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“I need not descend into detail”

 

So said the original trial judge in Re B (Children : Long Term Foster Care ) 2014

 

http://www.familylaw.co.uk/news_and_comment/re-b-children-long-term-foster-care-2014-ewca-civ-1172#.U_YJE2NuVjM

 

The Court of Appeal took the opposite view.

 

 

[That might be the shortest case summary I’ve ever written. Let me see if I can get it into a Tweetable format   “Re B – judge says less is more, Court of Appeal says 'fraid not”]

 

 

Some slight elaboration – there was a point in the case where the plan for the children was placement with mother probably under a Supervision Order – that was the case by the end of July 2013. But by the time of the final hearing (September 2013), the Local Authority plan was for the children to remain in long term foster care and be subject to Care Orders.

 

The Judge agreed with the LA and made Care Orders at the final hearing.

 

There are some odd nuggets in the case, not least being that the mother’s new boyfriend was using the name of his brother as an alias from time to time, only to find that his brother’s Certificate of Convictions was worse than his own, that either the children were brandishing knives at neighbours or cutting string off a tree branch, and so forth.

 

There simply wasn’t enough in the judgment to explain to the satisfaction of the Court of Appeal why that was the case (they sent it back for re-hearing, they weren’t necessarily saying that the Judge was WRONG, but that the judgment didn’t do sufficient to show whether he was right or wrong). See the underlined section in paragraph 66 for the pithy quotation that will be deployed in all cases (since in any case, one can always find at least one advocate who thinks that the case is ‘finely balanced’ and persists in saying so throughout. Sometimes, to be fair, that advocate is me…)

 

65.  Mr Hall submitted in his skeleton argument that when the new concerns arose in the summer of 2013, the case was finely balanced, and in oral submissions, he acknowledged that there was a mixed picture including extreme concern at times and at other times positive involvement and engagement by M. That is, in my view, an accurate description of the situation. Mr Hall’s submission was that the judge scrutinised the evidence sufficiently, made the required findings, took into account the positives in relation to M as well as the negatives, and carried out the necessary balancing exercise so was entitled to find that care orders should be made. Indeed, he said, proceedings could have been taken earlier. It was notable, however, that in seeking to support the judgment, Mr Hall was obliged to have regular recourse to the underlying reports and statements from which he sought to draw further material to justify the care orders. That this was necessary reinforced my overall conclusion that the judgement did not contain a sufficient review of the evidence that was available to the judge.

 

66…. The basis on which we allowed the appeal was that the judgment was flawed in its approach to the events which led to LA’s change of mind and was lacking in the detail that was required to substantiate the decision taken. The more finely balanced the decision in a case, the more exacting must be the judge’s approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination.

 

67…the judge’s treatment of the background history compounded the problems with his treatment of more recent events. Mr Hall submitted that the social work chronology revealed pervasive profound concerns about the children. For my part, I have no doubt that a study of the history had the capacity to contribute valuable material to the judge’s decision but, in my view, there was no alternative but to look at it in some detail because it was a mixed picture. There were significant problems but we also know that the case was periodically closed by social services following short interventions and that at times, assessments were complimentary about M and sympathetic to her as a victim of prolonged domestic violence. The threshold criteria agreed were far from detailed and could not be relied upon as sufficiently informative of the history. Accordingly, it was not sufficient for the judge to deal with that history (apart from domestic violence from F) in a single short paragraph (§7) summarising the themes and concluding with the observation, “I need not descend into detail”. In summarising things shortly in this way, the positives and negatives were lost and there was no picture of what was actually happening to the children.

 

[68] In short, this was a case which could only be resolved by a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment. I have great sympathy with the judge who was trying to reach a determination for the children with reasonable promptness, within the confines of a two day time estimate, and without much offered to him by way of direct evidence. I am conscious that he took trouble to reflect on his decision before giving judgment. However, I am afraid that, for the reasons I have set out, his determination cannot stand.

 

 

The thrust of Court of Appeal judgments over the last year, and this goes hand in hand with the transparency agenda, is that a person ought to be able to pick up and read a judgment and understand why the decisions were made, without rummaging around in the background material to try to plug the gaps. It needs to be spelled out.

 

That has consequences, not least time pressures on the judiciary. A day spent writing a judgment is a luxury in terms of workload, but a necessity now if it is to be fireproof for the Court of Appeal. Where are all these extra Judge days to be found?

[I can't leave para 67 without saying - well, of course the threshold criteria were far from detailed, that's because we're told to squish it into 2 pages. You will see more of this]

 

 

Care proceedings by the back door

The Court of Appeal decision in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

This was an appeal from a mother, about a private law decision that her child should live permanently with the grandmother. The placement with the grandmother had come about by the mother signing a Written Agreement with the Local Authority that the child should live there.   [see previous post]

 

There are some obvious, and well-known points about whether such a placement is a section 20 placement (in which case the Local Authority have to do a fostering assessment of grandmother and pay her fostering allowance) or a private family arrangement (in which case they don’t).  As a general rule of thumb – if the Local Authority’s fingerprints are all over the placement (as they were here) then it is almost certainly going to be a section 20 placement – whether anyone involved wants it to be or not.

That wasn’t the thrust of this appeal though.

 

That was, rather, that by private law proceedings where the child was placed with grandmother (and the Local Authority had never done an assessment of the mother to see if she could have the child back) this child was permanently moved from mother to grandmother without any of the safeguards that such a proposition would have had in care proceedings. Were these, in fact, care proceedings by the back door?

 

The children had been placed in July 2012, the proposed assessment of the mother by the Local Authority never took place, and the mother made an application for a Residence Order (as it then was) in May 2013

A particularly odd aspect of these situations is that when the private law case goes to Court, when the Court asks for an independent section 7 report (to make recommendations for the child’s future), such report is usually sought from the Local Authority (rather than CAFCASS) because of their historical involvement.  Can you spot an obvious flaw in that aspect, if it is the Local Authority who engineered the move from mother to grandmother?

 

This is what the Court of Appeal say about their section 7 report

 

The mother sought the return of the children. Eventually, after mediation had failed and following difficulties in obtaining legal funding, the mother issued proceedings on 28 May 2013 seeking a residence order and the return of the children to her care. The local authority was ordered to provide a section 7 report. Written by Ms Nesbitt, it was dated 4 October 2013. An addendum section 7 report was written by her successor, Ms Fitzgerald, dated 13 December 2013.
 

