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appeal – no contact, section 91(14) and judicial conciliation

 

Re T (A child) (Suspension of Contact) (Section 91(14) 2015 has some peculiar quirks, and one point which is probably important. It is a Court of Appeal decision, written by Cobb J.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/719.html

 

When I give you this little extract about the father

We have read the e-mail from the director of Contact Centre A (dated 29 May 2014) to the child’s solicitor which describes the conversations thus:

“… [the father] has obsessively / repeatedly called our organisation in the last couple of weeks. On each occasion he was extremely abusive, consistently making racist remarks, intimidating and threatening staff …. It is evident that centre staff are scared by the experience of dealing with [the father] and further dealings or contact arrangements at [the contact centre] are likely to pose significant risks to both his child and the centre staff. For the above reasons, [the contact centre] is not in a position to facilitate supervised contact sessions between [the father] and his daughter”.

 

You might be somewhat surprised that, doing this appeal in person, he bowls four balls of appeal  (well, he actually put in 19 in his grounds, but the Court of Appeal kindly found him his best four) and three of them hit middle and off and get the result. One is considered wide, but that’s a strike rate to be proud of.   [Taking three wickets out of 19 balls is still pretty decent]

 

The litigation history here is dreadful

 

8. The multiple court hearings, and judgments and orders which have flowed from them, reflect an extraordinarily high degree of conflict in the parental separation. By the time the proceedings were listed before HHJ Hayward Smith QC on 12 December 2011, he expressed a concern that the case was “in danger of spiralling out of control”, a fear which has in our view regrettably all too obviously come to pass. Not only have the parents been in relentless conflict with each other, but the father has also raised repeated and serious allegations of professional misconduct against E’s court-appointed Guardian, against counsel instructed in the case at various times, and against some of the judges. Family related litigation was at one time unacceptably being conducted simultaneously in three family court centres in different parts of the country, and even when co-ordinated in one location, there has been a regrettable lack of judicial continuity (even though it had been explicitly acknowledged by many of the judges involved to have been “essential” to maintain firm and consistent management of the case).

  1. In our own review of the background history we recognised that there was a risk, by which in our view this experienced Judge allowed herself to be distracted, that the truly dreadful chronology of litigation, and the behaviours of the adults towards each other and the professionals, would divert attention from, and ultimately eclipse, the essential issue, namely E’s relationship with both her parents

 

 

Here are the four grounds of appeal, as polished up by Cobb J

 

i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?

And/or

c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?

iii) In ordering the indefinite suspension of contact, did the Judge pay proper regard to section 1(1) CA 1989 and the statutory list of welfare factors (section 1(3) ibid.), and to the Article 8 rights of the father and the child, all of which were engaged in such a decision?

iv) Was the order under section 91(14) CA 1989 appropriate in principle, and/or proportionate?

 

We shall take these in turn

i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?

 

This arose because at a hearing where the issue was intended to be about whether the child could or could not go to a family wedding, but  father was advancing a case of a change of residence for the child (which was an argument with no prospect of success) the Judge moved into conciliation mode with a view to trying to broker an agreement.  This is an accepted model now, but what hasn’t been previously determined was whether a Judge who undertakes that conciliation approach (of trying to move the parties towards an agreement) is able to then make decisions in the case where agreement is not reached.

  1. The father’s application in relation to the wedding celebration was heard by HHJ Hughes QC on 13 May 2014; she refused the application. At the hearing, the Judge, entirely appropriately in our judgment, took an opportunity to conduct some in-court conciliation between the parties in an effort to break the deadlock on residence and contact. At that hearing, the following exchange took place between the Judge and the father (as recorded by the father, but which we do not believe to be challenged):

    Father: “Your Honour, can I ask that this is heard….? If you are going to hear this as a conciliation attempt then you cannot hear the hearing”

    Judge: “That is absolutely fine with me. I will not hear the hearing. I am trying to deal with this now.”

    At the conclusion of the 3 July 2014 hearing in delivering judgment (para [2]), the Judge characterised this exchange thus:

    “During the hearing the father accused (sic.) me of attempting to conciliate and suggested that I should therefore recuse myself”.

    The description of the manner in which the father challenged the Judge (an ‘accusation’) may reveal a little of the father’s tone of lay advocacy not revealed by a transcript.

  2. The father does not currently challenge the Judge’s assessment of the prospects of his case on residence, or her stance in advising him of them. She later described her conciliation attempt thus:

    “I suggested to him that an application for residence of [E] was actually not going to be very successful because he had not seen [E] for ten months, and he accepted that at the time.” (see transcript of the hearing on 3 July 2014).

    His account is similar:

    “It was agreed by all parties before HHJ Hughes on 13 May that the hearing regarding residence should be adjourned with liberty to the father to restore if and when he believed it appropriate to [E]’s interests … I accept that there are no realistic prospects of a Court allowing [a change of residence] at the present when there is no contact taking place. I accept that [E]’s residence in the immediate future is likely to be with her mother” (see father’s letter to the Court 2 July 2014).

 

This Judge did, however later go on to make an order that the father should have no contact with his child at all, and make a section 91(14) order that he be barred from making any other applications without leave of the Court.  Grounds 1 and 2 of the appeal therefore raise the questions  (1) COULD the Judge do this and (2) SHOULD the Judge have done this?

 

The Court of Appeal ruled that the Judge COULD conduct a conciliation style hearing AND then go on to conduct a traditional hearing resolving a dispute.

  1. We wish to emphasise that the facilitation of in-court conciliation at a FHDRA (or indeed at any other hearing in a private law children case) does not of itself disqualify judges from continuing involvement with the case, particularly as information shared at such a hearing is expressly not regarded as privileged (PD12B FPR 2010 para.14.9). Were it otherwise, the “objective” of judicial continuity from the FHDRA (where, as indicated above, conciliation may have been attempted in accordance with the rules) to the making of a final order (see PD12B FPR 2010 para.10) would be defeated. The current arrangement should therefore be distinguished from:

    i) Old-style conciliation appointments, which operated prior to the implementation of the ‘Private Law Programme’ in 2004, the predecessor to the CAP (see Practice Direction [1982] 3 FLR 448; Practice Direction: Conciliation – children: [1992] 1 FLR 228: i.e. “If the conciliation proves unsuccessful the district judge will give directions (including timetabling) with a view to the early hearing and disposal of the application. In such cases that district judge and court welfare officer will not be further involved in that application”.);ii) Non-court dispute resolution (by way of mediation / conciliation) conducted by professionals outside of the court setting: see Re D (Minors) (Conciliation: Privilege [1993] 1 FLR 932, Farm Assist Ltd (in liquidation) –v- DEFRA (No 2) [2009] EWHC 1102 (TCC)), and the Family Mediation Council Code of Practice for family mediators, paras 5.6.1 and 5.6.4;

    iii) A Financial Dispute Resolution (FDR) Appointment in a financial remedy case; the judge conducting such a hearing is not permitted to have any further involvement with the application, save for giving directions: see rule 9.17(2) FPR 2010. In a financial case, of course, the Judge is likely to have been armed to conciliate with the provision of all the privileged communications between the parties.

  2. Private law proceedings in the family court have become more than ever “inquisitorial in nature” (Re C (Due Process) [2013] EWCA Civ 1412[2014] 1 FLR 1239 at [47]) in large measure attributable to the overwhelming number of unrepresented parties who require and deserve more than just neutral arbitration; in such cases, particularly at a FHDRA or a Dispute Resolution Appointment, there is presented to the judge “a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings” (per Ryder LJ at [47] in Re C (Due Process)). We recognise that in exceptional cases, it is possible that a judge may express a view in the context of judicially-assisted conciliation which may render it inappropriate for that judge to go on to determine contested issues at a substantive hearing. Recusal would only be justified, we emphasise exceptionally, if to proceed to hear the substantive case would cause “the fair-minded and informed observer, having considered the facts, …[to]… conclude that there was a real possibility that the tribunal was biased”: see Porter v Magill, Weeks v Magill [2001] UKHL 67, [2002] AC 357, [2002] 2 WLR 37, [2002] 1 All ER 465, [2002] LGR 51.
  3. As we indicated at [18] above at the 13 May hearing the Judge enabled the father to recognise that his residence application was not currently likely to succeed; the father, for his part, appears to have accepted the judicial steer. We do not see why that indication on its own should at that stage of the case have caused the Judge to disqualify herself from maintaining case responsibility. It is not apparent that the parties took any position or made any other offer of compromise which would have given rise to any other potential conflict for the judge.

 

However, ground 2, the father immediately triumphs on the third part – the Judge having said at the conciliation style hearing that she would not go on to decide any contested matters ought not to have later done so.

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?

And/or

c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?

 

Starting with (c)

 The father was entitled to the view that the Judge had earlier given the impression that she would not herself deal with such issues, giving him ‘liberty to apply’ at the earlier (13 May 14) hearing. In short, in making these substantive orders (which directly impacted upon the father’s prospective residence claim), the Judge did, in our judgment, precisely that which she had told the parties she would not do. In this respect we have reluctantly concluded that the Judge materially fell into error, leaving the father with an understandable sense of grievance, and reaching a conclusion which is in the circumstances unsustainable.

 

On the other aspects of this ground, the Court of Appeal were content that father had had notice of the hearing and it had not been improper to proceed in his absence (a),  but that it had been wrong to proceed to make serious orders that he had not been put on notice about and to do it on ‘evidence’ which he had not been able to challenge

  1. However, the father’s absence was a significant factor which contributed to two material errors which in our judgment fundamentally undermine the integrity of the Judge’s conclusions:

    i) She made findings of fact on documentary material of which the father had no notice, and on which he had had no chance to make representations;ii) She made substantive orders fundamentally affecting his relationship with his daughter, and his access to the court, having previously told the father that she would not ‘hear the hearing’ of any such substantive application.

    In [39-41] and [42] we enlarge on these points.

