Go on then, appeal me, I dare you

The trial judge in Re P (A child) 2014 doesn’t QUITE say what I say in the title above, but it isn’t far off.

http://www.familylawweek.co.uk/site.aspx?i=ed130704

“If you do not like it, there is always the Court of Appeal.  Good luck.”

The Court of Appeal, reading that sort of thing in a transcript, don’t like it. It is rather akin to telling the heavily refreshed man with the tattoos on his neck that, yes, I AM looking at your bird.

How on earth did the Judge come to say that? Was it a truly outrageous application? Well, not really. It was the parents in a case suggesting that the grandparents who lived in Poland ought to be assessed. (And yes, that’s Poland, not darkest Peru or a remote part of the Arctic circle)

“MR SEFTON: Your Honour, we have raised with the Local Authority as well as other family members putting themselves forward.  The paternal and maternal grandparents have put  

THE JUDGE:  Whereabouts are they?

MR SEFTON: They are based in Poland.

THE JUDGE: Yes.  There are certain practical difficulties here.

MR SEFTON: Of course, there are practical difficulties.

THE JUDGE: Because, as in the next case,    the parallels are remarkable    without giving you any details, the next family are not from this country, the father has vanished very conveniently and the mother is saying, “He did it.  I did not.  Let me have my children back” and it might be that they are on the next bus to whether it is Paris, Berlin, Rome, whichever country they are from, where, miraculously, the father will spring up.  So England will not wash its hands of children who are here.  The applies to this child as well as in the next case.  That is one huge difficulty about considering family members who are natives of and residents in Poland.  If you do not like it, there is always the Court of Appeal.  Good luck.”

“MS ROBINSON: Your honour, clearly, a lot of work is going to have to be done in terms of the timetabling of this matter.  However, with regards to the extended family members, the Guardian is anxious that there is at least some enquiry made of them because this little girl is Polish and there are going to be significant cultural considerations that have to be borne in mind by this court.  I understand that both sets of grandparents are due to visit this country over the course of the next few weeks and the Guardian would like for both sets to at least be spoken to and for some enquiries to be made.  I also understand that there was a direction made by you earlier in these proceedings with regards to information from Polish Social Services regarding the father’s elder child and that information has, as yet, not been made available.  Again, I would ask that that is chased and that that information is available as soon as applicable.

THE JUDGE: Yes.

MS ROBINSON: I do not think there is anything more that I can add at this stage.

THE JUDGE: I am sure what I was saying to Mr Sefton is not lost on you, Ms Robinson, but the Children’s Guardian must not think that the panaceatic remedy will be the unimpeachable grandparents from Poland.  Poland is one short hop away from Merseyside and I very much doubt that I will be entertaining that as a solution should I come to the conclusion that this injury was non accidental, that it was perpetrated by one or both of the parents, that the other failed to protect or is lying through his or her teeth and in circumstances whereby it is not safe to reunite the family.  If it is not safe in this country, it would not be safe in Poland.  So, if anybody has the notion that the solution is rehabilitation to a member of the extended family in Poland, I would not share that sentiment in those circumstances.  There we are.

MS ROBINSON: But your honour would not be opposed to the Local Authority making enquiries of the grandparents when they are in this country in terms of  

THE JUDGE: No, but what I am saying is, and I direct my remarks to Ms Williams as I do to you, this is a game of chess, not draughts.  Any fool can play draughts and move one step at a time.  It takes rather more skill to play chess where you have to think several moves ahead.  That is what I am saying.  If it sounds like a crude exposition, then I apologise but that is what I have in mind.”

It is not a huge shock that with that sort of expressed view, the grandparents did not pursue their claim. It ought to have been appealed there and then, but wasn’t. By way of context, this exchange came after the Supreme Court’s decision in Re B  (nothing else will do)

There follows a lovely bit, which is almost something out of Allo Allo

Finally in this context, we have the submissions by Ms Bannon on behalf of the children’s guardian.  I quote from her skeleton.  Referring to the July hearing, Ms Bannon says this:

“The judge made it clear to all that rehabilitation of the child to Poland was not an option and this set the backdrop against which all placement options were considered.”

39. Now, that description of the guardian’s position is, we are told, a surprise to the social workers.  Equally, Ms Bannon tells us that the social workers’ surprise at what she has said is also a surprise to the guardian. 

The Court went on at a later final hearing to make a Placement Order, and the parents appealed that.

It is no huge shock that the Court of Appeal felt that the Judge had got it wrong in not exploring the possibility that the child could be placed with relatives in Poland. A consequence of that was that these proceedings, which could have been concluded in September last year, had an assessment been done, is still going on.

The Court of Appeal had this to say about when robust case management crosses the line
56. I cannot, however, leave this case without expressing my disappointment with the turn of events at the hearing on 26 July 2013.  There are many pressures in various fields of litigation, none perhaps more so that in family proceedings, for speed and efficient use of resources.  However, there are proper limits to robust case management. 

57. In my judgment, it is regrettably all too clear from the transcript that we have seen of the hearing on that day that, unfortunately, this judge appears to have closed his mind to any solution for this child’s future in Poland.  My Lord has referred to the relevant passages of the transcript.  There is a distinction properly to be drawn between case management and premature jumping to conclusions.  Unfortunately, it seems to me that the judge’s conduct of the hearing on 26 July fell very much on the wrong side of that line.

and

I accept Mr Downs’ submission that “The reality is that two willing sets of grandparents were overlooked because the judge set his face against a placement out of England and Wales”.

60. The local authority submits that the social workers thought that the option had not been closed out, but if that is what they thought, then it appears they made no efforts to find out whether there was any possibility of a placement within the wider family in Poland.  Nor does it appear from the evidence that they asked what should have been an obvious question: why was the maternal grandmother was proposing to come and live in Warrington on her own in order to be the carer for the child?  What was to happen about all her other family commitments in Poland and how long was she proposing to stay?

61. In making these points, I am impressed by the fact that the guardian’s solicitor, Miss Robinson, pressed the judge at the hearing in July to no avail, that the guardian herself was present at that hearing and that she formed the view that the judge had closed out the option.  At the very least, it suggests that Mr Downs’ interpretation was not an unreasonable one. 

62. I do appreciate that the local authority have great burdens put upon them, but they are, as Mr Downs submits, subject to a positive obligation under Article 8 to consider ways of retaining a child within the family.  That positive duty is owed also by the court.  Mr Downs has not cited any authority, but the principle is well known.  It is reflected in the decision of the Grand Chamber of the European Court of Human Rights in TP and KM v the United Kingdom (Application No. 28945/95).  I sat as the UK ad hoc judge on this case. 

63. At paragraph 71 of its judgment, and in the context of Article 8 and the margin of appreciation in relation to a local authority’s duty to disclose relevant information to the parent of a child who had been taken into care, the Grand Chamber held:

“71.  The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.  Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996 III, p. 1003, § 64).”

64. The judge’s observations give insufficient weight to the Convention jurisprudence.  Judges have to be very careful in the way in which they express themselves.  So if what they are really intending to do is to express a provisional view only to help the parties, they have to underscore, underline and make it clear that it is a provisional view only.

65. This case still has a very long way to go, sadly, before a permanent decision is made about the child’s future care and no one is predicting what that decision will be.