A discussion of RE K (Children)  EWCA Civ 1549 which has just been decided in the Court of Appeal.
I previously blogged about the permission hearing here :-
The issue turns on this – in private law proceedings, the Court have a power to direct a Local Authority to make enquiries as to whether it is necessary to issue care proceedings – this is generally done when the Court begins to be so worried about the child’s circumstances that the possibility of care proceedings becomes a live one. The investigation is called a section 37 report.
The Court also has a power to make an Interim Care Order at the same time as making a section 37 direction – that is an order that allows the LA, if they decide to, to remove the child. So it is a very serious order, particularly given that :-
(a) The LA haven’t applied for it
(b) The parents won’t have seen a threshold document or social work statement in advance of the hearing
(c) When making the ICO, the Court does not necessarily know what the LA will do with it (or what the care plan is, in other words)
(d) That the parents will not have known when coming to Court that day that there was a prospect of the child being taken off either of them and put in care [as opposed to an application in care proceedings, where the parents are given notice and sight of the case against them and an opportunity, though a short one, to respond]
And so, making an ICO under a section 37 direction is a big deal. A very big deal, for article 6 purposes. [I would have hoped that the Court of Appeal might have emphasised these things more than they did. They might, for example, have drawn the parallel between the rightly high hurdle for an Emergency Protection Order, where the parents have limited time to respond or defend themselves, with an ICO made of the Court’s own motion]
What this appeal turned on, was the vexed question of whether, if the LA do their investigation and say “We don’t need to issue care proceedings and don’t need an ICO” , the Court has power to make another section 37 direction and ANOTHER ICO. [In effect, to make ICOs in an attempt to make the LA change their report and issue proceedings]
That’s what the Judge did in this case.
I was fully expecting the Court of Appeal to say that this was an abuse of process and goes further than the Act intends
Unfortunately, from my perspective, and that of the appellants, the Court of Appeal thought otherwise, and that the Court can make an ICO under a further s37 direction even when faced with a s37 report that concludes that the LA have investigated and don’t propose to issue proceedings.
- In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child’s circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court’s ability to utilise the s 37 jurisdiction to ‘one shot’ in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists ‘where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made’. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings.
- In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge’s exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court’s concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. In Re M (Intractable Contact Dispute: Interim Care Order)  EWHC 1024 (Fam), Wall J underlined the statutory structure thus:
‘[The court] cannot require the local authority to take proceedings. The limit of [the court’s power] is to direct the authority to undertake an investigation of the children’s circumstances.’ [paragraph 123]
- Having looked at the matters of principle raised by Mr Pressdee, and having determined that a court does have jurisdiction to make more than one s 37 direction during the currency of private law proceedings and has jurisdiction to extend or renew an earlier s 37 direction if the circumstances so justify, I now turn to look at the deployment of that jurisdiction by HHJ Tyzack in the present case.
Looking at the Act, there is nothing within it, or within case law that locks the Court into one section 37 and one s37 ICO and one only, and that is how the Court of Appeal decided it. But I respectfully think on the basis of natural justice, article 6 and proper process, it ought to have gone the other way.
For the avoidance of doubt, I think the decision is wrong, but not plainly wrong so that an appeal would succeed.
However, the Court of Appeal do say that where a Court does disagree with the s37 report and direct another one and make an ICO, it is incumbent on the Court to set out reasons. [And that is why I don’t think they could be plainly wrong]
The Court of Appeal did say that if the ICO had been appealed at the time, the appeal would have succeeded, but this particular appeal was brought after the final Care Orders were made, the LA having yielded to strong judicial pressure and issued care proceedings
- Prior to the hearing on 4th March 2011, LCC had complied with the request for an addendum by filing a substantial 30 page report, which concluded that Tun should be returned to his mother’s care under a Family Assistance Order to LCC for a period of 12 months. The recommendation was based upon the level of cooperation between LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that it did not intend to make an application under CA 1989, s 31 for a care or supervision order.
- It has not been possible to obtain a transcript of the March 2011 judgment, but we have seen an attendance note of the hearing made by counsel for LCC and a note of the judgment prepared by Dr K’s counsel. LCC’s counsel seemingly met the jurisdictional issue head on by submitting to the judge that there were now no reasons that might justify making a further s 37 direction and therefore no jurisdiction to contemplate making a further interim care order. The judge apparently pointed to aspects of the report which gave rise to fresh concerns, in particular with regard to sanitation at the B’s home and the prospect that they might be evicted. He was also concerned that the social worker regarded it as acceptable for Tun to be left to protect himself from emotional harm by ‘developing strategies’ to cope with Mr B’s behaviour. These concerns are mirrored in the note of judgment which continues:
‘I am satisfied that it would not be right to act on what [the social worker] has said and I am not minded to discharge the ICO. I require the local authority to address the concerns of the father and the children’s guardian and the court on reading [this report]. I shall give [the social worker] 21 days to respond. I shall direct that input on behalf of the father and the guardian be put to [the social worker] within 14 days.’
