COUNTY COUNCIL v C [2002] EWHC 1379 (Fam)

"1 [D] accepts Professor Meadow's opinion in that: "

"It is essential to your role as an independent expert and to the parties' perception of your independent status, that there are no informal unrecorded discussions, or correspondence with any of the professionals or lay parties involved in this case."

"[D] will need a high level of therapeutic intervention both in relation to her own personal life story and her parenting ability, if she is to be able to assume care of [L] and offer him appropriate parenting. ... We feel ... that if a successful family unification were to be achieved it would take longer than the Family Unit at [my] Hospital is able to offer. Further psychiatric intervention therefore would need to be linked with a longerterm residential mother and baby type placement ... [my] Hospital would initially offer a two-week residential admission for [D] with [L]. The aim of such an admission would be both to continue with a more detailed assessment and also to consider whether [D] is able to respond to parenting advice/support and individual personal therapy. ... In summary, therefore, while we feel that [my] Hospital Family Unit could have a further assessment and treatment role with this family, we do not feel that this service on its own would be enough to achieve a successful family unification."

"Guardian ad litem and the social workers involved with [L] have expressed concern following receipt of the report from the ... Hospital, which they feel puts a more optimistic slant on the assessment than was perhaps shared at the professionals' meeting following the all-day assessment. Guardian ad litem and I discussed the fact that [Dr J] and [N] had met with [D] for a second appointment as planned, and had felt slightly more encouraged re the possibility of her engaging in psychological work following that second meeting. Hence this was reflected in the report that was submitted."

"[D] had moved her position slightly in that she felt responsible for taking [M] to live at [SC's] home. She continued to deny that she caused any of [M's] injuries prior to her death and denied any part in her death. I explained that her lack of acceptance of any responsibility was a serious block to her caring for [L] and of people feeling confident that she could do so safely."

"Choices are - admit for assessment or decide that likelihood is too slim of rehabilitation."

"The situation is clearly difficult to decide because there are several negatives, yet the case is not as bad as some ... ... we all agreed that it was not possible to be optimistic about the possibility for successful rehabilitation. However, on the other hand, one could not write her off completely because she has made some changes over the past several months We came to the conclusion that it would be inappropriate to launch into a two week residential assessment because the likelihood of emerging from it in the direction of further plans towards reunification seem slim at this stage. Also it was agreed that in this particular case there would need to be a greater degree of acknowledgement of responsibility on [D's] part for the harm to [M] in order to move forward safely with respect to her parenting of [L]. That being the case and because we are uncertain whether this is even feasible ([D] herself has made it clear that she did nothing other than fail to protect, and was quite adamant with us in the last session with us on this question), we feel that we must have a preliminary phase of seeing whether there can be any shift in this with [D] more intensively that can be achieved in an out-patient setting. Therefore, we agreed at the meeting to have a three day assessment admission for [D] individually ... to see whether she will shift on the question of acknowledgement. If she won't then, we will not move further forward towards reunification. If she does, then we would propose a two week assessment admission to include the baby. The difficult issue is just how far she's got to go along the dimensions of acknowledgement /admission. For the three day admission, we will expect there to be some significant movement with respect to acknowledgement of responsibility for harm to [M]. ... Furthermore, we need to have some beginnings of acknowledgement, at least of the feasibility that she suffocated [M] (even if she feels she can't remember it, etc). If she does not make progress with acknowledgement of harm then it seems fairly clear that we will not be able to move forward. If on the other hand she does, then we will still be left with all the issues of social isolation and questions about her personal capacity to use psychological treatments effectively. Both of these will need extensive thought and assessment in any rehabilitative plan. In summary, it would be extremely unlikely that she will be able to care for [L], but we feel it necessary to be certain ..."

"Formal minutes were not taken. Its purpose was to conduct a Professionals planning meeting and to determine the next steps that may or could be undertaken. I do not intend to set out the views formed by [Dr J] at this stage regarding your Client. ... Suffice it to say that active consideration is being given to admitting your Client for 2-3 days for the purpose of intensive work focussing upon the findings at the threshold hearing. I understand that there will be a further review immediately after that admission."

"I began the session by explaining to [D] why we had asked her to come for the 3-day admission. She had very little idea prior to coming in. I explained to her that, in relation to her making decisions about [L] it was very important for us to know and understand more about the circumstances leading to [M's] death. I explained that, in relation to thinking about the possible risks to [L], we would need to be very clear about what had happened to [M] in order to make that assessment. I acknowledged that it would be difficult for her to say more than she had already talked with us about but encouraged her that this was really the way forward for her in terms of the possibilities of resuming care of [L]."

"Observation of interactions here were not very impressive." "

"Although no progress made re direct actions of abuse; there have been in other domains. (This is difficult because the statement is agreed, rather than subsequent to a hearing). Hence we will recommend a 2/52 trial/assessment with meeting at 2/52 stage."

"This was a successful admission enabling us to clarify our view as to whether we felt that further assessment and treatment work within our Unit was indicated. The outcome is that we think that it is and that there is sufficient indications of a positive nature to justify an initial assessment admission of [L] with his mother. We would not propose this way forward unless we thought that there was a reasonable possibility that [L] could be cared for by his mother. Although I would not put the chances of this much higher than possible at this stage, I think nonetheless there is a reasonable possibility... The overall proposal ... is for an initial two week period of residential assessment for [L] and his mother, followed by a further period of approximately four-six weeks , should the outcome of the first two week period be generally regarded as successful successful outcome in the direction of reunification is by no means a certainty at this stage, but the aim of the work proposed as an in-patient at the Family Unit is in part to clarify this conclusion ..."