  2. The judgment of 3 July 2014, and orders which flow from it, is predicated upon findings of fact which the Judge reached on written documentation (e-mails and position statements) which was not in conventional form (see rule 22 FPR 2010). We make no criticism of that per se, but consider that the judge should have cautioned herself about the possible deficiencies inherent in making findings in these circumstances, particularly where the evidence was not tested. She found that the father’s conversations with Contact Centre A displayed “a truly monstrous display of manipulation” yet the father’s written representations (dated 19 June and 2 July 2014), which she had apparently considered in reaching that conclusion, do not address this evidence in detail; indeed the father makes no specific reference at all in his submission to the e-mail from Contact Centre A (see [22] above). We cannot be certain that the father had even seen it.
  3. Of more concern, the Judge refers to, and appears to rely on as evidence of the father’s generally disruptive and belligerent conduct, an e-mail from a solicitor (unconnected with the case) who is reported to have overheard a heated conversation (“raised voices”) between the father and the Children’s Guardian following the 13 May 2014 hearing. The Judge at the 3 July 2014 hearing told those present that she “has no reason to distrust” the author of the e-mail, which she describes as “quite shocking”. Again, the father, so far as we can tell, was unaware of this evidence and had no opportunity to challenge it; the father had as it happens separately written to the Court complaining that after the 13 May 2014 hearing the Guardian had threatened to report the father to his local social services department, but the Judge does not bring in to her reckoning the father’s complaint.
  4. It also appears that the father had not received the Guardian’s report prior to the 3 July 2014 hearing; certainly he claims not to have seen it at the time he sent in his written representations to the court on the day prior to the hearing. We found no evidence that he had had seen the position statement of the child’s solicitor which (by admission) “went a little further” than the Guardian’s report/recommendation. The father had had no opportunity to comment on any of this material which rendered the judge’s conclusions, in our judgment, highly vulnerable.
  5. More significantly, at the hearing on 3 July 2014 the Judge made orders which went further than had previously been intimated, bringing to a formal end the father’s relationship with his daughter for the foreseeable future, and curbing his ability to pursue an application under section 8 CA 1989 in relation to her for many years.

 

So the appeal would be granted on this basis and sent for re-hearing.  The other two grounds were comfortably made out, that the judicial analysis of the circumstances that would warrant making an order that would mean father having no contact fell far short of what the law requires, and that the legal and procedural protections for a party when making a section 91(14) order had not been met.

 

In final summary, the Court of Appeal had this to say

 

  1. Conclusion
  2. No one should underestimate the challenges to family judges of dealing with cases of this kind. A number of experienced family judges have laudably tried different methods, alternately robust and cautious, to achieve the best outcome for E, but appear to have failed. While we are conscious that the case has presented significant management issues, largely attributable it appears to the conduct of the father, regrettably judicial continuity has not been achieved and this may have added to the faltering process.
  3. By allowing this appeal, we are conscious that we are consigning these parties to a further round of litigation concerning E; this is particularly unfortunate given the history of this case, and the inevitable toll which it is taking on all of the parties, evident from our own assessment of them in court.
  4. In remitting the case for re-hearing, we do not intend to signal any view as to the merits of the mother’s applications, or the likely outcome of the same. We are conscious that E has had virtually no relationship with her father for over half of her life; the Judge could not be criticised for observing, as she did, that a contact regime has thus far proved impossible to sustain. Our own summary of the relevant history above may demonstrate this sufficiently. However, given the life-long implications for E, her parents and family, of the orders which have been successfully challenged by this application and appeal, it is imperative that a proper determination is achieved, as soon as practicable, in order that fully-informed welfare-based decisions can properly be made in the interests of E.

 

 

 

 

Shoe-throwing and Interim Care Order

 

This is a tricky case.  It involves an appeal to the Court of Appeal about the Judge’s making of an Interim Care Order in relation to four children aged between 8 and 2 1/2

 

Re W-J (children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146039

The mother in the case has what appears to be a form of personality disorder.  She accepts that there are times when she is utterly unable to control her temper and can fly into an unmanageable rage. Generally during these rages, she takes it out on inanimate objects.  She describes that the things that can set off these rages can be very trivial, giving the example of someone eating a packet of crisps loudly.

 

 

3…In short terms, from time to time she loses control of her behaviour, loses her temper, and the trigger for this is often a trivial matter which would not affect other people. On one occasion, for example, she describes losing her self control simply because she was irritated by the noise of someone eating a packet of crisps.

4. When she does lose control, she behaves in a physically violent way, normally towards inanimate objects, utensils in the kitchen, other matters of that sort. Sometimes she can detect the onset of these symptoms and make arrangements for the children, if they are at home, to go outside the house or go to be with someone else. On other occasions she is not able to have such foresight and it is plain from what the children have said that they have witnessed the distressing spectacle of their mother behaving in this way

 

Whilst that must be distressing and upsetting, what prompted the proceedings was that on two occasions, things went further than that.

 

what led to the proceedings being issued by the local authority were two instances relatively close together where the children reported on separate occasions being injured as a result of the mother’s behaviour. The first occurred on 2 February 2015, when the mother threw a shoe and it hit one of the older children. She accepted that and she indeed accepted a caution at the police station as a result of that behaviour. She accepted that she had thrown the shoe and thrown it at the child but she asserted that she was not deliberately intending to hurt him. She said she had lost control. The second occasion on 20 March 2015 was when the mother’s foot came into contact with the 7 year old girl. The judge heard some evidence about that. The mother accepted that, physically, her foot came into contact with her daughter but was not accepting that this was deliberately in order to cause injury. The child nevertheless was injured, albeit not very seriously. Following the second of those two outbursts, the local authority issued the proceedings.

 

What the Court had to do at that interim care order hearing was to determine whether the test for separation had been made out, and whether the risks could be managed in another way, applying the least interventionist principle.

 

Three of the children were found placements within the family, which were a decent compromise. That left one child, T, and a decision had to be taken about whether she could stay with mother, somewhere, or go into foster care.

There is a law geek point about whether the Court could have made an injunction under the Human Rights Act 1998 to make the LA manage the risk by keeping mother and child together.  The Court of Appeal closed this down by saying that it wasn’t sufficiently argued before the Judge to be an appeal point, so it is not resolved  (for my part, I think that the order that the Court can make in that regard is the straightforward Interim Supervision Order OR to compel them to place in residential assessment, a section 38(6) direction, and there’s no need to monkey around with esoteric HRA injunctions, but there may be a better case where the point really does arise)

 

10. In the course of the robust and constructive representation that the mother had at the hearing provided by Ms Kochnari, her counsel who represented her before the judge and before this court, Ms Kochnari drew attention to the jurisdiction that the Family Court may have in certain circumstances under the Human Rights Act 1996 to grant an injunction requiring a local authority to take a particular course of action. That jurisdiction in part is based upon, obviously, the wording of the Act itself but also decisions of this court, in particular Re: H (Children) [2011] EWCA Civ 1009 and a decision of the High Court: Re: DE (A child) [2014] EWFC 6. In short terms, Ms Kochnari’s submission was that the judge should grant an injunction requiring the local authority to keep the mother and child together, leaving it up to the local authority how that should be achieved.

11. That describes the position of the parties, mother and local authority, before the judge. The children’s guardian has plainly given this matter a great deal of anxious consideration. Both the guardian and the judge (and it is particularly important to stress that this was the judge’s perspective) saw the value for young T, particularly at the age she currently has reached, in remaining together with her mother. They have a good attachment and it would be seen as a detriment to that attachment, and a detriment to that important aspect of her best interests, for mother and child to be separated for any significant period at this juncture of her life.

12. But the question was how a maintenance of maternal care could be achieved. The guardian indicated that she would support a placement of the mother and child together in a foster home or some other form of residential accommodation if that could be achieved. The judge agreed with the guardian. The judge apparently said during the course of submissions that “heaven and earth” should be moved by the local authority to try to find a suitable placement and indeed an hour and a half or so was allowed during the course of the court day for the local authority to make enquiries. Those enquiries failed to identify any placement on the local authority’s books that could provide a mother and child placement at that stage. The local authority, however, took a more principled stand in addition to the practical difficulty of finding a particular placement. Their submission to the judge was that it was simply inappropriate to consider a mother and child foster home for this sort of case, this sort of case being one in which there is no real concern about the mother’s ability to provide day to day, hour to hour ordinary parenting, the concern being about her mental well being and the local authority indicated that it would be difficult to find a foster carer who would be prepared to accept the risk of having an adult, namely the mother, in the foster home when what is said about her behaviour is being said and is being said in the current period of time.

13. So the judge did not have an option before him for a mother and baby placement if he was to make an interim care order.

 

That left a rather stark choice

1. Grant the ICO and separate T from mother

2. Make no order / ISO and the child remains with mother at home

Or

3. Make no order, but adjourn for fuller enquiries about a placement that might have allowed a section 38(6) application for residential assessement to get off the ground.

 

The Court of Appeal set out why option 3, the adjournment, was not feasible

 

20. Dealing with the question of adjournment, the position before the judge is not altogether plain. It is clear that Ms Kochnari invited the judge in her closing submissions to afford more time for a more comprehensive search to be undertaken. She, in her submissions to us, urges us to interpret that as being really a request for the judge to consider adjourning the case for a period of a day or more to allow the sort of search that has now been undertaken to be conducted. The judge may have interpreted it simply as a matter of a further short time. For my part, given no doubt (although we have not got information about this) that that submission was made late during the course of the court day because this process will have taken up most of the court day, a request for more time almost inevitably meant more time when office hours are open and therefore another day, so in Ms Kochnari’s favour I assume that was the import of her submission to the judge.

21. But, in my judgment, the judge had to face up to the application before him and he did so without any consideration that another day or two could change the landscape and produce a firmed up and clear alternative for him to consider. He, with the reluctance that the choice of words that he used in his judgment clearly demonstrates, considered that it simply was not safe for this child to be at home with the mother for any period of time after the day on which he was giving judgment. In my view, he was entirely justified in coming to that view. I have referred to the psychiatric evidence, such as it was, that was available to him. He had evidence of the two recent episodes where the mother’s behaviour had flared up to the detriment of the children. A factor that I have not mentioned is that the older children had indicated a clear wish not to return to their mother’s care. He will have understood that for children, even if they were not physically injured by any particular deterioration in the mother’s behaviour, simply to watch their mother, the person upon whom they relied, behaving in this way, will have been totally bewildering and frightening. The judge did expressly take account of the fact that the older children had been able to be protected by the actions of the local authority because they had spoken up, they had gone to school or they had gone to other carers and said that their mother had behaved in the way that is now established she had behaved. But young T, aged two and a half would not be in a position to blow the whistle, as it were, on any such behaviour.

