RSS Feed

Author Archives: suesspiciousminds

Let’s not bring politics into it

The case Re A and B (Prohibited Steps Order at Dispute Resolution Appointment) 2015 might have one of the dullest names concievable, but I’ll be very surprised if it doesn’t become rather newsworthy.  Wizardpc (regular commentator – you’re going to want to read this one)

http://www.familylawweek.co.uk/site.aspx?i=ed143473

Why?

Because fresh on the heels of the President of the Family Division telling us all that there’s nothing wrong with a father belonging to the English Defence League, we have a family Judge banning a UKIP Parliamentary candidate from bringing his children to election rallies. [And another family Judge overturning that on appeal]

It is a short judgment, so before anyone’s knees jerk too much, let’s all read it first.

The children are both under 10, this is an appeal from a decision of the District Judge in private law proceedings to make this order:-

i) By way of preamble, that the court held the view that it is inappropriate for young children to be actively engaged in political activities as they may be emotionally damaged by potentially hostile reactions from members of the public;

ii) By way of order, that neither parent is to involve the two youngest children actively in any political activity.

 

 

There were three older children who were not subject to these stipulations.

As a matter of law, can the Court do that? Well, section 11 of the Children Act allows the Court to set conditions about contact / time spent with a parent, and the powers are broad, or as here, a Prohibited Steps Order, where one parent can ask that another be prevented from doing something particular (almost anything) with their child – so long as they meet these three criteria

Is it a necessary and proportionate interference with article 8 right to family life?
Is it better for the child to make this order than to not make the order?
Is this the right order, considering that the child’s welfare is paramount.

So the Court has the legal power to make such an order – providing those tests are met. But can it be right to make such an order?

9. Procedure – The father says that:

i) The District Judge was wrong not to hear evidence or at least his full submissions in relation to the need for a prohibited steps order to this effect;

ii) The District Judge made incorrect assumptions about the factual basis for such an order;

iii) The District Judge wrongly dealt with the issue without the father having notice prior to the hearing as to her intention to consider making such an order;

iv) The District Judge did not give the father an opportunity to contend that the order was neither necessary nor proportionate.

10. The mother, who is in person, contends that 99.9% of parents would recognise that their children should not be involved actively in political activities and so the District Judge was acting sensibly and fairly when faced with a father who, she says, does not share that recognition. However, she accepted before me that the father had not been given the opportunity to argue his case before the District Judge and that he made it plain throughout that he did not agree to the order that the District Judge was proposing. The mother could plainly see the difficulties that arise in seeking to upholding the decision of the District Judge.

11. The Cafcass report – The Cafcass report is in the bundle. The following parts of it are particularly relevant:

i) The only mention of political activity in the report is at D5. There the Cafcass officer stated: ‘The mother has expressed concerns that the father’s political views and value base are influencing the children – particularly C who can be racist and homophobic. The father has allegedly enlisted the support of his children to distribute UKIP leaflets when they have spent time with him’. That is the only reference to political activity within the report.

ii) The views of the children, which are very fully explored by the Cafcass officer, do not record any complaint by them in relation to their father’s political activities or their involvement with them;

iii) The children are reported as having some other concerns about their father’s method of disciplining them but were observed by the Cafcass officer to be happy in their father’s company. The Cafcass officer stated at paragraph 27 that ‘it is my view that, on the whole, the children enjoy the time they spend with their father and this needs to be supported…my observations of the children with their father were positive’.

12. Statements – Both parties provided brief statements for the hearing before the District Judge. The father’s statement is dated 20th November and the mother’s dated 24th November 2014 (the day of the hearing before the District Judge). There was no application in relation to the father’s political activities or the children’s involvement in them and therefore the father’s statement makes no mention of this. The mother states in her statement at C8: ‘I would like it if he respected my wishes and promised the court that he will not use the children directly in any of his political activities. I would be prepared to abide by the same promise if he so wished. Although it is apparent that the court has failed to protect certain of the children from brainwashing, since [C] has been campaigning for UKIP, is a member of UKIP youth and [E] has also attended UKIP rallies and is intent on joining UKIP youth’.

13. That is as far as any prior notice of this issue went. The father saw the mother’s statement at court. He did not have any other notice prior to the hearing that this issue would be raised. It is therefore significant to note that there was no evidential material relating to any involvement or harmful consequences for the two younger children in relation to the father’s political activities.

It does appear that this issue was somewhat bounced upon the father – did he have proper opportunity to challenge it, and was there proper evidence before the Court as to political activity being harmful?

If one is saying that political activity is harmful to young children generally (as opposed to just toxically dull) then there a lot of babies who will be saved from being kissed by George Osbourne/Ed Balls/Danny Alexander (choose which candidate you most dislike / least admire).  And to be perfectly honest, if it would remove any possibility in the future of the horror that was Tony Blair in his shirtsleeves drinking tea out of a mug with a picture of his kids on it – then, y’know, I can see an upside.

 

The worry with this is that a decision was made about whether the Court cared for the particular brand of politics espoused by the father – which is getting us into Re A territory to an extent. We see mainstream politicians regularly dragging their kids out for the cameras.

14. What happened at the hearing? Both parties appeared in person, that is without legal representation. I have studied the whole of the transcript of the hearing. I made sure that I read it through twice. Both parties were in person and the District Judge was faced with a difficult task in relation to parties who held strong views. I do not in any way underestimate the task that befell the District Judge and, by this judgment, pay tribute to her experience and exceptional industry. She knew this case well having been involved in it previously.