"I duly appeared before Mr Justice Holman .... He was fully informed of the developments and his immediate response was to say of you "he does not know of any other Doctor in the field who demonstrates such a caring and conscientious attitude"

"[D] does not acknowledge having caused direct harm to [L]. In fact she denies having done so However, she was clear that she knew her partner must have done so ... but at the time she accepted his explanations and didn't question him further. She is extremely remorseful about this lack of action on her part in retrospect and chastises herself for not having been more active on [M's] behalf. However, there are other indicators which we think are significant, besides those centering around direct acknowledgement of abusive acts. For example [D] ... recognises that she did not care for [M] adequately emotionally or in terms of cognitive stimulation. ... In addition, she has expressed considerable empathic feelings for [M's] plight, and experiences feelings of guilt and personal responsibility for her failure to protect. She states repeatedly and in different ways that she is responsible for her death, in that sense and should have 'read the signs'."

"[D] came out with a very strange comment ... She was talking about going to [Dr J] with [L] and what the daily routine would be. [D] said, with a smile, that she wouldn't be supervised all the time and that "there are no cameras in the rooms so they can't see me all the time"

"wished to make clear that [D] had only made a partial acknowledgement and she has not made a complete acknowledgement of what has happened to [M]. He felt that it was important for people to know that, whilst [D] had conceded the Threshold Criteria at the Finding of Fact hearing, she had still not acknowledged this in full to him. Dr [J] felt it was important for the parties to know at this stage of this "partial acknowledgement"

"[Dr J] would like to try and secure a meeting of minds before we actually embark upon the work."

"Perhaps we can also now consider future issues such as the professionals' meeting together with exploration of contingent planning to handle a residential placement should the matter progress to that point."

"Our client is happy that the meeting will proceed as Dr [J] has suggested ... Ideally, our client would wish to be present at such a meeting, as she was excluded from the previous meeting which was held on the 18th December 2002 [sic]. Our client's understanding is that the Local Authority have agreed to pursue with Dr [J's] recommendations and she is concerned that they will now retract such an agreement. ... Our client would like it noted that [we are] aware that in the meeting on the 18th December 2002, no formal minutes were taken of that lengthy discussion. We would, therefore, ask that minutes are taken of the next meeting and will be made available to all parties."

"I am only concerned to have feedback from Dr [J] following the meeting. Formal minutes will not be kept. The presence of your client and any representative on her part would not assist the purpose identified by Dr [J]."

"With regard to the meeting between Dr [J], the Guardian and the Social Worker we would point out that this is a professionals meeting, which has been requested by Dr [J]. The reason that your client was "excluded" from the meeting held on 18 December 2002 is that she is not one of the professionals involved in this case. With regard to Dr [J's] recommendations, as you will know the Local Authority have indicated ... that they agree with Dr [J's] recommendations and agree that the course of action which he advises should be pursued. Kindly reassure your client that it is not the intention of the Local Authority to "retract such an agreement"."

"Admission will no doubt be considered by Dr [J] at the meeting on the 7th of March."

"1 Mum is always there for contact - never misses. 2 Is willing to change contact times as long as she has her time. 3 Interacts quite well at times with [L], using appropriate "baby talk". 4 Can provide some basic care. 5 Appears happy to see [L] at contact times."

"1 Will not accept advice from anyone in relation to [L]'s care. 2 Does not change [L]'s nappy unless dirty, or is reminded to. 3 Does not buy anything for [L], or provide for him in any way. 4 Repeatedly told to buy reins for highchair to feed [L], even though H. V. has said not to feed him in walker [D] continues to do it. 5 Does not contact carers to ask about [L]'s well-being. 6 [D] does not ask workers about [L]'s progress or well being when contact has not taken place, i.e. over the weekend. 7 [D] constantly complains about [L]'s clothes and the care that he is receiving complains about Social Services. 8 Poor relationship with mother and [P] Flack - continued squabbling in presence of [L]. 9 [D]'s present life style is visiting local pubs that are rough and known to the locals, and the police, as places to take drugs. 10 [D] prefers to buy [X] - her boyfriend - gifts, spending money on socialising, meals out, going to the pub, visiting cinemas, etc., rather than prioritising [L]'s needs. 11 [D]'s continual denial of her relationship with [X]. Repeatedly saying that [X] was just a family friend when in fact she has been making comments to works that indicate that this relationship is more than "just friends", and has actually been going on for 5-6 months. I.E. [D] told supervised contact worker at Christmas time that [X] has "finished" with her, and that [X] wanted his freedom. [D] says that [X] knows all about "her business", and that he will "wait for her" if she goes to [the Hospital]. 12 [D]'s continual variations of the "truth", e.g. [D] would deny drinking any alcohol when going out to pubs, and Clubs. However, she admitted to the contact worker to having a headache one contact session. When questioned to see if [D] was ill, she replied, smirking, "

"We established that the primary agenda, prior to addressing the above two questions was to seriously consider the current situation affecting [L] and his mother, and to stop and think at this point in order to review the process by which the current decision point to admit had been reached; to consider whether this remained the correct decision; and to review case progress in relation to the original criteria which we had established through which to gauge progress. All present agreed that this was the most important area to discuss prior to considering whether to admit and what to do about contact in the interim."

