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Care proceedings can be retrospectively validated

 

Readers might remember the recent case where the President looked at a set of care proceedings where it had not been known at the time that the mother lacked capacity, and the outcome was that the orders were effectively overturned and the proceedings re-wound to the beginning.

 

[Actually, if you remember it, it is because of the bad pun in the title….

http://suesspiciousminds.com/2015/08/07/re-e-wind-when-the-crowd-say-bo-selecta/   ]

 

 

Here, the Court of Appeal were faced with a very similar issue – the mother in care proceedings conducted them  as though she had capacity and her lawyers fought hard on her behalf, but it turns out that perhaps she didn’t have capacity – at the very least there were two conflicting reports and the Court had not expressly resolved the issue.   She then appealed on that basis, arguing that the Care Order and Placement Order should be overturned and the case re-heard.

 

In this one, though, the Court of Appeal ruled that even though the original proceedings had been flawed, it would not have made any difference to the eventual outcome if she had been represented through the Official Solicitor rather than instructing her solicitor directly, and so the Court of Appeal could retrospectively validate the proceedings and orders.

Hmmm.

Not sure that I agree.   (I agree that the Court of Appeal’s analysis that they HAVE the power is right. Whether it was right to use it, I’m not so sure of. Of the two approaches, I think the one before the President is more in keeping with article 6 and a right to a fair trial. I think that instructing a solicitor involves rather more than just saying “I want to fight” and that the protections for vulnerable persons or Protected Parties are fundamental, and where they’ve been lost even due to honest mistake, that’s a fatal flaw in the process, not something that can be patched up after the event)

 

Re D (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146431

 

There were two issues :-

 

  1. Had the original Court process been flawed because it had proceeded on the basis that mother had capacity when she in fact didn’t?
  2. If so, did those flaws amount to an irresistable basis for an appeal, or can the Court retrospectively validate the orders if that seems the right outcome?

 

The mother had been represented through the Official Solicitor in previous care proceedings, so the starting point in these ones was that an updating report on her capacity was sought. However, no doubt to avoid delay and ensure that there wasn’t drift past the 26 week timetable, the expert saw the mother within the first six weeks of giving birth. This is important, as it is no doubt happening in other cases.

The cognitive assessment therefore came with a significant health warning, although it did say that she lacked capacity

 

“The immediate post natal period (under six weeks) tends to be a somewhat volatile period in terms of health and mood. Cognitive tests undertaken during this period are likely to reflect mood variations and difficulties with concentration due to hormonal changes…. In this assessment, therefore I have drawn on the results of SD’s August 2012 assessment together with a brief corroborative assessment conducted on 4 .11.13”

 

That report from Dr Morgan also gave a further health warning, that when one repeats the tests in a short period of time, the results can be skewed.

Those representing the mother sought a further expert opinion, from a Dr Flatman. The Court of Appeal were criticial that the Part 25 procedures on expert assessments were not followed and as a result, mistakes were made.

In any event, Dr Flatman examined the mother and concluded that she DID have capacity to conduct litigation.

 

Here’s the error

 

 At the hearing before the District Judge on 20 January 2014 the District Judge was simply told that:

“there has been a cognitive assessment further filed to say that she does have capacity to give instructions to her legal representatives”.

Dr Morgan’s conflicting report was not brought to the attention of the judge, neither was the fact that Mr Flatman had failed to apply the proper test for assessing capacity. As a consequence no consideration was given as to how to resolve the conflict, whether by additional questions, an experts meeting or by hearing short oral evidence to resolve the issue. Ms Weaver was simply discharged as litigation friend.

41. When the mother came before the judge for the final hearing Ms Weaver attended as the mother’s IMCA and the case proceeded without further consideration as to the mother’s capacity.

 

There were two competing reports and the Court needed to resolve which opinion was correct (bearing in mind the starting point of the Mental Capacity Act is to presume capacity unless there is evidence to the contrary)

 
44. All those who are regularly involved in care proceedings are aware that such a situation is all too common and it is plain to see why issues of capacity are critical to those affected. The starting point for the court is not only that a party has capacity, but that every effort must be made to help a party without capacity to regain it. Only in this way which accords with the statutory principles found in MCA 2005, can a parent feels that his or her case has been presented in accordance with his or her wishes, no matter how unrealistic or unachievable those wishes may be when considered against the yardstick of the welfare of her child in question. On the other hand the MCA 2005 is designed to ensure that those vulnerable adults, who have not got the capacity to conduct litigation on their own behalf, are properly identified and provided with appropriate support and a litigation friend in order to ensure that they not prejudiced within the proceedings as a consequence of their disability.

