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Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

Mostyn Powers

 

Long-term readers will have picked up by now that there’s always something of value in a judgment by Mostyn J.  He follows that Raymond Chandler dictum of putting a diamond on every page.

 

This one follows his earlier decision (which many of us questioned at the time) that he wasn’t bound by the Supreme Court in Cheshire West and went with the principle that had been rejected by them to decide that a person wasn’t being deprived of their liberty

http://suesspiciousminds.com/2014/11/20/have-we-just-given-up-on-the-notion-of-the-supreme-court-being-supreme/

In that case, Mostyn J declared that he was bound by the decision of the Supreme Court in Cheshire West, though making it plain that he didn’t agree with it, but then didn’t follow it, distinguishing his case on its facts. He felt that it was something that the Supreme Court should look at again, and invited an appeal.

 

This is the follow-up judgment after the Court of Appeal reached the entirely unexpected conclusion that the Supreme Court had already decided that the FACT of whether a person was deprived of their liberty didn’t take into account whether their disabilities made that necessary, that’s for the second stage as to whether the Court should authorise that deprivation of liberty.

Readers may recall a previous occasion on which Mostyn J didn’t take it entirely in his stride when the Court of Appeal overruled him and he disagreed with their view.  He drops the “with the profoundest of respect” bomb during the judgment where he has to deal with the case again.

http://suesspiciousminds.com/2014/10/26/with-the-profoundest-respect/

 

So, given that scenario, one is following the firework code when reading Mostyn J’s decision.

Rochdale v KW 2015

http://www.bailii.org/ew/cases/EWCOP/2015/13.html

 

Firstly, here’s what happened in  the Court of Appeal  (I haven’t seen this reported yet, but given that the original Rochdale v KW 2014 unleashed the contents of a cattery into a pigeon coop, it is important)

The appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against my decision by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4. Its order provided as follows:

“UPON reading the appeal bundle filed with the court.

AND UPON the Respondent confirming that it does not intend to oppose the appeal

IT IS ORDERED that:

1. This appeal is allowed.

2. For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.

3. If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes.

4. If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made.

5. In any event. Rochdale Council must make an application to the Court no less than one month before the expiry the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.

6. Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.

7. “The review period” shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.

8. Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as “KW” until further order pursuant to section 12 of the Administration of Justice Act 1960.

9. There shall no order for costs between the parties.

10. There shall be a detailed assessment of KW’s public funding costs.”

Attached to the order was a piece of narrative, prepared by counsel for the appellant, which provided as follows:

“Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.

The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors [2014] UKSC 19; [2014] AC 986 (“Cheshire West“) to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own.”

That’s right, everyone involved in the case (except Mostyn J) wrote to the Court of Appeal saying that they thought Mostyn J had got it wrong and agreeing that there HAD been a deprivation of liberty and that the Court should authorise it.

The case then came back before Mostyn J, hence this judgment and hence this piece. I would imagine that the advocates did not have the most peaceful of sleep the night before that particular hearing.

Mostyn J did not take this terribly well.

He questioned whether the Court of Appeal had jurisdiction to make such a decision on a consent basis without actually hearing from the parties.  He has a point here, I think, it must be very unusual. Even in cases where everyone is agreed that a mistake has been made, there is usually a judgment given.

  1. CPR 52.11(3) provides:

    “The appeal court will allow an appeal where the decision of the lower court was –

    (a) wrong; or

    (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

  2. CPR PD52A para 6.4 provides for a very limited derogation from this simple and necessary rule. It is headed “SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT” and provides:

    Allowing unopposed appeals or applications on paper

    6.4 The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order.”

  3. It can be seen that the strict terms of CPR 52.11(3) are modified by the deployment of the adverb “normally” in the first sentence. In the second sentence the sole exception to the primary rule is spelt out. An appeal may be allowed by consentwithout determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing”. Therefore it follows that this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits.
  4. One can see the need for this provision. Following the first instance decision there may have been a change in the law deriving from legislation or a binding decision of a higher court. In such a case it would be necessary to set aside the original decision without a determination on the merits. Similarly, a procedural order may require to be set aside without a determination on the merits because of a change of circumstances or a mistake. It is impossible to see however how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement of legal principle in relation to the facts as found.
  5. My limited researches in the field of family law reveal that where a merits based decision has been reached at first instance, which all parties agree should be set aside on appeal, then there is a hearing and a judgment. This is consistent with the only reasonable interpretation of para 6.4. The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise. Thus in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412 Thorpe LJ held as follows:

    “1. In a judgement handed down on 23 June 2008, Charles J dismissed an application brought by the wife to set aside a consent order reached on 20 July 2006 at an FDR appointment determining her claims for ancillary relief for herself and the two children of the family.

    2. Charles J dismissed the wife’s application and refused her permission to appeal. Her application for permission was renewed to this court by a Notice of Appeal dated 7 August 2008. Wilson LJ granted permission to appeal on 30 October 2008, and that appeal was listed for hearing today and tomorrow, 4 and 5 March 2009.

    3. At the outset Mr Martin Pointer QC and Mr Jonathan Cohen QC, representing respectively the wife and the husband, informed the court that the parties had reached a comprehensive agreement to settle not only the appeal but also pending or prospective applications for the variation of the order of 20 July 2006.

    4. The agreement reached between the parties invited the court to allow the appeal, set aside the order of 20 July 2006, and to make revised orders on the wife’s applications.

    5. A short disposal might have followed but for our concern that the judgment below had already been reported at [2008] 2 FCR 527 and at [2009] 1 FLR 2001 and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.”

    Thorpe LJ then went on to give a full judgment explaining why Charles J had fallen into error.

  6. Similarly, in the recent decision of Re S-W (Children) [2015] EWCA Civ 27 it was recorded at para 4 that:

    “Neither Liverpool City Council nor the children’s guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.”

  7. Three full judgments followed explaining why Judge Dodds had fallen into error. Again, this was the least he could have expected and a reasoned judgment would have the effect of preventing similar mistakes in the future.
  8. The reason why in neither of these cases the Court of Appeal exercised its powers to deal with the appeal on paper, without a hearing, and by consent pursuant to para 6.4 was that in each instance it involved a determination on the merits that the judge was wrong. Therefore in each case the circumstances fell outside para 6.4.
  9. The researches of counsel, undertaken after argument was concluded before me but before this judgment was handed down, have not revealed any case where a fully reasoned decision has been overturned on the merits by consent and without a judgment. This is not surprising.

In this case the appeal was against para 6 of my order, which reflected the terms of my judgment, that the package of care provided to Katherine does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. That was the centrally, if not the only, relevant component of my judgment. It was its very ratio decidendi. By para 1 of the Court of Appeal order the appeal is allowed. That is plainly a determination on the merits. It could not be anything else. But such a determination on the merits does not fall within para 6.4.

I do rather agree with Mostyn J here. Whilst I respectfully think that he was wrong at first instance, he was wrong in a way that several very senior Judges (including two members of the Supreme Court) have agreed with.  It would have been helpful to have this issue put to bed. I happen to think that the Supreme Court have already done it, but as there appears to be judicial doubt, better to have that cleared up.

 

I also think that even if one accepts that Mostyn J was wrong and that KW’s liberty HAD been deprived, it is then a leap for the parties to agree an order between themselves that the Court of Appeal authorise such deprivation as being in KW’s best interests when frankly that particular argument has not been fully ventilated and litigated because the trial Judge ruled that on the facts he did not consider that she HAD been deprived of her liberty.

 

Where does that leave KW then?