15. The following are some of the key parts of the transcript :

i) At page three there is the following: ‘THE DISTRICT JUDGE: Yes, all right. One of the other issues she raises, and I know there is another issue in your statement that you want to raise in a minute, [father], I have not forgotten this, one of Mother’s concerns is, and she is quite happy to promise in the same way but she does not like the fact that the boys are being involved in your UKIP activities and she would like you to give an agreement that you will not involve them in your UKIP, for instance, C campaigning in [X town] recently she mentions. How do you feel about that?…FATHER: I’m totally unwilling to have her dictate anything what I’m doing with the children in that respect….THE DISTRICT JUDGE: She said that she would be prepared not to involve them in any political activities as well….Father: Well, she does. She indoctrinates them, you know, so I just don’t think this is on. C is very keen; he gets a lot out of it’.

ii) At page 4 the District Judge said: ‘I can understand where you are coming from because you are not a UKIP supporter, yes….MOTHER: Or any political party. Is it right for a child of A’s age to be going into school saying, “What did you do at the weekend? I’ve been to a UKIP garden party”, and the other kids go, “Hey, what?” they have no idea what she’s talking about. They shouldn’t know what she’s talking about because none of them at that age should know anything to do with politics. Isn’t that to do with abusing their childhood if they’re being pumped full of whatever political party?

iii) At page 5 – ‘THE DISTRICT JUDGE: As I have said, children will always be very conscious about what their parents’ political views are. Your political views may well be at the other end of the spectrum. MOTHER: But I wouldn’t dream of taking them to any political meetings or encourage them to leaflet on the streets. C was egged by somebody. Is that right? …THE DISTRICT JUDGE: Is that right? Was C egged by somebody?…Father: He was exceedingly amused to have an egg land somewhere near his feet on one occasion. MOTHER: I do not want the younger children put in that position.
iv) Also on page 5 – ‘MOTHER: And what about the younger children— THE DISTRICT JUDGE: No, I am just thinking—MOTHER : —who go into the classroom— THE DISTRICT JUDGE: Yes. MOTHER: Think about the teachers then who have to pick up the pieces, so and so’s brother was egged at the weekend. The other children are too young to be worried about this and it’s confusing for them’.

v) At page 8: ‘THE DISTRICT JUDGE: What have you been doing with A and B at the moment so far as UKIP is concerned?…FATHER: A and B have sat on the van while a couple of the others get out and do some leafleting, that’s happened about once. Then there was a garden party where they played in the garden a long way from a congregation where there was a speech going on, so they were happy and they were supervised and they didn’t feel embarrassed and we all left together. So they were not put in any sort of awkward or inappropriate situation and I wouldn’t do, of course…THE DISTRICT JUDGE: I mean what I would like to do is to make a neutral order which is that neither of you should involve A or B in your political activities. Now, going to a garden party, I do not regard that as political activity, that is a garden party, all right? Probably sitting on the van is not but what I am talking about is they should not be going out leafleting and actively taking part….FATHER: Well, I’m just amazed, I’m just amazed— MOTHER: [Inaudible – overlap of speech] A was encouraged to hand out a leaflet and somebody went up to her and just tore it up in her face. She’s a tiny, little girl. This is really mentally challenging for them. THE DISTRICT JUDGE: Yes, look. Father, I am not expressing any political views, it is not appropriate for me to express any political views but there are a lot of people in this country who have very strong feelings about UKIP and I would not want to expose your two youngest children to emotional harm because of how people might react to them if they get involved. That is how I am looking at it, because you must accept there are a lot of people who are dead against UKIP, you understand that?

vi) At page 9 and 10 – ‘THE DISTRICT JUDGE: I am worried about somebody throwing – all right, C is 15, if he is happy to get involved in UKIP then he is old enough to decide that but I am not happy with A and B being involved in political activity to the extent that somebody in front of their faces rips up a poster. That is emotionally damaging for them. That should not be happening to two little girls and I do not care whether we are talking about the Labour party, the Conservative party, UKIP, the Liberal Democrats or whatever. That should not be happening to two little girls…FATHER: Well, that’s three of us agreeing then, isn’t it?…THE DISTRICT JUDGE: Yes….FATHER: So what’s the problem? I don’t see—…THE DISTRICT JUDGE: So I am going to make an order that neither of you are to involve the two younger girls actively in political activities, so I am saying to you garden party is not a problem, sitting on the van is not a problem but they are not going out actively taking part in your political activities because there are a lot of people out there who do not like UKIP and probably a lot of grown ups will not think about the impact on children’ .

16. There was no formal judgment given. The matter was dealt with as part of the discussion that took place at the hearing. There was no evidence given and the underlying facts were disputed, in particular, the extent to which the father does involve the children in his political activities and the extent to which this might have caused harm to them. The father wished to advance in full his arguments but the matter was cut short by the judge making what she perceived as a ‘neutral order’.

 

 

The Judge hearing the appeal, His Honour Judge Wildblood QC came to these conclusions  (underlining mine, emphasising that the three ingredients I spoke of earlier weren’t present. That, combined  with lack of  fairness to the father in the procedure meant the appeal was successful and the order discharged)

28. My difficulties with this case are:

i) The father had no notice before the hearing that this issue would be raised as one that was argued, let alone governed by orders.

ii) The factual underlay behind the orders is disputed and there was no written or oral evidence before the court that related to the issues before it.

iii) The contentions that the mother raised in support of the order were contested and the father did not have an opportunity to answer them. If he was not to have notice of this application for an order and was not to be allowed to give evidence about it he was entitled to the opportunity to make full submissions about it. He expressed the wish to advance his side of the story on the issues that arose and did not get it.

iv) The Cafcass report did not raise this as an issue that required intervention and there was no professional evidence before the court that supported the necessity for such an order.