On that basis the judge made a further s 37 direction for 21 days and a further 28 day interim care order.
- Mr Pressdee submits that the judge’s actions on the 4th March are in a different category from those at the earlier two hearings and that it is hard to avoid the conclusion that the judge, sitting in private law proceedings, was effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in CA 1989, which separates the local authority from the court. He also submits that the judge, once again, inverted the order of decision making by first determining that he was ‘not minded to discharge the interim care order’ before making the s 37 direction. Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why the s 37 report was deficient; instead he delegated that role to the father and the guardian who were, over the course of 14 days, to indicate their concerns to LCC. In this context it is of note that the guardian had apparently departed on leave prior to seeing the March s 37 report and was not at the hearing. His views on the document were therefore not available to the judge at that time.
- Although a court has jurisdiction to make more than one s 37 direction in the course of proceedings, the exercise of that jurisdiction is to be considered at each turn with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body on the question of whether or not a child is to be the subject of care proceedings. In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.
- By the 4th March the local authority had plainly discharged its duty under s 37 to investigate Tun’s circumstances, it had provided a comprehensive report of that process and had described the reasons for its considered and sustained opinion which was that it did not consider that a care or supervision order was justified at that time. On the evidence as it was at that hearing, making a further s 37 direction and, on the back of that, a further interim care order were steps that were clearly on the far side of the jurisdictional line delineating the role of the court from that of a local authority. In making these orders on that day the judge would seem to have failed to appreciate the limitation of his powers.
- In addition, where a local authority is presenting a considered position which is against the issue of care proceedings, it must be incumbent upon a court which holds a contrary view to spell that view out in clear terms and full detail in a reasoned judgment. In the circumstances, it was not sufficient simply to refer back to the December 2010 judgment and recite that the interim threshold had been satisfied at that time; it was, by March 2011, necessary to engage with the contrary view that was being firmly and consistently presented by LCC. The short judgment that was apparently given, and the delegation of the task of spelling out the suggested deficits in the local authority assessment to the father and children’s guardian were significant procedural errors.
- If this appeal were being heard during the currency of the 4th March 2011 order, rather than 18 months later, the s 37 direction and with it the interim care order would have to be set aside on the basis that the court had exceeded its jurisdiction in making them and had done so in a procedurally unsustainable manner.
On the broader issue of the appeal, that the Judge making the final decision about care orders had been biased, and in making his succession of ICOs under s37 he had effectively determined the need for care orders before considering the evidence as to whether they should be made, the Court of Appeal rejected this.
- In the circumstances, Mr and Mrs B’s appeal must stand or fall upon the conclusion to be reached on their core assertion which is that the whole process before HHJ Tyzack was fatally tainted by unfairness and judicial bias against them. Their case is assisted by the conclusion at which I have already arrived to the effect that in making the March 2011 s 37 direction and a further interim care order the judge exceeded his jurisdiction. That conclusion is, however, the high point of their case on bias and unfairness. The conduct of the proceedings has to be looked at as a whole. From that perspective, for the reasons that I have given, I can detect no evidence of judicial bias or procedural unfairness. On the contrary the judgment of April 2011, the directions order of November 2011 and the full reasons given for the final decision in January 2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process, should they choose to take part in it, and laying out clearly the factors that he was concerned about and in relation to which he would need to see evidence of change, should Mr and Mrs B wish to provide such. The actual decisions made by the judge were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in not, of itself, any indication of judicial bias. In the present proceedings it would seem that Mr and Mrs B’s unilateral actions in withdrawing from cooperation with LCC and with the court at key stages contributed much to the way in which their claim to have Tun in their care became progressively less and less tenable.
- Having undertaken a thorough analysis of the process in this case, and despite having concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs B had appealed the March 2011 interim care order at the time then, in my view, that appeal would have succeeded. They did not do so. Instead they withdrew from cooperation with a local authority, which hitherto had been supporting them to be Tun’s carers. Events moved on and now, some 18 months later, the finding of error in March 2011 is part of the history and cannot, of itself, lead to a finding that the judge’s final conclusion should be set aside with the result that the whole question of this young boy’s future should, once again, be considered afresh by the court.
- For the reasons that I have given I would dismiss this appeal.
[Though I think the appellants had a point here, a Judge who is making repeated s37 ICOs is basically both the applicant and the tribunal determining the application, and it doesn’t sit well with me. I have no way of knowing, of course, whether it was the Judge or the LA who had looked at the case the wrong way, but it does not sit well with me that a Judge who had effectively midwifed the care proceedings into being then determines the outcome of those same proceedings. It seems to me that whilst justice might well have been done, I’m not sure that it was seen to be done. I have a great deal of sympathy for these parents, who never really came to terms with what they genuinely perceived as unfair treatment, and lost their children as a result of their unwillingness to engage thereafter. My personal view is that when the parents asked the Judge to recuse himself from the case, that ought to have happened. Again, sadly, I don’t think the Court of Appeal were plainly wrong on this. ]
Here’s the case, make up your own minds