Appeal against a supervision order – and what happens when the Judge rejects the professional evidence

The Court of Appeal have given their decision in Re Z O’C 2015  http://www.familylawweek.co.uk/site.aspx?i=ed143389  and it raises some curious issues.

Firstly, this was an appeal against the making of a Supervision Order. Those don’t get appealed very often. Secondly, this was an appeal by the Guardian, and the Court sent the case back for re-hearing. Third, the parents in the case agreed when the original Judge made the Supervision Order (which would mean return home) to agree section 20 accommodation pending the appeal – which they didn’t have to – they could have pushed the Local Authority or Guardian into applying for a Stay  (meaning that the Supervision Order would not apply pending the appeal)

Also it sort of answers a question posed by one of my commentators – what happens in a case where the Judge sends the child home, and the appeal Court say -re-hearing. Where does the child go pending that re-hearing?

In this case, the child stayed in foster care.  That won’t always be the case, but the fact that the Court of Appeal did it here is fairly powerful.

During the hearing, the Judge was unhappy with the assessment conducted by the Local Authority, and also as the Guardian relied on it, of the Guardian’s evidence as well. That posed something of a problem, since an earlier hearing where the parents had applied for an independent assessment had been refused. By a different Judge, but the Court having ruled that an independent assessment wasn’t necessary was faced at final hearing where the assessments could be properly scrutinised and tested with assessments that were not satisfactory.

The detail of why the Judge felt the FAST assessment that informed the social work was flawed is not really the subject of this piece – it is all there in the judgment if you are interested. Here’s a flavour of it

33. The judge found himself in an invidious situation.  The District Judge had properly refused the application for an independent social worker report and had attempted to put in place through her careful case management order, provisions to rectify the deficits in the assessment process.  Unhappily, the local authority failed to comply with the order in terms of arranging for a family group conference, an important event in order to ascertain what support would be available in the event that there was rehabilitation and which would have given the guardian an opportunity to meet the extended family who would have to form part of a successful rehabilitation programme. 

34. It was also a serious deficit that, despite indicating to the contrary in the assessment, the social workers had not in fact read Dr Dowd’s report and so did not have the advantage of putting what they were seeing and hearing from the parents in context against the backdrop of the psychological assessment.

35. The local authority’s case in closing was that, notwithstanding the criticisms of the defects in the FAST assessment, the conclusion was not undermined nor was it rendered unsafe to rely upon its conclusion.  The judge said in his judgment in terms, “I respectfully disagree”.

These were the judicial conclusions

37. The judge, having dismissed all the evidence going directly to the parenting assessment, moved on to analyse over five paragraphs, a number of serious concerns he had about the father, the headlines of which were: (1) his failure to take up a parenting course; (2) his failure to attend contact; (3) his decision to go to Pakistan at a critical time in December 2013; (4) his failure to inform his family of the birth of [A]; (5) his failure to do anything about the state of the home where his child was living, which was revealed in the photographs as “disgusting”.  These issues, the judge said, brought into question the father’s motivation; a key issue, it will be recollected, in Dr Dowd’s view in determining if the father could care for the children.

38. How then did the judge conduct the welfare analysis which led him to conclude that notwithstanding those findings he was satisfied that rehabilitation to the father and mother was in the best interests of the children.  The judge said in relation to his conclusion:

i. “In my overall view too little weight has been given by the local authority and the guardian to the role that he can play in the future care of the children.  I am satisfied that his family now do know of his relationship … and of the birth of [A].  When asked in evidence about his parents’ and family’s acceptance of [A], he said as they love him, so they love [A].  I accept that.  It is hard not to.”

39. The judge went on in the following paragraph:

i. “When I come to look at [the father’s] evidence overall, even with the adverse findings I have made, I am satisfied that he intends to be available to parent his child and also [L].  He certainly has the capacity to do so, as determined by Dr Dowd …

ii. Further, in my assessment [the father] has shown that he has the motivation to change.  It may be late in the day, but I accept that that is now the position.  He has embarked on a parenting course.  He has the ability to learn from that and to put that learning into practice.”

40. The judge then referred to the fact that the father’s legal status in this country is tenuous. But concludes by saying:

i. “Overall, I find that [the father] can be a significant factor in parenting [A] and [L] together with the mother.”

41. The judge noted the efforts that the mother had undoubtedly made in improving the state of the house and in embarking on a course of cognitive behavioural therapy.

42. Finally, the judge concluded that:

i. “The local authority’s case simply does not reach the point that nothing else will do. …  I have balanced the harm which [L] and [A] have suffered or are likely to suffer against the capacity of the mother and [father] to meet their needs, with the likely effect upon both [A] and [L] of their being removed permanently from the care of their parents.  The FAST assessment was inadequate.  The social worker and the guardian relied upon it.  This has produced an analysis by them of the case that, in my judgment, is not supported by the evidence that I have found.”

43. The judge made the findings summarised above and expressed his intention to make a supervision order allowing for the return of the children to the care of the mother and father.