Ms Nesbitt expressed the view that the children should remain with the paternal grandmother under the auspices of a residence order. For present purposes it is Ms Fitzgerald’s report which is more significant. In paragraph 4.1.2 she said:
 

“Further assessment of [the mother's] current ability to meet the needs of the children is required in order to provide evidence that she has made positive changes and more importantly is able to sustain such changes in the longer term.”
In paragraph 4.3.1 (paragraph 4.6.1 was to much the same effect) she said:

“… there is little evidence to support the children returning to their mother’s care … It is therefore the view of the Local Authority that Family Resource Team intervention is required in order to support [the mother] and her relationship with the children to include work around routines, boundaries and the appropriateness of comments made to the children by [the mother] … This intervention will enable the Local Authority to assess [the mother's] current ability to meet the needs of the children. [The mother] reports that she has made positive changes by accessing counselling and evidence of those positive changes is required by the Local Authority in order to establish [her] current ability to meet the needs of the children in the immediate and longer-term future.”
In paragraph 4.8.1 she said:

“As previously indicated, the Local Authority are of the view that intervention is required from the Family Resource Team who will work with [the mother] and the children in relation to routines, boundaries and inappropriate comments made to the children. This will enable the Local Authority to further assess [the mother's] current and longer-term ability to meet the needs of the children”
In paragraph 4.9.1 Ms Fitzgerald recorded a counsellor describing the mother as “engaging well with the service” which, as she commented, “demonstrates [her] willingness to engage with services to address concerns.” In paragraph 4.10.2 she observed that “mother’s current ability to meet the needs of the children remains un-assessed” and continued:

“it is the view of the Local Authority that Family Resource Team intervention is required in order to assess her ability to meet the needs of the children.”
Ms Fitzgerald’s overall view was expressed in paragraph 4.10.3:
 

“It must be acknowledged that if the children were to grow up in the care of the 2nd Respondent and not the Applicant mother, this has the potential to affect their identity and they may feel a sense of rejection from their mother. That said, at the present time, the un-assessed risk of placing the children in their mother’s care, far outweighs the risk of them remaining in paternal grandmother’s care and the ‘potential’ for this to have an impact upon their identity/emotional wellbeing.”

 

In light of Ryder LJ’s withering comments in Re P and B about the use of ‘unquantified’ as a perjorative term, the ‘un-assessed risk’ here is somewhat dubious. Particularly since it was unassessed precisely because the Local Authority had not assessed it.

 

Those representing the mother, quite rightly, sought that assessment of the mother’s parenting and any risks. That would be a basic foundation of any care proceedings and something that would be vital if deciding whether children should live permanently away from a mother. But in private law proceedings, it can often be rather more of a ‘beauty parade’  – which person is in a better position to provide care for the children here and now

 

The hearing before the Recorder commenced on 9 January 2014. We do not have a transcript of the hearing but Mr Ben Boucher-Giles, who appeared on behalf of the mother before the Recorder, as he subsequently appeared before us, has prepared a very helpful case summary for our use which sets out what we need to know. It has been circulated to the other parties and to the local authority, who have raised no objection and identified no errors.
 

The Recorder heard evidence from Ms Fitzgerald and her team manager, Ms Richardson. In cross-examination Ms Fitzgerald accepted that the mother was committed to her children and was prepared to work with professionals. She re-iterated that the local authority had not assessed the mother and could not therefore say that she had made sufficient progress to prove that she could safely care for them. In answer to the specific question whether there was any event since July 2012 which gave her any specific cause for concern in relation to the mother or her ability to care for the children, Ms Fitzgerald accepted that she could not think of anything in particular. She indicated that a delay in the proceedings – the assessment and associated work might take between 12 and 16 weeks – would have a “high potential of emotional impact” on the older child, though this was no more than the usual consequence of delay.
 

Ms Richardson expressed concern about the lack of assessment and accepted that the local authority had failed in its duty to provide the court with the information it required. She indicated that rehabilitation of the children to the mother “would not be beneficial until perhaps after CAMHS had reported – something may arise.”
 

Unsurprisingly in these circumstances, Mr Boucher-Giles applied at the conclusion of this evidence for an adjournment for the preparation of a full assessment of the mother’s parenting abilities. His argument, as recorded by the Recorder in the judgment she gave refusing his application, was that the court could not make a decision because it did not have any information about the mother and her ability to care for the children. The application was resisted by the paternal grandmother on the basis that the best interests of the children were served by the matter being brought to a conclusion, in circumstances where the local authority had indicated that it would not ‘walk away’ even if the case came to a final conclusion.

 

You can guess that the Recorder refused the adjournment, otherwise there wouldn’t be an appeal   (you may take it that every sentence that I have underlined could be read aloud  in a tone of total shock and wonder0

 

The Recorder dismissed the application. She explained why:
 

“In seeking that adjournment and in considering whether or not I should allow it, I must take account of various factors, one of those of course being that delay is inimical to these sort of proceedings. They need to be brought to a conclusion as soon as possible. I have to weigh against that, the fact that [the mother] has not been subject to any detailed assessment, the fact of the matter is that the court is in the position today where it has sufficient information to consider what is in the best interests of the children and if I were to adjourn where would we be then? We would be at a position where the local authority might be saying by virtue of their role in these proceedings that the matter should move to overnight staying contact. It does not mean that they would be in a position to make a final recommendation, not that anything is ever final in the lives of children because things move and things change, but I take the view that to delay these proceedings any further, these proceedings having been ongoing for some time, to delay them any further for the purpose of an assessment which might not be able to come to a final conclusion and might not be able to be effected due to the involvement of CAMHS with the older of the two children”.
The hearing proceeded. The Recorder heard oral evidence from the mother and the paternal grandmother. Cross-examined on the point, the paternal grandmother, who said she had spent a great deal of time in the mother’s company over the past 18 months, could not think of anything that had happened during that time which gave her cause for concern in respect of the mother or her ability care for her children, apart from some missed contacts.
 

In closing submissions Mr Boucher-Giles again invited the Recorder to adjourn for an assessment of the mother.
 

At the end of the hearing, on 10 January 2014, the Recorder gave judgment. She summarised the history of events, recording that, on the mother’s own evidence, she had had problems in the past with ill health, post natal depression and drug misuse and that, as a result, she had not been able to offer adequate care to the children. She described how matters had “almost reached crisis point” in July 2012. She described the mother’s position as being that she had only ever envisaged a temporary arrangement and that by April 2013 she was in a fit and proper position to deal with looking after the children herself.
 

The Recorder then said this:
 

“It has become apparent as well that there have been failings in social services dealing with this case and that was acknowledged by the team leader Miss Richardson when she gave her evidence that in fact no assessment of the mother has at any time been undertaken since the mother has recovered from all the difficulties that she had.
However I have to look at the welfare checklist and I have to decide this case on the basis of those matters”.
She drew attention to the fact that the older child appeared to be saying that she wished to live with her grandmother. She directed herself that the child’s welfare is the paramount consideration and that she had to have regard to the general principle that any delay is likely to prejudice the welfare of the child.