  1. Even though the Court of Appeal appears to have taken a procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellate courts. And so I must here, even if I happen to think that the order of the Court of Appeal is ultra vires. The allowing of the appeal should be construed as setting aside para 6 of my order, even if it does not actually say so. But does the order replace it with a declaration that Katherine is being deprived of her liberty? It does not explicitly say so, which is highly surprising. Further, para 2 of the order is phrased in highly ambiguous language. It says “to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised.” The use of this conditional language suggests to me that Court of Appeal has not actually decided that this is a situation of state detention. What they are saying that if it is then it is authorised. In my judgment para 2 of the order does not amount to a declaration that Katherine is being deprived of her liberty.
  2. It therefore seems to me that we are back to square one with no-one knowing whether Katherine is, or is not, being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order. Pursuant to para 6 I now direct that any review hearing will be conducted by me at an oral hearing and on the basis of full fresh evidence concerning Katherine’s circumstances. Until then Katherine’s status must be regarded as being in limbo.
  3. For the avoidance of any doubt it is my finding that the hearing ordered by para 5 of the Court of Appeal order is not a review of a determined situation of state detention but is, rather, a hearing de novo to determine if one exists.

 

Mostyn J goes further – having said that there has NOT been a decision that KW is being deprived of her liberty and there would have to be a hearing if anyone invites the Court to make such a finding, he goes on to drop this remarkable bombshell

  1. Further, it is my ruling that a hearing under paras 3 or 4 can only be triggered if the restrictive changes proposed amount to bodily restraint comparable to that which obtained in P v Cheshire West and Chester Council. Any restrictions short of that will amount to no more than arrangements for her care in her own home and would not, consistently with my previous judgments, amount to state detention. Therefore, in such circumstances there would be nothing to review under paras 3 and 4.
  2. It will be apparent from what I have written above that in the absence of a reasoned judgment from the Court of Appeal explaining why I was wrong I maintain firmly the correctness of my jurisprudential analysis in my principal decision as augmented in my Tower Hamlets decision. In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.

 

So we seem to be in a position where if you go before Mostyn J, Rochdale v KW 2014 is good law, but if you go before another Judge, it may not be considered that way. The Court of Appeal sanctioned an order which had the effect of overturning the decision in Rochdale, but Mostyn J has ruled that it did not actually rule on the principle or the interpretation of the law.

That’s not really the way that precedent works. There are quite a few precedents that I don’t agree with and where I think the law has got it wrong, but it is the law and has to be followed until it is overturned or refined.  You have to be able to pick up a piece of case law and know whether it is a precedent which others may follow or if it is not. (Yes, sometimes, like H&R or even Cheshire West at CoA stage, the precedent which everyone follows is later determined to be wrong, but we all knew that those cases were being appealed)

The legal status of the principle in Rochdale v KW 2014 is not at all clear to me any longer. Mostyn J makes a compelling argument here that it remains binding on any Judge who is less senior than a High Court Judge. Equally, we know that the orders made did not stand following an appeal to the Court of Appeal. Is it law, or isn’t it?

We can’t surely have law that applies if you are before X Judge but not before Y Judge.

 

[I hope that I’ve been plain that whilst I disagreed with Mostyn J’s original call, I think he was right that there was a sufficient element of doubt that the Court of Appeal ought to have properly considered it and ruled on it. This was a decision that did not only affect the parties, but had a degree of public interest. It should not have been carved up by the parties, even if I think they were correct that the Judge had fallen into error on thinking the case could be distinguished from the principles in Cheshire West]

Child giving evidence

Very quick one – this is an appeal just decided, about a 14 year old girl who wished to give evidence in care proceedings. She was saying that the allegations made against her father (about sexual abuse of her younger sibling) were not true, and thus the father was not a risk to her or her sister and her mother had not failed to protect.

 

The Local Authority and the Guardian were both saying that what the girl was saying was not correct  ( This might have covered either that she just didn’t know about the abuse or that she was lying to protect her parents) but that she should not give evidence and the trial Judge had agreed with that.

 

The Court of Appeal ruled that this decision was wrong – this was a witness who had capacity, who was willing to give evidence, she had filed a statement and the contents of that evidence was being challenged and it went to a material issue. The girl should have been able to give evidence, and if her evidence in her statement was not right for that to have been tested in cross-examination.

