para 15 (emphasis added):
“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.”
The President also agreed with the somewhat controversial remarks of His Honour Judge Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam) (emphasis added):
“…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.”
Conclusion
In this latest judgment, following Re B-S last year, the President continues his campaign to eliminate ‘shoddy practice’ and ‘woolly thinking’ in care cases; refocusing courts, local authorities and practitioners back onto the fundamentals of the law.
I can well imagine that, just as Re B-S caused a flurry of appeals and authority-citing in hearings up and down the land, Re A will also become a much-quoted judgment for the foreseeable future; local authority advocates beware!
Read the full judgment at: http://www.judiciary.gov.uk/wp-content/uploads/2015/02/re-a-child-2.pdf
This article is intended as interest and information only. It should not be considered legal advice and the reader is encouraged to undertake their own research and study of the matters discussed here before relying on the same.
