it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.

A discussion of Re G (A child) 2012 EWCA Civ 1377

This is a recent Court of Appeal decision (and in light of my recent grumblings about the delay between summaries of decisions and the full judgments being made available, I note that the decision was made on 31^st October and the judgment was available by 5^th November, so kudos to those involved. 

Mild grumble,  not aimed at this case specifically we seem to be getting a raft of  RE something (a child)  2012 decisions, and a more descriptive title might not go amiss. Otherwise we will have nine Re C (a child) 2012’s and no easy way of distinguishing them save the case number, which is slightly cumbersome.)

I tread carefully on this, because I know many, though not all of those involved on a professional level, and have a great deal of respect for all of them. As luck would have it, I don’t really have to criticise any of the people involved.

The title is taken from a quotation from the Judgment, but was coined by Mr Adam Smith of counsel, and is a phrase which I am as taken with as Munby LJ clearly was. At the risk of increasing his ego, Mr Smith is a splendid fellow.

It goes to the heart of this case, and is the important principle that lifts it from being a very case-specific decision. 

The judgment can be found at

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1377.html

The appeal essentially related to an aunt, who was putting herself forward to be a carer for a child. The aunt had certain disabilities and it was decided at an interlocutory hearing that the assessment of the aunt’s direct care of the child should take place at the mother’s home (that being where the child was living) with certain modifications taking place.

12. By February 2012 the position had been reached that assessments were being awaited on the mother (who at that stage, subject to assessment, was supported by the children’s guardian as a potential carer for T) and the aunt. There was an issue as to where the aunt’s home assessment with T was to take place. It was resolved by Judge Coates at a hearing on 16 March 2012. I quote from her judgment of 9 October 2012:

“In March it was argued that [the aunt] needed to be assessed in a home environment of her ability to care for T – this court determined it should take place at [the mother’s] home and required the local authority to put in handrails to accommodate [the aunt’s] difficulties. [She] argued assessment at the maternal grandmother’s home and forcibly argued the position and I determined where the assessment should take place.”

The order made by Judge Coates was in the following terms:

“provided the appropriate handrails are fitted to [the mother’s] property the assessment of [the aunt] will take place only at [the mother’s] home and not the home of the maternal grandmother.”

The assessment never took place. Judge Coates explored the reasons why at the hearing in September 2012. As she explained in her judgment:

“I have heard evidence as to what happened thereafter … the evidence of what happened when builder came to do the adaptation that [the aunt] sabotaged the attempt to put in handrails and therefore her assessment could not be progressed.”

Certain findings were made, having heard the evidence as to whether the aunt had ‘sabotaged’ the assessment being able to take place in the mother’s home, and whether she was in a position to provide care to the child.  At final hearing a Care Order was made, the appeal immediately lodged, and a stay granted whilst the appeal was dealt with.

The Court of Appeal dismissed the majority of the appellant’s grounds, without difficulty. They were clearly matters which the Judge had heard evidence on, and that the Judge had assessed the evidence and made perfectly proper conclusions.

31. That takes me on to the second of Ms Phil-Ebosie’s complaints, which goes to what are said to be various errors on the part of Judge Coates in relation to the aunt’s assessment. It is said, first, that Judge Coates failed to consider whether the assessment she directed on 16 March 2012 was compliant with the 2010 Act; second, that she was wrong to find that the aunt had sabotaged that assessment; third, that she failed to appreciate that, in the absence of such an assessment, she lacked sufficient evidence to reach a decision that the aunt could not care for T; and, fourth, that she was wrong to refuse to permit a risk assessment of the aunt in the light of the outcome of the fact-finding hearing. In short, it is said, Judge Coates should not have proceeded to a final determination of the care proceedings without first directing further assessment of the aunt. The aunt, says Ms Phil-Ebosie, has not been properly assessed.

32. In my judgment there is no even arguable merit in any of these complaints.

….

35. The two final parts of this complaint are linked, since both assert that Judge Coates’s determination of the care proceedings was premature, given the need, so it is said, for further assessment of the aunt. There is, in my judgment, no arguable basis of challenge on either point. It was for Judge Coates, as the judge managing the litigation and conducting the final hearing, to determine what assessments were going to be needed for that hearing and then, if the point arose again during the final hearing, to satisfy herself that she had all the evidence she needed – all the assessments she needed – to determine the issues fairly, justly and in accordance with the law. That is an evaluative task that the law imposes on the case management judge. Indeed, it is an absolutely central task of the case management judge, for it may well determine the shape of the final hearing. But this court can intervene only in limited and well recognised circumstances: only if (I put the matter generally) the judge has erred in law or in principle, has denied the applicant a fair trial or has come to a decision that is “plainly wrong”. In my judgment, there is simply no arguable basis for any such complaint here. This was the decision of a very experienced judge who had available to her, moreover, a mass of expert evidence, including evidence of various assessments of the aunt. I find it unsurprising that, in the circumstances she described in her judgment, Judge Coates should have concluded that further assessment was unnecessary as well as being inconsistent with T’s need for a settled placement without further delay.