22. The final factor, and to my mind it is the crucial factor, is that it is impossible for an outsider to predict whether the mother will or will not flare up at any particular moment of any particular day. It is not a risk that can be predicted, contained or controlled, either by the mother or by any outside agency.

23. With all of those factors in mind, the judge was, in my view, entirely justified in saying that the risk was not one that could be taken in T’s best interests and immediate separation was required. So, even on the basis that a fully formed application for an adjournment had been made, in my view the judge’s decision not to adjourn but to make the order that day could not be said to be wrong and indeed on his analysis of the evidence it would seem hard to justify an alternative conclusion.

 

 

What could, perhaps, have been done but that wasn’t expressly considered here was for the Judge to make a short order – say a week, to allow that search for an alternative placement to take place and then revisit if there was any way to safely manage mother and child together.

 

The Court of Appeal, whilst acknowledging how difficult a situation this was and expressing hope that a longer term solution to mother’s difficulties might be found so that the other very good aspects of her parenting could prevail, were driven to conclude that the Judge’s decision to make an Interim Care Order was not only not wrong but actively right.

 

27. We are therefore left with the judge’s decision to make the interim care order in the circumstances that he did. This is a worrying case. I explained the basis of the worry at the very beginning of this short judgment. It is a case that will require very careful evaluation by the authorities and by the court over the course of the next 2 or 3 months as material is prepared for a final hearing. Crucial will be a full psychiatric assessment of the mother’s underlying mental health difficulties. At the end of the case, a judgment will have to be made as to the long term welfare of these children and as part of that judgment the many positives that can be said about this mother will come into play. But all that the judge was doing and, all that we are contemplating, is making a decision about the child’s welfare for the very short term under the interim order. In that context, important though the decision is, I regard the judge’s determination as being unremarkable. It was a decision made carefully by a judge on the correct legal test, supported by the evidence and one which amply was justified by the welfare of this young child. 

 

I’m sure that all of us would wish this mother well for the future and hope that a solution can be found that would let her parent in the way that she would wish to and be free of what must be a terrible inability to control those outbursts.

Physical chastisement – Court of Appeal

 

A Local Authority appealed the decision of a Recorder at a finding of fact hearing, that having made some serious findings about physical injuries sustained by a child and caused by a parent, he went on to find that the threshold was not made out in terms of risk to that child’s sibling.   This case also deals with some important principles as to what extent making SOME findings has on the other allegations to be dealt with.

 

Re L-K 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/830.html

 

The Recorder had made these findings about the injuries

  1. The Recorder found that two sets of bruising had been inflicted by the parents, although he was unable to say which of them was responsible. They were as follows:

    i) There were parallel lines of bruising on R’s buttocks which the Recorder found were caused by someone striking him across the buttocks with a linear object (§20 of the Recorder’s first judgment). The Recorder thought it likely that the object used was a ruler or a belt, in which case there were at least two blows, but it may have been a stick or flexible cable, in which case there were at least four blows.

    ii) There were three bruises on the inner part of R’s right thigh, immediately below his buttocks, which were described as “loop pattern or crescent shaped injuries” and a further “sigma shaped pattern bruise” to the right of the lower buttock crease (§21). The Recorder found that these marks were caused by at least two deliberate slaps (§24).

  2. The Recorder found that both the instances of inflicted injury had the character of corporal punishment (§29). The parents had denied that they were responsible for the injuries but the Recorder found that they both knew who did it and had agreed to stick together and protect each other (§33), trying to mislead the social workers and lying in court. He said that it was “difficult to blame them in the circumstances” (§35) (referring, I think, to their lies and collusion, although he may have been referring to their treatment of R) as they were in a foreign country and had a difficult child to look after.
  3. It is not entirely clear how the Recorder viewed the corporal punishment inflicted on R. At §36, he said it “may well be regarded as going well beyond reasonable chastisement”. At §37, he said that he could envisage that if the parents had admitted it, they would have argued that it was no more than reasonable chastisement and said, “I cannot judge that question”. Later in the same paragraph, however, he went on to say that it certainly seemed excessive to him to hit a five year old at all, especially with an implement. What is clear is that he was unwilling to find it established that what happened to R was “abuse”. He seems to have taken into account in reaching this conclusion the possibility that it was “an over exercise of parental authority in a disciplinary capacity”, the evidence that the parents are loving parents and that R loves them and is not afraid of them, and the fact that he could not know how much R had suffered in the process (§37 of the main judgment and §5 of the Recorder’s supplemental judgment).
  4. The parents did admit one of the local authority’s allegations, that is that they had, each independently of the other, made R stand in a corner for more than two hours when he was naughty. The Recorder described the father’s conduct in so doing as “treating R cruelly” (§31). However, he accepted the parents’ evidence that this was something that happened when the family was under great stress and was not a regular occurrence (§34).

 

 

He then went on, however, to conclude that whilst the threshold was met for R, it was not met for R’s brother even in terms of risk of harm:-

 

 

14. He was accordingly asked to deal with the threshold thereafter, and did so, after further argument and consideration, in a short ex tempore judgment. In it, he found the threshold crossed in relation to R on the basis that R would have suffered significant harm because a) hitting a child of five who suffers from psychological problems with an implement will cause significant harm b) standing such a child in a corner for two to three hours must also cause significant harm and c) there must be a significant risk of repetition as the parents had closed ranks and said nothing about it to social services and the courts (supplementary judgment §5). As to M, in that judgment the Recorder stated baldly that he did not think the threshold was crossed.

  1. He returned to the threshold in relation to M in his judgment refusing permission to appeal and in his final short judgment. He determined that M was not at risk in his parents’ care, essentially on the basis that he was a very different child and had not suffered any harm so far. In the permission judgment, he referred to the findings he had made about R, and the evidence as to how very difficult R was to look after, contrasting that with M, in relation to whom there was neither evidence of psychological difficulty nor evidence of any problem with him in foster care. He said:

    “6. The difference between these two children is such that I cannot conceive that anybody could imagine that the findings I have made in respect of the older brother should lead to a finding that the younger brother is at risk.”

 

 

Well, the Recorder couldn’t concieve that anyone could imagine this, but the Court of Appeal not only imagined it, but did it.

 

36. The local authority argued that, in the light of the findings that R had been beaten with an implement and slapped sufficiently hard to leave bruising and had been excessively punished by being made to stand in a corner for a prolonged period, it was wrong to conclude that there was no risk of significant harm to M. What those facts indicated, in their submission, was that at times of stress or challenging behaviour from one of the children, the parents may harm their child whether by way of discipline or simple loss of control. They argued that the Recorder placed too great a weight on the difference between the two boys as a protective factor for M and failed also to take account of the fact that M is more vulnerable because of his young age and may also become more challenging as he grows older.

  1. I would accept this submission. Rightly or wrongly, the Recorder did not make any findings on the issue of whether M was present during the punishments of R and whether he was emotionally harmed by what he saw and there was no evidence that M himself suffered any physical harm. The threshold in relation to M therefore depended on whether he was “likely to suffer significant harm”. “Likely to suffer” in this context means that there is “a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case”, see Re H and R (Minors)(Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. The threshold is therefore “comparatively low”. It was, in my view, plainly satisfied on the facts that the Recorder had found. Every case depends upon its own facts, but in this particular case it was not at the threshold stage but at the welfare stage that matters such as the parents’ circumstances at the time R was injured and the differing personalities of the children were relevant. Given the nature of the Recorder’s findings in respect of R, and the parents’ failure to acknowledge or explain what had happened and why, I do not think that the factors that the Recorder relied upon in differentiating between the two boys in fact provided any reassurance in relation to the risk to M for threshold purposes. I would therefore substitute for the Recorder’s dismissal of the proceedings in relation to M, a finding that the threshold criteria were satisfied in his case on the basis of likely harm.

 

 

The next limb of the appeal was that, having made those findings, was the Judge wrong in discounting the other injuries to R that he made no findings on?  I.e in relation to say ten physical injuries should the Judge approach each and every one in isolation, OR if the Judge had made findings in relation to four or five or them, does the fact of those findings become a relevant consideration when approaching the remainder?

 

  1. The local authority argued that the Recorder was wrong to decline to make findings in relation to the injuries to R’s face, neck/chest, and thigh, and a finding that he was “abused”. They submitted that he had gone wrong because he failed to look at the totality of the picture, instead considering the injuries only individually. It was argued that the findings that he did make, whilst not probative of the other injuries, were capable of being corroborative and supportive evidence in respect of them. Also relevant to the overall evaluation, it was submitted, was the parents’ dishonesty.
  2. I agree with these submissions. It is always necessary for a judge who is considering possible non-accidental injuries to look at the whole picture before determining causation. So, for example, what might be accepted as an accidental injury if it stood alone, might take on a wholly different aspect if it is only one of a number of injuries. Similarly, the fact that it is firmly established that one of a number of injuries has been inflicted by a parent must be taken into account when evaluating the cause of other injuries.
  3. In this case, I have no doubt that when it came to considering the possible causes of the other marks found on R, attention had to be paid to the fact that the parents had a) beaten R with an implement causing bruising, b) smacked him to the extent that bruising was caused, and c) lied in an attempt to conceal what they had done. Regard should also have been had to the excessive punishment which the parents conceded had been imposed on R in the form of having to stand in a corner for a prolonged period. As the local authority acknowledged, the fact that one injury is inflicted does not prove that others are non-accidental, but it changes the context in which the child came by the other injuries from a home which may be beyond reproach to one in which it is known that there has been, at the least, excessive physical punishment. As Mr Roche for the father observed during submissions, it was also the case that R had injuries which were accepted to be accidental. That fact was relevant too, but it did not remove the potential significance of the findings of non-accidental injury. The fact that the parents had lied about what they had done was also relevant to their credibility in relation to other matters. The Recorder’s approach did not pay proper regard to these factors as part of the overall picture he was surveying.