"the ... team were becoming increasingly concerned about the direction of the case, as the move in the direction of reunification continues, yet with seemingly insufficient progress with respect to key criteria, which we had established during the early stages of working with [L] and his mother. [Dr J] explained that we were doing everything possible to give [D] space and room to make the appropriate changes and that had probably explained the difference between the tenor of our original oral feed back after the first assessment at the ... Hospital, compared with that in the report that we subsequently wrote. We clarified, therefore, that our intent had been to provide an opportunity for change and attempt to enable [D] to get into a position where a rehabilitative approach might be feasible. In our meeting subsequent to the finding of fact hearing, we thought there were some, albeit small, signs that [D] was shifting in her position concerning harm to [M]. However, that optimism had not been subsequently confirmed."

"In the light of these concerns we discussed the current plan to proceed with an assessment in the direction of continuing to assess the viability of re-unification, with [Dr J] raising a series of concerns which he and fellow team members had been debating amongst themselves. In the first place we are concerned that an assessment admission may involve considerable disruption for [L] in relation to his current attachment and relationships with substitute carers. The overall view was that one would need to be reasonably sure that an initial assessment period would lead in a positive direction, in order to justify the harm caused by disruption to [L]. In our view there would have to be a reasonable likelihood of success. However, the disruption caused might not be too great if there was a programme of visiting from his substitute carer during the admission. However, notwithstanding this, the ... Hospital's policy has been not to admit children from foster care with their parents unless there is a reasonable likelihood of proceeding forward towards re-unification. We next therefore considered the family's progress in relation to the original criteria we established for considering re-unification. Firstly [D] has not moved significantly on the issue of abuse. This is seen as a significant stumbling block to re-unification particularly in view of the clear-cut nature of the Findings of Fact. With respect to co-operation with professionals, there has been a marked tendency to misinterpret what professionals are feeding back to her. The example was provided of her difficulties in respect to a male contact worker. There are also continuing concerns about lack of empathy shown towards [L] and accompanying egocentricity demonstrated by [D]. In short, a concern that [D] consistently places her own needs ahead of [L]'s. It is clear that there is a significant discrepancy between what was apparently accepted in the High Court and the finding of fact hearing and [D]'s real position with respect to taking responsibility. It is clear that she accepts little, if any, responsibility for the harm to [M] and only barely acknowledges that she failed to protect and even then excusing herself from any responsibility, either through lack of awareness or through claiming she was the victim of abuse from her partner. Continuing concerns about lack of acceptance of advice and feedback. For example that gave surrounding [L]'s eczema. Overall we agreed that our team need to balance the likelihood of success against the harm to [L] caused by disruption and potential exposure to continuing abuse and neglect if there was no significant change in [D]. Lastly, HD confirmed that her experience with many clients, including significantly deprived, difficult and hard to reach people, was that she was normally able to build and keep good quality casework relationships. This had not been possible in respect to [D] and we agreed that this factor too needed to be taken into account when considering future likelihood of successful re-unification."

"But how much has [she] been coached by her legal adviser?"

"Overall, I indicated that our grave reservations about pursuing the assessment and treatment work in the direction of reunification had not been allayed by this meeting. In fact, if anything, our concerns were now heightened. I would therefore be writing an additional psychiatric report in readiness for the next Directions appointment before the Court, which was scheduled for 18 March 2002, before Mr Justice Munby. [Dr J] indicated concern that the position was a change in opinion, compared with the last session [Dr J] had with [D] and anticipated she would be distressed at the change in the [Hospital]'s view. HD and [the guardian] agreed to discuss this with [D] and convey the option of a face-to face meeting here at the [Hospital] in order to explain our reasoning further if this would assist."

"... I have now had further time to reflect upon the situation and have had the benefit of further discussions with [HD and the guardian] on 7 March 2002. I have also discussed [L] and his family situation with members of the multi-disciplinary team here ... The outcome of these processes is that I now wish to revise my opinion about the best way forward, having re-evaluated the prognosis for a safe outcome for [L] with respect to an attempted return to the care of his mother. In doing so I have taken into account a wide range of issues including: • The severity of the prior abuse to [M]. • The lack of acknowledgement by [D] concerning the full range of harm which the Court found [M] to have suffered. • Lack of empathic concern for [M's] suffering. • On-going concerns about parent-child interaction, based on contact observations. • Problems in the level of co-operation, which do not bode well for the ability of [D] and the involved professionals to be able to work together in partnership. • [D's] relative social isolation and lack of family support. • In addition it is clear that both primary health care, Health Visitors and the Social Work Team have major reservations from their perspectives and this factor too I feel should be taken into account when considering the prospects for the successful return of [L] to his mother's care. ... only if the prospects for successful reunification were sufficiently high would it be appropriate to subject [L] to the potential uncertainty involved in residential assessment here at the Family Unit. I was originally persuaded, but only on the finest of balance points, that it would be appropriate to move towards that plan, as reflected in my previous two reports. However, I have rethought the situation and feel now that the balance is tilted in the other direction, notwithstanding the fact that there are some positives in this situation. On that basis, I really do not feel in a position to recommend a period of in patient assessment and possible treatment work, because the likelihood of success is insuffciently high. I have not been able to discuss our change of position with [D] herself, I anticipate that she will be distressed ..."