44. After the judgment was delivered the local authority, supported by the guardian, sought permission to appeal.  Final orders were not made at that stage and the matter was adjourned to enable an alternative care plan to be prepared for the rehabilitation of the children, which instruction was faithfully carried out by the local authority.

45. The matter came on before the judge again on 27 June 2014, when final supervision orders were made.  An agreement was made, however, for the children to remain in their current placements pursuant to section 20 of the Children Act 1989 pending the hearing of appeal.  At that hearing the judge quite properly asked those representing the local authority and the guardian if they wished him to clarify any particular issues.  They declined his invitation.

Let’s take that last point first – there’s substantial authority that it is the responsibility of an advocate to draw the Judge’s attention to apparent flaws or deficiencies in the judgment to give the Court the chance to correct those, and that is supposed to be a prelude to appeal.  If the Court offers that opportunity and the advocates don’t take it, are they precluded from issuing an appeal, or do they get a second bite of the cherry?  This is what the Court of Appeal say:-

64. Counsel referred the court to a number of authorities relating to the course to be adopted where it is believed by the parties that there has been insufficient, reasoning or analysis in a judgment.  In particular the matter was considered by the Court of Appeal in Re A & L (Appeal Fact Finding) [2011] EWCA Civ 1205, [2012] 1 FLR 134.  Munby LJ (as he then was) emphasised the responsibility of the advocate to draw to the court’s attention any material omissions in the judgment and the mirror obligation upon a judge to consider whether his judgment is defective for lack of reasons when permission to appeal is sought.

65. It should be noted that Munby LJ did not suggest that failure to comply with such obligations would lead to the dismissal of an appeal.  Clearly, no matter how frustrated a court may be by a failure on the part of advocates to seek clarification at the proper time, the sanction for such an omission cannot be such as would compromise the welfare of the child in issue.

{I wonder, idly, whether a Court of Appeal containing the author of those remarks in Re A and L might have decided this differently – we are not likely to ever know now}

So advocates should draw the attention of the Court to appeal points to give opportunity for the Judge to remedy them, but if they don’t, that is not a bar to the appeal. It probably isn’t the smartest move to irritate the Court of Appeal before you even start, but imagining that you were either struck dumb in the final hearing or someone else did it and said nothing, this is now the authority to produce to persuade the Court of Appeal that you aren’t sunk before you set off.

The Court of Appeal ultimately felt that the Judge was wrong to have dealt with the case in the way he did – they were careful not to say that the final outcome was wrong, but the route taken was not right. The case had to be sent back for re-hearing

56. In my judgment, the judge failed to carry out such a welfare evaluation. There is no analysis of risk to be found in the judgment. On the face of it, even with the positives he found in relation to the mother’s changes and the indications of same late change by the father, when the serious criticisms he had made of the father which related directly to the key issues of the father’s motivation, were factored in it is hard to see how the judge reached a decision that the children’s welfare would be protected by only a supervision order, and I further note that. 

57. In any event, I am satisfied that the judge, having discounted the welfare evidence filed, was, as was recognised at trial by counsel, left without essential evidence to enable him to carry out the welfare evaluation.  Without parenting assessment evidence in the broadest sense the judge was left without the material he needed with which to compare the benefits and deficiency of each realistic option; in this case, so far as [L] was concerned, this meant living with her grandparents or moving to her mother and stepfather; and, as far as [A] was concerned, the last resort option of adoption or alternatively rehabilitation home to his natural parents.

58. By ground 3 of the grounds of appeal, the children’s guardian argues that the judge failed adequately to consider the effect of any order upon [L].  [L], it is quite clear, was not considered separately from [A] by the judge.  [L]’s position needed separate analysis and consideration given that she has never lived with the father, whom she says she does not really know, and that queries were raised about the relationship between the father and [L] which the guardian felt needed further assessment. Specific consideration was also needed as to whether or not [L] and [A] should have separate placements.  The local authority and guardian’s care plan having provided, as I have already indicated, for adoption for [A], and for [L] to remain within the family.

59. On behalf of the guardian, it is rightly observed that rehabilitation for [L] was complicated.  She would leave her grandparents, where she has now lived for over a year, and return not to her mother and three siblings but to a household without her elder brothers and instead a “new” baby brother and a stepfather she barely knows.  Clearly, the father’s ability to build a positive relationship with [L] is the key to a successful rehabilitation plan.

60. [L] had suffered a long period of serious neglect in the care of her mother.  If she was returned to her mother’s home, a position which can only be contemplated with the support of the father, the court needed to be clear that this 24 year old man with no previous parenting experience was willing and able to care for [L] as well as his own child.  His lack of attendance at contact with [L] and criticism of his attitude towards her at contact was not reassuring upon that point, nor was the guardian’s observation that, whilst she was clear that the father loves his son, she was less convinced “at his relationship on feelings towards [L]”.

