Children and Families Bill

Lord Elton Excerpts

Tuesday 17th December 2013 Lords Chamber

[Baroness Butler-Sloss]

My Lords, this amendment raises an issue that has engaged academic legal discussion for about 18 years. I hear with some surprise the fact that some dramatic change was made in the case of Re J. That is not my impression.

There are, of course, two schools of thought, as there are in so many issues, even in family law. During the many years when I was a family judge, I heard many child injury and death cases and agonised over where the line was to be drawn between the protection of a child from significant harm and the importance for the child and the rest of the family of not removing that child from the family home on insufficient evidence. In the case that precipitated this amendment, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the seven members of the Supreme Court were in fact unanimous on this issue although they disagreed on some less important points, as I would respectfully call them. They decided on the balance of the bare facts of the case that they were against the removal of the children and that the threshold had not been crossed. Put at its simplest, this is a question of whether you remove a child on suspicion or go to the welfare stage on suspicion or whether you have to have evidence before you cross the threshold.

I was never a Supreme Court judge, but I respectfully agreed with the seven—

[Lord Elton (Con)]

I have one difficulty. I understood that it was not at this stage a question of removing the child—I thought that it was a question only of moving to the welfare stage. The noble and learned Baroness has just said the contrary.

[Baroness Butler-Sloss]

I am sorry—I was talking about the removal of the child or looking at other aspects of the welfare stage. I am sorry if I conflated that, but the noble Lord is absolutely right. It is a question as to whether the court can make decisions which include the removal of the children or the removal of the parent or putting in place supervision orders or various other intrusive orders into the family.

I suggest that this House should be cautious, when seven judges have said that the threshold has not been reached and crossed, about passing an amendment to the contrary effect. I was going to go through at some length the two cases that I think are relevant, because we go back to 1996—we do not start in 2009—but it is probably unnecessary. However, it was unrealistic for the Supreme Court to be given the one bare fact and not the surrounding circumstances, although it was undoubtedly intentional. In my experience of 26 years sitting as a family judge, 15 of them spent hearing this sort of case—many children who died and many who were seriously injured—as well as eight years spent hearing them on appeal, then going back to hearing them again as a first-instance judge, I do not remember a single case where this bare fact was the only point that the court had to deal with. So I believe that the cases are rare, although I entirely accept what the noble and learned Lord says—that even the rare cases, naturally, have to be protected. But if there is nothing but suspicion, I would suggest to your Lordships’ House, as the Supreme Court judges said, that you should not remove the child on suspicion.

The court has the jurisdiction to look at the entire case, although it is not able to make a decision on welfare in looking at the threshold point. There may have been some degree of confusion in Grand Committee as to what in fact the local authority and the court could do. I hope the House will forgive me if I go through briefly what I understand the situation to be. I would be astonished if it has changed from the days when I was sitting as a judge.

If you have a person, whom I will call P, who has been in a pool of possible perpetrators but not identified as the actual perpetrator of the injury or death of a child, the social workers are not precluded from investigation. I respectfully disagree with my most experienced noble friend Lady Howarth in saying that the social workers might not be able to enter the house or make the proper investigations. With the person, P, having been in a pool of possible perpetrators of the death or injury of a child—in the particular case of J, the child aged, I think, three weeks died of asphyxia but also had terrible injuries—the social services, if they had been alerted that P was in a new family, would see that as a highly relevant factor and naturally very worrying. The local authority has a duty under Section 17 of the Children Act 1989 to safeguard and promote the welfare of children in the area who are in need. It is almost certain that the sole fact available, that P had been in a pool of perpetrators, would trigger immediate action by a local authority.

Under Section 47(1)(b), a local authority in circumstances such as these would have a duty to make inquiries. A social worker would investigate and be likely to visit the family. If the inquiries are frustrated by access to the children being unreasonably refused, there may therefore be grounds for seeking an emergency protection order under Section 44(1)(b) or (a), for possible removal of the children from the home because of what is going wrong if they are not being allowed to see the children.