 

Whilst the Judge did not have to slavishly follow the medical opinions  (see dozens of Court of Appeal decisions that confirm that), the Judge does have to pay proper attention to them, and where a theory for the explanation of the injury emerges from the Judge himself, it is necessary for the Judge to explore that theory with the expert.

 

  1. In my view, the Recorder also failed to pay proper attention to the evidence of Dr Fonfé in determining what had happened. It was, of course, for him to decide, on the basis of all of the evidence, whether it was established that particular injuries were non-accidental, and not for Dr Fonfé. However, he needed to take her expert views into account in his determination. In referring to what she said about each of the injuries as her “suspicion”, he seems to me to have understated the force of her opinion. He also failed to take account of her more general advice as to causation, perhaps because he concentrated on the injuries individually. As can be seen from the passages from her reports which I have quoted above, Dr Fonfé’s approach was entirely conventional in that she looked at R’s situation overall as well as considering the various injuries individually. The Recorder was not bound to accept her general observations but he did, at least, need to show that he had considered them. Had he done so, he may have structured his judgment differently and avoided falling into error. As it was, he appears to have made his determination about each of the individual injuries before, at §26 (see above), turning to look at the picture collectively, and when he did look at the whole canvas at this point, it was not with a view to considering what the overall picture might tell him about the individual injuries, but in order to address the local authority’s allegation that R had been subjected to a prolonged single attack or a series of individual episodes of attack.
  2. In short, the Recorder was wrong to conclude that there was nothing but Dr Fonfe’s suspicions in relation to the other injuries. His own positive findings and Dr Fonfé’s expert evidence about what, in her view, the overall picture revealed were important too. It is not a foregone conclusion that they would have led to a different conclusion as to the other injuries but they needed to be put into the equation and considered with the rest of the evidence.
  3. In my judgment, this deficiency in the Recorder’s approach is sufficient to render his decision in relation to the balance of the local authority’s allegations unsafe. It would follow that, in so far as it is necessary in order to make decisions about the children’s futures for there to be findings in relation to those allegations, there would have to be a further hearing for that purpose. I need not therefore say much more about the other flaws that there may have been in the Recorder’s approach. I would, however, mention a number of matters.
  4. The first is the Recorder’s crayon explanation (see §16 of the judgment). It seems that this came entirely from him. Dr Fonfé’s view as to the feasibility of the hypothesis was not sought. If a particular explanation such as this is to carry weight in the court’s decision, it is important, in my view, for it to be offered for comment by the relevant expert and in submissions. Had that been done, the response may well have been that the crayon explanation ignored the existence of what Dr Fonfé saw as a pair of marks which looked like grip marks.
  5. I wonder also whether this passage in the Recorder’s judgment indicates that he was veering towards requiring that all other possible causes must be excluded before a finding of non-accidental injury could be made (see also §14, for example) and/or proceeding on the basis that no finding could be made without corroboration. Depending on the particular facts of the case, it may not be necessary for the evidence to go that far. What is required is simply that it should be established on the balance of probability that the injury was non-accidental.
  6. As to the Recorder’s conclusion that the findings he had made were not established to be abuse, I am not inclined to spend time on that issue for two reasons. First, there is little point in debating whether what the Recorder found to have been established should or should not be classed as “abuse” when his findings may not be the last word on what happened to R. Secondly, what actually happened is much more important than how it is classified and it may well be that evidence which is relevant to this may continue to emerge, for example from Poland, from the parents themselves in response to the findings made so far, and in the course of any further fact finding hearing in relation to the balance of the allegations.

 

 

The appeal was therefore successful

 

 

For the reasons I have already given, I would allow this appeal. In relation to the threshold in respect of to M, I would substitute a finding that it is satisfied on the basis of likelihood of harm. As far as the Recorder’s findings of fact are concerned, I would not interfere with the facts which he found proved but I would set aside his determination in relation to the balance of the local authority’s allegations and remit the case to the Family Court for an urgent directions hearing at which the future conduct of it will be decided.

Private law, infinite appeals and IT naughtiness

The case of Re N (Children) 2015, http://www.bailii.org/ew/cases/EWFC/OJ/2015/B98.html involves a private law case with 3 children, aged 11, 9 and 6.   Her Honour Judge Atkinson had to deal with a novel and delicate point of law on an appeal.

The children all live with their mother, and the dispute has been about the time that they spend (or do not spend) with their father.

In this case, the mother made a series of very serious allegations against the father, of physical abuse. The father faced criminal trial for these and was acquitted.  the mother then sought findings against him in the family court proceedings.  That was complicated by the last minute addition of a rape allegation.

In any event, the District Judge who heard the case dismissed all but one of the allegations, which he found was proved in part. The finding that was made would not have been a barrier to contact, and really contact should have resumed.

However, mother then appealed that decision, and the appeal was unsuccessful.

She then made a subsequent appeal, and it is that subsquent appeal that gives the case its novelty.  I am not naming the DJ here – it is in the linked judgment if people want to see it, but I took a call that the interest in the case is in the legal issue rather than any naming and shaming of the DJ himself.

 

  1. On 17th March 2015 District Judge B was removed from judicial office following an investigation into an allegation that he had viewed pornographic material on judicial IT equipment in his office. The material did not include images of children or any other illegal content. However, this was considered to be an inexcusable misuse of his judicial IT account and “wholly unacceptable conduct for a judicial office holder”.
  2. On 18th March, together with an enquiry as to the progress of their application for an oral hearing, solicitors acting for the mother wrote to the court lodging a fresh ground of appeal based on the fact of DJ B’s dismissal and its apparent association with sexual matters. Ground 10 argued his lack of judgment, as demonstrated by his dismissal, and argued that the pornography added a sexual element to that lack of judgment directly relevant to the issues that he had tried in this case.

 

The case got still more complicated, because at the appeal, mother sought to withdraw the appeal – not because she accepted DJ B’s findings but because she had realised that there was a finite pot of money for her legal representation and if she went ahead with the appeal there would be little or none left for the remainder of the proceedings.   (Grounds 1-9 here were the ones that had previously been rejected in the previous appeal, ground 10 was the “as the Judge has been sacked for viewing pornography, his judgment is questionable and he was not someone who ought to have been dealing with sexual allegations” angle)

 

  1. So it was that on 11th June 2015, 6 months on from the decision made by DJ B that there was no evidential basis for the assertion that this father has been the perpetrator of violence or sexual abuse against the mother or violence against the children, the mother’s appeal was listed before me to hear. On the day before the hearing the mother’s representatives contacted the court and the father’s representatives stating that she intended to withdraw her application for permission. They asked for the case to be vacated and directions made to enable the matter to proceed as directed by DJ B. The father’s team, shocked by the sudden turn of events refused to agree the vacation of the hearing and the parties nevertheless appeared before me.
  2. I note that the mother does not retract these allegations. Nor does she state that she is accepting of the findings made. Her main motivation in withdrawing from the appeal is cost – not that she will be saddled with a bill of costs but rather, she risks not having enough left in her publicly funded pot to continue to be represented after the appeal has been concluded. A secondary consideration was, it would seem, the “welfare of the children” and the impact upon them of this continuing litigation. Unsurprisingly, the father expressed his concern that if given simple permission to withdraw her appeal then these allegations would almost certainly surface to be litigated again in some form or other.
  3. Accordingly, although I have decided to give permission for the mother to withdraw her application for an oral hearing in relation to Grounds 1-9, I have decided to do so only after I have made a decision on Ground 10 effectively as I would have done on the papers. By this means there will have been a merits based decision recorded on each of the Grounds.

 

 

That, I think, was a good call. It would otherwise have always been hanging over the case.  In case anybody else is envisaging an appeal on similar grounds to Ground 10, this might pour some cold water on it

 

 

  1. Ground 10
  2. I turn now to the additional Ground which reads as follows: “the decision of the DJ in this matter related to various matters of a sexual nature…

    it demonstrates the poor exercise of Judgment in relation to matters of a sexual nature…it demonstrates poor exercise of judgment more generally…justice has to be seen to be done and the public would have no confidence in this DJ dealing with a matter of a sexual nature”

  3. The skeleton argument develops two arguments between paragraphs 88 and 93:

    a. The removal of the District Judge from office demonstrates that he had conducted himself in a manner inconsistent with the high standards of judicial office expected of the judiciary and shows a lack of judgment which is undermining of his decision making generally;

    b. The sexual nature of the behaviour leading to dismissal demonstrates that his judgment in “matters of a sexual nature has been found to be impaired” and the public cannot be expected to have confidence in his decision making as a result.

  4. I give permission to appeal only if I consider that there is a real prospect of success or there is another compelling reason why the appeal should be heard. To succeed on the substantive appeal the mother will need to show that the DJ was wrong or that the decision is unjust by reason of some other serious procedural or other irregularity in the proceedings.
  5. I have now read all of the papers lodged in what was to be an oral application for permission. I have not heard oral argument and so the decision which follows is effectively made on the papers but on a considerable body of paper. I am quite satisfied that the appeal on Ground 10 has no reasonable prospect of success and indeed I consider it to be without merit. I will explain why.
  6. The lack of judgment arguably demonstrated by the District Judge through misconduct in his office does not necessarily infect all areas in which he has to exercise Judgment. District Judge B was dismissed because of inappropriate use of judicial IT. It does not follow that he has thereby demonstrated himself incapable of making a proper judicial decision. If it did it would mean all of his decisions would be null and void following his dismissal. That simply is not right.
  7. The argument does not become different or stronger simply because his misuse of judicial IT involved the watching of pornography. In the first place it is important to note that he was not dismissed for viewing pornography. In any event, the viewing of pornography does not of itself suggest that he would have disbelieved an allegation of rape. It does not suggest that his approach to the sexual element in this case would be in any way skewed or biased. Had he been viewing such material in the privacy of his own home that would not have rendered him unable to make a determination in the case.
  8. The best way to determine whether District Judge B carried out a proper judicial exercise of discretion is by examining the detail of his Judgment. I have done just that and the transcript reveals a Judgment that is in my assessment beyond complaint. It contains all necessary directions on the law. It gives full and detailed reasons as to why he found the evidence of the mother lacking and why she failed to establish her case to the appropriate standard. As I have already rehearsed, the mother has been unable on the papers (in spite of the numerous and voluminous skeleton arguments in support of her appeal) to establish any basis for criticism.
  9. Accordingly, I find there is no basis for the granting of permission in relation to Ground 10.

