Guardians are not a ‘neutral party’ and don’t get brownie points

MW v Hertfordshire County Council 2014 raises a number of important points for family law practitioners

http://www.bailii.org/ew/cases/EWCA/Civ/2014/405.html

The fundamental dispute was whether the children would be placed with long term foster carers, or with relatives (a maternal aunt and uncle, who lived in Poland) – the care proceedings arose as a result of the father having killed the mother. The Court at first instance made an SGO to the aunt and uncle, this was then appealed by the LA and father and the Guardian supported those appeals.

The key points are

1. The protection laid down by the Supreme Court in Re T, that costs orders should only be made against Local Authorities in cases where there has been reprehensible behaviour or an unreasonable stance DOES NOT apply to appeals

The local authority and any other appellant has a responsibility to evaluate the merits of the appeal objectively, not merely at the times of drafting grounds when disappointment is rife, but subsequently and up to the date of hearing applying a critical analysis in the cold light of day. The grant of permission does not obviate that responsibility or otherwise necessarily provide a shield against an application for costs against a victorious respondent or appellant.

[Given that it is only the LA that have any money in care proceedings, this is a cost risk that only they are exposed to. As we saw recently, that was developed into not only appeals that the LA brought, but one where they were supporting the original judgment. In this case, both the father and the LA appealed, on the same basis, and the appeal was also supported by the Guardian – the LA were hardly a lone voice crying in the darkness, but they were the only ones who had to open their chequebook]

2. Guidance on cases involving litigants in person –

(a)   it is the duty of advocates not to seek to gain unfair advantage on behalf of their clients as a result of someone else being unrepresented – where a mistake in law or fact is articulated, it is the duty of the advocates to draw that to the Court’s attention EVEN if silence would benefit their client

(b)   the Judge has to be the arbiter of the case and cannot descend into the arena (I always love the visual image that this conjures up for me of the Judge being like Spartacus and tackling a lion with a spear and trident.  “I’m Mr Justice Spartacus”  “No, I’m Spartacus J”   )

(c)   It isn’t for the Guardian to act as an amicus, or make representations or put questions on behalf of the litigants in person – the Guardian is ‘not a neutral party’

The children’s guardian is not a “neutral” party or participant. When appointed under the Family Procedure Rules (“FPR”) 16.3, as here, the children’s guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. Practice Direction (“PD”) 16A 6.2 requires the children’s guardian to appoint a solicitor and instruct the solicitor on “all matters relevant to the interests of the child arising in the course of the proceedings” unless the child, being of sufficient understanding instructs a solicitor on their own behalf. FPR 16.29 specifically provides that a solicitor appointed by the children’s guardian must act in accordance with their instructions unless in conflict with the child’s instructions, if that child has sufficient understanding to give instructions on their own behalf, or in the absence of either in furtherance of the best interests of the child. Whilst FPR16.20 (2) requires the children’s guardian “must also provide the court with such other assistance as it may require”, quite clearly a court should never request assistance which renders the children’s guardian or their legal representative effectively engaging in advocacy on behalf of a party or witness whose position creates an actual or perceived conflict of interest with that of the child.

3. Guardians don’t get bonus points as a result of their role and don’t have special treatment as witnesses

[This will be something that causes most social workers I have ever met to say “Really?” ]

Again, arguments advanced in this appeal have revealed the continuing misconception that the evidence and opinion of a children’s guardian, however demonstrably poorly rooted or reasoned, carries additional weight by virtue of their “special” status. It must be firmly squashed. The children’s guardian is required to proffer advice to the court but in doing so becomes a witness subject to the same judicial scrutiny as any other. A children’s guardian starts with no special advantage.

I know that from Re NL, the justices reasons have been looked at with a critical eye by the High Court, but that case didn’t tackle my own bugbear which is that on so many of the standard facts and reasons pro-formas, there is a specific section dealing with the views of the Guardian and if the Court departs from those, to give reasons.   (That does, to me, imply that the Guardian starts with some special advantage – I have always felt that the Court ought to give reasons for diverting from ANYONE’s case – parents, grandmother, Guardian, Local Authority – all of them are entitled to a proper fair consideration and to have reasons as to why their views have been rejected)

I’m going to quote the Court of Appeal on that again, because I’ve been waiting for someone to say this since 1994

Again, arguments advanced in this appeal have revealed the continuing misconception that the evidence and opinion of a children’s guardian, however demonstrably poorly rooted or reasoned, carries additional weight by virtue of their “special” status. It must be firmly squashed. The children’s guardian is required to proffer advice to the court but in doing so becomes a witness subject to the same judicial scrutiny as any other. A children’s guardian starts with no special advantage.

5. The principles in Re B and Re B-S are NOT limited only to cases involving adoption – they set out some basic and fundamental principles that are broadly applicable to all cases of State intervention into family life.

There are clear principles to be drawn concerning the necessity to police the proportionate response of intended involuntary state intervention into family life by rigorous judicial scrutiny

6. The Court of Appeal get near to, but don’t quite commit to what the test is for extended family members.

The Judge at first instance said this

“the core question is not whether the J’s or the [foster carers] can provide better care but whether the J’s can provide good enough care. It is only if they cannot provide care of at least that standard that the removal of the girls from their family can be justified”;

and,

“The starting point must be that the children are best placed with close family members than strangers and should be placed with close family members unless the family is proved to be unfit, …severance from the family should only take place in very exceptional circumstances. Everything must be done to preserve families. Even if the girls might be placed in a more beneficial environment with [the foster carers] – which incidentally I do not accept – if the J’s can offer good enough care the children should be placed with them”.

Part of the appeal was that these passages showed that the Judge had wrongly approached the case on the basis that a family relationship trumped all else.

This is an interesting and important point – it has been well established and settled law for a long time that for a parent, the Court is not looking for perfection, but whether they are able to provide ‘good enough’ care, but it is less clear whether the same test applies to a family member under consideration.   [I think the Judge is right, personally – it shouldn’t be a matter of whether the child might have a better or happier life in the care of the State, but whether the aunt and uncle could provide good enough care]

The Court of Appeal did not grant the appeal on that basis (but nor did they say that the Judge’s analysis of the core question “whether they can provide good enough care” was right)

Case law does not create a rule that “family trumps all” but family ties must be considered as part of the child’s “background and.. characteristics” (see Children’s Act 1989 section 1(3) (d)). In this case the judge considered them to have particular resonance and particularly so in the light of his entirely favourable impression of Mr and Mrs J. The judgment read as a whole illustrates that he has balanced biological family life against other considerations of the children’s ascertainable wishes, the disruption of what had become an entirely successful long term placement, education and social life, their bereavement and consequent physical, emotional and educational needs. He decided that the balance came down in favour of long term benefits of a family placement.

The Court of Appeal did change the order from SGO to interim care orders (recognising that an SGO when the children were going to live in Poland probably wasn’t much use, and that urgent exploration needed to take place of what legal framework ought to be in place in Poland)