The Recorder reiterated her reasons for refusing an adjournment, saying:
 

“Clearly delay is a matter which I have to take account of if it is likely to prejudice the welfare of the child or the children and I take the view that any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.
It is clear as well that such a delay is an open ended delay, because no-one can say at this stage as to how long, as to what the outcome of overnight contact would be, if it was in fact recommended by the social services department.
… I take the view that delay would not be in the interests of these children, it would not be productive in terms of their welfare and it is for this reason that [the proposition that I should] adjourn for a period of time, is not one which lends itself to me.”

She then said this:
 

Can I say that I accept that there is no assessment of the mother as she is now. I do not make an assessment of her because I have only had the opportunity of seeing her in the witness box and my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.
One can only speculate as to what the outcome of that assessment will be“.
The Recorder then considered the welfare checklist, saying in the course of this:
 

“The court must also take into account the children’s physical, emotional and educational needs, well it is perfectly plain to me and I think it is even accepted on behalf of the mother that those needs are being met by the paternal grandmother at the present time. On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Having found that in the past the children had suffered harm as a result of the mother’s inability to cope, the Recorder continued:
 

I cannot say whether they are at risk of suffering in the future, it is probable that matters will move forward in fact it is inevitable that matter that matters will move forward but I am not in a position to make any finding as to whether or not they are at risk of suffering in the future.
What I also have to take into account is how capable the mother and the grandmother are in relation to the question of meeting the children’s needs. Well as I have already indicated it appears to be accepted and in fact I make a finding that the grandmother is in fact meeting the needs of these children and has done so at least for the last eighteen months and possibly for longer so far as [the older child] is concerned.
Taking all those matters into account I then have to decide what is the proper order in this case.
This is a case where the mother has, I have no doubt the best of intentions at heart, but I am not satisfied that it would be appropriate at this stage to make an immediate order granting her residence and so in those circumstances I dismiss her application for residence.
I then have to consider what orders I should make. At the present time the paternal grandmother has no legal standing because she has no orders and nothing in place at the present time. I intend therefore to make a residence order in favour of the paternal grandmother.”

 

The application for appeal was made, and Ryder LJ gave permission, identifying four important principles

 

The mother’s appellant’s notice was filed on 31 January 2014. Considering the application for permission on the papers, Ryder LJ had the benefit of Mr Boucher-Giles’ powerful skeleton argument. In giving permission, Ryder LJ observed that the grounds of appeal and skeleton argument at least four potentially significant issues, which he described as follows:
 

“(a) whether a court dealing with a private law children application is obliged to deal with the proportionality of the order as an interference with art 8 rights – the horizontality argument;
(b) whether the judge should have attached any greater significance to the position of a mother as against a grandmother – the imperative of being brought up by a parent if that parent is a good enough parent even though the grandmother may be better;
(c) whether the judge’s refusal to order an adjournment to obtain a section 7 assessment report from the local authority deprived the mother of the evidence that might demonstrate her capability;
(d) how the court should deal with section 20 accommodation cases where the local authority is acting as the decision maker but not taking care proceedings (and has not assessed the parent when arguably it should have done so).”
Ryder LJ “invited” the local authority to intervene in the appeal to make submissions in relation to issue (d). It has declined to do so.

 

Quite so. The vital ones of public interest are (a)  (c) and (d)  – point (b) already has the benefit of a lot of settled law.

 

The Court of Appeal determined the appeal solely on ground (c), leaving us in limbo as to the important questions in (a) and (d) until they arise again. The appeal was granted and the case sent for rehearing.

The stark facts here are clear and obvious. There had been no assessment of the mother. Ms Fitzgerald’s report was peppered with the recognition that an assessment was “required” in order both to provide evidence that the mother had indeed changed, and was able to sustain that change, and to assess her current and longer-term ability to meet the needs of the children. The Recorder acknowledged that there had at no time been any assessment of the mother, made clear that she herself had not made any assessment of the mother, and, most strikingly of all, found that, to repeat:
 

“I cannot say whether [the children] are at risk of suffering in the future … I am not in a position to make any finding as to whether or not they are at risk of suffering in the future (emphasis added).”
It is quite apparent that the Recorder’s decision was driven by her concern about delay. She says so explicitly in the passage, already cited, where she said:
 

“my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.”
That is elaborated in the passage where she said:

“any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.”
As to this I merely observe that one needs to bear in mind what Ms Fitzgerald had said in evidence (see paragraph 8 above) and that the Recorder’s comment about the delay being “open ended” (paragraph 16) involved little more than an educated guess – what the Recorder herself described (paragraph 17 above) as speculation – as to what might be revealed by the strictly time-limited assessment being proposed by Mr Boucher-Giles. There is also, in my judgment, much force in his submission that the Recorder focused too much on the short-term disadvantages without addressing, as she should, the medium and longer term implications.
 

The simple fact, in my judgment, is that the Recorder fell into a double error. By refusing an adjournment for the assessment which had never taken place, which the local authority acknowledged was required and which Mr Boucher-Giles was understandably pressing for, the Recorder denied herself vital evidence to fill what on her own findings were serious gaps in her knowledge of the mother and of the mother’s ability to care for the children. This was, as Mr Boucher-Giles submitted, an essential piece of information if the Recorder was properly to do her duty in accordance with section 1(3)(f) of the Children Act 1989. On top of that she placed far too much weight on a view as to the consequences of delay which was not borne out by the evidence.
 

This all fed into an approach which ended up being unfair to the mother and went far in the direction of effectively reversing the forensic burden. I have in mind in particular the passage in her judgment where the Recorder, having correctly found that the children’s needs were being met by the paternal grandmother, went on to note that:
 

“On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Indeed, but why was that?

It follows that, for all these reasons, the mother in my judgment succeeds on issue (c) and accordingly succeeds on her appeal.

 

The Court of Appeal then went on to have a go at the Local Authority (deservedly so in this case)

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing. I can well understand why Mr Boucher-Giles complains that the local authority has in effect instigated and resolved what ought to have been public law proceedings without legal authority to do so, sidestepping the need to prove ‘threshold’ and thus avoiding the important protections against State interference which Part IV of the Children Act 1989 provides. The mother, he says, was by virtue of the State’s actions placed in a position whereby her children were being cared for, against her wish, by the paternal grandmother and without any legal order in place. I place these submissions on record without expressing any concluded view, though agreeing with Mr Boucher-Giles that it would be a matter of concern if ‘back door’ care proceedings such as this were to become prevalent.

 

It is a great shame that the Court did not get to grips with the issue of ‘back door care proceedings’, but one can see why the appeal so obviously suceeds on point c that it was not strictly necessary.