 

 

Where you might, I suppose, have stronger grounds for appeal is for example if the decision-maker in an Employment case where the allegation against the employee was illicit use of IT for this purpose and the decision-maker had found in favour of the employee  (where you’d be wondering whether the decision was a ‘kindred spirit’ / ‘there but for the grace of God’ scenario)

 

[It does occur to me that if you are a Judge doing nothing but private law conflicts, where you are just hearing people say “no” all the time, one can perhaps see why DJ B wanted to just listen to people saying “yes yes yes oh yes” once in a while]

 

There’s a rather sad postscript to the judgment

  1. Finally, the mother at this hearing indicated her desire to move on from these matters and look forward. She expressed a willingness to be guided by professionals. I was encouraged by that until it became clear that the professionals that she has put her trust in are currently limited to Norfolk County Council, specifically the author of the s.37 report, who has advised against face to face contact between the children and their father with no clear plan as to how this situation can be improved.
  2. It was made clear at the hearing that the Guardian may not be of the same view. Disappointingly, it was far from clear that if that be the case this mother will be accepting of the Guardian’s advice. I felt it necessary to record this position as a post script to this Judgment.
  3. The court has determined that there is no evidential basis for the allegations made against the father by the mother. He has been through two Crown Court trials and one trial of the facts in the family court. Six months have been wasted on an unmeritorious appeal. Meanwhile these children have not seen their father now since November 2011. If the mother’s concern is for the welfare of her children as she has insisted then going forward she will have as her aim how she can best assist these children in re-establishing their relationship with their father

 

A witness talking over the lunch adjournment

I don’t often write about ancillary relief cases, but this one

 

JE (Husband) v ZK (wife) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B87.html

threw up an issue that we all trot out to witnesses on a daily basis and when I asked on Twitter about six months ago where you can find that actual rule written down, nobody was entirely sure.

When a witness is part way through their evidence, and the case comes to a break (either at the end of the day, or lunch), the witness is generally warned by the Judge “You should not discuss the case with any one, and you are still under Oath”

The still under Oath part must be right, since when the witness resumes, they do not have to take the Oath again.  Therefore, during that break in the evidence, the witness is still bound to tell the truth, the whole truth and nothing but the truth – technically, if the witness goes for a haircut and the hairdresser does that thing with a mirror where they show you the back of your own head, rather than the stock response of   :- nod “mmm, that’s great thanks” the witness ought to answer “I have no idea why you show me that, what is the point? Whatever you’ve done, it is too late to fix, and I don’t care what the back of my head looks like”

 

[Even worse, if you are still under Oath, and your new partner asks you “does my bum look big in this?”, you could be in for a world of trouble. Best to not talk to anyone at all]

The not discussing the case with anyone makes perfect common sense (which is unusual in law).  If you could talk about your evidence with someone whilst you were in the middle of giving it, they could be influencing what you say, or giving you tips as to how to do it better.  And if someone else in the case saw the witness talking to their lawyer or another party, they might well SUSPECT that this is what was happening, even if it wasn’t. So best not to do it.

The hard bit is finding where that rule is actually written down, and what the Judge is supposed to do about it.

 

Here, what happened was that the original Judge heard evidence that the husband, having given part of his evidence and then needing to come back over lunch, had been seen in the Court waiting room talking to his colleague NC (his colleague was also someone whom the husband had been renting accommodation from AND someone who was said to owe the husband £15,000, so it COULD be said that the conversation might have a bearing on financial matters)

The husband’s evidence was that he had asked NC about “Ironman” competitions and personal trainers, and nobody disputed that.

 

The District Judge had found that the father was in contempt, and said in his judgment

Is it relevant? I can hear being said! Well, yes, for this is the same man who remortgaged 141 Kings Road after having said through his solicitors that there were no grounds for saying that he was going to. Like that, his behaviour at the lunchtime was unacceptable’.

Now, importantly, this was a hearing where a financial order was made, concluding the financial arrangements. The District Judge was now in a pickle, because whilst saying that it was ‘relevant’  it clearly wasn’t conduct that could legitimately be taken into account for the purposes of the Matrimonial Causes Act.

The District Judge then made a clarifying note

In his clarifying note at B26 the District Judge said that he did not take the husband’s conduct in speaking to NC into account in his conclusion and that he ‘would have thought that was clear. It just had to be mentioned, it as so blatant’.

 

Part of the husband’s appeal was that the judgment was thus blurred about whether or not this issue had weighed on the judicial determination of finances.

 

Dealing with the appeal, His Honour Judge Wildblood QC said this:-

  1. Quite plainly, that conversation between the husband and NC had absolutely nothing to do with the correct outcome of the financial remedy applications. It was a complete irrelevance, as far as the solution to the case was concerned. It certainly was not conduct that the court could possibly take into account when deciding upon the correct outcome. It had no relevance under any of the other factors under section 25 of The Matrimonial Causes Act 1973 and cannot be salvaged by reference to ‘all the circumstances of the case’ in s 25(1) of The Matrimonial Causes Act 1973.
  2. I accept that the District Judge does not then tie in the finding that this issue was ‘relevant’ when later explaining his conclusions. At B15 he says that he is departing from quality bearing in mind the wife’s need for her to provide a home for the children. Further, at B6 he says: ‘there are two aspects of the husband’s affairs which I take into account within all the circumstances of the case and which make me satisfied that my decision is appropriate. First the dissipation of assets referred to in paragraph 4 above and, secondly, the opaque business relationship with Mr Clarke’. Although there are obvious difficulties with that past passage to which I must return, he does not say that the ‘contempt’ finding is relevant in that later passage.
  3. The difficulty is this. If a judge says that something is relevant in the sort of strong terms used by the District Judge he must mean what he says. A judgment has to be capable of being understood on its face and a party to the proceedings must be able to understand the methodology of the court. It seems highly likely that, at the time that he wrote the judgment, the District Judge did regard this issue as relevant to how the capital should be divided (because he said so himself at B15). I do not accept Ms Allen’s clever submission that he meant ‘Is it relevant for me to mention it?’ at B15; that interpretation does not fit in with the context of what he was saying. He associated it with the husband’s conduct in re-mortgaging the property at Kings Rd [B15] and, later took that remortgage into account at B16. The reality is that the District Judge was making findings of conduct and saying that he treated them as relevant. He was incorrect to do so and a clear statement in a judgment that something is treated as relevant cannot be cured by a clarifying note.

 

 

[This Judge was more sanguine about the incident itself than the DJ had been

 

iii) The finding of contempt was inappropriate and unnecessary to the exercise that the District Judge had to perform. The husband was wrong to speak to NC over lunch having been warned not to do so but the conduct complained of (speaking about personal trainers and an Ironman competition) had nothing whatsoever to do with the outcome of the case but was described by the District Judge as ‘relevant’ to it. I know the Gloucester waiting area well having appeared there as an advocate myself in my 27 years at the bar, and can well imagine what occurred (and what did occur happened in the full view of the lawyers and was not remotely surreptitious).   ]

 

His Honour Judge Wildblood QC, with some reluctance, had to allow the appeal and discharge the financial order that had been made. I say with reluctance, because the Judge had earlier expressed substantial dismay that two people who had once been in love had spent a “Scandalous” amount of money in ligitation

 

  1. The District Judge said that the costs were scandalous. I agree. The total that has been spent in legal costs now is as follows:
    Wife’s costs before the District Judge 62,171
    Husband’s costs before the District Judge 28,799
    Husband’s appellate costs 12,849.26
    Wife’s appellate costs (at least) 20,000
    Total 123,819.26
  2. This is not a complex case. It involves a home, a working husband who is effectively a sole trader, a few modest assets, considerable liabilities, two children and a depressed wife. For money to have been wasted on such disproportionate costs is truly scandalous. Further, these parties have two children – what sort of example do they set their children when they spend so much of the money that should be directed to their children’s welfare on blinkered and self validating litigation?
  3. I am particularly critical of the level of this wife’s costs. They are double those of the husband and nothing that I have seen gets anywhere near justifying that. I have myself witnessed two wholly unnecessary applications being brought by the wife: a) for transcripts of all of the evidence before the District Judge to be ordered at the husband’s expense for the purposes of the appeal, an application which I did not allow and b) a full legal services application, when the correct application should have been for a partial release on a stay which, when I suggested it, was agreed on the evening before a hearing of the legal services application brought by the wife and only after considerable cost expenditure (W’s claimed costs £3875.70). Further, I consider that money has been wasted on obtaining expert evidence about the suggested value of the husband’s business when that capital value was abandoned (rightly) at trial and was never going to have the sort of relevance originally suggested. That expenditure on costs took place against the backcloth of strong complaint made by the husband before the District Judge about the wife’s costs expenditure (see A1 – no trial bundle, no open offer, no updating disclosure and a late production of her s 25 statement that had been prepared three months before the hearing started but was filed seven days before the hearing started).
  4. The above remarks must be before any judge assessing costs in this case and I ask that there is very careful scrutiny of the costs that are being claimed by the wife’s legal team. It cannot be right that this level of cost expenditure occurs in a case of such modest assets. The costs claimed are about 36% of the total assets held, according to the District Judge by the parties. The burden that this now creates upon the parties, especially the wife must be immense.
  5. The District Judge found that the total pot of capital in the case was £345,686

 

Towards the end of the judgment, HH J Wildblood QC set down a marker for future litigation conduct

86….I wish to make it plain that, if I find any more money is being wasted by this wife on costs, I will impose costs sanctions – if she, or the husband, pursues any more pointless or unmeritorious issues I will reflect that in a costs order (and I say that without prejudice to any arguments and applications that may be advanced about existing cost expenditure). It seems to me at least highly possible that past dissipation of assets (which in a big money case can be of obvious importance) may be regarded as totally overshadowed now with the exigencies of the current very limited financial circumstances of these parties with the true focus of this case now being on the limited issues that I have set out above – especially relevant will be these questions: i) Where are these people to live and ii) what incomes are these people to have?.