 

(Of course a Local Authority when bringing care proceedings on a child feels uncomfortable about cross-examining that child and causing them emotional harm, and similarly the Guardian is in a tough position cross-examining a child, but in a situation like this, the child has to be able to give evidence if she wishes)

 

Re R (children) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/167.html

 

  1. In civil litigation the general rule is that where a party witness provides an appropriately verified written statement of her evidence, and is willing to attend for cross-examination, the court cannot be invited by other parties to disbelieve that evidence on a matter within her personal knowledge, unless it has been tested in cross-examination. This is a basic and deep-rooted aspect of the fair conduct of a trial, and reflects the central role which cross-examination plays in the ascertainment of the truth.
  2. It is therefore very unusual to find, as in the present case, a situation where the parties who do wish to challenge verified statement evidence from a party witness with the closest personal knowledge of the relevant events, seek to persuade the judge not to allow that witness to attend for the necessary cross-examination, where the witness herself positively desires to do so. Of course the motivation for this persuasion is of the very highest, namely an understandable concern for the young witness’s welfare. But for that concern, one would expect it to be common ground that there was a need for the witness to attend for cross-examination, since she denies in her evidence the very thing which the Local Authority seek to prove, namely that both she and her sister have been sexually abused by their father.
  3. To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

Judicial appointment is not a licence to be gratuitously rude

 

You may recall His Honour Judge Dodds, who has not had the best time with appeals in the lifespan of this blog.

http://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

where he made full Care Orders at the first hearing, when none of the parties were expecting that or asking for it.

 

and

http://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you/

 

Where the Judge refused to assess family members largely because they were in Poland and offered the remarkable sentence of “If you don’t like it, there is always the Court of Appeal”

 

And this is the one that I’ve been waiting for.

Re A (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed143386

 

This was an appeal, arising from the conduct of a hearing. The Judge was asked for several things at that hearing. The mother and father both applied to discharge the Care Order and for more contact. The child SA, asked for DNA testing, saying that she had always had doubts that the father was really her biological father.

It is quite a short judgment, and practically every line of it is remarkable. This is the sort of thing that people who disapprove of the family justice system can rightly point to and say “This is the sort of thing that goes on”

In this case, the appeal was probably the easiest that the Court of Appeal have ever had to deal with – every single aspect of the hearing was wrong and improper. So in this case, the system screwed up royally, but then worked because an appeal put things right. But what we can never know is how many times something a bit like this happens and the advocates don’t appeal. Either they can’t get funding, or their client doesn’t want to, or they take the view that appealing a Judge who approaches things in this way is going to be counter productive in the future  (the “don’t poke an angry bear with a stick” argument)

 

It is a terrible indictment and this case makes sorry reading. The only consolation really is that the child herself was not in Court.

 

5. The importance of and the right of children to know the identity of their biological father has long been recognised and has only recently been restated by the President in Re Z (Children) [2014] EWHC 1999 Fam. Para 5. An application under section 55A is the proper procedural route in order to determine the parentage of a child. It must therefore have caused Ms Roberts and Mr Saunders (who acted on behalf of the Local Authority), considerable consternation when the judge, having dismissed out of hand the father’s application to discharge the care order as, “Factious” and the mother’s as, “An affront”, turned to Mr Saunders and told him that in relation to the section 55A application, “You may want to put your crash helmet on”.

6. Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.

7. Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”. He went concluded:

“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”

 

 

The Appeal Court, as indicated earlier, had no trouble in deciding that the appeal had to be granted and the case sent back to a different Judge for re-hearing.

 

9. In my judgment, it is not necessary to consider the merits of the application itself. The submission that the hearing amounted to a serious procedural irregularity is unanswerable. Each of the points made in the skeleton argument are made good when the transcript is considered. The judge did not allow proper submissions to be made; the premature threat of costs inevitably, and rightly, gave the impression that the judge had a closed mind in relation to the application and no proper reasons were given for the decision to dismiss the application. The manner in which the hearing was conducted went far beyond anything that could be characterised as robust case management.