 

 

Written Agreements

 

Written agreements in cases involving Social Services are always a tricky thing. It is important that the wording is clear about what is being asked of a parent and what is okay and what’s not. It is also important that they are fair and not  “setting a parent up to fail”

 

These would be my golden rules for parents about written agreements

 

1. Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it

2. If you have a lawyer, you should ask for legal advice BEFORE you sign it.  If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement.

3. If you think that something isn’t fair, say so

4. If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement

5. Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

 

 

And for social workers

 

1. Be clear

2. Be fair

3. Don’t try to solve every tiny problem – worry about fresh fruit and veg and home-cooked shepherd’s pie AFTER you’ve solved the violent partner hitting the children.

4. It should be a two-way street – what are you doing to help the parent?

 

The Court of Appeal touch on a particular aspect of Written Agreement in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

There are some important issues in this case, so I will do a follow-up post, but just on the Written Agreement issue.

 

In August 2012 a social worker, Ms Nesbitt, was appointed to the case and in October 2012 began work on a core assessment. On 12 November 2012 the mother and Ms Nesbitt signed a document which described itself as an “Agreement” made between the local authority, the mother and the paternal grandmother. So far as material for present purposes it read as follows:
 

“This is not a legal agreement however; [sic] it may be used in court as evidence if needed.
This agreement has been complied [sic] to ensure that [the mother] agrees for [the children] to remain in the care of paternal grandmother whilst further assessments are completed.
[the mother] agrees to [the children] remaining in the care of paternal grandmother whilst further assessments are completed.

 

[As one of my commentators once had a go at me for [sic]  I will point out that these are the words of the Court, not mine. I loathe the use of [sic], and it isn’t something I would ever do.]

 

Ryder LJ seems to have assumed, and I can well understand why, that the powers the local authority was exercising in and after July 2012 were those conferred on it by section 20 of the Children Act 1989. But the very curious terms of the “Agreement” dated 12 November 2012 give pause for thought. Why was it stated to be “not a legal agreement”? Why was it said that “it may be used in court as evidence if needed”? Whatever it meant, and whatever its true legal status, it was treated by the local authority as enabling it – I decline to say authorising it – in effect to control this mother and her children. And, moreover, to exercise that control without the need to commence care proceedings and hopefully, from its perspective, without exposing the local authority to the various obligations which arise in relation to a child who is or has been ‘looked after’ in accordance with section 20.
 

I express no view at all as to whether this was in law the effect of what was being done, a question on which my Lady’s judgment in SA v KCC (Child in Need) [2010] EWHC 848 (Admin), [2010] 2 FLR 1721, is illuminating (compare the facts in that case as analysed in paras 57-60, 72-74). See also my Lady’s judgment in Re B, Redcar and Cleveland Borough Council v Others [2013] EWCA Civ 964, [2013] Fam Law 1382, and the earlier judgments of Smith LJ in Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181, para 49, and of Baroness Hale of Richmond in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, para 42, to which Mr Boucher-Giles referred us.
 

That is not all. I suspect that the reference to the “Agreement” being “used in court as evidence if needed” can only have been intended to have the effect of warning the mother that if she did not ‘toe the line’ the “Agreement” would be used against her in some way in any proceedings that ensued. I remark that, as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.
 

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing.

 

There are two issues here :-

 

1. The use of the wording that “this is not a Legal Agreement”  and

 

2. Whether a written agreement that is signed as ‘mere submission in the face of asserted state authority’  is fair

 

On the first point, I’ve seen this wording crop up on Written Agreements, and I don’t care for it. It is factually true that the document is not a Legal Agreement – in the sense that the Local Authority can’t sue for compensation or breach of contract or go to Court to MAKE a parent give up heroin because they agreed to it in writing.  But as the Court of Appeal point out, it is a document that would be used in evidence if there was a breach. It is a document that HAS CONSEQUENCES if you don’t stick to it, and those consequences are legal ones.

 

Does writing ‘this is not a Legal Agreement’ on them assist a parent? Well, I think very few parents were signing under the impression that the document was a contract under Contract law.  Does it hinder a parent? Well, if any of them read that message to mean ‘you don’t have to stick to it’, then yes, it does.

 

I can only think that at some time in the distant past, someone or other has said “These Written Agreements have to have written on them ‘This is not a Legal Agreement’, and it got absorbed into practice or philosophy. It might even have been a Judge. I haven’t found an authority to that effect, but it could easily be a small line in a judgment.

 

On the second, the Court of Appeal don’t go as far as saying that written agreements signed in that way should be disregarded   (unless they are a section 20 agreement that the child should live elsewhere, in which case it is established law that this consent must be given on an informed basis and freely, not under duress.

But it raises an important point – if the Written Agreement, as so many of them are, is really a  ‘sign this and you get one last chance before we take the kids’ then is the consent to the written agreement just an extension of what the Courts have ruled wrong in s20 cases ?  Remember that the s20 cases are not about the wording of the Act, which doesn’t mention consent at all, but about the wider Human Rights Act principles of proportionality and fairness.

 

Written Agreements can be valid tools for helping a family to change, to solve problems and in some cases to remove the risks that would otherwise make the children unsafe at home, but a degree of thought has to be given about their construction and use if they are instead being ‘sign this or else’

 

The principles in Re CA would be a sensible way to look at Written Agreements  (even when they are not agreements that involve agreement that the child live elsewhere , section 20)

 

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

 

 

 

 

We are all unquantified risks

 

This was a permission hearing, Re B and P 2014 heard before Ryder LJ

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1133.html

There were a number of features which made the permission hearing difficult, not least that the parents, their McKenzie Friends and the Court did not have any of the papers from the care proceedings, save for a transcript of the judgment.

So, Ryder LJ listed the case for a rolled-up appeal (the permission application first, and to go on to an appeal if successful)

Why did nobody have the court papers?

Well, the parents were in person, and their solicitors had sent the bundles off to the cost-draftsmen (if you aren’t a lawyer, that will be meaningless, so by way of explanation it means that in order to get paid, the lawyer has to send all of their papers off to a specialist who then draws up the detailed bill to send to the Legal Aid Agency, who then sit on it for nineteen months and then pay an arbitrary amount that bears little relation to the actual bill)

The parents had asked the Local Authority to give them a copy of the bundle and the Local Authority had refused.

Now, the Local Authority weren’t at this appeal hearing, so I don’t know their side of it. It might potentially be that there was felt to be some very good reason why it would be unsafe for the parents to have those papers.  Hopefully it is some legitimate reason and not just being awkward. I suspect if the reason was just ‘it’s not our job’ or ‘why should we do it?’ or ‘get it from your own lawyers’, that’s not going to cut it with the Court of Appeal.