"When he makes reference to seeing her ... that is for the purpose of explaining his view direct to her. It is not an assessment."

"The Local Authority at this stage will have to work on the basis of the advice that you have provided. There is an obvious inevitability that their plans will now exclude mother as a potential carer."

"I requested the meeting because I had developed major concerns about proceeding with the rehabilitation plan. I am not able to date precisely the sequence of my thinking about this matter except to confirm that it involved a continuing process of steadily increasing doubt about the direction of decision-making following my meeting with [DJ in the aftermath of the Finding of Fact hearing in November 2001. The Local Authority's request for further information was an important, but not determinative component to the sequence of decision making. I became aware from [HD]'s letter of 17 January 2002 of the depth of the level of the Local Authority's misgivings about the direction of case planning. This acted as a spur to cause me to reconsider the matter further though I stress that I had already had discussions with colleagues within my team. In these, we were debating correctness of the decisions made thus far and the directions we were planning. After receiving the letter of the 17 January, and notwithstanding the formal reply of the local authority as set out in the ... letter of 23 January 2002, I felt it was important to have a further professionals meeting to review decision making and the direction of planned attempts towards rehabilitation. I then reviewed our case record and clinical history and observations against the criteria we had set down as a means for gauging progress in this case. I had reached the preliminary conclusion that it was probably not appropriate to offer residential admission, prior to the meeting on 7 March 2002. The meeting on 7 March, served to both confirm that view in my own mind and further underline the depth of the Local Authority's misgivings. As a result of that meeting I was clear in my mind that it would not be appropriate to offer residential admission for further assessment and/or treatment with the possibility of re-unification in this particular case. I remain of that view now. This case is one of only two family situations in the last few years in which I have changed my opinion halfway through the process of planning assessment and intervention. Naturally it is regrettable when such a situation occurs because of the distress caused to a parent who quite reasonably was expecting a different outcome. However, I am hopeful that the reasons and basis for this change of mind will be evident from this report. I stress that our primary concern throughout has been to ensure the most appropriate welfare outcome for [L]. Our policy at the Family Unit is to offer residential assessment and treatment work where there is a reasonable prospect of reunification occurring. We do not offer a residential placement where, in our view, this is a mere possibility. These are the issues we take into consideration: • To avoid disruption to the child • To prevent exposing the child to potential significant harm. • To avoid raising the expectations of parents/carers and extended family, and indeed the children themselves, in situations where the prospects for success are not reasonably good. • To avoid establishing a situation wherein the momentum inevitably established through residential care, leads incrementally to reunification, especially in cases where the decision to re-unify is marginal. Thus we seek to avoid the situation where the momentum carries the case through to reunification rather than more objective decision-making. • In cases where the decision to re-unify is delicately poised rather than more clear cut, we rely on an amalgam of factors to enter the decision making matrix, as set out below. One aspect of this inevitably includes the prospect of health and social services agencies being engaged in work with the family, such that there is a sufficiently wide network of professionals to have confidence that continuing assessment and intervention work will keep the child safe and his or her welfare needs assured. • It would be inappropriate to use scarce health and social work resources for cases where the likelihood of success is relatively slim, as compared with those cases with better prospects. In our view where the other factors listed above are tending in a positive direction, however, it is an appropriate use of expensive resources to press ahead and attempt to achieve family reunification. I turn now to the factors which I took into consideration when considering the likelihood of success in this individual case. When considering the prospect for a safe and successful reunification the evidence indicates that it is preferable to consider a matrix of groups of factors which are able to be linked with eventual outcome for the child ... This approach was applied in this particular case. These factors can be grouped into the following domains: • Factors associated with the abuse • Parent Factors • Parenting and caregiving • Aspects of the relationship between parent and child • Family dynamics and relationships • Factors related to the neighbourhood and support therein • Professional factors • Social support When applying this matrix in [L]'s case, we established that the following factors were key ones with respect to gauging the appropriateness and success or otherwise of work in the direction of family reunification: 1. To obtain a clearer understanding about the abuse and neglect that [M] had suffered including any antecedent factors, the behaviour including assault or neglect, and any consequences thereof. 2. Psychological progress on working through the implications of any fresh acknowledgement of maltreatment which could be expected to occur with [D]. 3. The emergence of genuine empathic concern for [M] within [D]. 4. The maltreatment needed to include the full range of abuse and neglect established during the Finding of Fact hearing. This should include physical abuse on more than one occasion, the death of [M], and the issue of neglecting to protect her (in whatever proportions were revealed to be appropriate, once acknowledgement had been established). 5. Development of attachment behaviour in [L] towards his mother. 6. Improvement in parenting caregiving behaviour by [D]. 7. The establishment of a greater degree of openness and honesty in [D]'s relationships, particularly with professionals, but also with her extended family. 8. Overcoming social isolation both with respect to extended family and within her neighbourhood. 9. The establishment of improved working relationships with the professional network, particularly social work. This to include both taking advice and using it in order to generalise to other equivalent situations. There has been insufficient progress to indicate that progress might be made within a reasonable period of time (i.e., one commensurate with [L]'s developmental needs) such that a recommendation to pursue reunification would be safe and appropriate, in our view. I had already established, in December 2001, that a necessary pre-condition for reunification would be a greater degree of acknowledgement of responsibility on [D]'s part for having caused harm to [M], in order to be able toconclude that [L] should be returned to her care. The aim of the admission on 2 January 2002 was to see whether this level of acknowledgement could be advanced. Although our report in the wake of this admission were (sic.) initially in the direction of the proposed plan for assessment and treatment of reunification, I have re-evaluated the prognosis for a safe outcome now and this does involve a revision of my original opinion about the best way forward. This opinion is shared by colleagues within the multi-disciplinary team which whom I work. The particular points which concern us and lead us to this conclusion are the following: • The severity of the prior maltreatment of [M], eventually resulting in her death. • The lack of acknowledgement by [D] concerning the full range of harms which the Court had found [M] to have suffered. • The lack of empathic concern, in retrospect, for [M]'s suffering before her death. • Continuing concerns about parenting and parent/child relationships during present contact with [L]. • [D]'s social isolation and lack of support from her own extended family. • Lack of engagement with health and social work professionals and concerns about the level of co-operative work which has been able to be established. • The reservations of health and social work professionals are an added factor to take into consideration if a reunification plan were to be set in motion."

