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We’re going to need a bigger bundle”

 

The Court of Appeal decision in Re W (A child) v Neath Port Talbot Council 2013

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1227.html

 

You may recall all of the President’s guidance recently about how bundles in care proceedings were going to become lean, mean fighting machines, stripped of all excess information like a formula one racing car; well that took a bit of a hit with Re B-S, which required that Local Authorities and Guardians unpackage all of the concepts that were traditionally contained in shorthand phrases and lay them out for inspection, not only in general but in application to the particular child in the case, and now Neath Port Talbot expands final evidence even further.

 

The Court of Appeal lead judgment is given by Ryder LJ, but the chilling /delightful bit  (depending on which side of the fence you sit on) is from the very small judgment from the President

I agree with the judgment given by Ryder LJ. There is nothing I can usefully add except to emphasise the importance of the principles he has set out so clearly. His judgment explains and elucidates the respective functions of the court and the local authority in care cases. It complements the recent judgment in Re B-S, which explains and elucidates what the court requires from the local authority (as well as from others) in those care cases where the plan is for adoption. The principles in these two judgments will for the future inform practice in all care cases

 

So, this isn’t going to be case-specific stuff, it is general principles.

 

The appeal itself covered three areas, and I’m largely going to concentrate on the middle one.

 

1.    A Judge who wanted to embark on a finding of fact exercise that the Local Authority and the mother didn’t seek (largely because a psychologist expert in the case urged the Judge to do so)

2.    The extent to which Local Authority final evidence should set out not only the detail of their own care plan, but the detail of how they would manage the case and what resources would be provided under the various other placement options for the child.

3.    What the Court is to do where the care plan they have in mind is not the same as the Local Authority’s care plan.

 

On point 1, which frankly bogs down in a lot of detail the other more important principles of the case; this would normally be a fascinating subject to write about, I just wish that it had arisen in a case that was confined to that issue.  It was a peculiar one, and the Judge ended up making a Care Order with a care plan that the child would be at home with mother and receiving significant support.  Neither the LA nor the mother wanted a care order, and the Judge effectively made a Care Order and endorsed a care plan that wasn’t actually placed before her.

 

The Court of Appeal felt that it WAS open to a Judge to decide what facts needed to be determined, notwithstanding that that view wasn’t shared

 

  The making of findings of fact and value judgments is not confined to those matters which a local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline to permit the local authority to withdraw proceedings and can impose upon them an order that they did not or no longer seek.

 

On point 3, the Court of Appeal spent some considerable time analysing what is to be done where the Court having heard all of the evidence and argument wants to make a Care Order with a care plan that the Local Authority do not put forward.

 

“In relativity, Matter tells Space how to curve, and Space tells Matter how to move. The Heart of Gold told Space to get knotted and parked itself neatly within the inner steel perimeter of the Chamber of Law”  – Douglas Adams

 

 

In the Children Act 1989,  the Courts tell a Local Authority what order they can have, and the Local Authority tell the Court what they will do with that order. The Court of  Appeal just effectively told Local Authorities to get knotted.  I’m paraphrasing, of course.

 

We’ve historically had authorities that show that the Court can invite the LA to change their care plan, and that LA’s should listen carefully, but nothing that settles what happens when immovable object meets irresistible force.

 

This is what the Court of Appeal say

 

  It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued. That applies equally to the High Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or Convention jurisdictions or in the Queen’s Bench Division of the High Court in the exercise of its public law jurisdiction in the Administrative Court.

  Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court. It is the court which decides the timetable for the child having regard to the welfare of that child and then the implications of that welfare timetable upon each of the interim procedural questions that it is asked to decide. It is the court which decides the timetable for proceedings. The court decides whether there are sufficient facts which if found would satisfy the threshold and provide the jurisdiction to make orders and it is the court which decides what evidence is necessary to answer the key issues and the ultimate decision, whether by directing the local authority or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on the question.