45. Process is not all and should never, particularly when one is concerned with a child’s future, be slavishly adhered to at the expense of achieving the right welfare outcome for a child without delay. Having said that, I am satisfied that the informal course which was adopted in the present case went far beyond a pragmatic and practical approach to case management and amounted to serious procedural irregularity.

 

The answer to that first question then was, yes, the original process had been flawed.

The analysis of whether the Court has the power to retrospectively validate the flawed process is set out very carefully from paragraphs 46-58, and if you are interested in the nuts and bolts of that, then it is all set out.

In a nutshell, it is this

 
47. FPR 2010 r.15.3 qualifies the general rule that a protected party may only conduct proceedings by a litigation friend. In particular FPR 2010, r.15.3(3) provides:

“(3) Any step taken before a protected friend has a litigation friend has no effect unless the court orders otherwise.”

 

So if the Court orders otherwise, then the Court can proceed even though a person ought to have been treated as a protected party and could only conduct proceedings through a litigation friend.   [Of course, as the Court at first instance DIDN’T do that, since they wrongly decided that she DID have capacity and neglected to take into account that there were conflicting reports, the Court at the time DIDN’T  “order otherwise” under r 15.3]

 

However

 

Bailey v Warren [2006] EWCA Civ 51. Hallett LJ said:

“[95] Within CPR r.21.3 (4) there are no restrictions whatsoever on the court’s discretion to validate steps taken in proceedings before a litigation friend is appointed. A court can regularise the position retrospectively provided, as Kennedy L.J. observed in [31] of Masterman-Lister “everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the time”. He could not envisage any court refusing to regularise the position because “to do otherwise would be unjust and contrary to the over-riding objective ….

[96] It is for the judge to consider all the facts of the case before him, therefore, and where as here, there is no suggestion of bad faith, decide whether or not the compromise is manifestly disadvantageous to the patient”

 

And that was the line that the Court of Appeal took.

 

 

 

55. In the present case it is recognised that the outcome of the case would have been the same regardless of whether the mother had litigation capacity. There was therefore no forensic disadvantage to the mother. Further, thanks to the dedication of Mrs Weaver, there was in reality no difference in the nature and quality of the representation the mother received. Mrs Weaver’s title within the proceedings changed from IMCA to Litigation friend and back to IMCA depending on the current court order, but the manner in which she carried out her role remained the same. It is apparent from the attendance notes that Mrs Weaver, in whatever guise, was not about to agree to the orders sought by the local authority being made; she felt strongly that the mother’s best interests could only be served by the applications for care and placement orders being opposed, I am entirely satisfied that not only would the outcome of the trial have been the same had the mother been found to lack capacity, but that the case would have been conducted in exactly the same way on her behalf.

56. There is no question but that all involved have acted with good faith. In dissecting the progress of this case, as has been necessary in order to consider the important issues before the court, I do not lose sight of day to day life in busy family courts with Counsel and Judges over stretched in every direction. This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance. The rules providing for the identification of a person, who lacks capacity, reflect society’s proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further. It is in order to avoid this course causing delay that the PLO anticipates issues of capacity being raised and dealt with in the early stages of the proceedings.

57. SSD is now 20 months old and has been in her adoptive placement for over half her life. Her future needs urgently to be secured. I am satisfied that notwithstanding the procedural failings which led to this court being unable to conclude with any certainty whether the mother was or was not a protected party at the time of the trial, she was not in the end adversely affected and no practical difference was made to the hearing or outcome as a consequence. In those circumstances it is open to this court to validate the proceedings retrospectively and in my judgment that should and will be done.

 

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.

 

 

 

 

Payne v Payne – rumours of my death have been much exaggerated

 

But now, it looks as though they are finally correct.

If you aren’t familiar with Payne v Payne, it was a Court of Appeal decision about a mother wanting to leave the country with a child and start a new life abroad. The Court of Appeal had provided a set of questions to be posed

 

“(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…”

 

You can see that those questions drive the Court in many cases to approve the mother moving to say Australia, even though the impact on the child’s relationship with father would be devastating.