The parents appealed on six points, two of which Ryder LJ kicked out straight away, but he was interested in some of the others.

[From the reported facts of the case, I am reasonably sure that the judgment that was being appealed was Parker J in Hertfordshire
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2159.html - there are SO many similiarities, it would be hard for it to be coincidence. Not least because both cases involve a father being convicted for assaulting a social worker and a dispute about a religious naming ceremony]

 

Mrs Haines, representing the parents as a McKenzie Friend, puts the nub of the case very neatly

The baby’s case depends in large part on the same history that led to the conclusion in relation to the older child, J. J was thriving in his mother’s care and after his removal there was good quality contact with the parents (those facts can be deduced from the judgments that I have). There had been two assessments of the parents’ capability to care for J which were both reasonably positive, the latter assessment being a residential assessment after which the child went to live with the parents under an interim order. So what caused everything to fall apart?

The trigger for the ultimate end position was the father’s aggressive failure to co-operate with the local authority and Cafcass. That led to a police raid on the parents house (described by one of the judges as an unfortunate incident i.e. it was either not necessary or should not have occurred at all or in the way that it did). The raid found nothing amiss but had been prefaced by the father’s failure to permit anyone to discover whether the child was still being appropriately cared for. The father has obdurately put his own dignity and rights before his child’s to the extent that it has ultimately led to the removal of both of his children. One might well ask, and Mrs Haines does on his behalf, is an argument with the agencies of the state, even a violent argument, sufficient to cause one to lose one’s children?

 

 

This is a peculiar one, since despite a previously unfortunate history, it appears from the judgment that assessments were such that the parents were given an opportunity to care for their new child at home and it was the father’s violent outbursts to professionals which led to the shift in plan from placement with parents to adoption.

 

So far as father is concerned, he is described as being an unquantified and unassessed risk. He is regarded as being dangerous and is suspected of having a psychiatric or psychological trait / personality disorder that is not amenable to change. That may be right. This court at least needs to scrutinise the evidence given its importance. He is the essential support for the mother, if the psychological opinion relating to her care capability stands. It is said that he is unable to work with professionals and he has assaulted a social worker and those are conclusions of fact that appear to be very secure – there is a conviction for the latter incident. But does that mean he is unable to support the mother and is he a risk to his child?

A conclusion that someone is ‘unquantified’ as a risk is meaningless. We are all unquantified in the absence of evidence and it is for the local authority to prove its case. He was certainly a risk to professionals but not according to the judges to the mother. Was he a risk to his child? The evidence relating to that is not yet known to this court save that which can be gleaned from the judgments. That suggests that he was condemned as being an emotional risk to his child because he had no insight into how his behaviour with professionals might affect his child. That is circular. If there is no need for professional input because he can provide the support for the mother then his reaction to professionals does not prevent him caring for a child or supporting the mother in that task.

In fairness there is another and potentially important factor. These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?

I don’t know yet whether when the Court of Appeal tackle this case in full, with all the papers, and hearing from the other parties, the final outcome will be very different to Ryder LJ’s take, but it certainly raises an important and interesting aspect.

If the sole concern is that a parent is not co-operating with the Local Authority (even violently not co-operating), what is the risk to the child that justifies the State assuming care of the child?

There are some people who are violent to their partner and their child, and that bleeds into their violent outlook on life and approach to professionals. There are people who betray their violent tendencies and nature by the manifestation of their temper, and one learns of the risk that they would pose to others close to them.

But there are some people, maybe not many, but some, who just violently dislike social workers and are not afraid of saying so, but would pose no risk of violence to those around them.

This appeal might answer the question – if you’re not harming your child by doing so, are you entitled to be vile to social workers ?

If it does answer that question, there will be a lot of people interested in it either way.

There are two different perspectives here

(A) That the father was the protective factor against the established problems the mother had in providing care for a child, that he would need support from professionals and how can that support be provided if he is assaulting them physically when they visit?

OR, conversely

(B) If the major problem that the father has only happens when social workers visit, then it is solveable by just not having social workers visit.

It has tricky socio-political consequences, if the Court of Appeal do answer this point (and don’t hold your breath – remember that Re B went to the Supreme Court specifically to resolve the vexed question of emotional harm and completely ducked the issue)

If the Court of Appeal were to find that (A) is the right answer, then parents and campaigners will feel that this is carte blanche for social workers to cultivate a bad relationship with a parent and then rely on that same bad relationship as reason why the child has to be removed.

If the Court of Appeal were to find that (B) is the right answer, does that give a green light for parents to abuse and intimidate social workers?

Which is why I suspect a way will be found to duck the points that Ryder J raises.

[If there was a bet to be had on the outcome of this appeal, the sure thing is “If a parent or their McKenzie Friend asks the Local Authority for a copy of the court bundle to assist in an appeal, the Local Authority MUST provide it” (and probably that the LA must also produce appeal bundles and copies for the Court too) ]

Hearing an appeal in private

 

 
The Court of Appeal were asked to rule, as a preliminary issue, whether the mother’s appeal should be heard in private

Re DE and AB 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1064.html

Even though a family Court hearing is held in private (or secret, depending on your standpoint), where only those directly involved – or the Press by application, can attend, if the case gets appealed, the appeal hearing is usually heard in public.

It always throws you a little when you are in the Court of Appeal, dealing with incredibly sensitive and delicate matters and there are thirty bored law students and two Roy Cropper types with  tartan thermos flasks sitting on benches behind you, but that’s the way of it. Anyone can walk into the Court of Appeal and watch a hearing.

In reality what they get to hear is two hours of this sort of thing

“I see at paragraph 14, subsection (v) of your document that you make reference to Lord Butter’s decision in Re K – can you take me to the relevant passage?”

“My Lords, yes, in the bundle of precedents, that is at page B92, and it is the third paragraph from the top, beginning ‘it is well-established that’…”

And the prospects of anyone being able to make sense of, follow or enjoy that whole affair are pretty limited.
Anyway, the main dispute in Re DE was the claim by a mother that the father should make financial payment for a child – this is under Schedule 1 of the Children Act. This is usually (but not necessarily limited to) for cases where the parents weren’t married to each other and it is a way of getting one parent to make a financial contribution to the other, where the Child Support Agency can’t help (because the case is more about capital than income, or one parent is effectively a millionaire)
In the High Court, Mr Justice Bodey refused the mother’s application, and made an order restricting the reporting of the case – i.e that the parties and the child could not be named.
The father asked for the appeal to be heard in private, in large part as a result of this:-
The father applies for the proceedings to be heard in private on the basis that the mother, in a telephone call she made to the father on 2 July 2014, has threatened him with ‘maximum publicity’ by ensuring that as many journalists and members of the public as possible attend the permission hearing. The father contends that the publicity of the appeal process is being used to bring undue pressure on him and to defeat the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the ‘prohibited information’). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman’s terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail
[Nicely put, that last sentence]

Followers of the super-injunction scandal of a few years ago may remember that some of the super-injunctions were granted on the basis of an allegation of blackmail – i.e give me compensation/a cheque and we’ll leave the papers out of it. So, one has to be wary – just because father makes that assertion doesn’t mean that it is true, and likewise just because the mother denies it doesn’t mean that father made it up. Just don’t take it as being settled either way.