  1. Although I am not in any way deciding the point now, I foresee that the husband will have a difficult task in contending that this wife should face a time limit to any order for periodical payments particularly if it involves a s28(1A) bar but even without such a bar.
  2. I intend that the above issues must be adhered to. There will be no more profligate expenditure on legal costs. To that end I wish to record that any District Judge assessing the costs of either party from this point on until conclusion of the rehearing should disallow that parties’ costs insofar as the costs of any party (from this point onwards) exceed £7,500 unless a) any party has made submissions to me that I should revise that figure or b) the judge carrying out the assessment considers that an extension beyond that figure was genuinely necessary.
  3. I strongly recommend now that the parties make every effort to resolve their differences without the need for the rehearing to take place.
  4. I reserve the costs of the appeal until conclusion of the rehearing. Both of these parties know what their own financial circumstances are and, with the level of costs that she has incurred, the wife should know about her tax credit position (and, if she doesn’t she needs to find it out hurriedly). Although I do not know what the husband’s income is, he does. If it were to be shown on fresh evidence that the District Judge was correct about his income, that would be bound to have an impact on the orders for costs that I would make.

Challenging a consent order

 

It is not every day that you see the President of the Family Division have to consider whether a Practice Direction is, in part, ultra vires. This is one of those days.

 

Re CS v ACS and Another 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1005.html

 

The case hinged on the legal mechanisms for challenging a consent order.

The language of Practice Direction 30A (on appeals) is very very stark

PD30A para 14.1, headed ‘Appeals against consent orders’ provides that:

“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged” (emphasis added).

 

So, the only route is by appeal.

However, wait

section 31F(3) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crimes and Courts Act 2013) provides that:

“Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.”

However, section 31F(6) provides that:

“The family court has power to vary, suspend, rescind or revive any order made by it, including –

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.”

Rule 4.1(6) of the Family Procedure Rules 2010, which is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, provides that:

“A power of the court under these rules to make an order includes a power to vary or revoke the order.”

So that’s a statutory mechanism to invite a Court to vary, suspend, rescind or revive any order made by it.

There are also a line of authorities (including marvellously one named Tibbles) showing that there are two routes – either appeal, or application to the original Judge to rescind or set aside the original order  (there are limitations to that power – either material change of circumstances, or establishing that the factual basis on which the order was made was incorrect – the classic example being ancillary relief cases where financial agreement was reached and people learn later that there had been concealment of substantial assets which make the consent order unfair)

So, which is right?

  1. Mr Brunsdon Tully takes his stand on PD30A, para 14.1. He points to Financial Remedies Practice 2015 where the editors, who include both Sir Peter Singer and Mostyn J, suggest (para 4.8) that the old cases suggesting that such applications could be made at first instance “are all now overreached” and (para 30.97) that “that single short sentence in PD30A had rendered otiose a great deal of sterile case law”. In previous editions the editors had added “This long overdue reform is much to be welcomed.” Mostyn J has expressed similar views judicially (see below).
  2. Ms Sharghy and Mr Hubbard point to the more sceptical view expressed by the editors of Dictionary of Financial Remedies, 2015 edition, page 65, where, after saying that “There is an element of confusion about the appropriate way of launching an application of this nature”, they opine that “the most likely solution” is an application under FPR 4.1(6).
  3. Following the hearing it occurred to me that there might be a question as to whether the final sentence of PD30A, para 14.1, was ultra vires. On 21 March 2015 I sent counsel a draft judgment setting out my preliminary conclusion that it was ultra vires. I invited counsel to make any further submissions they wished. Both Mr Brunsdon Tully and Ms Sharghy and Mr Hubbard availed themselves of the opportunity.
  4. The power to make Practice Directions in relation to family proceedings is conferred by section 81 of the Courts Act 2003. Section 81(1) confers power to make directions as to “practice and procedure”. Section 81(2A) provides that directions as to the practice and procedure of any relevant court in family proceedings “may provide for any matter which … may be provided for by Civil Procedure Rules.” As Mr Brunsdon Tully points out, PD30A was made by the then President of the Family Division in accordance with Schedule 2 to the Constitutional Reform Act 2005 and approved by the Parliamentary Under Secretary of State.

 

 

As can be seen above, the PD was made by the former President Wall LJ and approved by the Minister. Consideration that both acted ultra vires in relation to that passage is significant.

 

Let us have a quick gander at the legal arguments  (there’s much much much more of this, I’ve tried to grab the bits where they are distilled)

  1. Mr Brunsdon Tully submits that, since FPR 4.1(6) is identical to CPR 3.1(7), there is no reason why the principle spelt out by Hughes LJ should not apply equally in family cases. In particular, he says, there can be no question of the final sentence of PD30A, para 14.1, being ultra vires, for all it does is to bring the limited class of case to which it applies into line with the true meaning and effect of CPR 3.1(7), and thus of FPR 4.1(6), as explained in Roult.
  2. He adds three supplemental submissions. First, he submits that the final sentence of PD30A, para 14.1, does not encroach on the right of a litigant to apply to the court or on the substantive legal remedies available to a litigant if material non-disclosure is proved; it merely stipulates the procedural route, namely appeal, under which all these remedies are available. I cannot accept that: it encroaches upon the right of a litigant to apply to the court without first obtaining permission. Secondly, he submits that the power of the family court to exercise its powers under section 31F(6) is not fettered, either by FPR 4.1(6) or by the final sentence of PD30A, para 14.1, because an appeal from a district judge sitting in the family court lies to another judge, either a Circuit Judge or a judge of the High Court, of the family court. This, however, as Ms Sharghy and Mr Hubbard point out, overlooks the fact that the powers conferred by section 31F(6) of the 1984 Act include powers to “vary, suspend [or] rescind” any order. Thirdly, he submits that the final sentence of PD30A, para 14.1, which is the relevant provision in issue here, is not the rule that imposes the requirement that the litigant can proceed only with permission, and in any event a permission requirement is not a fetter or encroachment on the court’s powers such as to lead to a conclusion that the final sentence of PD30A, para 14.1, is ultra vires. The first part of this is, with respect, legal sophistry: since any appeal requires permission, a provision that challenge can only be made by way of an appeal is, in its effect, a provision imposing a requirement that the litigant can proceed only with permission. I have already said that I do not accept the argument that the final sentence of PD30A, para 14.1, does not fetter or encroach on the rights of the litigant or, consequently, on the powers of the court.
  3. In response, Ms Sharghy and Mr Hubbard submit, by reference to more recent authorities, that Mr Brunsdon Tully reads more than is warranted into Roult. They submit that the final sentence of PD30A, para 14.1, purports to abrogate what they say is a long-established and indeed recently recognised right to challenge, at first instance, and without being subjected to any sort of prior filter by way of application for leave (see Re C (Financial Provision: Leave to Appeal) [1993] 2 FLR 799, 801), an order such as the one I am concerned with here. They submit that this right is recognised by both section 31F(6) and FPR 4.1(6). They point to Binks v Securicor Omega Express Ltd [2003] EWCA Civ 993, para 8, and Brennan v ECO Composting Ltd [2006] EWHC 3153 (QB), [2007] 1 WLR 773, para 28, as showing that in case of conflict between a rule and a practice direction, the practice direction must yield to the rule.

 

In my new technique of establishing whose argument is best – where I take the names of the authorities that each relies on and decide which of those sound more intriguing, I would rule that Binks, and Eco Composting are going to beat Roult.  Over a period of time, I hope to demonstrate that this methodology is (a) dazzlingly accurate and (b) if adopted wholesale would lead to really interesting law reports with mind-boggling case names being pressed into service by each side.   [If anyone can successfully work “Four Exotic Dancers versus Spearmint Rhino and the Wild Goose 2009” or “Death v Graves 2006” into their skeletons, they richly deserve a victory]

The President used more established methodology in deciding which argument was correct.

  1. In the light of this survey of the authorities, I conclude that the decision in Roult will not bear the weight of the argument that Mr Brunsdon Tully seeks to derive from it. In common with Mostyn J in In re F, I read the decisions of the Court of Appeal in Musa v Karim, Sharland v Sharland and Gohil v Gohil (No 2) as demonstrating that FPR 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife can be made to the judge at first instance.
  2. What then of the final sentence of PD30A, para 14.1? In my judgment, and with all respect to the makers of PD30A, it was ultra vires their powers. And if that is so, then I can without more ado say so and treat it as a nullity: compare General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272, where, in the course of ordinary proceedings in the Queen’s Bench Division, CPR rule 48.7(3) was held to be ultra vires. (I make clear that I refer to this case, which was very different from the present case, not in support of my conclusion that the final sentence of PD30A, para 14.1, was ultra vires but only as to the procedural consequences which flow from such a finding.)
  3. There are essentially two reasons which lead me to this conclusion. First, and whatever the exact ambit of the phrase “practice and procedure” in section 81(1) of the 2003 Act, it cannot in my judgment extend, as here, to a provision purporting to forbid a litigant to have recourse to a form of remedy long recognised by the common law, let alone to a remedy expressly conferred by both statute (section 31F(6) of the 1984 Act) and rule (FPR 4.1(6)). Secondly, there is, for the reasons given by Ms Sharghy and Mr Hubbard, a conflict between, on the one hand, the statute and the rule and, on the other hand, the practice direction, which requires the latter to yield to the former.
  4. It follows, in my judgment, that the wife is entitled to proceed as she has and that she does not require the permission of the court to do so.
  5. More than 25 years after Ward J’s first complaint, too little has yet been done to remedy matters. The continuing complexity of the law is exemplified by the necessarily detailed analysis of the point by the editors of Financial Remedies Practice 2015, paras 4.5-4.17. The continuing lack of clarity is illustrated by my analysis in this judgment. It is profoundly unsatisfactory that the courts should still have to take up so much of their time and their litigants’ resources dealing with such matters. The final Report of the Financial Remedies Working Group, 15 December 2014, expressed the view (para 13) that “clarification of the procedures for re-opening first instance orders in financial remedy proceedings is required” and said that it “would strongly support amendments to the Family Procedure Rules for that purpose.” I doubt that anyone could possibly disagree. Remedial work is now a matter of pressing urgency, unless we are complacently to condemn another generation of litigants to a procedural maze which is a discredit to family justice. I add only this. The Working Party may wish to consider the extent to which these problems are capable of solution by either Rule or Practice Direction. It may be that primary legislation is required

 

Until that time, both routes are potentially open, and it will depend on the circumstances which is the best approach. The rest of PD 30A remains valid, but you can draw a line through para 14.1 now.