The local authority could also seek a child assessment order under Section 42(3). In any event, the local authority would be likely to seek an interim care order from a family judge under Section 38(2) in respect of the children. It would not look well to the judge if the parents refused access to the children; that would be a major marker against what was going on in the family. The children might be taken into interim care but, in the case of J, the mother very properly left the home so that the children could continue to live with the father. She moved out.

There would be a directions hearing by the judge of the care application and a CAFCASS guardian would almost certainly be appointed. During the period leading to the substantive care hearing, the family would no doubt be examined in depth. At the main hearing, P would clearly have to give evidence and be cross-examined as to what happened in the first family when the child was injured and died. She—it was a woman in that case—and J would be cross-examined up hill and down dale as to why she had not protected the child, whether she was actually the perpetrator, why she had not seen the injuries to the child, what she was doing while this child was being hurt, and whether she covered up for the other parent. Those are terribly relevant factors and, I would suggest, relevant factors to crossing the threshold if she gave unsatisfactory answers and if she was not believed by the judge. There would be assessment reports from the social worker, and of course the guardian would give his or her own report on the family’s position. All the circumstances would be very carefully considered by the judge in deciding whether the evidence available to him or her was sufficient to cross the threshold barrier.

Clearly, how well the new family were getting on and the care given to the new family by P and by the other partner were relevant to identifying whether there were other concerns that might tip the evidence over the threshold. Only if there were no evidence at all other than the bare fact of P having been in the pool but not having been proved to be the perpetrator would the evidence be insufficient to cross the threshold, and the judge would not make a care order or some other order excluding P from the care of the children. That is the point at which, if you do not cross the threshold, you cannot make a decision about removing the children or putting in a supervision order or any other sort of order.

I am very grateful to my noble and learned friend for giving me the opportunity to read the opinion of John Hayes. Of course, I respect his experience as an advocate in care proceedings but I disagree with his conclusions. Perhaps I may make a number of points on his opinion. He talks about a case of twins where the unharmed twin would be in danger if not removed from the family where the first child had been injured. In that case, the unharmed child would certainly be removed. However, we are considering a new family where one adult member is a possible perpetrator but there is now a new family unit with an adult against whom there are no allegations at all. It may also be relevant that in the J case the injuries perpetrated on the child took place seven or eight years before, and undoubtedly P would have matured. I believe that in that case she was extremely young—16 or 17 years old. She was in a much more stable and supportive environment and therefore might not pose a threat.

Taking the other points made by Mr Hayes, if a local authority becomes aware that a possible perpetrator is in the new family, I have no doubt that it will issue the proceedings even if there are no other concerns, and I am surprised to hear John Hayes say something to the contrary. I do not believe that the judge at the interim care stage would dismiss the proceedings before having the opportunity to see all the reports and examine all the evidence. If counsel for the parents applied at the interim directions stage to have the case dismissed, I would be equally surprised if the judge dismissed the case before the full hearing. I certainly would not have done that because I would have been worried. Of course, you would be worried until all the facts were in front of you. I would hope that the child’s guardian would look at the best interests of the child in the broadest sense and take into account the need for a balance between protection and the right of the child to have a normal life with the natural family. Interestingly, Mr Hayes talks about the balance between protection of the child and the rights of the parents to have a family life. For goodness’ sake, the right of the child to have a family life is much more important than the right of the child’s parents. What we have here is a balance between protection and the right to family life.

It seems to me that there has been an overreaction by academics, some social workers, some lawyers and some judges. The other side of the coin is the real danger that, if this amendment is passed, children may be permanently removed from their parents, their homes, their schools and their friends on a suspicion that the person concerned was in the pool of perpetrators, although he or she cannot be proved to have done the harm. That would be a great injustice to children, it would cause significant harm where there was no serious threat to children’s well-being and it would tilt too far towards intrusion by the state into family life.