Of course, the loophole here, is that by appealing the decision of Mr Justice Bodey, the case goes into the Court of Appeal, and the Press and public can attend that hearing.

Father’s preliminary application, therefore, was that if the appeal was open to the press and public, then all the benefit to him of Bodey J’s judgment would be lost BEFORE the Court of Appeal decided whether he was right to have given the father that protection. The Press and public would already be in the court room, hearing all of the juicy details.
The Court of Appeal therefore had to weigh that point (in essence, there’s no point arguing about whether something should be secret if you tell everyone the secret before you have the argument) against the wider public interest of appeals being heard in public.

I heard the father’s preliminary application before coming to a decision whether to adjourn it as requested by the mother. I did not need to decide the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the detail of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the very firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that ‘secret justice’ is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.
Despite the entirely adverse view that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.
As I shall explain, the court was able to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.

[The last bit is saying, in essence, that this might have been difficult had there been members of the Press and public there to throw out, but in reality, there was just one pupil barrister, who politely made their excuses and left]
But the Court of Appeal still had to follow the principles and precedents and come to the right decision in law. In case the issue comes up again, it is helpful that the case sets those principles out

Legal submissions on the law – power to sit in private
The father submitted that it was necessary to seek an order that the hearing take place in private on the basis that (a) publicity would defeat the object of the hearing; (b) a private hearing was necessary to protect the interests of the child; and (c) it was in any event necessary in the interests of justice.
A court hearing an appeal or an application for permission to appeal may sit in private if the court whose decision is being appealed had the power to sit in private during those proceedings. But the appellate court must give its decision in public “unless there are good and sufficient grounds” for giving it in private (in which case the court must state those grounds in public): see section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.
Though a case was heard in private, it does not follow that the Court of Appeal will sit in private, on the contrary. Hearings in family cases in the Court of Appeal are open to the public, save on very rare occasions where the court orders otherwise: see The Family Courts: Media Access & Reporting, published by the Judicial College and Society of Editors in July 2011.
It is axiomatic that the starting point for this court’s consideration of the preliminary application is that open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders made, are public: see, for example article 6(1) ECHR, CPR 39.2 and Scott v Scott [1913] AC 417.
Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising its wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury observed at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:
“As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.”
A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:
“But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”
After citing the dictum of Viscount Haldane, Lord Devlin continued at p 239:
“That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”
More recently the importance of the common law principle of open justice was emphasised by nine Justices of the Supreme Court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society at [2]. He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477 and JIH v News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].
When considering the imposition of any derogation from open justice, the court must have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

 

It is also worth noting that unless the Court of Appeal make a specific order (which they have the power to do), then all of the restrictions on reporting and naming the parties which would apply in the Family Court do not apply.

Specifically

Section 12(1) a of the Administration of Justice Act 1960 will not apply to the present hearing if it is to be heard in public. As a consequence, any matters discussed in open court at the permission hearing can be freely reported.
Reporting is prima facie not restricted unless the Court of Appeal makes an order in the proceedings. In children cases, s. 97(2) Children Act 1989 does not apply in the Court of Appeal: see Pelling v Bruce Williams [2004] EWCA Civ 845; [2004] Fam 155; [2004] 2 FLR 823 at [53]).
This Court has observed that it is necessary to analyse whether, on a consideration of the competing rights in each case, anonymisation of proceedings and judgment is necessary: Pelling v Bruce-Williams at [49]. Reporting may be restricted under the inherent jurisdiction or the Children and Young Persons Act 1933 section 39, if applicable.

 

So the Court of Appeal had to decide whether to exercise that power in this case. They did, on the basis that given that the mother was seeking publicity in this case, and that there was an anonymised judgment giving lots of details about the case (but no names) out in the public domain, it would be simple if this appeal was using real names to link the two cases together and for a lot of sensitive and delicate information to be in the public domain.
the fact of the existence of the anonymised judgment of Bodey J significantly enhances the risk that if the parties are named prior to the outcome of the hearing or any permitted appeal, that the information restrained would in any event enter the public domain through jigsaw identification. This court finds itself in the position encountered by Bodey J, that is if during the hearing information currently subject to the injunction is discussed in open court and is rendered reportable, “it would effectively be to give the mother everything she seeks, something which [I] think she realised during the course of the hearing, and would undermine the balanced decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA”.
Accordingly I shall order that the proceedings be held in public but subject to immediate and continuing publicity protections so as to prevent withheld and prohibited information from being disclosed into the public domain without the permission of the court. There shall be anonymisation of the reporting of the identities of the parties and the child and any information likely to lead to the identification of the child and the order made by Senior District Judge Waller shall be extended to cover this hearing.
At the conclusion of the permission hearing and after permission had been refused and further argument heard, I extended the orders made during the proceedings to protect any prohibited information inadvertently disclosed during the hearing. For the avoidance of doubt, the injunction made by SDJ Waller continues to have effect. The precise terms of the orders that I made are annexed to this judgment.

 

Role of the appellate Court

This case was decided in December but only just reported. It relates (of course) to an appeal arising from a failure of the Court at first instance to properly balance the issues and pros and cons in a Placement Order case.

 

Re B (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/565.html

 

This one is interesting because it involves an appeal initially from what was the Family Proceedings Court (and is now Tier One of the Family Court, or Tier Three of the Family Court, nobody seems absolutely sure whether a higher number is good, or bad, we just know that District Judges are in the middle and are Tier Two).   It was one of my Burning Questions post Re B-S months ago, as to whether the expectations of Re B-S bore down on the Justices as they did on the Circuit Judge  (which seems to be common sense, but there’s existing authority that you can’t expect the same degree of analysis and rigour from three lay Justices as from one Judge).

The first time this issue came up in appeal, it wasn’t decided because the Court of Appeal wisely and sagely decided that the Justices reasons were marvellous rather than flawed  (one of those moments when you know you’ve lost your appeal in the first ten seconds), and the case wasn’t a reported one.