 

Payne v Payne would have to go down as one of the least-loved decisions of the Court of Appeal, and occasional efforts are made by the Court of Appeal to backtrack from it – although with difficulty, because it would have needed a Supreme Court decision or a change in statute to do so categorically.

 

The usual efforts have been to create a new category of case to which Payne v Payne doesn’t apply.  And so many Court hearings are taken up with debate as to whether the case before the Court is a  “K v K” case, or a “Re Y” case or a “Payne v Payne” case   (and that taxonomic debate can have a huge bearing on the outcome)

“[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”

 

For almost the entire time that Payne v Payne 2001 has been authority, Judges have been making speeches deprecating it and forecasting that it would be properly overturned.

In the snappily named   Re F (A child) (International Relocation Cases)(DF and NBF) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/882.html

 

The Court of Appeal overturn the decision of a Judge who had followed the Payne v Payne test and posed those questions in the judgment. Not because the case had been wrongly classified as a Payne v Payne rather than K v K or Re Y, but just because the Court of Appeal rule that the proper approach IN ALL Children Act cases is to follow the welfare paramountcy principle as the major factor, with adherence to the guidance given by the Courts in authority cases but never losing sight of the fact that the welfare paramountcy principle is, erm, paramount.

This is one of those cases that we are seeing a lot with the Court of Appeal as it is presently constructed  – the case before it is used as a vehicle to deploy new policy, rather than any real argument that the Judge in a particular case was “wrong”  instead it is the Court of Appeal using a particular case as a method of delivering a binding speech about policy for similar cases in the future.

 

I am not sure how a Judge could be “wrong” in considering, as this Judge did, all of the relevant authorities on relocation, applying those principles and answering within the judgment the questions that Judges are told to ask themselves and answer.   Any Judge could have been unlucky enough to be overturned on this, as the Court of Appeal had just been waiting for a good opportunity to put an end to Payne v Payne.

 

 

43. Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of , inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

  1. For the reasons given by my Lord, in the present case the judge’s reliance on the Payne v Payne criteria led her away from carrying out the necessary overall welfare analysis that was needed

 

If you are a proper law geek and you are wondering how the Court of Appeal can strangle Payne v Payne when it was a Court of Appeal decision and stare decisis applies  (i.e the Court of Appeal is bound by Court of Appeal decisions unless the Supreme Court or statute changes), then here is the answer

 

 

  1. The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation. The caution expressed by Dame Elizabeth Butler-Sloss P in Payne went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in “too rigid terms” and ‘unduly firmly’ with an over emphasis on one element of the case. I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.
  2. Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.
  3. The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

    “[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3)”

    “[61] The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regards to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court”

 

 

For those, such as Ian (Forced Adoption) who are not fans of the word ‘holistic’, there’s a bit at the end of the judgment where McFarlane LJ who has inadvertenly popularised the term rather deprecates its overuse (and misuse). He points out that it is not a new or novel creation, but a restoration of the way that the law had worked and decisions HAD been made before a “linear method” had taken hold and moved us away from a proper practice of looking at the whole of the relevant evidence and issues and making a decision that was in the child’s best interests.

 

  1. The word ‘holistic’ now appears regularly in judgments handed down at all levels of the Family Court. This burgeoning usage may arise from my own deployment of the word in a judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2014] 1 FLR 670 where, at paragraph 50, I described the judicial task in evaluating the welfare determination at the conclusion of public law children proceedings as requiring:

    i. ‘a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’

  2. Having heard argument in this and other cases, I apprehend that there is a danger that this adjective, and its purpose within my judgment in Re G, may become elevated into a free-standing term of art in a way which is entirely at odds with my original meaning.
  3. In the judgment in Re G my purpose in using the word ‘holistic’ was simply to adopt a single word designed to encapsulate what seasoned Family Lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation.
  4. Reference to ‘a global, holistic evaluation’ in Re G was absolutely not intended to introduce a new approach into the law. On the contrary, such an evaluation was put forward as the accepted conventional approach to conducting a welfare analysis, as opposed to a new and unacceptable approach of ‘linear’ evaluation which was seen to have been gaining ground.
  5. In the context that I have described, it is clear that a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist [CA 1989, s 1(3) or Adoption and Children Act 2002, s 1(4)]. Such an analysis is required, by CA 1989, s 1(1) and/or ACA 2002, s 1(2) when a court determines any question with respect to a child’s upbringing. In some cases, for example where the issue is whether the location for a ‘handover’ under a Child Arrangements Order under CA 1989, s 8 is to take place at MacDonalds or Starbucks, the evaluation will be short and very straight forward. In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child’s welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’.

