The President of the Family Division, Sir James Munby, handed down an important judgment last week reviewing the fundamental principles of care proceedings, in a case where the applicant local authority was heavily criticised.
In Re A (A Child)[2015] EWFC 11 the court condemned the local authority for asserting certain factual matters which were mainly drawn from third parties who were unable to provide evidence to court and whose evidence would be considered hearsay.
“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.”
The President also reminded practitioners on how the court experts threshold to be pleaded, setting out a statement of facts as alleged rather than the reporting of what others have reported or said.
“The second practical and procedural point goes to the formulation of threshold and proposed findings of fact. 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”.
Finally, the President provided a timely reminder of the dangers of ‘social engineering’, referring in particular to the judgment of His Honour Judge Jack in the case of North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam):
“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.”
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