 

 

Yes, but what is the Court to ACTUALLY do? Here is Ryder LJ’s final solution, in addition to a hint on judicial review (although that begs the question of who the hell would issue a JR to make the LA’s order for a child at home a CARE order rather than a Supervision Order. I’m damn sure the parents won’t. Ryder hints that the child’s representatives might well be the ones to do so…I am not so sure about that)

 

 

The court considered the invitation to give an indication to the local authority and allow them to reconsider their position but came to the conclusion that even in a case where the child is to remain with a parent the proper administration of family justice and the detrimental effects of continuing litigation required immediate and timely action. Partnership working sometimes needs sanctions for compliance. In the unlikely event that a local authority declines to abide by a judge’s orders and directions in the future, the judge should inform the local authority’s monitoring officer appointed under section 5 of the Local Government and Housing Act 1989 to make a report to the authority with the intention that the authority is brought back into compliance.

 

Leaving aside issues of what the heck the Monitoring Officer could actually do to make the LA change their mind,  the “I’m telling on you” playground vibe to it, the  issues of conflict that this throws up (a substantial proportion of Monitoring Officers being the Head of the LA legal department) and that none of this is going to be done quickly, this seems very much to me like the Court of Appeal giving the green light to Judges who seek to impose a Care Order with a plan of the child being at home on a Local Authority who’s position is that if a Care Order is made the care plan should be that of separation.  How is this not the Court writing their own care plan, and the separation of roles being torn up?

(I happen to think that there might be very good policy reasons for changing the Act so that Courts have that power, but that’s not the way the Act is constructed. This is a power grab, of the kind that the House of Lords kicked into touch with  starred care plans.

I do wonder if Neath Port Talbot will appeal that aspect. For my mind, if a Local Authority plan is for placement with mother, then the Court can (though should do so reluctantly) impose a Care Order on them when they asked for a Supervision Order.  If the PLAN is separation, then the Court’s power is limited to inviting the LA to change their plan, making an ICO if the case warrants that, or making a Supervision Order.  It now seems to be that the Court will simply have the ability to keep the LA in after school until they agree to change their plan.

Of course, being cynical, I have suspected for a while that a consequence of the revised PLO will be more rehabilitation cases which haven’t been properly tested over time, and to avoid rafts of Supervision Orders coming back when they don’t work, the Courts would eventually shift to making Care Orders at home, something most LA’s are very apprehensive about. This paves the way for that. 

And I can see some merit in it – if the Court concludes, having done the Re B-S analysis that the risks are manageable at home, but not under a Supervision Order (say that it is obvious that the need for support won’t dissipate after a year, or even 3 years, or there is a need for the LA to share PR) then there will be circumstances in which a Care Order is the better order  – notwithstanding that the LA won’t want it, and the parents certainly won’t want it (the Care Order giving the right for the LA to remove the child without going back to Court, that’s no something you want hanging over you).  The circumstances in which a Local Authority would not take up the Court’s invitation to change a care plan are fairly limited, it is never something done lightly and is never a decision made by the social worker or manager alone – it goes very high up the chain of command. 

Anyway, on to the big bit, which fortunately can be summarised in fairly short order. Underlining is mine, for emphasis

 

101. The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations. None of this strays into the impermissible territory of seeking to bind the local authority’s care planning and review processes once a full order is made. If a local authority make it clear that they will not implement a care plan option about which evidence has been given and which the judge prefers on welfare and proportionality grounds, then in a rare case they can be subjected to challenge in the High Court within the proceedings. If and in so far as the local authority are of the opinion that they need to change a care plan option approved by the court once the proceedings are complete, they are entitled to do so and must do so in accordance with the processes laid out in the regulations. If they do so without good reason they will risk an appropriate challenge including on behalf of the child after a referral from an IRO to Cafcass or a Welsh family proceedings officer.

 

 

Thus, as well as now having to encapsulate in their final evidence an analysis of the advantages and disadvantages of each possible placement outcome available for the child, the LA have to in effect submit a care plan for each of those options

 

AND

If the Court give a judgment and ask the LA to file an updated care plan based on those evaluations, the LA must do so.