Removal from grandparents under Interim Care Order

This is a curious appeal (I have to say that my gut feeling is that the grandparents were damn unlucky to lose this appeal, but of course the Court of Appeal have the benefit of seeing the papers and hearing the full argument. And each time I read the appeal judgment, my view that the grandparents were damn unlucky increased.  )

 

Re T (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed144754

There are two issues of wide import

 

1. That the test for removal under an ICO from grandparents is exactly the same as for removal from parents.

[Most of us thought this and worked on that premise, but it is helpful for the Court of Appeal to formally confirm it –  in short terms – the child’s safety must require immediate separation]

2. That the original trial Judge had not been fair in curtailing the time for the parents to seek a Stay application before the Court of Appeal – and had gone too far.

 

A stay, for those readers who are not lawyers, is an application that can be made to say “Don’t take the action that the Judge ordered, because I intend to appeal that order, and things should stay the same way as they are now until that appeal can be heard”  (think of it like a ‘stay of execution’)

In this case, a judgment concluding that Interim Care Orders were made and that the children could be removed by social workers was announced on Friday 30th January. Counsel for the grandparents immediately applied for a stay  (don’t remove the children until I can get before the Court of Appeal) . The Judge granted a stay until 2.30pm on Monday 2nd February, but didn’t send out his judgment until 1.00pm on that Monday. Even if counsel happened to be free and immediately available to look at the judgment the second the email arrived, that only gave 90 minutes to read it, draw up an appeal notice and lodge the appeal. Oh, and get before an Appeal Court to ask them for a stay. And have that application heard and decided. Ninety minutes doesn’t perhaps seem like a fair amount of time for that.

Mr Elliott of counsel seems to me a top bloke, but I don’t actually believe that he is the Fastest Man Alive (as anyone will know, that is Barry Allen. And yes, The Flash is faster than Superman)

 

except maybe Eobard Thawne, the Reverse Flash

Although counsel asked for the stay to be continued for longer, the Court were only prepared to grant him an extra ninety minutes. Thus, by the time that the grandparents case for an appeal was able to be considered, the children had already been removed – that must have massively damaged their prospects of success.

If the Court had been reasonable and granted the stay for say 24 hours after delivery of a judgment that was known to be likely to be appealed, that injustice would not have occurred.

14. Before descending to the merits of the appeal itself, it is necessary to dwell for a short time on the procedural progress of the appeal and in particular upon the paternal grandparents’ application for a stay of the interim care order to allow them to issue papers in the Court of Appeal and make application to this court for an extension of any stay until at least the permission to appeal application could be determined.

15. The sequence of events is that the judge, as I have indicated, announced his decision to make the interim care order on Friday, 30 January, but did not hand down his judgment until it was circulated by email to the advocates shortly after 1 pm on Monday, 2 February. On the application of counsel, Mr Mark Elliott, who has conspicuously and very effectively stood up for the interests of the paternal grandparents in these proceedings, the judge granted a stay on Friday, the 30th until 2.30 on Monday, 2 February. It became clear during the course of the morning of the Monday that preparation of the judgment was to an extent delayed and the judge therefore extended the stay to 3 pm on that day.

16. At the hearing which took place shortly after the judgment was circulated and I should indicate for these purposes the scale of the judgment, it runs to some 31 closely reasoned pages and amounts to 120 paragraphs the judge was asked to extend the stay until 3 pm on the following day, 24 hours later. However, the judge declined to do so and was only prepared to extend the stay until 4 pm on that day, 2 February. Counsel, Mr Elliott, those who instruct him and his clerks, were engaged in a process of trying to make contact with the Court of Appeal in order that their application for a further stay might be considered by this court. They were told that such an application could only be entertained if a formal notice was filed, and it simply was not possible for them to get the paperwork in order by 4 pm, when the judge’s stay expired.

17. The Local Authority were mindful of the procedural and professional difficulties that I have described, and they in fact allowed a further hour’s extension to 5 pm, but at 5 pm on 2 February, the children were removed from the paternal grandparents’ care. At shortly before 7 pm, Mr Elliott was able to make an oral application to the out of hours Lord Justice on duty on that night, but by then the children had been removed and the stay application fell to be considered in the colder light of day subsequently, and on that basis it was considered by me on 7 February, when at the same time I initially refused permission to appeal, and so the question of a stay did not arise.

18. I go through that procedural chronology for this reason: Mr Elliott as his fourth ground of appeal complains that the sequence of events and the limited stay granted by the judge was profoundly unfair to his clients, and also I think his submission is that it was not a procedural course which was in the best interests of the children. It effectively prevented an application for a stay being made to this court until the children had been removed.

19. In short terms, I think Mr Elliott’s point is very well made. This was not a case, happily, where the children were in any situation which could be described as immediate risk of physical harm. There was no emergency in that sense. The children had been living for a very substantial period of time in the grandparents’ home. The grandparents, we have been told, despite some concerns on the part of the social workers to the contrary, had not behaved in any unreasonable or worrying way in the intervening period between the Friday, when they heard that the order was to be made, and the Monday when judgment was handed down.

20. From the perspective of this court, it is difficult to see why Judge Meston felt unable to grant a stay of sufficient length to enable an application to be made to this court. It is well known, and has been the subject of judicial comment by judges of this court over a significant period of time, that judges at first instance, in a case which does not have the characters of a 999 emergency, should be encouraged to establish a short but reasonable stay to their orders in cases such as this so that an application can be made to this court. Judge Meston, hearing the case as he was on a Monday, might reasonably have contemplated a stay measured in the length of two or three days to allow an application to be made to this court as I have described, and not to do so seems to my eyes to be entirely unwarranted.

21. It is not – I do not think Mr Elliott argues it in this way – a ground of appeal that would lead me to hold that the judge’s overall order about the making of the interim care order should of itself be set aside, but insofar as I need to, I would agree entirely with the criticism of the judge’s process that is made in ground four.

 

On the facts of the case itself, the removal was not an emergency one – the Court had decided that the children’s needs were not being met but their safety wasn’t in jeopardy.

For my part, I’m not convinced that the ‘child’s safety requires immediate separation’ was borne out, but the Judge thought that it was, and so did the Court of Appeal.

 

My reading is more that the Local Authority were arguing that their assessment of the children’s needs was being hampered by them being with their grandparents and that removal into foster carer would allow for a better assessment. (I have heard that argument posited before, and I’ve always thought that it doesn’t meet the legal test for removal)

26. In addition, it is plain that Judge Meston in the course of his judgment considered that the plan to have these two children assessed in a neutral venue with skilled foster carers was a helpful step for the Local Authority to take. It would provide helpful, vital, information for those charged with drawing up any plan for the children’s future. It would also, if the grandparents were to become once again the full time carers of the children, give the grandparents much needed information about the sophisticated needs of these young children.

27. But again, it is plain on a reading of the judge’s judgment, and it is the submission of the Local Authority and the guardian in this case, that the judge did not make the order simply because he favoured the process of assessment that was available; he made the order, it is submitted by those who oppose the appeal, because he considered that the test of “safety demanding immediate separation” was met.

28. It is therefore necessary to see what the judge did or did not say about the level of harm to which the children were currently exposed in the grandparents’ home. Before descending into detail, it is helpful to summarise the case that is put by the Local Authority and the guardian. They do not assert that the grandparents themselves are fresh sources of significant harm to the children.

29. The case that is put is that these children have been profoundly damaged in an emotional and psychological way by the experience that they have previously lived through, and that in the care of the paternal grandparents, the need for enhanced parenting is not being met, and that despite their best endeavours the grandparents are simply not able to provide the sort of care that the children need, that the children’s behaviour is deteriorating and has been seen to deteriorate over time and contact which is supervised at times when the mother has observed them, and also more generally when observed by social workers. The Local Authority’s case, to put it in lay terms, was simply that “enough is enough”, the time has come when it is no longer in the children’s interests to be exposed to further deterioration in their emotional wellbeing.

 

[I interrupt. This is smacking to me of that rather insidious ‘reparative care’ argument…]

30. In the course of his submissions, Mr Hand has taken the court to a number of parts of the judge’s judgment where he refers to evidence about harm to the children that he has heard from the social worker and from the children’s guardian, and to findings that the judge has made. It is not necessary for me to turn to those parts of Mr Hand’s submissions which in my view did not advance his case to any great extent, but at paragraph 108 of the judgment, the judge said this:

“The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children’s needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father’s hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents’ attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice.”

The judge had already made findings in a number of places about the need for the children to have enhanced parenting. He said at paragraph 107:

“They are also said now to require reparative care, with a high standard of skill, insight and consistency.”

[Yes, there’s the reparative care bit]

31. Looking back to an earlier stage of the judgment, in paragraph 92, the judge there lists the findings that the Local Authority sought in relation to the grandparents. Most of those are not directly relevant to the issue of harm to the children now, but the judge does say this at subparagraphs 9, 10 and 11:

“(9) The Local Authority point to the deterioration in the children’s behaviour since September shown by the mother’s statement, the contact records and the school reports.

There is no doubt that there have been serious problems in the children’s behaviour which was noted by almost all the professionals. As was said by the social worker, it was not suggested that the grandparents have been the cause of this behaviour but that their ability to manage it is limited. As was said by RP, J has sought attention by a level of negative behaviour which is not normal for the behaviour of a four year old, and she described his behaviour as escalating without strategy and routine.