v) This was an important issue in the context of this case. The order made was a prohibited steps order. Such an order should only be made for good (and, I add, established) cause and for reasons that are explained as being driven by the demands of the paramount welfare of the children. I do not think that such orders can be justified in contested proceedings on the grounds of neutrality and I do think that the decision must relate to the specific children in question. In Re C (A child) [2013] EWCA Civ 1412 Ryder LJ said: ‘A prohibited steps order is a statutory restriction on a parent’s exercise of their parental responsibility for a child. It can have profound consequences. On the facts of this case, without commenting on the wisdom of any step that either parent took or intended to take when they were already in dispute, and in the absence of an order of the court, father had the same parental responsibility as mother in relation to his son. Once the order was made, he lost the ability to exercise part of his responsibility and could not regain it without the consent of the court. That is because a prohibited steps order is not a reflection of any power in one parent to restrict the other (which power does not exist) it is a court order which has to be based on objective evidence. Once made, the terms of section 8 of the Children Act 1989 do not allow the parents to relax the prohibition by agreement. It can only be relaxed by the court. There is accordingly a high responsibility not to impose such a restriction without good cause and the reason must be given. Furthermore, where a prohibition is appropriate, consideration should always be given to the duration of that prohibition. Here the without notice prohibition was without limit of time. That was an error of principle which was not corrected by an early return date because that was susceptible of being moved or vacated unless the prohibition also had a fixed end date. The finite nature of the order must be expressed on the face of the order: R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin) at [38] per Munby J’.

vi) Further, the District Judge was being asked to make orders that were invasive of the Article 8 rights of the father and of the children to organise their family lives together without interference by a public authority unless that interference was necessary and proportionate. That issue was not examined.

vii) Oral evidence is not always necessary (see Rule 22.2 of The Family Procedure Rules 2010). However there must be some satisfactory basis for an order if it is to be made. Otherwise the justification of the order is absent.

29. The form of the order made – The order that was made merely states that ‘neither parent is to involve the two youngest children, A and B, actively in any political activity’. I am personally in no position to cast stones on the drafting of injunctive orders in the light of what was said in Re Application by Gloucestershire County Council for the Committal to Prison of Matthew John Newman [2014] EWHC 3136 (Fam) but I think that there are very real difficulties about the form of the order that was made in this case.

30. By reason of Rule 37.9(3) of The Family Procedure Rules 2010 it is a matter of discretion as to whether a prohibited steps order should contain a penal notice (In the case of …a section 8 order…the court may’…attach a penal notice). I am concerned that this order did not make plain the consequences of any disobedience, the duration of the order or the activities that were prohibited. I realise that the District Judge said that garden parties would not be covered but I think that, if this order was ever to be enforceable in any way, it needed better definition. At a DRA there would have been very little time to examine that, I appreciate. District Judges lists are stretched to snapping point.

31. The conclusion that I have reached, therefore, is the decision of the District Judge was procedurally irregular and cannot stand. I therefore give permission to appeal and allow the appeal. I direct that there be a rehearing of the issues that have been raised in this appeal before me. Paragraph three of the order of the District Judge is discharged.

 

 

I think, regardless of what you might think about UKIP, the appeal was correct. The issues had not been properly explored and the father had not had proper opportunity to challenge what was a very unusual request, made at a hearing which was really only intended to set up the necessary directions to get the case to a substantial hearing.

I already have fond thoughts of His Honour Judge Wildblood QC, having read a lot of his judgments, and this made me think even better of him – this is very nicely done.

34. Finally, I will release this judgment on Bailii. By this decision I mean no offence at all to the very experienced District Judge for whom I wish to record my appreciation and thanks. In choosing my words when explaining why I am allowing this appeal I hope that I have displayed an understanding of the motto ‘do as you would be done by’ – who knows, tomorrow another court might hear an appeal from me.

 

[This case shows some of the risks of jigsaw identification – I’m sure I could work out UKIP Parliamentary candidates in the West country with five children and identify this family very swiftly. I’m sure others can do the same, and probably will. Not here in the comments though, please. ]

 

6. Publication – An officer of the press is present in court. I have referred her to Rule 27.11 of The Family Procedure Rules 2010 and also to PD27B of those rules. I explained the law to her in the presence of the parties and adjourned so that she could read the Practice Direction and the rule. She was referred to Section 97(2) of The Children Act 1989 and also to section 12 of the Administration of Justice Act 1960 and confirmed her understanding of the limitations on any reporting of this case. I am not going to explain those limitations in this judgment. If any person, organisation or party is thinking about making any aspect of this case public, they should inform themselves of those limitations. If in doubt, an application should be made to the court because breach of the law would amount to contempt which would be punishable by imprisonment, a fine or sequestration of assets.

7. Anonymised information about this case has already appeared in the press today. The father expresses his views in the press reports, without revealing his identity other than as a father and UKIP candidate. That being so I have alerted the Judicial Press Office about this case and of my intention to place this judgment on the Bailii website under the transparency provisions. I think it essential that there should be a clear and immediate record of the basis of my decision. That being so I have had to type this judgment myself immediately at the end of the hearing under pressure of time.

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

https://www.youtube.com/watch?v=O6kRqnfsBEc

The Bundle-oh

A lawyer took a walk through a deep dark wood
A fox saw the lawyer and the lawyer looked good

Where are you going, tired little dude?
Come to my den, and I’ll have some food

It’s terribly kind of you, fox, but no
I’m going to Court with this Bundle-Oh

A Bundle-Oh? What’s a Bundle-Oh?

A Bundle-Oh? Why didn’t you know?
He has terrible jaws and a terrible spine
And if I don’t carry him, I will get fined

His dimensions are wrong, he won’t fit on the shelf
And if he flies at you, well its bad for your health

If he pins you down there’s no hope of escape
You can’t truss him up with a bit of pink tape

His innards are massive, to count them would take ages
Listing what he’d eaten would take pages and pages

So while carrying him is quite bad for my back
It’s better than facing a front on attack

And fox, if you thought, you’d best him in a scrap
Beware, because the Bundle-Oh is foolscap

Away the fox sped

Silly old fox, didn’t you know?
You can’t HAVE a foolscap Bundle-oh

Beware the Bundle-oh my son, the jaws that bite, the claws that catch

Beware the Bundle-oh my son, the jaws that bite, the claws that catch

Foolscap on the hill

Oh you are all going to LOVE this.