 

 

 

Note also that whilst Ryder LJ emphasises and endorse the ‘balance sheet’ approach of the Court having a tabular document setting out the pros and cons of each option, McFarlane LJ deprecates that

Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ’s judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a ‘balance sheet’. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.

 

It will not amaze anyone to know that I am firmly with McFarlane LJ on this.  A balance sheet approach can easily distort a case  – you could produce a table that has 2 cons and 14 pros, but the cons could outweigh the pros because of the weight attached to those two things, whereas some of the pros could be fairly trivial in significance. A visual image of a table with 2 cons and 14 pros, however, is going to lead to an impression that the option is desireable and that the balance is firmly in its favour.

 

As the third Judge, Clarke LJ merely says this, in relation to the weighing up exercise

The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

 

the issue of whether Balance Sheets are, on balance, good or bad, remains a live issue to be resolved.

 

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.

“Just glanced?” Court of Appeal find Judge to have been unfair

 

Re G (child) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/834.html was an appeal from a finding of fact hearing in private law proceedings conducted   (perhaps that ought to be in inverted commas) by Her Honour Judge Pearl.

 

The appeal was on the basis of judicial bias/ unfairness, which as I’ve set out before has a relatively low bar in law  (that a reasonable observer would have concluded that the Judge was biased) but in practice is hard to pursuade an Appeal Court of, since most people who leave Court without the order they wanted tend to think that a Judge was biased.

 

Here the case was made out, in spades.   [Though not necessarily in terms of the Judge being in favour of one party and against the other, but rather that her treatment of mother’s case was sufficiently unfair to prejudice a fair hearing]

Things began badly when Ms Toch, the mother’s counsel, arrived late at Court on the first day. The context of this was that exceptional weather conditions had disrupted all transport on that day. Ms Toch apologised, but the Judge seemed to take it as a personal slight and had not been able to move on.

 

  1. The first specific complaint was that the judge impolitely told counsel off for her late arrival at court on the first day of the fact finding hearing, 28 October 2013. It was submitted that Ms Toch had been subjected to unwarranted and unfair criticism about this and that this was of concern to the mother as it was obvious to her that the judge was annoyed with her counsel. Other specific instances were identified where it was said that the judge’s attitude towards Ms Toch was disparaging and bore the mark of hostility or unfairness. One example was in relation to the way in which the judge dealt with Ms Toch over the CAFCASS officer but attention was invited to the way in which the judge dealt with Ms Toch over other matters as well.
  2. It is essential to consider the exchanges that preceded the commencement of the evidence in the case as a whole. The hearing got off to a difficult start on the morning of Monday, 28 October. There had been a powerful storm the previous night with damaging winds. Transport services were severely disrupted and Ms Toch had problems in getting into central London for the hearing. Ms Toch’s account in her statement is that, on the witness template, the morning had been scheduled for the judge to read. It has not been possible to find out whether that was anyone else’s understanding. Ms Toch’s account is that she was told by her clerks on the Monday morning that the judge wished to sit at 11.45 a.m.. Because of her travel difficulties, Ms Toch did not arrive until 12.20 p.m. which made her late for this and meant that she had not been able to discuss matters directly with counsel for the father before the case started. The transcript of the proceedings opens at C3 with Ms Toch apologising to the judge for delaying the court. She explained about the limitations on transport from her home area that morning and the steps she had had to take to get to court.
  3. Matters moved on but it can be seen from the transcript that Ms Toch’s lateness continued to trouble the judge for some time and that she returned to it later. I will deal with this at its appropriate place in my consideration of this stage of the hearing.