However, second time lucky

 

It is common ground that the FPC’s Reasons did not involve a sufficient analysis of the evidence that they had heard and read and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation that is, an evaluation of the interference with the article 8 ECHR [Convention] right to respect for family and private life that the local authority’s care plan and the court’s orders would involve. As I shall describe, in fairness to the magistrates, the evidence before the court did not contain the material that would have been necessary to conduct that analysis and evaluation. Furthermore, as the magistrates’ Reasons betrayed, the FPC adopted a ‘linear approach’ to decision making thereby excluding the parents as carers without any comparison of them with the other realistic options for B’s long term future care.

 

  • It is common ground in this appeal that Judge Clarke held and was entitled to hold that, among other errors, the FPC were wrong in law in the following respects:

 

 

i) they adopted a linear approach to their decision making;

ii) they failed to carry out a welfare analysis of the realistic options for B’s long term care; and

iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.

 

  • In this case and having regard to the first court’s Reasons, which this court has had the opportunity to consider, I can take these conclusions as read. Furthermore, it is not suggested that the magistrates’ failings led to their analysis and evaluation being other than wrong within the meaning of Lord Neuberger’s formulation at [93 (v) to (vii)] and [94] of In the Matter of B (A Child) [2013] UKSC 13 [Re B]. On that basis alone, it was open to Judge Clarke to have considered allowing the appeal and if she had set aside the orders, to have directed the applications be re-heard. She did not do that, but instead undertook her own welfare analysis and proportionality evaluation. Although that analysis is itself criticised for a lack of reasoning and detail in the necessary comparative exercise, the judge felt able to come to the same conclusion as the FPC and dismissed the appeal.

 

That’s pretty damn clear authority for the fact that Justices Facts and Reasons in an adoption case had better damn well cover all the requirements of Re B and Re B-S, otherwise they have done it wrong.  [It has taken SIX MONTHS for any of my Burning Questions http://suesspiciousminds.com/2013/11/01/burning-questions/ to be answered, and now I've had two in a week]

 

Anyway, the Court of Appeal was far less interested in satisfying my innate curiousity and more interested in the actual appeal in question, which was – having found that the Justices had got their decision wrong on a number of levels, should the Circuit Judge who heard the appeal have sent the case for re-hearing, or just made the decision herself and done it right? What happened in this case was that the Judge did deliver a judgment, containing all of the necessary ingredients, had done the job properly and made orders, that the father, though Mr Weston QC appealed.

 

Mr Weston, for the father was arguing broadly that having not heard the evidence, the County Court ought to have stopped at the point where they resolved to grant the appeal and that the Justices reasons were so flawed as to make their decision wrong, and not go on to “fill in the gaps”  themselves.  And further that even if the Judge was right to attempt it as a general principle, to do so in this case ignored the gaps in the evidence that would make such a process unfair.

 

  • In this case, Judge Clarke held that the magistrates reasoning was insufficient and thereby wrong and the question arises whether a judge was permitted to ‘fill the gaps’, provide her own reasoning or substitute her reasons for those of the first court.

 

 

 

  • Mr Weston for the appellant makes a strong and clear case about what he submits was the irregularity of what happened. He submits that the judge rightly decided that the FPC had to consider the substance not just the letter of the statutory provisions. They had to undertake an analysis rather than pay lip service to the words. He submits that the FPC could not do that because the evidential materials were missing. Not only were they missing in the FPC, but at the hearing where the judge conducted her own analysis and evaluation, the evidence was still missing. Any new evidence relating to new issues of fact and changes of circumstance (and there was at least one new and potentially significant allegation that may have been relevant) or the implications of the same for the welfare analysis and proportionality evaluation, was also missing. Furthermore, the benefit of listening to and appraising the witnesses including the parents was lost in a procedure which was not a true re-hearing. Mr Weston accordingly submits that the procedure adopted was wrong and that its consequence was a welfare analysis and a proportionality evaluation that were inevitably flawed.

 

 

 

  • Mr Weston also submits that a judge conducting a review has a decision to make as respects any evidence that needs to be heard or re-heard when a determination is wrong as a matter of substantive or procedural law. He or she may conduct a limited re-hearing on a discrete point if the material exists to enable that to be done. That may involve considering an application to adduce additional evidence but in any event will involve a careful appraisal of whether the evidence exists to decide the issue in question and how that exercise is to be conducted to ensure procedural regularity.

 

 

 

  • Mr Weston’s final point is that the evidence in these proceedings was so defective on the point that it was not available to the judge to fill the gaps that existed. Accordingly, even if she had allowed the appeal and moved to re-hear the case, she could not have done so immediately without the benefit of case management to ensure that the court had the evidence that it needed to conduct its own analysis and evaluation.

 

 

 

  • Mr MacDonald like Mr Weston carefully identified the difference between a review and a re-hearing but was astute to identify cases in which a review and a re-hearing may be a continuum. He submitted, correctly, that the duty of the judge conducting a first appeal is to decide whether the proportionality evaluation of the first court was wrong. A proportionality evaluation is not a discretionary decision: it is either right or wrong and whether a decision based upon it should be set aside on appeal depends upon an analysis of the kind formulated by Lord Neuberger in Re B at [93] and [94]. Mr MacDonald submitted that the judge on appeal having identified the deficiencies in the first court’s decision making was obliged to consider whether the proportionality evaluation was thereby or in any event wrong. In an attractive submission he demonstrated that in every case where the first court has made an error in the welfare analysis (even where that analysis is based on a sufficient evidential base) the proportionality evaluation will be affected such that it may have to be re-made. He rhetorically asks the question whether in every such case the appeal court is required to remit the proceedings for a re-hearing when everything else in the case is intact and procedurally regular.

 

 

 

  • The continuum described by Mr MacDonald is very real in two senses: a) the welfare analysis and proportionality evaluation are intimately connected because an error in the analysis will inevitably have an effect on the evaluation with the consequence that an appeal court has to consider them together and b) the appellate court’s review of welfare and proportionality will involve having to consider whether there would be any difference in the ultimate conclusion, that is the order made, if the welfare analysis and proportionality evaluation were to be re-made. Aside from other considerations, that is because an appeal lies against an order and not the reasons for it (see Lake v Lake [1955] P 336). That at least involves, where practicable, a hypothetical exercise in seeing what the evaluation would be if it were to be re-made on a correct welfare basis.

 

 

 

  • Mr MacDonald acknowledged that the decision by an appeal court whether to re-make a welfare analysis and proportionality evaluation or remit for a re-hearing is itself a discretionary exercise. He identified the question which the appeal court needed to ask in relation to that discretionary exercise as being: “is the error rectifiable by the appeal court or is it too big?” That tends to suggest that there is an identity of approach by the appellant and the respondent to the question this court is asked to answer.