 

 

You know those lever arch files you have got in your office, that you put the Court papers in?  They are too big. You are not to use them. You are very naughty.

 

Sir James Munby, President of the Family Division

 

Re L (A child) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/15.html

 

The case is notionally about the refusal of the Legal Aid Agency to pay for the costs of translating a Court bundle for the father, but it has been almost a week since the last Presidential tirade, so we were long overdue.

 

Size of lever arch files

15. PD27A para 5.1 requires the bundle to be contained in an “A4 size ring binder or lever arch file” (emphasis added). Too often this requirement is ignored and the bundle is contained in a foolscap binder or lever arch file. This will not do. This requirement must be complied with. This is not some mindless pedantry. There are reasons for the stipulation, each deriving from the fact that an A4 lever arch file, although it contains as many sheets of paper, is not as tall as a foolscap lever arch file. First, a standard size bankers box can accommodate 5 A4 lever arch files, but only 4 foolscap lever arch files. Second, many judges and courts have trolleys or shelves arranged to accommodate A4 lever arch files, the purpose being to maximise the number of shelves (and thus the number of files) that can be fitted in any given space.

 

Just to confirm to you, every lever arch file that you have in your office, on your shelves, in your stationery cupboard is TOO LARGE. If you take an A4 piece of paper and lay it on the front of the bundle, the paper should exactly fit. If it doesn’t (and it won’t) it is TOO LARGE and you must not use it.

You are thinking, no, my lever arch files are right, they are just the right size. They are the same size that we’ve all been using for 25 years. Suesspicious Minds is talking about people who are using some weird new fangled ones.  I’m really not. I’m talking about the ones that you are using. They are too big. You must not use them.

Probably on pain of death.

You may wonder why Court trolleys and court cupboards and judicial cupboards have been built to the specifications of a size of lever arch file that literally nobody uses rather than, just throwing this out there – the size that literally everyone uses. I cannot resolve that mystery for you.

We then have a rant about witness bundles – you may recall before the President being outraged that people were sending witness bundles to the Court rather than physically carrying them there.

I have also referred to PD27A para 7.4 and drawn attention to what I said about it in Re W (Children) [2014] EWFC 22, para 13. PD27A para 7.4 could not be clearer but it is routinely ignored. It is bad enough when a second (witness) bundle is unnecessarily and improperly delivered to the court or the judge before the day of the hearing. It wastes the time of court staff and judges. It is even worse when – and I have had this experience myself more than once in recent weeks – the second bundle is not needed because there is no prospect of any oral evidence from witnesses; in such a case money – very often public money – is simply being wasted in the preparation of a wholly unnecessary copy bundle.

 

What is the solution? Well, it is this:-

This practice must stop and I have taken practical steps to stop it. From now on, counter-staff at court offices will be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be lodged, and to require whoever is trying to lodge them to take them away. If witness bundles are sent by post, or by DX or delivered by couriers who refuse to take them away, they will, unless a judge has specifically directed that they are to be lodged, be destroyed without any prior warning necessarily being given. They will not be delivered to the judge and will not be taken into the courtroom by court staff.

I’m not making this stuff up, this is actually in the judgment. This is not satire, it is real life.

I would lose any argument on Godwin’s Law if I tried to suggest that the Court would sacrificially burn bundles like some sort of totalitarian government burned books, but let’s go instead with the Americans in the 1970s who rebelled against disco by burning disco records.

Are we done on the raging against the dying of the light? Not quite.

the practice direction says 350 pages – and if you think that the President is about to say “the code is more what you’d call guidelines than rules” then it is like you’re talking gorgonzola when it’s clearly brie time baby.

 

  1. I make two final observations about PD27A, both of which bear on the crucial issue of the size of the bundle – something which is at the core of the difficulties in the present case. The first is that PD27A para 4.1 spells out the fundamental principle that:

    “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing (emphasis added).”

    In other words, there is a double requirement to be satisfied before any document is included in the bundle: it must be relevant and it must be a document which will used, in the sense that it will either be read or referred to. This principle is reinforced by the list of documents which PD27A para 4.1 states “must not be included in the bundle unless specifically directed by the court”.

  2. The other observation is the desirability of documents being, to adopt the language of PD27A para 4.4, “as short and succinct as possible”. This is a topic I dealt with in both my second and my third View from the President’s Chambers: [2013] Fam Law 680, [2013] Fam Law 816. In relation to both local authority documents and expert reports, I made the point that they should be succinct, focused and analytical though also, of course, evidence-based. In relation to expert’s reports I said ([2013] Fam Law 816, 820):

    “there is no reason why case management judges should not, if appropriate, specify the maximum length of an expert’s report. The courts have for some time been doing so in relation to witness statements and skeleton arguments. So, why not for expert’s reports? Many expert’s reports, I suspect, require no more than (say) 25 or perhaps 50 pages, if that. Here, as elsewhere, the case management judge must have regard to the overriding objective and must confine the expert to what is necessary.”