Those are the two bits that the President endorsed in his brief paragraph, and thus become applicable law to ALL cases, not restricted to this one.

Thus, having rewritten final evidence for cases to include Re B-S compliance, those statements are now going to have to be written again to make them Neath Port Talbot compliant.  And if the evidence is already lodged and the parents have responded, how Article 6 compliant is it for the LA to file such vital addendum evidence and the Court move to final hearing without the parents having had opportunity to respond?  (I suspect the 26 week target statistics are going to take a nose-dive in the interregnum period)

 

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

11 responses

  1. Another brake on Gove and Narey’s wheels

  2. So the social workers believed the mother had been abused and physically assaulted..
    Then a psychologist report states she is a liar.
    The LA turn tail and put a case for removing the child for fear of emotional harm
    The mother intended to return to a family member to care for her child as there was ‘no abuse’.
    So I felt compelled to question the following
    What proof did the social worker have for believing the mother in the first place. (Can only assume no finding of facts or police investigations).
    Why then did the social workers assume from the psychological report that the child would be of risk of emotional harm, because mother lied,
    if there was no police reports Surely the risk of sexual and physical abuse would be more important especially given the unanswered questions regarding the mothers claims.
    The mother displayed anger at the family. It states the mother has no emotional control.
    To me that indicates that abuse did take place. That the mother once making the allegations found herself caught up in child protection for her own child.
    Perhaps thats why she retracted the allegations. After all only the cunning win.

  3. Its clear that the mother did not want social services in her life. They also worked in support of the psychological report.
    At what point will a parent go to to keep her child. Perhaps the option with the lowest risk of which she could manage the risks, withdraw allegations, keep away from the others and attempt to get a near normal life until in a position to change it again for the better.
    Or the court could give the mother custody with support given the emotional instability that may have been caused by abuse.
    Or the other opinion could be that the mother is a attention seeking pathological liar who could risk the stability of the child.
    With no fact finding I would go with the mother, as pathological attention seeking liars abound in the polictical world. you have to be one to suceed. So thats not all bad.
    Added to that many social workers fall into that catagory.
    And no that is not a flippant rant.

  4. So what is the mothers crime, if the mother passed all the tests in the mother and baby unit.
    And if her allegations are true, where would the harm be by her child growing up being told not to hang around abusive people (even when in the family)
    And if untrue perhaps the mother just needs some counselling to come to terms with ‘what made her so deceitful and emotional) There has to be a reason why she is like it.
    But providing she is a loving and protective mother why should she not have her child.

  5. 1/ But what is alarming is the lack of previous fact finding into whether the mother was abused and if she was where was the counselling and support.
    2/ And why the social worker believed her without any evidence.
    3/ And why the social workers believed the psychological expert without 1 and 2

  6. I have been a stalwart for wanting to remove the Chaff from the Wheat to make the best loaf, for neigh on 4 score and ten, well, not quite that long it sure feels like I have though.

    Bundles, Bundles, Bundles. here a bundle there a bundle, everywhere a god damn bundle,

    This is not a new issue, I remember in my short shorts days when LJ Munby as he was then on the Verge of fining Local Authorities for their inaccurate bundles and late filing of documents, that was 5 years ago, I am astounded now that the bundle discussion is still a live and pressing matter,

    One would have thought that by now preparing a bundle is simple rule 101 and should be across the board identical despite regional variations, there is no need to have a thermodynamics degree to do this.

    In X & Y (Bundles), In Re [2008] EWHC 2058 (Fam)

    http://www.familylawweek.co.uk/site.aspx?i=ed25489

    This judgment of Munby J arose from his frustrations at being presented with late and inaccurate bundles. He cites two specific examples but says that these are merely two of many. His main complaints are that bundles are regularly late; badly indexed; contain material that should have been weeded out after previous hearings and do not provide a skeleton argument.

