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“To lose on a case once in the Court of Appeal may be regarded as a misfortune, to lose three times on the same case looks like carelessness”

The misadventures of the LA in the case of Re B  (2012)  (the Slovakian grandmother case)

 This is indeed, the third time that the Court of Appeal have heard the case, and on each occasion, the LA have lost. They have had a steadily increased judicial kicking each time that they did so, and the Court of Appeal almost seem to be running the case management of the case. 

The latest instalment is here

 http://www.familylawweek.co.uk/site.aspx?i=ed111948

It involves a case where the LA had put forward a plan of adoption for children and rejected a grandmother, who was living in Slovakia. At the very first appeal hearing, the Court of Appeal determined that adoption was not the right plan for the children and that the children should be moved over to Slovakia, although that would require a transition and a build-up of contact.   

That was on 9th November 2011.

 The case came back to the Court of Appeal on 16th November, with the LA seeking amplification and also seeking to introduce some fresh evidence about grandmother (including an allegation that she had attended a meeting with the mother, posing as the mother’s interpreter)

The Court did not think that these fresh allegations were any impediment to the plan, and were gravely disappointed that the LA had not moved on with the transitional plan. They delivered a judicial ‘get on with it or we will take your ICO away from you and run things ourselves’ warning.

It was therefore pretty surprising that the case came back for a third time on 14th December, with the Court of Appeal being asked to decide between three plans for transition, and there having been no increase to contact since the Court of Appeal had decided that these children were going to move to Slovakia and live with the grandmother.

The Court were not best pleased that the LA had unilaterally decided that they weren’t going to implement the Court of Appeal’s decision.

The Court of Appeal expressed this fairly witheringly

3. The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable. We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November.

4. The tragedy is that, whoever may be responsible for the confusion, lack of control, and lack of direction over the last four weeks, the children have suffered. The transition is now more difficult to manage and plan than it was on 16 November. A precious period of four weeks has elapsed which only increases the uncertainty for the children and introduces the stagnation of a process which essentially required firm forward progress.

 

It emerged that the LA had been unhappy with the Court of Appeal decision and been taking advice about appealing it, and had decided that they wished to do so. They had taken the decision that increasing grandmother’s contact and building up the relationship might hamper their appeal and thus had not implemented a transitional plan as the Court of Appeal had asked them to do (and subsequently pressed them to do)

They had not, at the November hearings, sought leave to appeal, or a stay, or indicated that they were contemplating that course of action.

The Court was therefore given one plan of transition to grandmother’s care drawn up by those representing grandmother, one by the Slovakian authorities (who were obviously perplexed by the scale of the resistance to these children moving to their country) and one that had been drawn up by the LA  (obviously slowing the pace of transition to give them the chance to go and get their behinds kicked by a larger number of Judges in an altogether different building. Also see below for the timing of the creation of the plan)

 Always a risk in having three plans before a Court that they decide that none of them pass the Goldilocks test, and make their own, which will be ‘just right’ and that’s exactly what they did.

 

9. Our first task, perhaps, is therefore to be much more directive in relation to the next steps than we were on 16 November. On that occasion we relied on the responsibility of the local authority. We relied, perhaps over-optimistically, on the belief that there would be harmony, that there would be collaboration and that there would be a general acceptance of the orders of this court. In that we have been disappointed.

The submission made by Mr Bellamy, which has much force with me, is that this transition plan proffered by the local authority saw the light of day at about 30 minutes past midnight this morning and is written without any consultation at all with the grandmother or with her very experienced solicitor and counsel.

 

10. How then should we be directive? If fairness to adults and general justice were to rule, I would certainly opt for Mr Bellamy’s plan, if not that of Ms Cisarova. But whatever the history of adult behaviour, we have to above all search for the welfare of the children, and I reach the reluctant conclusion that the proposal of Ms Cisarova and, more narrowly, the proposal of Mr Bellamy fail the test of what is best for the children.

11. Accordingly I would reject all three proposed transition plans. I would direct that the process of transition must start immediately, by Monday next at the latest, and that it must be completed to ensure that these children have left this jurisdiction and arrived in Slovakia by 4 January at the very latest.

 

 

That pretty much settled that. The Court then considered whether this should be done under an Interim Care Order, or a Residence Order, with grandmother agreeing to the children being section 20 accommodated during the transition period. There was a two-to-one split on that, with the Court opting for a Residence Order and s20 consent.

 Leave to appeal was also refused, the LA were directed to get any formal application for appeal in by 19th December (I think 3 working days later) and the stay was refused.

 It would be fair to say that Mr Norton, representing the LA, whom I know and like, has had more successful days in his professional career.

 

14. It is high time that the adults surrounding these children, whether they be family members, whether they be laudable foster carers, or whether they be local authority officials, started working wholeheartedly to achieve the result which we impose. If there is some fundamental unforeseen development which requires judicial intervention then there must be an application to the Applications Judge of the Family Division

 

This case does point up the difficulties in trying to get the Court of Appeal to case manage a case, the family were very lucky here that they were able to get hearings so quickly. It also shows that you defy the Court of Appeal at your peril, and that if you do intend to appeal a decision that they make and not begin implementing it, you had better put everyone on notice.

 It doesn’t seem that any applications for costs were made, but the need for the December hearing must have sailed pretty close to that point.  I don’t know if they lodged their appeal, they may have been tempted, given that they had three different Court of Appeal judgments to appeal against…

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