  3. As that makes clear, the approach is not confined to an expert’s report. There is, in my judgment, no reason why case management judges should not, if appropriate, specify the maximum length of a skeleton argument, a witness statement, a local authority’s assessment, an expert’s report or, indeed, any other document prepared for the proceedings which will be included in the bundle. I would encourage judges to do so. Too many documents are still too long, often far too long, not least having regard to the 350 page bundle limit. I recently tried a care case where a psychologist’s report ran to some 150 pages. In the present case the bundle includes no fewer than 131 pages of witness statements by the mother. Another problem is created by unnecessary repetition, for example where the second witness statement reproduces all or most of the first before proceeding to add the more recent material, or where much of the detail in a lengthy assessment is reproduced, sometimes almost word for word, by the assessor in a subsequent witness statement: see again, for a recent example, Re A (A Child) [2015] EWFC 11.
  4. This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough. From now on:i) Defaulters can have no complaint if they are exposed, and they should expect to be exposed, to public condemnation in judgments in which they are named.

    ii) Defaulters may find themselves exposed to financial penalties of the kind referred to by Mostyn J in J v J.

    iii) Defaulters may find themselves exposed to the sanction meted out by Holman J in Seagrove v Sullivan.

    The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions, including but not limited to those I have already mentioned. If, despite this final wake-up call, matters do not improve I may be driven to consider setting up the special delinquents’ court suggested by Mostyn J.

  5. I make clear that PD27A has nothing to do with judicial amour-propre, nor is its purpose to make the lives of the judges easier. On the contrary, as I observed in Re X and Y, it is simply a reflection of the ever increasing burdens being imposed upon judges at all levels in the family justice system. I continued (paras 5-6):

    “5 … The purpose of all this is to ensure that the judge can embark upon the necessary pre-reading in a structured and focused way, making the best and most efficient use of limited time, so that when the case is actually called on in court everyone can proceed immediately to the heart of the matter, without the need for any substantial opening and with everyone focusing upon the previously identified issues. The objective is to shorten the length of hearings and thereby to increase the ‘throughput’ of the family courts – with the ultimate objective of bringing down waiting times and reducing delay.

    6 But these wholly desirable objects – wholly desirable in the public interest and in the interests of litigants generally – are imperilled whenever there is significant non-compliance with the Practice Direction …”

  6. The judges of the Family Division and the Family Court have had enough. The professions have been warned.

I mean, this doesn’t actually say that offenders will be put in stocks and pelted with rancid fruit, but it says “name and shame”, “making costs orders”  “having a judge tell you go away, agree 350 pages only and don’t come in with any more” and “setting up a special Court to deal with people who break the practice directions”

If you are going before the President with a big bundle, in a big lever arch file, and you’ve already DXed the witness bundle to the Court, don’t wear your best suit is what I’m saying. Or go, but have your Dry Cleaner on speed-dial.

 

Back to the actual issue – in this case father was Slovenian and didn’t speak English. These were care proceedings, so he might lose his child. The Court bundle was 581 pages (naughty naughty). The costs of translation worked out to be £23,000 and the Legal Aid Agency said no. Including this gem

 

This application is refused as it is not considered the expenditure is necessary or justified. It is accepted that if the client cannot speak or read English he does need to understand the evidence. However, it is very unlikely indeed that he will actually to read such a large volume of documentation. Further, unless the client is a lawyer or has some experience of the work done by child professionals, I cannot see that a verbatim translation would be of any real benefit to him. If the client were an English speaker, would you consider it essential that he was provided with a copy of the Court bundle?

 

Erm, well yes, I would.  And I’d suggest that article 6 does too

The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponent’s submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing.

 

Clearly £23,000 is a lot of money, particularly when the Judge felt that the bundle was over-inflated. So he trimmed it to essential documents

In my judgment it is “necessary” for K to be able to read in his own language those documents, or parts of documents, which will enable him to understand the central essence of the local authority’s case or which relate or refer specifically to him. The remaining documents need only to be summarised for him in his own language.

[listing them]

In short, it is necessary for K to see in translation, either in whole or in part, only 51 pages. The contrast with the 591 pages originally identified for translation, and even with the more modest total of 246 pages subsequently identified, is striking.

 

  1. Plainly it is necessary for K to understand the case as a whole and to be aware of the important substance – not the fine detail – of the various other witness statements, reports and assessments. As proposed by the LAA, this necessitates the preparation by K’s solicitor of a summary. That summary, if it confines itself, as in my judgment it should, to matters of substance rather than fine detail, need be no more than (say) 30 pages in all.
  2. The point is made that between now and the final hearing various other documents will be served. If the same approach is applied as that which I have set out above, and in my judgment it should be, I would expect that it will be necessary for K to see only a modest number of additional pages in translation. The remainder can be summarised at probably quite short length.

 

And ending with another telling off – sorry, a plea for restraint

 

  1. I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation

 

I am off for a final hearing now, with lever arch files that are too large. Wish me luck as you wave me goodbye.

A tale of One Telegraph – follow up

I said that I would look out for the transcript of the judgment that Mr Booker was reporting about

http://suesspiciousminds.com/2015/02/16/a-tale-of-two-telegraphs/

The bare facts that we knew were – His Honour Judge Jones, two boys, a bruise, and an older child, and Placement Orders being made.

This case here, ticks all of those boxes

Re A (a child) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B200.html

I don’t want to get stuck into the facts too much, because there’s no way to be SURE that it is the same case that Mr Booker was writing about. You may recall that the central complaint in Mr Booker’s piece was that the parents weren’t able to fight the case and were not allowed into Court.

From Re A, the Court say this:-

 

  1. The parties to the applications and their legal representations are as follows:
  • the Local Authority, X County Council brings both applications in respect of the children and are represented today by Miss Beattie;
  • the children’s mother L is represented today by Miss Erwood. The mother has been present during the course of today, but she like the father has decided not to remain within this courtroom this afternoon for the purposes of this judgment. That decision is perfectly understandable so far as the Court is concerned;
  • The children’s father is CC. He shares parental responsibility for the children. He is represented by Mr Blythin;
  • The children are represented by their Guardian Miss Siân Wilson who has been present today and is represented by their solicitor Miss Debbie Owens.