 

 

This is a big issue – if during the process of an appeal, the appellate Court is satisfied that the original decision was made wrongly, what are they supposed to do about it? Granting the appeal is easy, but that’s only half the story. Do you send it back for re-hearing, or give your own subsituted judgment addressing all of the issues? Which is the right thing to do? If either are possible in certain circumstances, what are those circumstances?

Conclusion in principle:

 

  • I have come to the following conclusion about the question asked of us. On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong. Armed with the error identified, the judge then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing. The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed. In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is procedurally regular, that is fair.

 

 

 

[Suesspicious Minds interruption - this is saying that the appellate Court have the power to do either - to remit for rehearing OR make their own decision, but they have to be sure that the course that they take is FAIR]

 

  •  If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.

 

 

 

  • If the appeal court is faced with a lack of reasoning it is unlikely that the process I have described will be appropriate, although it has to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.

 

 

 

  • The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

 

 

 

 

Thus, if the error that led to the appeal is sufficiently narrow or discrete that the appellate Court can fairly make their own decision, then they can do so, but if it is wife and arises from missing evidence or the failure to answer a key question, or the credibility of witnesses is at issue, then a re-hearing would be the right outcome.

 

Application of the conclusion in this case:

 

  • Mr MacDonald’s primary submission is that at least initially Judge Clarke correctly identified what was required of her in this passage of her judgment at [50] that I have cited at [10] above. Later in judgment and perhaps as a consequence of a discussion on the transcript to which this court has been taken, Judge Clarke appeared to conflate the issues she had so carefully identified by regarding McFarlane LJ’s analysis in Re G at [69] as being a mandatory requirement to re-make a proportionality evaluation where errors are identified which vitiate a first court’s analysis. I do not read that part of McFarlane LJ’s judgment in that way. He was identifying the logical consequence that errors in the decision making process would necessarily have an effect on the proportionality evaluation rather than that in every case the appeal court should substitute its own proportionality evaluation for that of the first court. The latter formulation would be contrary to the dicta of the majority of the Supreme Court in Re B. Had Judge Clarke not been deflected from her task, she would have reached the point where the discretionary decision identified should have been made. Mr MacDonald submits that had she done so, she had all the material she needed to re-make the decision. He submits that the error of the FPC was not critical to the determination because the evidence existed in support of a welfare analysis and a proportionality evaluation that were and are coincident with the orders made by the FPC. To that extent, he says, the judge was able to fill-in the gaps and avoid a full re-hearing that would have involved inevitable delay. He has taken this court through the judge’s decision making process in an attempt to support the exercise she undertook.

 

 

 

  • The final evidence of the social worker does not include any welfare analysis or balance. It also fails to deal with why the adoption of B was necessary or required. The local authority’s permanence report which was exhibited to their Annex B report in support of the application for a placement order ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated. I need say no more than that both reports are poor and demonstrate a defective exercise in identifying the benefits and detriments for the child of the realistic long term options for the care of B. That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made. The revised care plans and statements of evidence filed after the local authority changed its mind contained statements relating to their concerns about whether the parents had the capability to work openly and honestly with them. Beyond that they are devoid of any welfare analysis of the alleged change of circumstances or of the options for the long term care of B. There is no evidence relating to the proportionality of the plan proposed.

 

 

 

  • Although the children’s guardian’s analysis makes reference to both exercises and supports the local authority’s plan for adoption, it likewise does not descend to an analysis of the welfare of B throughout his life except for just one opinion in one of 36 paragraphs where she says: “My own view until very recently was that this is a finely balanced case; although I had significant concerns about the parents’ ability to work in partnership with professionals. I balanced against that the potential loss to [B] of the opportunity to live in the care of his birth family if such an outcome could be achieved. I was particularly mindful of his right to family life and the loss to him of a relationship with his siblings.” So far as it goes, that is a relevant opinion, but in my judgment not a sufficient analysis for the purposes of the ACA 2002 or the authorities. There is no evidence directed specifically to why it is necessary to dispense with the consent of the parents to adoption.

 

 

 

  • With the benefit of access to the original evidence that this court has had, it is clear that that evidence could not in itself have supported the conclusions reached by the FPC had it been adopted as the reasoning for the same. In particular, there is no comparison of the benefits and detriments of the realistic welfare options for B upon which the FPC could have relied. In the absence of a sufficient welfare analysis by the FPC, there was simply no analysis at all. Accordingly, there was nothing of substance to be evaluated to decide whether or not it was proportionate. Judge Clarke did not hear any additional evidence with the consequence that the evidential basis for the orders remained as defective in the County Court as it had been in the FPC. No amount of elegant language could disguise that fact. It is of course open to a specialist judge to construct an analysis required by statute from the evidence of fact, expert opinion and evaluative judgment that she has heard and that is a distinct exercise from a professional assessment that is required because it is outwith the skill and expertise of the court: Re N-B (Children) (residence: expert evidence) [2002] EWCA Civ 1052, [2002] 3 FCR 259. In this case there was no evidential basis for that exercise.

 

 

 

  • Where the appeal court cannot comfortably fill the gaps in the analysis and evaluation of the first court and where as a matter of substantive or procedural law the decision has been demonstrated to be wrong, the appeal court should allow the appeal and remit the applications to be re-heard. There is a continuum between the functions of the appeal court to review the proceedings of the first court and to conduct discrete decision making functions that fill identified gaps in analysis or evaluation that represents an appropriate exercise provided it not be used so as to create a situation of procedural irregularity. It is not helpful for this court to be prescriptive. Each appeal will have its own matrix of fact and value judgments. In this appeal, the evidential shortcomings could not be corrected by what were no doubt the good intentions of the appeal judge.

 

 

 

  • At the conclusion of the appeal we allowed the appeal with reasons to follow. We set aside the care and placement orders and remitted the proceedings for a re-hearing of the welfare decision relating to B by a different judge in the County Court who had already been allocated to consider the local authority’s applications relating to the parents’ new baby.

 

 

That all seems perfectly proper to me, and it is nice to have it clarified. My suspicion is that we will see more re-hearings than substitutions of judgment. That does raise its own question, as to what happens with very time-sensitive decisions (like an ICO removal) where hearing-appeal-rehearing seems to build in quite  a delay – and if the first court granted the removal, is the child to be returned after the successful appeal pending the rehearing? It will probably be case specific.

 

Successful appeal against placement order

 

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

 

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

 

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

 

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

 

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

 

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

 

And the final conclusions that the Court of Appeal reached were not markedly different to that.

 

On risk

 

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

 

On a failure to properly explore the other options

 

 

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

 

 

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

 

 

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

 

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out”   (bear in mind that the LA are opposing these appeals, not bringing them)

 

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

 

 

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

 

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA.  )

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