 

 

The Court of Appeal are not kidding.  To get a flavour of it, see this exchange

 

It is not difficult to accept that the mother’s confidence in her counsel’s ability to put forward her case to the judge would have been undermined by the judge’s approach to Ms Toch as set out above. It is also, perhaps, of note (although it cannot affect the fairness of the fact finding hearing) that matters were not easy at the hearing on 7 January 2014 either. By way of example, Ms Toch said to the judge, in relation to the mother’s evidence about the dowry question, “Your honour subsequently looked at these matters and made a finding.”. The judge responded:

“THE JUDGE: Looked at them?

MS TOCH: Your honour has….Yes.

THE JUDGE: Just glanced?

MS TOCH: No, your honour.

THE JUDGE: I have analysed them. I have spent hours on this case…..I have gone through every line of the evidence. I have not just looked at it, Ms Toch. I take that as a straight insult.”

 

 

Oh boy. And again

 

 

“THE JUDGE: Do you think it is fair that a CAFCASS officer should stop contact completely without even speaking to the father about a matter of fact? Do you think that is the way to proceed?

MS TOCH: Well, of course, he did not. He raised this. He referred the matter to Social Services to investigate and the matter was referred to the court and the court stopped contact. It was not the CAFCASS officer.

THE JUDGE: But he recommended that contact be supervised.

MS TOCH: He wrote a letter to the court to say that contact should be suspended pending the outcome.

THE JUDGE: Do you think that is a fair way to proceed?

MS TOCH: Well, it was referred to the court, so it is a matter for the court.

THE JUDGE: Do you think –

MS TOCH: It is a matter for the court.

THE JUDGE: We are not going to get –

MS TOCH: I am sorry.

THE JUDGE: This is the second time we have had a conversation like this.

MS TOCH: Yes.

THE JUDGE: If I ask a question, try and answer it please.

MS TOCH: The CAFCASS officer did not suspend contact and contact was ordered to be supervised by HHJ Everall –

THE JUDGE: Do you think it is right –

MS TOCH: – on submissions.

THE JUDGE: Do you think this man’s evidence on a finding of fact is going to assist me?

MS TOCH: I am not saying it will.

THE JUDGE: Yes or no?

MS TOCH: I am not asking for him. I am saying he is available. I understood the father wished to have him.

THE JUDGE: Well, you have just asked the question [of the father’s counsel]. He said he does not want him to be cross-examined.

MS TOCH: And I have heard that, so unless the court wishes him, I do not.

THE JUDGE: Look –

MS TOCH: I am not calling him. Am I clear?

THE JUDGE: No, I know.

MS TOCH: I am not calling him.

THE JUDGE: Let us try and have an exchange, shall we?

MS TOCH: Yes.

THE JUDGE: All right. You have made me angry.

MS TOCH: I am sorry.

THE JUDGE: The second time. This morning I was asking questions. You simply were not answering the questions.

MS TOCH: I am sorry.

THE JUDGE: You must answer my questions.

MS TOCH: I will, yes.

THE JUDGE: Are you going to ask me to rely on this CAFCASS officer’s finding or understanding of the truth as part of the evidence I rely upon to substantiate your client’s allegation of the stabbing? Yes or no?

MS TOCH: No.

THE JUDGE: Thank you.

MS TOCH: I am terribly sorry. I did not mean to be –

THE JUDGE: I am so grateful to you.

MS TOCH: Yes.

THE JUDGE: No, you do mean to be because this is the second time you have done it and it does not work with me. You are not relying on his assessment of this child’s veracity. You are only relying on the fact that it was said. The father does not deny it was said and you are not going to come towards me at the end of the hearing and say, ‘Because the CAFCASS believed it, your honour, you must believe it.’

MS TOCH: No.

THE JUDGE: All right. Do you think it was bad judgment for him to recommend that contact be suspended?

MS TOCH: He –

THE JUDGE: Yes or no?

MS TOCH: It was correct judgment to have the matter investigated as it was.

THE JUDGE: This is going to be a difficult hearing.

MS TOCH: I am sorry. I do not think my opinion is important, with respect. He made the recommendation. It came before the court.

THE JUDGE: Look, I do not want to stop a witness coming to court and then meet submissions from you –

MS TOCH: I am not going to make those submissions, if I make that plain.

THE JUDGE: Yes, good.

MS TOCH: Yes.

THE JUDGE: So that has taken ten minutes. No counsel this morning at all and ten minutes and I am not being unreasonable about this.”