 

A parent deciding that they don’t want to come in and hear the judgment is not that uncommon, and is an utterly different thing to being told they aren’t allowed to come in.

It can’t be an easy thing to listen to, particularly where (as these parents did) they have decided not to fight the case and they know that the outcome is going to be something that will break their heart.

One of Mr Booker’s complaints is that the parents were told that there was no prospect of appeal. That would be right in this case, because the parents decided not to oppose the case. It would be an extremely unlikely scenario that a person can decide not to fight a case and then the same day have legal grounds to appeal the decision.

It is always difficult with a Mr Booker story to be sure when you actually have the judgment that matches up with his case, and in his defence, it could be that this is another case entirely.

There’s nothing improper about the judgment in Re A – it considers everything that needs to be looked at, it is not a rubber stamp, it gives proper regard to the evidence and the legal tests and it is as kind as a Judge can be in those difficult circumstances.

IF this is the case that Mr Booker complains of, there is absolutely nothing in it that warrants the level of complaint he was making.

They had legal representation, they were entitled to go into the Court, they were entitled to instruct their lawyers to fight the case. By the sounds of it, they were given advice that the chances of doing so successfully were very poor and they decided not to put themselves through that ordeal. Perhaps they regretted it almost immediately. Perhaps they feel in hindsight that they didn’t feel that they had a choice. Perhaps they wish that they had fought the case and that they will never know now what might have happened. But they had the choice to make, and they made that choice with legal advice.

Perhaps (and I really don’t want to besmirch these particular lawyers, it is more of a general complaint) lawyers don’t always make it completely clear enough to parents that the lawyer is there to advise them, but that the parent can refuse to take that advice. They can tell the lawyer to fight on, and the lawyer’s job then is to fearlessly represent that client without fear or favour.  You can tell your lawyer, thanks, but not thanks.

Unlike a boxing cornerman, your lawyer can’t throw in the towel on your behalf, even if they think you will take a horrible beating. Only you can throw the towel in.

[One can accept of course that someone can legitimately hold a view that adoption is wrong in all cases and that any case involving adoption is thus wrong and unfair. If that’s your view, then like Ian of Forced Adoption, you’re entitled to make complaint about all and any cases. But if you are instead arguing that in this particular case, the parents were robbed of a fair hearing, and denied due process, there’s nothing to support that assertion]

If it isn’t the same case (and he is able quite easily to establish the date of the final hearing and who was representing the parents to show otherwise) then we will have to wait and see for when the real case he was writing about shows up.

 

There ARE things that go wrong in family law, there are cases where parents are done great injustice (like the HH Judge Dodds case that Mr Booker also writes about) and it is a good thing that there are people to make those injustices known. It is only by dragging them into the light that things will get better.  But we do also have to be responsible in reporting and be sure that if we are shouting that there’s a wolf that what you are seeing is really a wolf.

 

Can a Court make a Placement Order of its own motion?

 

I know, that sounds a lot like one of those questions that you get in newspapers like  “Was Ed Milliband responsible for Diana’s death?” in which you read the article and the answer buried towards the bottom is “no”

But I’m not so sure.

In a purely theoretical sense, you MIGHT have a Guardian who disagrees with the Local Authority care plan of rehabilitation to a parent / SGO and who supports a plan of adoption.  You MIGHT also have a Judge who disagrees with the LA plan, or more possibly is trying to cut out the stage of the process where there is a decision by the Agency Decision Maker to wait for as to whether adoption is the plan, and wants to have the final hearing without waiting for that.

You MIGHT even have a Local Authority social worker who believes that adoption is the right plan, but is prohibited from applying for a Placement Order because the Agency Decision Maker has said no to adoption or an application for a Placement Order.

In all of those circumstances, I would have said, well hard luck. The Court can only make a Placement Order where there is an application for one, and only the Local Authority can apply, and they can only apply when their Agency Decision Maker authorises it. [I have had each of those hypothetical situations happen, and on each, the Court accepted that there was no power to make a Placement Order without an application]

There’s no such thing as the Court making a Placement Order of their own motion.

 

That was, until I fell over this clause in the Family Procedure Rules.

4.3( 1) Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

So rather than our long tradition of the Court only being able to make orders of its own motion if Parliament expressly gave them that power, we now proceed in the opposite direction – they have the power to do so, unless the statute expressly prohibits it.

And I’ve checked the Adoption and Children Act 2002, and it does not expressly prohibit the Court making a Placement Order of its own motion.  Why would it? It was written at a time when if you wanted to give the Court that power, you’d explicitly make the provision.

The Court can only make a Placement Order if satisfied that the test is met (which can just be that threshold is satisfied) and that the parents consent is dispensed with, and of course the making of the Placement Order is subject to the welfare paramountcy principle, the welfare checklist and the no order principle. But it does not say expressly in the Act, only on an application.

s21 2)The court may not make a placement order in respect of a child unless

(a)the child is subject to a care order,

(b)the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c)the child has no parent or guardian.

(3)The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied

(a)that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b)that the parents or guardians consent should be dispensed with.

This subsection is subject to section 52 (parental etc. consent).

 

So, theoretically, a Court could entertain the request of a social worker (acting without ADM approval) or a Guardian, or their own desire, and make a Placement Order even though the Local Authority have not applied, using rule 4.3.

I’m talking purely theoretically here – I strongly suspect that the first Court to attempt this would find themselves in the Court of Appeal as to whether it was article 6 and article 8 compliant to make such a dramatic and serious order without a formal application being before the Court.

Let’s see what else rule 4.3 says:-

(2) Where the court proposes to make an order of its own initiative

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

(b)where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes

(a)to make an order of its own initiative; and

(b)to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 5 days  notice of the hearing.