36. It is essential that appellate courts do not too readily interfere with seemingly sensible and appropriate case management decisions of judges who, in the nature of things, are likely to have a much better ‘feel’ for the case than an appellate court can ever have. Those seeking to appeal such decisions must heed not only the well-known decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 1 WLR 647 but also what ought to be, but I fear is not, the equally well-known decision of the House of Lords in Piglowska v Piglowski [1999] 1 WLR 1360, and in particular the speech of Lord Hoffmann.

37. The third, and final complaint, is that Judge Coates failed to identify clearly in her judgment what the risks were of placing T in his aunt’s care and why those risks could not be managed without his removal from her care, just as she failed, it is said, to identify which of T’s emotional and other needs the aunt could not meet. For her part, Ms Lee submitted that Judge Coates also erred in giving insufficient consideration to the impact on T of separation from the birth family at this stage in his life and provided insufficient grounds to justify approving the plan for adoption. I do not agree. The judgment more than adequately explains Judge Coates’s concerns and the basis of her decision. There is, in my judgment, no arguable basis for any complaint that Judge Coates erred in her evaluation of the relevant factors or that she failed adequately to explain her reasoning. Were this court to interfere here it would be doing the very thing that Lord Hoffmann has emphasised it must not.

It is always pleasing to this writer to see the Court of Appeal honestly and rigorously applying the principles of Piglowska and G v G, which sometimes (in my humble opinion) are given lip-service before the appellant Court replace a Judge’s conclusions with their own.

The Court of Appeal were with the appellant on one point :-

29. The first alleges breaches of various duties arising under the Equality Act 2010. It is common ground that the aunt is disabled within the meaning of section 6 of the Act. What is said is that the local authority was in breach of its duties under sections 20, 29 and 149 of the Act. The facts relied on are common to all three alleged breaches: the aunt’s complaint as spelt out by Ms Phil-Ebosie in her skeleton argument is that “the local authority refused to assess her capacity to care for T at her own home”, despite it being adapted for her needs, and “asked [her] to undertake a capability assessment at a venue” – the mother’s house – “that had not been adapted to her needs.” The proposed installation of handrails at the mother’s house was, she says, a “token gesture”, given that the aunt’s house is fully adapted with a range of equipment to assist her everyday life.

30. This is, in my judgment, quite unarguable as a ground of challenge to Judge Coates’s order. I am not concerned with, as it were, a challenge by way of judicial review to some decision of the local authority. The matter before me is a challenge to the order made by Judge Coates on 9 October 2012. Moreover, the factual premise which underlies this ground of complaint is simply wrong. It was Judge Coates, exercising her judicial discretion in the context of the pending care proceedings, and not the local authority, who decided both where the assessment was to take place and what adaptations to the mother’s house were required. So the challenge, if there is to be one, must be to Judge Coates’s decision.

The Court of Appeal then looked at whether that case management decision was appropriate, and whether the challenge stood up to closer scrutiny.

33. Judge Coates was plainly justified in finding that the necessary assessment was, from T’s point of view, better conducted away from the maternal grand-mother’s somewhat dysfunctional household and on territory that was more familiar to him. Judge Coates was aware of the need to accommodate the aunt’s disability and did so, in what seemed to her, having heard argument, to be the appropriate way, by directing the fitting of handrails. Even if more was sought by way of alteration to the mother’s house (and it is far from clear it was) there is, in my judgment, no sensible basis of challenge to the order which Judge Coates made on 16 March 2012 – an order which, it is to be noted, was neither challenged at the time nor subsequently. Moreover, it is apparent that the detailed arguments under the 2010 Act which the aunt now seeks to put forward were deployed for the first time at the hearing before me on 12 October 2012. I do not criticise Ms Phil-Ebosie but this is no way in which to conduct care proceedings. As Mr Smith put it, and I entirely agree, it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.

34. The finding that the aunt had sabotaged the assessment was a finding on a matter of fact on which Judge Coates heard evidence. Judge Coates was ideally placed to evaluate the evidence, including in particular the evidence of the aunt, and was plainly entitled to find as she did. This finding of fact is unassailable.

The Appeal was therefore refused.

The key issues from the case for practitioners are therefore that arguments about Equality Act issues have to be deployed when the case is being argued and before the decision is made, if they are to give winnable grounds for an appeal. Second, that if a case management decision is made that fundamentally devastates your case, you need to consider the appeal at that point and not wait for the final hearing for orders to be made on the foundations laid down at that interlocutory hearing.   And more broadly, that you can’t reserve your best arguments for the Appeal process, you have to lay them out before the Judge determining the case.