"There is absolutely no reason for me to offer a new assessment ... Dr [J] has given a very clear report which gives the reasons for his decision. [D] has simply not made enough progress to warrant rehabilitation."

"she informed me she only felt responsibility for taking [M] to [SC's] home. She continues to deny any responsibility for the actual injuries or [M's] death ..."

"The aim of this plan is to place [L] for adoption ... adoption is the only option left for him ... direct contact [with his birth family] would [not] be in [L's] interests once he is placed for adoption."

"However, more importantly, what is the purpose behind this request? If merely a fishing exercise then I feel the request would be wasteful and should be resisted strongly."

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

"1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

"Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."

"the European Court of Human Rights clearly determined that, although there are no explicit procedural requirements within Art 8 of the Convention, the quality of a local authority's decision-making process nevertheless itself engages Art 8. The court said in para 62 of its judgment: "

"the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that proceedings should be adversarial."

"certain principles concerning the notion of a "fair hearing" in cases concerning civil rights and obligations emerge from the Court's case law. Most significantly for the present case, it is clear that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to such cases as well as to criminal cases. The Court agrees with the Commission that as regards litigation involving opposing private interests, "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent."

"The decision-making process must therefore ... be such as to secure that [the parents'] views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them. ... what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as "necessary" within the meaning of Article 8."

"The right to an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party."

"one of the elements of a fair hearing within the meaning of Article 6(1) is the right to adversarial proceedings; each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court's decision."

"Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair - adversarial - trial "means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party"

"Correct and complete information ... is an indispensable prerequisite for ... striking a fair balance between the interests at stake."

"neither they nor their counsel had been informed of the dates of the interviews conducted by the expert. The expert had also referred in his report to documents which they had not seen and which it had been pointless to ask the hospital management to produce. They had thus been deprived of the opportunity to examine the persons who gave evidence to the expert, to submit comments to him on the documents examined and on the witness evidence taken and to ask him to carry out additional investigations. Admittedly, the expert report had later been communicated to the applicants, who could thus have challenged it in the Administrative Court. They had nevertheless been prevented from participating on an equal footing in the production of the report."

"The Commission submitted that compliance with the principle of adversarial procedure meant that where a court ordered the production of an expert report, the parties should be able to challenge before the expert the evidence he had taken into account in carrying out his instructions. There were three reasons for this: an expert report of this kind, produced under a court's authority for its own enlightenment, was an integral part of the proceedings; as the court was unable to assess for itself all the technical issues considered, the expert's investigation tended to replace the taking of evidence by the court itself; and merely being able to challenge the expert report in court did not permit an effective application of the adversarial principle as the report had become final by then."

"In the present case it was not disputed that the "purely judicial" proceedings had complied with the adversarial principle."

"while Mr and Mrs Mantovanelli could have made submissions to the Administrative Court on the content and findings of the report after receiving it, the Court is not convinced that this afforded them a real opportunity to comment effectively on it. The question the expert was instructed to answer was identical with the one that the court had to determine, namely whether the circumstances in which halothane had been administered to the applicants' daughter disclosed negligence on the part of the CHRN. It pertained to a technical field that was not within the judges' knowledge. Thus although the Administrative Court was not in law bound by the expert's findings, his report was likely to have a preponderant influence on the assessment of the facts by that court. Under such circumstances, and in the light also of the administrative courts' refusal of their application for a fresh expert report at first instance and on appeal, Mr and Mrs Mantovanelli could only have expressed their views effectively before the expert report was lodged. No practical difficulty stood in the way of their being associated in the process of producing the report, as it consisted in interviewing witnesses and examining documents. Yet they were prevented from participating in the interviews, although the five people interviewed by the expert were employed by the CHRN and included the surgeon who had performed the last operation on Miss Mantovanelli and the anaesthetist. The applicants were therefore not able to cross-examine these five people who could reasonably have been expected to give evidence along the same lines as the CHRN, the opposing side in the proceedings. As to the documents taken into consideration by the expert, the applicants only became aware of them once the report had been completed and transmitted. Mr and Mrs Mantovanelli were thus not able to comment effectively on the main piece of evidence. The proceedings were therefore not fair as required by Article 6(1) of the Convention."

"The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible ... This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences."