 

[Erm, I think perhaps you were]

I feel Ms Toch’s pain there. I’ve had, some considerable years ago, that sort of experience, though only about a quarter as bad as that. If I say to practitioners “Humpty Dumpty” some may have a shudder of recognition and repressed memories flood back. There is very little worse than being in front of a Judge and feeling that every single word you say is just making the Judge more cross.

If you are remembering the Liverpool Judge and the Court of Appeal ruling that a judicial appointment was not a licence to be rude, you are on the right lines here.

 

As the Court of Appeal say, one does not pick up tone of voice from a transcript of judgment.

What is not apparent from the transcript is the judge’s tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word.

 

There are many, many, more examples of this from the trial. Immediately after this, the Judge castigates Ms Toch for being late again.

The pressure on Ms Toch continued immediately after the passage that I have set out above with the judge returning to the subject of Ms Toch’s lateness as follows (C25):

“THE JUDGE: Everybody knew – let me be clear about this – there were going to be no trains this morning. It was very, very clear on the national media. Everybody knew. It was absolutely clear and I changed my travel plans accordingly, as did everybody else. Everybody knew and if I had been living in [counsel’s home town in Kent], I would have made plans to avoid this disaster this morning. Be utterly clear about that.

MS TOCH: Yes. I can only apologise to the court. I did try. I really did try.

THE JUDGE: Well, I hope you have apologised to your client.

MS TOCH: I apologise to everybody in this court that has been inconvenienced.

THE JUDGE: Everybody knew that there were going to be no trains this morning.

MS TOCH: Yes.

THE JUDGE: So why you sat in [counsel’s home town] last night waiting for there to be no trains, I do not know. It is ten to three and we have not even started –

MS TOCH: I am so sorry but sometimes people cannot leave the night before and I could not. ….”

 

How is the mother supposed to feel about whether she is getting a fair trial at this point? The Judge is outright quarrelling / bullying her representative at this stage.

  1. It was unnecessary, in my view, for the judge to have returned to this question at this stage in the proceedings and, as I see it, the exchange compounded the pressure that had been put on Ms Toch by what had just occurred in relation to the CAFCASS officer. My experience is that counsel tend to manage to be on time for court against even formidable odds but sometimes it simply is not possible. The weather conditions on this weekend in October were extraordinary and disruptive of transport. As Ms Toch observed to the judge, sometimes it is not possible for counsel to set off the night before. There are various reasons for this, ranging from domestic commitments to an inability to obtain accommodation overnight or to pay for it from a brief fee which was not designed for that eventuality. Ms Toch told the judge of the steps that she had taken to get round the problems on the morning of the hearing, she got herself to court as soon as she could, and she apologised. It is understandable that the judge felt frustrated by the loss of time that could otherwise have been devoted to discussions between counsel or other arrangements outside court or to getting the hearing underway. It is clear that it was going to be a challenge to conclude the evidence and submissions within the allotted court time, even without delays of the kind that had occurred and that always poses difficulties for a judge. However, I accept the submission of Mr Phillips that she laboured the issue of Ms Toch’s lateness to the point of unwarranted, unfair criticism.
  2. Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.

 

The Court of Appeal did determine that the Judge’s management of mother’s cross-examination did not cross the line and that a Judge is entitled to have their own approach to such matters providing that the line is not crossed

 

  1. It was shortly after the CAFCASS/lateness exchange that the mother began to give evidence. Complaint was made of the judge’s approach to her during her cross-examination which it was argued was hostile and distressing to the mother. Managing a trial can be a challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel’s help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge’s behaviour does not stray outside acceptable limits.
  2. In this case, I see the judge’s handling of the mother’s cross-examination as being within normal tolerances. True it is that the judge asked the mother on occasions to stop interrupting her, but that was not unjustified as the mother did tend to interrupt questions put to her and talk over people. Nor, in my view, would it be right to criticise the judge for speaking to the witness about being on oath or for requiring her to stand up, which was likely to have been done in an effort to control the process and possibly also in order to hear better. I note also that when the mother was upset following some questioning by Mr Cameron (C104/5), the judge asked if she had hankies and offered her a short break.

 

However, the judicial approach to Ms Toch’s cross-examination of father did cross that line on occasions.