    Having set out his complaints he reiterates the sanctions available including costs orders, moving the case to the end of the list, adjourning altogether or naming and shaming offenders. In this judgment however he holds back from that final sanction as

    “It would not, in my judgment, be fair or just to expose a practitioner to this last sanction without fair public warning having been given that the sanction is available and that it may be applied in appropriate cases. I have therefore not identified anyone involved in either of the cases to which I have referred. But the professions have now been warned. Next time a defaulter may not be so lucky.”

    There are Practice Directions Regarding Bundles, Issued by the Second President of the 21st Century Sir Mark Potter in 2006, following on from what Dame Elizebeth Butler-Sloss [Who was the First President of Family Division of the 21st Century] had produced in 2000,

    Practice Direction 27 A FAMILY PROCEEDINGS : COURT BUNDLES (UNIVERSAL PRACTICE TO BE APPLIED IN ALL COURTS OTHER THAN THE FAMILY PROCEEDINGS COURT),
    http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_27a

    Universal, that’s quite a large place to be going, why do we find ourselves that now some 13 odd years later with the problem still a pressing issue,

    When changes are a foot to streamline common practice then the knights of the round table should be looking more at those on the front line and foot soldiers for the best practice, ideas and guidance and not those who sit as umpires on their high chairs crying out for juice,

    How many bundles contain a written opening from every hearing that’s ever taken place during the case proceedings, the bundle in front of me now has six!, is a written opening necessary, surely the use of an SKA is the best approach to use at the start of proceedings and stick to it rather than the plethora of Written Openings.

    A lot of the policy makers especially those in Government have no real hands on experience, there are a couple of MP’s who are/were barristers, when was the last time they were in a court defending/arguing a case as a Barrister in this modern day era of cuts slices and down right hacking at the roots?

    Then we have the Glorious Government Advisor’s, not to mention any particular name here, following comment in the aforementioned Judgment, again, without the common knowledge of what the majority of the readers of this Blog have, making pressing and somewhat damaging comments and policies are as dangerous as taking a piddle on a live railway track, sparks will inevitably fly [Viewers of Myth Busters would argue I’m wrong on that analogy].

    The Crux of the problems as expertly dissected by Mr Suesspiciousminds is ten fold, I have at the time of writing 4 Live Court of Appeal Applications pending, since June, 2 of which on a scale of 1 to 10 are 10 squarely due to the PLO 26 Wks issues,

    Where will this end, will we all have to up sticks and move to that there London Place due to the time most of us will be spending in the COA, where does it stop? with Re, B, Re. B-S, and now Re. Port Talbot, I would say that with my pending appeals those cases were not available at the time the final decisions were made however we will now possibly see an added Re. D-F and Re. W which would add more Wheat rather than Chaff, the Re. W is an appeal due to abandoned proceedings.[26 wks constraints]

    In this recent Re. Port Talbot Judgment I cast myself back to the cases of :-

    Re T (Placement Order) [2008] EWCA Civ 542 :- http://www.familylawweek.co.uk/site.aspx?i=ed1101

    Application for permission to appeal, with appeal to follow, care and placement orders. Application allowed and placement order set aside.

    Both parents had severe learning difficulties and, although the father had initially argued before the trial judge that the children could be rehabilitated, it was accepted by all that the threshold criteria were met. The social workers, guardians and experts involved agreed that the children were severely disturbed and one of them suggested in his report that the long term interest of the children might be better met through long term foster care as the children would be difficult to place for adoption. In spite of this the judge considered that making a placement order now would provide the best solution as it would give the local authority flexibility and certainty.

    Hughes LJ, however, concluded that the judge erred in this respect as the children were not yet ready to be placed for adoption: it did not necessarily follow that it was in the child’s best interests to be placed for adoption now just because it was generally thought that adoption was the best long term solution. However he rejected the argument that an interim, rather than a full, care order should have been made as it was clear that the parents could not cope and that the children would not be returned to them.

    Re. S (Minors) [2010] EWCA Civ 421 – http://www.familylawweek.co.uk/site.aspx?i=ed57731

    Application by mother for permission to appeal, with appeal to follow, order allowing removal of children to short term foster care. Application granted and appeal allowed.