"As regards the decision-making process, the Court notes that the applicant, who had the benefit of legal aid, was legally represented before the Reading County Court, which on 31 October 1994 decided to dispense with her consent for freeing her child for adoption after having examined her complaint that she had not been allowed to participate at the meeting of 22 September 1993 and other complaints concerning that meeting. The Court recalls that, among the matters raised by the applicant before it, the county court's decision dispensing with the applicant's consent was the only measure formally affecting the applicant's rights. Moreover, the Court notes that the applicant took part in or was invited to a series of meetings organised by the local authority concerning her child's future. Not an insignificant number of those took place after June 1993. As a result, the Court considers that, overall, the applicant was given a proper opportunity of making her views known to the authorities. The Court recognises that the meeting of 22 September 1993, which the applicant was not invited to attend, was of special significance since it was on that occasion that the local authority decided to abandon the rehabilitation option. However, the applicant had been invited to, but did not attend, the previous meeting of 19 August 1993 when it was decided that long-term plans needed to be made urgently for the child's future. Moreover, between the two meetings, a community worker visited the applicant with the intention to discuss the matter with her and convey her views to those attending the meeting of 22 September 1993. Most importantly, the meeting in question was an administrative internal meeting, the aim of which was to formulate the local authority's strategy. Other such meetings occurred in the applicant's absence both before and after 22 September 1993. Moreover, the strategy decided at that meeting was not legally irrevocable. Finally, the applicant was promptly informed of the outcome of the meeting and had ample opportunity to attempt to change the course of events by making appropriate representations to the local authority and having resort to the domestic court that had been seized of the matter. In the light of all the above, the Court considers that it has not been established that the decision-making process was unfair or that it failed to involve the applicant to a degree sufficient to provide her with the requisite protection of her interests."

"In the event, the meeting on 23 April proved to be the decisive meeting in the decision-making process, and neither parent had any opportunity to address it, or to clarify any factual issues with the persons participating at the meeting."

"Both parents say that in the record of the meeting of 23 April there are a number of errors of fact with regard to the state of their relationship and to whether they were now putting themselves forward effectively as joint carers for T or as alternative sole carers. At para 31 the minutes state: 'It was acknowledged that Mr M had not put himself forward as the sole carer ...'. He says that that is simply wrong, although at para 5.2(ii) of her statement of 22 June 2001 Ms Doyle says that on 12 April 2001 the father told Helen Richards and Jerry Tremaine that their intention was to reunite. I do not know where the truth of the matter lies; but the critical meeting of 23 April disabled itself from trying to clarify the position face-to-face with the parents. Further, the father says that the meeting was misinformed as to, or misunderstood, the extent of his progress with abstinence from drugs. Paragraph 10 of the minutes records that 'Mr M has not fully addressed his quite severe long-term drug abuse'. He says that inquiry of the drugs project at Trengweath would have showed that he had. Paragraph 21 of the minutes records that 'Mr M is now on heroin substitute which he intends giving up in time'. He says that in fact by 23 April he had already ended, or was on the point of reaching the end of, his prescribed treatment with heroin substitute. Again, I do not know the truth of the matter; but it is not clear that the meeting reliably informed itself."

"I have heard nothing at all to satisfy me that there was any necessity to deny each parent an opportunity to attend at, and address, this critical meeting."

"The mischief which the letter is designed to prevent is an informal discussion between experts which is either influential in or determinative of their views, and to which the parties to the proceedings (including perhaps other experts) do not have access. The watchword of the Family Division is openness . Although the proceedings are confidential and held in chambers, nothing which affects the conduct of the proceedings must be done in secret. Everything must be above board. It is absurd in my view, and quite contrary to the spirit of the Children Act 1989, if experts are to feel constrained by their instructions from entering into discussions, informal or otherwise, which may assist in informing their opinion of the case. But if experts do have informal discussions about a case, perhaps because they share the same premises, or meet at a conference, or simply because they wish to inform each other's opinions, it is of course essential that they make a record of all such discussions (however brief) and, in their reports or otherwise, inform those instructing them that such discussions have taken place. It is equally important that they should state how (if at all) those discussions have influenced their thinking about the case. For my part, therefore, I would delete the word informal from the passage in the draft I have cited. Furthermore, I would put the sentiments the other way round. I would say: "

"It is of the greatest importance that a proper record is kept of all meetings of experts. This, in my experience, is best done by the guardian, although in complex cases is may be appropriate to employ a shorthand writer. It is, however, even more important that the results of the meeting itself are distilled into a statement or similar document to which the experts can put their names and which thus acquires evidential standing. Like every other aspect of procedural innovation, where experts' meetings are necessary, set up with care and conducted with intellectual rigour and discipline, they can save an enormous amount of court time and reduce the costs of a case substantially. Where, however, such meetings are unfocused or badly conducted, they can obfuscate rather than clarify issues, thereby lengthening a case and increasing costs. In my judgment, therefore, the parties' lawyers and the guardian ad litem have a particular duty to ensure that such meetings are only called when necessary; that they are appropriately constituted, have clear and relevant agendas, are sensibly conducted and properly minuted; and that the outcome of such meetings is as clear as the subject matter allows."

"All involved in giving joint instructions should take a full part at all stages and thus attend meetings with the relevant experts, or at least comment in respect of them."