 

Mr Phillips’ summary in his Schedule of the position with regard to the second day of Ms Toch’s cross-examination was that between C221 and C279 (which was essentially the end of it), it was difficult to find a single page where there had not been interventions by the judge. The fairness of a hearing cannot be assessed scientifically or mathematically but, seeking for some way in which to look at matters as a whole and to pin down impressions, I counted the entries against the names of the judge, Ms Toch and the witness in the first thirty or so pages of transcript of the resumed cross-examination, starting at the foot of C216 which was the nominal start of it. By the middle of C247, the judge had spoken 250 times, Ms Toch had spoken 227 times and the witness had spoken 140 times, only 64 of them in response to a question from Ms Toch. Between C251 and C258, there was quite a concentrated period of cross-examination, during which the judge spoke only 18 times. However, it was then a further nineteen pages before Ms Toch was able to cross-examine continuously again, although during those nineteen pages there was considerable questioning of the father by the judge, for example for three full pages between C259 and C261. Ms Toch resumed continuous questioning at the foot of C277 but at the foot of C279 Mr Cameron intervened to remind the court that a witness was waiting outside court and that was effectively the end of the cross-examination.

 

….

 

  1. By C194, Ms Toch’s cross-examination had turned to the issue of who was the primary carer for G and, shortly thereafter, also incorporated questioning going to the father’s allegations about the mother drinking, about which he was seeking a finding of fact. The judge’s second prolonged intervention came in the course of this at C197 when she said to Ms Toch, “Are you going to ask him about these serious allegations that are being made?” and slightly later, “I am just wondering when we are going to start on the case that your client is making.” The judge then explored with counsel for some time, in the presence of the witness, what the underlying material was to support the mother’s case about gambling and domestic violence, wondering aloud to counsel “whether we are using the time efficiently” (C201). This passage ended with the father putting up his hand to contribute to the discussion and doing so at the foot of C201.
  2. When Ms Toch resumed her cross-examination of the father the following day (C216), it is apparent that she was intending to deal with the question of domestic violence. I have already referred to the number of contributions made by the judge, Ms Toch and the father respectively during this period but I now return to look more closely at the nature of some of these, albeit that I will not go through every matter of complaint. It is perhaps relevant that the day began with the judge criticising both counsel over Mr Cameron having spoken to his client whilst he was in the course of giving his evidence. The criticism was first directed to Mr Cameron, whom the judge said she felt like reporting, but then widened to include Ms Toch as well because she was thought to have agreed to what Mr Cameron had done. The judge said that she would decide in due course what action she was going to take about this (C215).

 

By this point, the Judge was giving it both barrels to both counsel.  Could it be argued that if a Judge is hostile to both parties, that any judicial bias evens itself out? Nice try…

 

  1. As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
  2. It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance

 

And so the appeal on unfairness was comfortably made out.

The Court of Appeal did try to soften the blow

 

  1. Before I come to what I would see as the consequences of my conclusions, there are a number of things that need to be said. The first is that I am very much aware of the pressures that there are on the family justice system and upon the hard-pressed and very hard-working judges in the Family Court who must ensure that the court’s limited time is used to the best possible effect. This inevitably means that family judges have to manage hearings before them robustly and this requires intervention at times. The hand of fate, in this case in the form of the disruption caused by the storm, can sometimes make the judge’s task almost impossible. The second is that I am deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process. I have done my best to make allowances for this and I have thought long and hard about which side of the line of fairness the hearing in this case fell. The third is that the case is not about Ms Toch and whether she was treated fairly, although she has been mentioned frequently in this judgment. It is about whether the mother was given a fair chance to put her case and Ms Toch was simply one means by which she sought to do so, hence the need to look at the exchanges between the judge and Ms Toch.
  2. In my view, it would be a necessary result of my conclusions that the findings of fact made by the judge would have to be set aside. I would return the matter to the Family Court for there to be a directions hearing, in front of a judge other than Judge Pearl, to examine whether it is now necessary for new findings of fact to be made. It may not be, because the situation for this family has moved on considerably since the events with which we have been concerned. For this same reason, it is not necessary for me to go into the points taken against the orders made by Judge Pearl other than her findings of fact. They have all been overtaken by later orders or other developments.
  3. I would therefore allow the appeal to the extent that Judge Pearl’s findings of fact are set aside and the matter is remitted to the Family Court for further directions.
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