 

Well, that’s nice – the Court isn’t actually obliged to tell the parties that it is going to make an order of its own initiative or to have a hearing to hear what the parties have to say about this plan. But if they do decide to have a hearing, they should give the parties notice of that.

You are saying to yourself, well surely that’s not right. The Court would HAVE to tell the parties and listen to their views before making an actual order, as opposed to directions.

Nope

(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

[Although if they do that, the order must say on its face that the parties have the right to apply to vary or set aside the order]

 

Again, for Placement Orders, this is purely theoretical. If I thought that a Court making a Placement Order without an application for one, at a final hearing, having heard evidence, would end up in the Court of Appeal, the idea that any Court would do so in the absence of a hearing is inconcievable.

[But it is theoretically possible]

 

This reminds me of my favourite story about the mathematician and logician, Kurt Godel.  Kurt Godel basically proved that in any formal system, there will be things that you intuitively know are true but that can’t be proved  – on a deep mathematical level there’s a difference between truth and proof.  Godel’s Incompleteness Theorum is probably my favourite thing in the world that is not a person or my spaniel.

If you want to know more, read Douglas Hofstadter’s “Godel, Esher, Bach, an eternal golden braid” – but be warned, it took me about five read throughs to have even a vague grasp of the Theorum, and that is an author trying to make it as user-friendly as possible. I dread to think what it is like to read the actual Theorum paper itself cold, with no background knowledge.

In a time of huge upheaval and totalitarian governments in Europe, Godel’s friends convinced him to leave his home country of Austria and come to America. During his immigration interview, the American customs officers asked him why he was leaving his own country. He told them about the oppression and that Austria had become a dictatorship. The customs officer said “Well, thanks to our constitution, that could never happen in America” , and it was at that point that Godel told him of the loophole he had found in the Constitution that could allow just that.

Not the best thing to say to an immigration official, but fortunately Godel’s explanation was so involved and complex that they didn’t follow it and waved him through.

 

It is also worth remembering that a Placement Order is permissive. It allows the Local Authority to place a child with prospective adopters. It doesn’t mean that they HAVE to.  So if a Court did make one against the wishes of the Local Authority, it wouldn’t mean that the child WOULD be placed with prospective adopters.

[It might well make things tough for a Local Authority if a Judge gave a judgment saying that placement with the mother was unsafe and doomed to failure and would be too dangerous for a child, if the LA ignored this and went ahead anyway. That would be a very tough Serious Case Review if it went wrong]

 

Although in the context of a Placement Order, rule 4.3 is largely theoretical, it might be handy for all sorts of other orders where you realise that you failed to make an application and invite the Court to make the orders of their own motion.

In case you are wondering about Care Orders –  I think that the construction of s31, wording underlined, means that Parliament envisaged there being an application made by a Local Authority. Is it expressly forbidding the Court to do it without? No, but it implicitly suggests not, and for a Care Order, suggests that the order can’t be made without an application.  [I’d also argue that the s37 provisions are a clear suggestion that a power and boundary as to the circumstances in which the Court could make ICOs without an application have been expressly provided for in the Act]

Care and Supervision

s31 (1)On the application of any local authority or authorised person, the court may make an order

(a)placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)putting him under the supervision of a designated local authority

Leave to revoke a Placement Order, successful appeal

 

Re G (a child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/119.html

 

The mother was appealing a refusal to grant her leave to apply to revoke a Placement Order (i.e to get her child back). She was in person in the Court of Appeal (and did a very good job) and won her appeal.

 

There are  few big points from this appeal which have wider application.

 

1. Change doesn’t have to be recent

(I think what the Court of Appeal say here rather destroys Mostyn J’s declaration that change has to be ‘unexpected’ because they are explicit that one shouldn’t read words into the statute that aren’t there)

I do not accept Mr Tughan’s submission that the nature and degree of the change of circumstances which a parent does successfully establish, is demoted by it being a recent change. This does add gloss to the words of the statute and should be resisted

 

2. Change doesn’t have to be change in the parent  – it can be change in the life of the child, or in the life of the child’s carers.

 

[This one interests me, because as far as I know, Mrs Suesspicious Minds was the first counsel to persuade a Court of that, so it is nice to see that she was right – as usual]

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

 

3. Take care in using a note of judgment as if it were a transcript

 

In this case, the Care Order and Placement Order had been made by a District Judge, and the leave to oppose hearing was heard by a Circuit Judge. The CJ had been given counsel’s note of the hearing / judgment, but read it into the judgment on leave to oppose as though quoting the District Judge directly.

The only document that assists is Counsel’s “note of final hearing” prepared by Mr Hepher on 20 August 2012 for his Instructing Solicitor. It has not been approved by the DDJ Johns.

Contrary to what HHJ Levy said in her judgment, the note does not pretend to be a note of the judgment; rather it is the subjective assessment of the hearing and its outcome, giving a potted version of the judge’s conclusions. Counsel who appeared for the Local Authority could have no idea or intention that it would be referred to in any future proceedings or appellate jurisdiction. However, HHJ Levy placed reliance upon it and, it seems to me, elevated Counsel’s written opinion that “the evidence did not go well for [the mother]. She became upset and gave loud, aggressive and frequent inconsistent and confrontational answers when challenged” into findings made by the first instance judge and thereafter cited Counsel’s summary of a part of the judgment in quotation marks, giving the appearance that the same were spoken by the DDJ Johns.

The fact of its quotation by HHJ Levy leads me to conclude that it was instrumental in her decision and I therefore refer to it in full. HHJ Levy said that “[t]he judge had concluded by summing up the mother as: ‘…angry, resentful and accusatory of professionals…blaming of others, was unable to explain the impact of domestic violence and undesirability of drug use, and had a casual disregard to telling the truth. She had no insight into the magnitude of the risks the father might pose, nor the impact of her own behaviour. She was not able to sustain motivation for any meaningful change”.