"One of the experts whose expertise is nursing has interviewed the parents of the claimant for the purposes of the preparation of her report. There can be no objection to that. A single expert is perfectly entitled to interview the parents for the purposes of preparing a satisfactory report. There was no suggestion, as I understand it, for the defendant to be represented when instructions of that sort were being taken by the expert, and I would not expect the defendant to raise any objection to what happened in this case. That is one thing; but the idea of having an experts' conference including lawyers without there being a representative of the defendant present, as was suggested by the claimant's solicitors, in my judgment is inconsistent with the whole concept of the single expert. The framework to which I have made reference is designed to ensure an open process so that both sides know exactly what information is placed before the single expert. It would be totally inconsistent with the whole of that structure to allow one party to conduct a conference where the evidence of the experts is in effect tested in the course of discussions which take place with that expert."

"I would see no objection to consultation, as long as it takes place where both sides are aware of what happens within that consultation. ... There is nothing objectionable, subject to both sides being present, in such a discussion taking place. But the idea that one side should be able to test the views of an expert in the absence of the other party is clearly impermissible."

"When, if at all, should one party, without the consent of the other party, be permitted to have sole access to a single joint expert, ie an expert instructed and retained by both parties? In common with Lord Woolf CJ, I believe that the answer to this question must be an unequivocal "

"the whole idea of separate and private approaches (and I emphasise private) to a joint expert is wholly inconsistent with the reasons for the introduction of a regime of joint expert evidence. It is unfair to the expert himself who cannot properly judge how he should deal with the matters in the consultation. And if it is known to have been engaged in, it is likely to undermine the degree of reliability which the court itself can place upon the evidence which the expert eventually gives."

"In R v Hampshire County Council ex p K [1990] 1 FLR 330 it was held that a local authority who brought care proceedings has a duty to disclose all relevant information in its possession or power which might assist parents to rebut allegations being made against them, save for that which is protected by public interest immunity. ... In my view it is the responsibility of the local authority actively to consider what documents it has in its possession which are or may be relevant to the issues as they affect the child, its family and any other person who is relevant in regard to an allegation of significant harm, and to the care and upbringing of the child in the context of the welfare checklist issues. The local authority should not content itself with disclosing the documents which support its case, but must consider itself under a duty to disclose in the interests of the child and of justice documents which may modify or cast doubt on its case. The particular concern should relate to those documents which actually help the case of an opposing party. If there is any doubt about whether the information is relevant, consideration should be given to notifying the affected parties of the existence of the material. Whilst the temptation to invite costly, intrusive and pointless fishing expeditions should be avoided, there should be a presumption in favour of disclosure of potentially helpful information. If documents are obviously relevant and not protected from disclosure by public interest immunity, then the local authority should initiate disclosure."

"It was rightly accepted that all parties are under a duty to make full and frank disclosure. Initially, this places a heavy burden on a local authority when presenting their case ... it is also their duty ... to confine issues and evidence to what is reasonably considered necessary for the proper presentation of the case. A proper presentation is, naturally, one that is fair and that has a proper regard to Art 6 of the Convention. That heavy burden arises in all cases where public law orders are sought because of the nature of the proceedings."

"In relation to disclosure, there seems to be a general reluctance of many involved in family proceedings to disclose documents. In part, this is justifiably based on the nature of the procedure which, like judicial review, is based on statements and the obligation of the public body involved and other parties to make full disclosure. This leads to the discouragement by the courts of fishing expeditions for discovery or applications for discovery that can be described as Micawberism ... However, it seems to me that, additionally, this reluctance is also often incorrectly based on views relating to confidentiality and an assertion that records of the local authority are subject to public interest immunity ... issues relating to confidentiality and public interest immunity in the context of Children Act proceedings are regularly misunderstood and asserted as a reason why disclosure has not been made, or for refusing a request for disclosure made of a local authority, a guardian ad litem and experts in connection with proceedings under the Children Act 1989."

"something over and above or in addition to the simple assertion of confidentiality is needed to lead to a conclusion that disclosure of material that passes the relevant threshold test for disclosure can be refused in proceedings."

"Both local authorities and guardians ad litem should be more willing than they seem to be at present to exhibit their notes of relevant conversations and incidents that are relied on as evidence for findings at the threshold or welfare stage of proceedings, rather than to embark on what is a time-consuming and difficult exercise of preparing summaries of those notes"

"the role and status of the guardian did not warrant the failure to disclose the notes requested."

"It is not only the individual litigant's right to a fair trial which may point in the direction of disclosure of the documents to him. The interests of the other litigants may well point in the same direction, for the children and other parties also have a right to a fair trial and, as part of their right to a fair trial, the right to have the forensic materials properly tested. It may well be that only if there is disclosure to all concerned can the children and other parties to the proceedings be confident that the materials have been properly tested. So it may often be that disclosure of the documents to the individual litigant is not merely for his benefit but also for the benefit of the others and the children in particular."

"giving discovery in a wardship case ... is quite contrary to practice." "in my experience I have never heard of discovery of documents in such a case."

"Speaking only from my own experience, I have no recollection of any such order ever having been made."

"to offer [D] intensive individual work with the wider team to work on her acknowledgement of her responsibility for the death and abuse of her 1st child [M]"

"For [D] to use her formal and informal individual work to explore and acknowledge her involvement and responsibility for her first child's death by suffocation and physical and emotional abuse."

"nurses should attempt to build a relationship with [D] in which she may feel safe enough to talk about her experiences."

"Staff' spent over an hour with [D] chatting ... she was very chatty..."

"... She also said that after [M] died [SC] was violent towards her & this made her think who had he been hitting before her. She said 'even though I never laid a hand on her I was in a way responsible for her death.'"