10. In the event, neither parent attended the hearing, fortunately, although not surprisingly, SA was not there either. Even so, the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing.

 

 

and

 

The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.

 

I am aware that the newspapers in Liverpool made enquiries about whether there was an investigation or complaint into judicial conduct as a result, and were told that there was not, because no complaint had been received.  One does not want to see judicial complaints made each and every time a Judge loses an appeal or gets something wrong, but you might think that an appeal judgment as serious as this might be a trigger for an investigation without a formal complaint being made.

 

[In case you are ever before a Court and this sort of thing happens, and I very much hope that it never does, there is a formal body who deal with complaints about judicial conduct, as a separate body to the appeal process which deals with the decision made.

 

http://judicialconduct.judiciary.gov.uk/making-a-complaint.htm

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

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

 

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

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

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

 

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

 

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

 

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

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

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

 

These were the judicial conclusions

 

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

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

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

39. The judge went on in the following paragraph:

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

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

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

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

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

42. Finally, the judge concluded that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Yadda yadda yadda

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

Leave to revoke a Placement Order, successful appeal

 

Re G (a child) 2015

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

 

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

 

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

 

1. Change doesn’t have to be recent

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

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

 

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

 

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

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

 

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

 

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

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

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

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

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

 

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

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

5. Fresh evidence

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

 

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

 

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

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

 

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

 

6. Threshold post Re A

 

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

Let’s have a look at the threshold then.

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

 

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

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

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

really expensive legal researchers

Lindner v Rawlins 2015

http://www.familylaw.co.uk/news_and_comment/lindner-v-rawlins-2015-ewca-civ-51#.VNymu_msVic

 

In this case, the Court of Appeal were dealing with an appeal from a husband relating to divorce proceedings about a Judge’s refusal to order the police to provide him with information / a statement.  There had been a complaint from the wife (or the wife’s new partner, hence the husband’s interest) about an allegation of criminal damage to a Sky tv satellite dish.

The husband had done a lot of legal research, but was sadly relying on the Civil Procedure Rules and a case called Durham County Council v Dunn [2012] EWCA Civ 1654 which relates to the duties of disclosure and inspection owed by one party in litigation to the other.  Neither were really relevant in this case, which was Family Procedure Rules and relating to an order for disclosure against a third party.  I personally think that the husband had made a pretty decent fist of assembling his case, he’d just started from the wrong assumptions.

The Court of Appeal refused the appeal, but this is the relevant bit and why it is worth reporting.

The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

 

And

I agree with the judgment of Black LJ. I also wish, wholeheartedly, to endorse her observation at [32]. The procedural issue with which this appeal is concerned is technical and unusual. The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. The wife was neither present nor represented. Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.

 

It is quite easy to read this as a kicking to Chris[tian] Gray-ling and the devillish torments he has assembled for justice in his Red Room (and there’s an image you will be stuck with for the rest of the day, sorry), but I’m not quite sure that it is.

We don’t specifically get told what the husband does for a living, but we do know that there is a matrimonial home of a size for a family of four (husband, wife, two kids) and that it is in the Bromley area (because that was the original Court), so one might hazard a guess that to obtain and sustain a mortgage both parties would probably fall outside of the income limits for legal aid, even before the reforms. The husband is clearly bright and capable – one might criticise him for focussing his intellect in the wrong direction rather than moving on, but that’s by the by.

 

If I were staking money on it, it would be that this husband would not have qualified for free legal advice and representation even before Chris Grayling got his hands on the legal reins and made his changes of course.

If this was supposed to be an economy though, it isn’t. The Legal Aid Agency might have saved a few thousand in legal fees for someone to research and advise the husband (and they’d have advised against an appeal) but the taxpayer overall has lost out because three very senior Judges had to spend valuable time researching and working out the proper basis for the appeal and whether or not it should be granted.

 

 

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