…Quite apart from the issues raised in the grounds of appeal, I would express my great concern at other aspects of the procedure that was adopted at first instance and which are capable of further infecting the outcome. That is, HHJ Levy was disadvantaged in the absence of DDJ John’s judgment and “agreed threshold criteria” and was wrong to accept counsel’s unapproved “note of the hearing” as a sufficient substitute, even though I am sure she was well intentioned in seeking to avoid delay. She could not possibly establish the true base line in the absence of the “agreed threshold criteria” document, which itself recorded some issues of fact and differing interpretation of others, without reconstructing the evidence that had been available in the court below. In doing so she appeared to rely entirely upon the reports submitted by the social worker and guardian.

 

4. You need to be quite careful about ruling that a parent had not satisfied the first limb of the two stage test (has there been a change in circumstances?)

The Court of Appeal here sent the case back for re-hearing, but were very plain that their view was that the first limb had been crossed and quite comfortably.

5. Fresh evidence

The Local Authority had brought to the Court of Appeal a statement that gave information about family finding – in effect, providing evidence that an adoptive placement was on the cards. The Court of Appeal deprecated this practice.  This was really a request to introduce fresh evidence to the appeal, and if so, a proper application needed to be made, with all of the Ladd v Marshall principles argued  (it is REALLY  hard to get fresh evidence in on appeal, other than in criminal proceedings where the fresh evidence is something like an alibi, or CCTV footage or some sort of CSI test which would undermine the conviction)

 

  1. Shortly before coming into court, a statement prepared by Ms Faith Connell, J’s social worker, unsigned but dated 9 January, 2015 was sent through uninvited. There is no application to admit fresh evidence. I am told by Mr Tughan that it is intended to update the court on ‘family finding’ for J. This practice is becoming increasingly common and I think it entirely inappropriate. If the statement contains fresh evidence which is pertinent to the appeal then leave should be sought in accordance with normal procedure to admit it. If it does not, it may appear as an attempt to influence the outcome of the appeal. Mr Tughan assures me that that is not intended, but that it was submitted with a view to assisting the court if it wished to substitute its own order for that of the court below.
  2. As it is, this is not a court of first instance and is not in a position to determine the disputed factual issues raised in the mother’s application before HHJ Levy, let alone fresh facts on the unilateral presentation of what may be challenged evidence and opinion going to inform the discretion stage. I have refused to read the statement in those circumstances and particularly since the mother is unrepresented.

 

6. You can only ‘shore up’ a judgment so far

In discussion, Mr Tughan was obliged to concede that he was attempting to “shore up” the judgment of HHJ Levy. He accepted the absence of any findings in the judgment that were directly relevant to the adverse findings apparently made against the mother by DDJ Johns and upon which HHJ Levy relied. He argued that some issues that were recorded in the judgment had been ‘resolved’ during the course of the proceedings – entirely, I observe, in favour of the mother’s contentions – and that it was unnecessary to make certain other findings, including whether the mother’s relationship with her previous partner had ended, the extent if any of her drug use, and whether she had threatened the current social worker with violence. He accepted that the Court would “struggle to piece together” HHJ Levy’s thought processes, but that they could be “pieced together” when analysed in the round. He argued that the bar had been set at a high level by reason of the findings made in the original care proceedings and that the self reported changes by a mother, whose credibility had been doubted in the past and, implicitly I think he was suggesting, was in any event so emotionally compromised in relation to an objective consideration of J’s best interests, had inevitably led the judge to conclude that she still had a “long way to go”.

 

The mother was of course appealing the judgment that was made, not the shored up version that counsel for the Local Authority was skilfully presenting. She won her case, and that was the right decision. Nobody knows how the re-hearing will go.

 

6. Threshold post Re A

 

The Court of Appeal here accepted that the threshold were ‘more than satisfied’ and that they had no doubt about that.

Let’s have a look at the threshold then.

A document headed “Agreed Threshold Criteria – 17.7.12″ gives some indication of the circumstances of J’s removal. In summary, J’s father has previous convictions for serious drugs and violence. In June 2009, the mother attempted to prevent his arrest for the offence of armed robbery. The father was subsequently jailed. The mother commenced a new relationship. Her new partner also had previous convictions and was a serial offender. Regrettably he was violent to the mother. She continued with the relationship and was said to prioritise her relationship with her partner over her own and J’s safety. The mother disagreed but there is objective evidence that she found it difficult to separate from her partner, refusing an injunction and visiting him in prison whilst he was serving a sentence for assaulting her. The mother was said to continue to “minimise and excuse the extent and impact of the domestic violence and conflict to which J had been exposed”. She herself smoked cannabis but denied that she had used class A drugs. It is clear that she was not co-operative with social services and would routinely deceive them about her home circumstances.

 

Reading this document I have no doubt that the so called threshold criteria imposed by section 31 of the Children’s Act 1989 were more than satisfied.

A lot of this looks like the sort of thing that the President threw out on its ear last week. This isn’t a case where the mother herself posed a risk.  At best, or worst, her partner might have.  But he seemed to be in prison.  Cannabis – gone. Not co-operative with social services – gone.  Assisting father three years earlier to resist arrest – what’s the risk to the child? gone. . Violence from former partner – well, the President seemed to be suggesting that there are people who have had dv in their relationships who would not cross threshold – it would depend on the extent and nature of it.  Minimising dv – gone. Visiting former partner in prison – well, if he wasn’t established to be a risk of harm to the child, so be it.

Too early to say whether the Court of Appeal are going to take a different view to the President on Re A, but if you apply the Re A principles the threshold here is either not crossed or it just limps over the line. Yet the Court of Appeal consider that there is no doubt that it was more than satisfied. Hmmm.

Follow

Get every new post delivered to your Inbox.

Join 3,038 other followers