(10) The Local Authority contend that the paternal grandparents struggle to set appropriate boundaries for the children. In the parenting assessment J was noted to be violent to L without there being any reprimands or other consequential for his action. In general his behaviour is challenging.

Clearly the behaviour of J, in particular, has been remarkably difficult for the grandparents to deal with, and if it continues there will be serious implications for his development and for the relationship between him and his sister.

(11) The Local Authority submit that the children have suffered significant harm and disruption in their lives to date because of the care provided by the parents, and that the children have a heightened need for stability and consistency and require reparative parenting. L also has special educational needs and requires better than good enough parenting which the grandparents are not in a position to meet. In this respect it is submitted that the paternal grandparents are not in a position to meet those needs for the rest of the children’s minorities.

There is no dispute that the children have suffered significant harm and disruption and there can be no dispute that they have a particular need for stability and consistency and require reparative parenting. The evidence overall does raise very real doubts about the abilities of the grandparents to meet the children’s particular needs.”

32. Of that material, Mr Hand in particular draws attention to subparagraph 10, where focus is placed upon the behaviour of J and the fact that the grandparents find that behaviour remarkably difficult to deal with. Within that subparagraph, I would stress the following; the judge says:

” … if it continues, there will be serious implications for his development and for the relationship between him and his sister.”

Pausing there, that is a plain highlighting by the judge of a profoundly important long term factor in the case. The starting point for any consideration of a child’s welfare is that it is normally likely to be in his or her interests to be brought up with and continue to live with any siblings. What the judge identifies at subparagraph 10 is a potential for J’s behaviour, if it continues to deteriorate or even be maintained at its current level, to call into question his ability long term to find a home with his sister.

33. The judge, having made those particular findings, moves on in his judgment to cast them within the test of identifying safety requiring immediate separation. The judge says this at paragraph 103:

“At this stage and on the evidence available I do not propose to rule out the paternal grandparents from further consideration as potential carers for the children (or either of them). They are devoted grandparents who have been prepared to take on the children, and they might have taken a more constructive position had they had legal representation at an earlier stage and perhaps, thereby they might have obtained more support from the Local Authority. They almost certainly now represent the only chance of keeping the children within their birth family. Although there is considerable force in the criticisms of the grandparents it is necessary to be cautious before deciding that they are not, and could not become, a realistic option (even if that turns out to be an option to be considered for only one of the children). At a final hearing the realism or otherwise of that option is likely to depend upon (among other things): (a) evidence that their attitude to the inevitable constraints and intrusions of Local Authority involvement really has changed, and that any improvements are not superficial as the social worker suspected they were; (b) further (and better) evidence about the grandmother’s medical condition and prognosis; and (c) the availability of effective measures to protect the children from harm in the longer term.”

There the judge, as well as stating that he is not ruling the grandparents out, does identify serious deficits in their ability to care that require attention in terms of further evidence at the hearing.

34. Turning to the harm in relation to the children, the judge says this at paragraph 108:

The nature of the harm suffered by the children is now clear enough, although the continuing risks to the children are less easy to measure; but in my judgment the risks are correctly seen to be significant, particularly if the children’s needs are not properly understood and managed by the grandparents, and particularly if the father is not seen by them as a source of risk, and/or if the conflicts between the two sides of the family remain or revive. The father’s hostility to the mother and their immature relationship was a striking feature of the evidence. The concerns about the grandparents’ attitude of the social workers is another worrying feature. Only further assessment will show whether the grandparents have developed, or can develop, some insight which can be put into practice.”

35. Drawing matters to a conclusion, the judge describes his analysis at paragraphs 113, 114, 115 and 116, before stating his conclusion at 119:

“113. I accept the fundamental arguments advanced by the Local Authority and guardian that it is now essential and urgent for the long term needs of the children to be assessed to inform the final care plans, and that in the circumstances of this case the necessary assessment cannot properly be carried out while the children remain in the care of the paternal grandparents.

[interruption – of course, that’s not a safety issue]

114. Secondly, the Local Authority and guardian argue that the evidence of the children’s continuing and deteriorating behaviour, not least towards each other, shows the extent to which the children have been damaged in their upbringing and shows the limited ability of both paternal grandparents to understand and manage the children’s situation and needs. In essence the contention of the Local Authority and guardian was that the situation is bad and could get worse; and although there has been no obvious emergency that requires immediate removal of the children, there has been a growing level of concern and the situation is serious and urgent enough to justify such a removal.

115. In looking at the evidence overall including the incidents and difficulties indicating harm to the children and the risks of harm, I have tried to assess whether these are really long term welfare concerns, rather than concerns which involve a current risk to safety.

[That’s really the nub of the case – these could all be categorised as long term concerns, rather than immediate safety ones]

116. I accept the evidence of the social worker and guardian that things cannot remain as they are. The concerns of the Local Authority are valid and are justified by the evidence. The need to understand, manage and address the problems and needs of L and J and the potential for further damage to them outweigh the arguments for leaving the children with the grandparents in the hope that the grandparents continue to control their attitude to the Local Authority and their reluctance to cooperate, and in the hope that the grandparents can shortly acquire the skills and insight they lack.

119. In the light of all the evidence I have concluded that there is sufficient concern about the children’s emotional and psychological safety to justify the orders sought for the reasons advanced by the Local Authority and guardian. I have therefore decided that it is necessary and proportionate to approve the proposals of the Local Authority for removal of the children.”

Given the importance of a finding that the child’s safety require immediate separation, this seems somewhat thin.

36. Mr Elliott in his submissions to the court accepts as a matter of fact that the judge did identify harm of the nature that I have now described, and did seek to cast it in the context of current safety needs, but he submits that the element of harm that is identified simply does not come within what the case law requires. He says this is emotional harm and at no stage does the judge identify why at that date, in January 2015, the children required removal from the home because of the impact on their emotional wellbeing, when that had not been sought at an earlier stage and when the court was going to look at the whole question of the children’s future wellbeing only some four months further in the future. He submits that the judge simply did not achieve findings that got as far as identifying the children’s immediate safety needs, in emotional terms, requiring removal on that day.

37. I am bound to say, when I granted permission to appeal and when I heard Mr Elliott’s submissions this morning, I too could readily identify the dislocation that he draws attention to between the judge on the one hand saying “I do not rule these grandparents out as long term carers,” but on the other hand saying nevertheless the children’s circumstances require immediate removal.

38. Having now had the benefit of being taken to the detail of the judgment by Mr Hand in the way that I have described, I take a contrary view. The judge declined to rule out the grandparents at that stage for reasons to do with their long term capacity to be carers of the children. For the judge, the jury was still out on the question of whether or not the grandparents could bring themselves to meet the needs of the children long term, and the issues that the Local Authority had sought to identify, which included matters to do with the grandmother’s health, the ability of the grandfather to devote himself more fully to the care of the children alongside his laudable and clear desire to work hard in his chosen trade, and other matters, were long term issues that required further investigation.

39. They are, I now accept, separate matters from the immediate wellbeing of the children, and I can see how this experienced family judge, who had become immersed in the evidence of this case over the course of five days, who said that he was considering the test of safety requiring immediate separation, could come to the view that the children’s safety in emotional terms did indeed require separation at this stage.

40. For me, the elements of the evidence that I have drawn attention to, that we have been led to by Mr Hand, establish the context within which the judge’s decision can be seen to be justified in evidential terms, and also justified as a conclusion. In particular, paragraph 92 subsection 10, to which I have already drawn attention, is striking. The judge there is identifying the status quo in the grandparents’ home, where J was behaving in a way that the grandparents found remarkably difficult to deal with, but also in a way which had “serious implications for his development”, and which might, if it was allowed to continue and consolidate, pass the point of no return so that the option of this boy being able to grow up in the same home as his sister might be lost, in terms of safety in emotional terms, requiring immediate separation. To my eyes, that point alone would justify the order that the judge made.

41. Secondly, I have already described the approach of the judge and the experience of the judge. Where a judge correctly identifies the legal test, says he is applying it, and says he has the evidence which justifies that conclusion, and is able in the course of the judgment to refer to that evidence, this court should be slow to interfere and say he is wrong. There is no indication here that there was an error of principle in the judge’s conclusion, and to my mind he should be given a substantial margin of respect by this court in having conducted the exercise that he said he had undertaken.

I think the grandparents were unlucky here – I would have been fairly confident about their appeal had I been them, and fairly doubtful if I had been for the Local Authority.  Interesting that MacFarlane LJ thought that in and of itself – J’s behaviour might lead to him and his sister not being able to be placed together in the future as being sufficient for a finding of ‘safety requires immediate separation’.  I see that particular formulation being deployed in future cases.  How does one assess a ‘might’?  Is it necessary to show that it is more likely than not to happen, or is it sufficient to be a risk that cannot sensibly be ignored?

This is what Lord Justice Ryder had to say on the issue

44. The judge identified the correct test in principle. He was perhaps less clear in a detailed judgment about his analysis of the findings that he made and the prima facie evidence that existed. This court has, however, been assisted by the submissions of counsel for the Local Authority, the children’s guardian, and the appellant paternal grandparents. It is now sufficiently clear that the judge accepted the evidence of the Local Authority witnesses and the analysis of the children’s guardian that the children had suffered significant emotional harm in the care of their parents, and importantly that that harm had continued in the care of the paternal grandparents. The behaviour of the children as between each other, in particular from the child J towards his sister, had continued and deteriorated in the paternal grandparents’ care, to the extent that one of the risks identified was that as a consequence of their behaviour, the children may have to be separated such that they might not be able to be cared for together by anyone. That was capable of being characterised as a safety question that demanded immediate separation; i.e. to put it colloquially, enough was enough. 

Let us hope that ‘enough was enough’ does not become the latest soundbite to be shoved into every submission and skeleton argument in the next six months.

Note also the continuing trend of the Court of Appeal to move away from where they were on appeals post Re B, where a judgment needed to be a stand-alone document explaining and making plain why a decision had been made to a position where now the Court of Appeal are willing with a judgment that is thin in places to open up the luggage of the case and have a good rumage around to see if there are garments within that could cover the barer patches of the judgment so as to preserve its modesty.

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