"Contrary to the Government's submission, the Court considers that in conducting its review in the context of Article 8 it may also have regard to the length of the local authority's decision-making process and of any related judicial proceedings. As the Commission has rightly pointed out, in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. And an effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere eflluxion of time."

"[43] ... this case, like so many cases, insofar as one chooses to analyse it in terms of the Convention and in terms of article 6 rights, is a case where the difficulty arises because, whereas [the father and grandmother] lay stress upon one aspect of their article 6 rights - that is to say, the aspect which guarantees them a fair, unbiased and uncompromised guardian - [the guardian] and the local authority, not surprisingly, lay emphasis upon a different aspect of the children's and the other parties' article 6 rights: that is to say, the right to a speedy trial. It has to be borne in mind that not merely is the right to a speedy determination of proceedings of this sort a principle mandated in domestic law ... by section 1(2) of the Children Act; it is also ... one of the bundle of rights comprised in article 6. Moreover, it is a right or an aspect of the article 6 right which Strasbourg jurisprudence has long told us is of particular and pressing importance in the context of cases involving children."

"In other words, in just the same way as section 1(2) of our domestic Act identifies delay as being something inherently contrary to the interests of children, so does well-established Strasbourg jurisprudence in relation to article 6. [44] If one chooses to analyse the case in this way, this is in the final analysis a not untypical situation in which some litigants relying upon article 6 press upon the court the deleterious ... consequences of the delay which article 6 guarantees the litigants should be protected from, whereas another group of litigants point to the need, as they would have it, to take a step which will necessarily cause delay. In that sense, the article 6 rights or, to be more precise, the arguments derived from the article 6 rights of the various litigants before me stand in stark and opposing conflict. How, in that situation, is the matter to be resolved? [45] ... I have to evaluate and weigh the conflicting rights and interests. Although this may be conventional language, it is not merely a balancing exercise. It is a process of judicial evaluation of the factors which stand in the one scale, a judicial evaluation of the factors which stand in the other scale and a final balancing of those various factors in accordance with Convention jurisprudence and having regard overall to Convention principles of proportionality."

"... the conflict between apparently competing rights can only be resolved by reference to the overriding Convention principle of 'proportionality', assessed in the context of the Convention's commitment to the needs of democratic society."

"the ultimate resolution of the problem with which the court is faced is to be found by striking what in Z v Finland (1997) 25 EHRR 371 at p 407 (para [99]) was called 'a fair balance' and what in Douglas, Zeta-Jones and Northern & Shell plc v Hello! Ltd [2001] 1 FLR 982 at p 1018 (para [135]) Sedley LJ called 'the proper balance'."

"... articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights ... tested by, among other things, the standard of what is necessary in a democratic society ... the outcome ... is determined principally by considerations of proportionality."

"They have decided that if the substantial case proceeds to be heard on Monday 27th May 2002 they will not pursue their application for residence. They would, however, seek to continue to have contact with [L] if he remains in his present placement, although they accept that this would be infrequent. It is their view that maintaining a link with his natural family would be in [L's] interests and that this can be best achieved by occasional contact. They accept that [L] is being extremely well cared for in his present placement and are fully supportive of it if it is the Court's decision that he should not live with a family member."

"The Social Worker, Family Placement Officer, Health Visitor and Foster Carers have observed that [L] is happy and contented in his present placement. His foster parents have expressed a wish to be considered as his adoptive parents and this is under consideration. It is likely that there will also be other suitable couples who will also be considered."

"It would be a great shame if these foster parents are not formally considered as adopters for this child as [L] will benefit from remaining with the carers he has been with since birth. I would note that these are not foster parents who have tried to adopt by the back door, as it was the Local Authority who initiated the idea of keeping [L] located within their family."

"I am perturbed that the Care Plan placed before the court does not now truly reflect the actual plan of the Local Authority. I am of the view that I cannot endorse the current Care Plan as being acceptable at this stage."

"I do not at his stage recommend the making of a full Care Order. I would recommend that the Local Authority formally consider the positive benefit of [L] remaining with his current carers."

"I do not consider Mr and Mrs [J] as suitable adoptive parents for [L] as it became evident to me though the supervision process, as early as December 2001, that these relatively new and inexperienced foster carers were very emotionally involved with [L]."

"The Social Worker, Family Placement Officer, Health Visitor and Foster Carers have observed that [L] is happy and contented in his present placement. His foster parents have expressed a wish to be considered as his adoptive parents and the Local Authority agree to undertake an assessment of [L's] current carers. The Local Authority will endeavour to complete this assessment within a period of three months."

"There will be a delay of 3 months whilst an assessment of the current carers is carried out. There will be no change of placement for [L] whilst this assessment is undertaken. It would be proposed that if a positive recommendation cannot be made for [L's] long term future with [Mr and Mrs J] then a suitable alternative couple would also be presented to the panel in order that there is no further delay. If a positive recommendation can be made matching [L] with [Mr and Mrs J], they would be the only couple presented to the panel."

"Having considered all the issues in this case, and noted mother's stance I would consider that indirect contact for [L] with his birth mother would be tenable in the future. I also consider that I would be supportive of the grandmother having irregular direct and indirect contact with [L], for [L's] identity needs. Such contact would also reassure his mother that [L] is developing well and reaching his full potential in a happy settled environment. I am of the view that if the court does endorse the plan to place [L] for adoption, neither mother nor grandmother would wish to jeopardise the permanency of his future family life."