    The removal arose from complex care proceedings in which there were allegations that the father subjected the mother and the children, along with another mother of his other children, to a “chaotic, abusive and dysfunctional lifestyle”, and that there was sexual abuse arising from a previous marriage. At the fact finding, in November 2009, the judge had made mild criticisms of the mother, saying that she was partly responsible for the lifestyle but was in principle able to care for her children. At the end of the hearing, she agreed to move from the matrimonial home to a refuge from which the father was prohibited from approaching. However when the local authority arrived to help her move they found a note from the father that had been left there during the hearing. The mother did not settle in the refuge, which she thought unsuitable, so, with local authority help, she moved back home on 17 December. On 23 December a hearing was listed seeking the father’s committal for breach of the various injunctions. In the court corridor before that hearing, the mother was heard to express a wish to relax the injunctions so that she could communicate with the father, though in court this attempt was dropped. In the light of these developments, the local authority sought amendment of the interim care orders and immediate removal of the children to which the judge agreed.

    In this judgment Wilson LJ reviews the events and concludes that the removal of the children was unacceptable as, among other reasons, i) no adequate notice of the proposed removal was given; ii) the grounds for the change of care plans did not indicate that the safety of the children demanded immediate separation from the mother; iii) the judge had been party to the misrepresentation that if the mother dropped her attempts to relax the injunctions her children would not be removed; iv) the care plans did not consider the issue of contact. He also comments, in the introduction, that because of the confusion over which order was under appeal, he could hear an appeal against the judgment of 23 December, under the court’s powers set out in CPD52.10(2)(a).

    Then finally there is the case of Re. H-T (AKA Re. T v Kingston-Upon-Hull) possibly 2006/2007 unfortunately that case is no longer in my box of tricks nor can I locate it on line so I cannot give a synopsis however suffice to say it is along the same lines as the ones above being debated,

    Over the years there have been many a case that has gasped us all, there are those cases we use as Lead Authorities, then we have the humdinger of cases like Re. B, Re.B-S and now Re. Port Talbot, all cause those in the professions what ever the grade to step back and ponder on the X, Y’s and Z’s,

    Once the dust has settled, the debates a plenty have been had, the ponderers have pondered, then what?, what’s the move forward, how do we stick the system into 5th gear and move its sorry backside into a system we can once again be proud of, how do we progress these situations into a way forward to reach the ultimate goal of giving Children the best quality of life from the outset, debates, arguments, Court Judgements sadly do not change the gear into 5th, I feel it more so drops gears into reverse,

    MOVING FORWARD TOGETHER IS THE ONLY OPTION AVAILABLE!

    Phew, and breath, Now lemme get this straight, You put the lime in the coconut, you drank ’em bot’ up! [hands up who is singing now]

  7. This is going to get so interesting….I had a case last year where we (la) applied for care order plan of lt foster care but it was not supported by the expert, guardian or parents. We were forced to withdraw. Guardian and expert wanted care order at home. We opted for supervision order…..still think the child will come back into care in not so distant future ;(

    Sent from my iPhone

  8. Pingback: We’re going to need a bigger bundle&rdquo...

  9. One more important issue arising from these aggregated judgements follows on from the L.A. and the Guardian setting down a forensic analysis of the pros and cons of each option available to them for disposal in the child’s particular circumstances.

    Given that we know large numbers of children have been abused whilst in the care system, after orders have been made, are L.A.s going to give cast iron guarantees in each case that children will not be further abused during their care….now that one will give you nightmares if enacted.

    • Ian, I suspect cast-iron guarantees are not going to come about – since nothing in family law ever comes with a cast-iron guarantee, but I think it is a reasonable requirement in Re G, and Re B-S that the levels of abuse in adoption and long-term fostering cases are valid pieces of information when the Court considers the disadvantages of the State’s proposals, so I expect to either see that in LA final evidence, or being sought by those representing parents.

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