61. The case is an example of the difficulties which can result from the preparation of inadequate assessments, in this case compounded, through no fault of her own, by the late appointment of the children’s guardian. Whilst delay is always to be depreciated, the judge having identified the deficits in the assessments was wrong in failing to accede to the practical and realistic submission of counsel for the mother to adjourn the matter to enable an independent social worker report to consider the key issues of the motivation of the father and his ability to accept the considerable responsibility necessary for him to be able to support the mother. Without the father’s practical and emotional support the mother would be unable to care for either of her children, and and the court needed proper evidence as to, his ability to provide her with security and stability and to be an antidote to the mother’s difficulties in maintaining a household and environment that was safe and healthy for either of the children.

62. In her written submissions in support of the original application for the appointment of an independent social worker, counsel quoted from Re NL (A Child) (Appeal: Interim Care Order: Facts And Reasons), setting out Pauffley J’s  observations that, “Justice must never be sacrificed upon the altar of speed”,  in support of her submission that on the facts of this case the extension of proceedings beyond 26 weeks would be both reasonable and necessary.

63. It is trite law to say that delay is inimitable to the welfare of a child but, as Pauffley J’s noted, the family justice reforms are intended to promote the welfare of the children and not to render those very children more vulnerable by premature decisions being made in order to achieve the statutory timetable.

If after hearing the evidence, the Court felt that the assessments before the Court were not satisfactory to make a proper decision, the approach was to consider ordering fresh assessments and not to feel hamstrung by the 26 week regime.

I suspect that those who represent parents might be feeling that this is a Local Authority getting two bites of the cherry – they had the chance to prove their case, the burden is on them to do so and they failed. They get a second attempt to do so, rather than the parents getting their child back because the Local Authority had not proved to the Judge’s satisfaction that the concerns warranted permanent separation. It feels a little like that to me too. The parents have lost out here because the judgment wasn’t thorough enough to back up that decision. It could have been made appeal proof, but it wasn’t.   (Actually, maybe it is three bites of the cherry, given that they had their chance to speak up after the judgment about what was wrong with it, and didn’t)

There’s a nice exchange about contact notes – I find that some Judges find evidential purpose and value in contact notes, some tolerate them, some grudgingly tolerate them and some consider that they show little if anything of evidential value and disproportionate time is spent on them. It rather depends on your Judge. Surprisingly little guidance from senior Courts about what to make of them  (one might think that the fact that the Legal Aid Agency now refuse to pay counsel to read them speaks volumes – they got that tip from somewhere)

If you are an assessor, these words will be music to your ears  (unless you LIKE reading contact notes, in which case I (a) feel sorry for you and (b) am worried that you are also reading this blog and whether it compares favourably or unfavourably to the joy you find in reading contact notes)

32. Counsel for the mother lays heavy emphasis on the contact notes as an assessment tool for the judge but it is important that the value of contact notes are not overstated.  For my part, no matter what legitimate criticisms are made of the FAST assessment, it should not be expected that the assessors should in every case, read all of the voluminous contact notes; in this case made 5 days a week over many months.  The essential flavour can often, although not always, be obtained from reading a representative sample and by the observation of contact by the assessors.  Contact notes do, of course, have a value and can highlight both good and bad aspects of parenting.  In this case, they show that the mother has been assiduous in attending contact and that the quality of that contact is good.  What the contact notes cannot do, even if every single visit is closely analysed, is demonstrate whether the mother can make and sustain change day in day out, year in year out in such a way that history does not repeat itself.  Observation of contact could have given some increased insight into the relationship between the parents and of the father’s progress as a new father in handling his baby.  Unfortunately, due to his inconsistent attendance, that information was not available.

My last point is really dealt with en passant by the Court of Appeal, but I think it is quite significant. The father in this case got free legal representation to fight his case in the original care proceedings – he won  (I know, no such thing as winners and losers, yadda yadda yadda*, but he persuaded a Court to return the child). Yet in the Appeal hearing, which was just as important for him, he had no representation and had to appear in person.  The mother got legal aid and was represented, but why not both? I know, we are saving public money and we can do it with just one parent being represented. But was this really fair? I don’t think so.

68. The father today, as I have already indicated, is unrepresented and as a lay man it is inevitably difficult for him fully to understand the nuances of the hearing or the judgment.  I should make it clear for both his benefit and also for the mother that this court is not on any level making a determination as to whether [L] and [A] or either of them should or should not be rehabilitated to their care.  What the court is saying is that before such a decision can be made it needs the further assessment of the parents, such an assessment will no doubt cover the fact that the house is now in good order and that the parents have been to parenting classes as well as aiming to achieve a better understanding of the father’s family and the role they would play in [A]’s life if he goes home.  The matter will go to a different judge for the case to be heard again in the light of a newly commissioned independent social worker’s report and any additional evidence the designated family judge may order to be filed.  Such a report will be conducted against the circumstances as they are now, as opposed to the circumstances as they were at the trial, and will be filed in accordance with the judge’s broad case management powers.

Yadda yadda yadda