I often, as many of us do, find myself talking to a parent in conference. So often I hear myself saying to clients that the business of the Family Justice system is risk.
The management of risk is, fundamentally, the commodity we deal in.
But what does that mean? In that moment in the conference, for the client, it means; don’t lie, be honest, work with professionals. All these are actions or attributes that we as barristers say enable risk to be managed.
There is however a part of the puzzle that comes before the risk ‘management’ phase.
That is where those that assess the risk need to adequately define it. As practitioners we have a duty to afford anxious scrutiny to what is said to inform risk.
Increasingly, risk is poorly identified and with overworked professionals, it is becoming more common for the genesis of risk, its context and its future impact on welfare to be overlooked at the inception of proceedings, during the assessment phase and latterly when scrutinised by the court.
The stakes are simply too high for this approach to become a feature of practice within the Family Justice System. When it is said that something is a risk, we have to understand firstly what fact specifically informs that risk, why it is said that in light of that fact, the risk exists and what can be done by the social workers and ultimately the family court to mitigate against this risk.
My aim in this article is to set out some thoughts, non-exhaustively, to assist with a reminder of how to scrutinise a case so that proper evaluation can be made and to highlight some of the arguments that need to be made at an early stage.
The Supreme Court in H-W (Children); H-W (Children) (No 2) [2022] UKSC 17 reiterated much of what was already known. It is however an important piece of authority to address proportionality of orders sought, based upon the process of linkage of threshold to welfare, including, importantly, the process of risk mitigation analysis. Within the body of that Judgment the following is set out;
[57] The appeals boil down to how the judge assessed mitigations and options. The judge was required to look at both… …However, on close inspection the paragraphs previously referred to simply set out the options and there is in fact no analysis of the competing options and the issue of mitigation.
[60] The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be reduced for each child…
I have recently myself successfully sought two adjournments for further risk assessments at the conclusion of the evidence in lengthy trials, both where care and placement orders were being sought, both where such orders had been supported by the guardian.
The principal reason for that adjournment was an inadequate identification of risk which was based upon either generalised pleadings or care not having been taken during the proceedings to assess the factual context of the case which left a gaping lacuna when it came to the analysis of risk mitigation. Ultimately none of the children involved went on to be made subject to placement orders.
I would suggest that the first failure in this analysis is often found in threshold. That failure is no doubt fuelled by overworked legal departments drafting too quickly and without a proper and continuous review of threshold as the evidence develops. As practitioners we are all sympathetic to that, but too often there are what has been termed “generalised pleadings” in threshold that are not then evaluated or scrutinised during the proceedings as the evidence develops. The danger here is that what then develops is an undefined and precarious alleged factual matrix that starts to inform welfare recommendations within the assessments.
What I mean by that are pleadings such as “the parents use drugs” and “there has been domestic abuse in the relationship” and “the house was dirty and neglectful” and “the mother/father suffer from mental ill health” and “the parents continue to communicate with each other.”
None of these pleadings act as a sound factual foundation to assess risk and make recommendations for welfare.
When where and how does the parent use drugs? How has it impacted on the child’s welfare and safety? What is the domestic abuse? When did it happen? What is the extent of it? What were its circumstances; what is the context? Who was the perpetrator and who the victim? At what times was the house neglectful, had there been changes in the family make up of circumstances that lead to it?
In response to an argument that the Local Authority have not particularised their case properly I often hear that there is a requirement to be concise and limit threshold to a short document.
Plainly however, there is no conflict between the requirement to be concise in drafting and the need to set out what specific allegation the parent actually faces. Indeed, I would argue it is a fundamental duty of the Local Authority to draft in a manner compliant with Re A [2015] EWFC 11 and also to be concise in its pleading. The Judgment in Re A [2015] has now become trite law and gives some fundamental guidance when linking the facts in threshold to welfare. Only a month after Re A [2015] the Court of Appeal made the following remarks in Re J [2015] EWCA Civ 222
[27] The other matters relied upon (lack of parenting model, ‘not always honest’, fail to engage consistently/accept support and displaying emotional maturity) are in the most general terms. The ‘findings’ do not identify what significant harm the judge has found that ‘the child [J] has suffered’; no such harm is found to be proved in the body of the judgment and it was common ground that J had been in foster care (albeit together with the mother for the first three weeks) throughout his life. Looking to the future, the type of significant harm that the judge finds that J is likely to suffer is not identified…
The appeal court described the judge’s judgment as representing a “wholly inadequate evaluation of the important issues that fell for determination in this case.”
Plainly where there is an overwhelming body of evidence to demonstrate the children’s exposure to domestic abuse proximate to the time protective measures were taken, this will necessitate a more straightforward assessment of any change to inform welfare.
Often however, it is more nuanced. In one case I have been involved in, the Local Authority had pleaded “domestic abuse in the relationship” All of the welfare assessments were negative on the basis that the mother and father were still in communication and the father had no insight into the “domestic abuse.”
Having reviewed the evidence, an amended threshold was sought prior to trial requiring the local authority to specifically plead the domestic violence against the father. When that document arrived, the pleadings were scant. Only after the five days of evidence when the factual matrix was distilled into a judgment was the father able to show that all the allegations of controlling and coercive behaviour related to him repeatedly asking the mother to stop her drug usage and at times falling out with the mother in relation to that. The mother accepted that as a consequence of her attention deficit hyperactivity disorder and significant drug usage, she had been volatile, defensive and wrongly reported him as controlling. The court in its judgment was not satisfied that the father was a domestic abuse perpetrator at all. This then undermined all the welfare assessments.
The adjournment and consequent delay for the child for further assessments to be undertaken based on an accurate reflection of the evidence that should have been both pleaded and informed the assessments from the outset, was entirely avoidable for the child.
If we do not identify at an early stage the inadequacies of the threshold, what follows is a misinformed assessment of risk. I would encourage us all to remind ourselves of the need for a properly pleaded fact specific threshold. There should be regular reviews of the evidence as it develops and timely gathering of primary evidence and relevant disclosure. There is a need to ensure that the evidence filed by a Local Authority includes a detailed evaluation of what risk mitigation tools can be deployed in those fact specific circumstances, irrespective of what the Local Authority’s plan is. Only then can the court conduct the holistic balancing exercise that the child’s future demands.
Andrew J. Duncan, barrister, 3PB