Jude the Apostle versus Sybil Fawlty

The Court of Appeal decision in Re T (a child) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed130924

Jude the Apostle is of course, the patron saint of lost causes, and Sybil Fawlty (wife to Basil) had as her Mastermind Specialist Subject “The bleeding obvious”. This was an utterly hopeless case, that succeeded on appeal.

The original decision in Re T was that a child, who was 6 months old at the time (and is now 18 months old), should be subject to a Care Order and Placement Order. The parents, at that time, were two months into prison sentences; as a result of a drunken incident involving wounding and ABH. The mother had been given a five year prison sentence, and the father a two year prison sentence.

The Judge, decided that neither parent was in a position to care for the child and that the child could not wait for them to be able to do so.

This is what the trial judge had to say about the various options (this being a judgment given in July 2013 – at around the time that the huge volumes of new case law were emerging like lava from the Court of Appeal)

“There are no other family members who are ready, willing or able to look after M, and, in the enforced absence of the parents, there is simply no realistic alternative to the local authority’s plan, supported as it is, I should say, by the children’s guardian. I am afraid that the parents’ case is unrealistic and it is uncertain. It inevitably involves delay and M would have to be kept waiting on the possibility that a combination of circumstances might somehow come about whereby at the age of approaching three he could be brought up at home by his parents. I am satisfied that the local authority’s intervention was necessary, was unavoidable, because there simply was no alternative and its plan for M is in the circumstances proportionate. The threshold is manifestly crossed. A care order is the only order that will safeguard and promote M’s well being, and approving of the care plan as one of adoption I dispense with the consent of the mother and the father on the basis that M’s welfare requires me so to do, and that will enable a search to begin for an adoptive placement. So I make orders as asked and those are my reasons for doing so.”

It obviously isn’t a Re B-S analysis, but for goodness sake, the parents were just beginning prison sentences. What value is there in setting out the manifold benefits of the child being placed with mother when she was going to be locked up for the next 2 ½ years of this child’s life? What’s the point in weighing up whether the child can wait for the sentence to be finished when the Government has decided that cases should be finished in 26 weeks?

Well, the Court of Appeal didn’t see it that way.

18. The judge dwells upon, rightly, the choppy water that would be encountered by M over the coming months and probably year or so were he to have to wait for his parents to complete their prison sentences and be assessed and be seen to be able to provide full, stable, secure care for him in the community. All of those negatives were rightly in the judge’s mind. He also had the positives of the potential for the parents to care. He also, as Ms Anna Fox, counsel for the guardian before us has indicated, had in mind the “elephant in the room” as she referred to it. That is a reference to the fact that the case was not actually about the potential for the parents to deliver day to day to care to their baby; it was about whether they could by relied upon to live quietly, soberly, safely, boringly, in the community with him and not engage in volatile, unpredictable, highly violent, behaviour in the future and lay themselves open not only to injury but also to the potential of being taken out of the community and once more returned to prison. And the judge was aware of that aspect of the case.

19. But nowhere at all in the judgment does the judge look at adoption as an option for the child. Plainly at this age, M would have been said to be readily adoptable, and we are told that after the hearing the local authority were able to identify a match for him and the case was ready to go to an adoption panel meeting to approve that match in January 2014. But the big issue in the case was whether life with the parents was going to be so detrimental, so harmful, that it was necessary to remove him from all of that; remove him from any ongoing relationship with his parents and with his kith and kin. At no stage, it seems to me, does the judge indicate in what he says that he has grappled with that. He does use the phrase that he is satisfied that the local authority’s intervention was “necessary, was unavoidable, … and that there was no alternative”. And he indicates that the plan was “proportionate”. But those are labels and are only going to indicate that the judge actually has grappled with the factual circumstances that underlie them if he has demonstrated, at least shortly in these pre Re B S days, that he has in fact undertaken that exercise.

20. I am not satisfied that he has and I am of the view that, because of the words he uses, he failed to undertake the necessary balancing exercise on this occasion. The result therefore is in my view that the appeal has to succeed and that the order should be set aside.

It begins to feel to me that we lawyers are riding a horse where someone else is holding the reins, and that the people holding the reins are steering in two different directions. On the one hand, the Act is telling us that cases should be concluded in 26 weeks and that delay is bad for children, and on the other that a Judge is actually supposed to genuinely contemplate that a 6 month old baby should wait for his parents to come out of a prison sentence that they have only just begun. [This sensation is exacerbated by the Court of Appeal decision on s32(5) adjournments which I’ve read today and which should be made public soon]

The Court of Appeal do express some concern about the fact that this appeal took A YEAR to resolve. A YEAR. Two thirds of this child’s life have been in limbo.

And why is that?   (If you work for a Local Authority, you are about to guess that the Court of Appeal is going to (a) blame the LA and (b) impose some new chore/expense on us, and you are right)

22. Before leaving this judgment I wish to say something, albeit briefly, about the appalling delay that has been visited upon this case between the notice of appeal being issued on 14 October 2013 and this hearing coming on before us on 4 June 2014. There are difficulties in the system as a whole in obtaining transcripts of judgments. It is, I suspect, obvious that for any appellant process to be effective, the judges of the Court of Appeal, and indeed if they are circuit judges hearing appeals from lower courts, can only function by having an accurate record of what was said in the judgment of the lower court. It is impossible even, in my view, to evaluate whether permission to appeal should be given without an accurate note, if not a full transcript, of what took place.

23. Delay is all too often encountered in cases across the board for the civil division of the Court of Appeal. In a case involving the welfare of children, particularly a baby such as M, who is facing either carrying on on the road towards adoption if the order is upheld or being the subject of a different course of action, any delay, even if it is measured as a matter of weeks or a month, is to be avoided.

24. In the current climate, where the entirety of a care case is now, as a matter of statute law, to be undertaken from beginning to end in 26 weeks, an appeal process which lasts 10 months, is plainly entirely contrary to the interests of the child let alone the other parties and the system.

25. I have enquired about what occurred or did not occur in the present case, and a problem seems to be that this mother is a litigant in person, and she is not to be criticised for this, was sent a form requiring her to apply for a transcript of the judgment to be provided at public expense. She, for whatever reason, either did not receive the form or did not return to promptly, or did not understand its significance. A chasing letter was sent to her in December 2013 and the transcript was only ordered by the Court of Appeal office on 22 January 2014 (3 months after the appeal was lodged).

26. The facts of this case are stark. They are outside the ordinary: the mother, a litigant in person, was serving a 5 year prison sentence. It is to my eyes obvious that she would require public funding to pay for the provision of a transcript. In any event, in the ordinary course of a case where a litigant in person is at liberty, the need to process that request has to be given the upmost priority. Where a local authority, as here is the case, have a pressing interest in the appeal process being resolved one way or the other promptly, there is an argument for the local authority being asked to consider paying for the transcript of the judgment. In this case, months and months went by before the court eventually received a transcript which runs to three pages. The local authority would have known that it was a very short judgment and the whole delay in this particular case might have been avoided by an early pragmatic step such as the one I have described. Thereafter, following the request for the transcript in January 2014, the transcript was not received until 1 April 2014 (a further delay therefore of 10 weeks). It seems that delay on the account I have been given, without having had any recourse to an account from the local county court, occurred because of difficulties in communicating with the local county court and obtaining their cooperation in obtaining the transcript. It is a sorry story but, more than that, it is totally unacceptable, and I am going to invite those responsible for the system here and, at local level, the designated family judges to do all that they can to ensure that transcripts of judgments in cases such as these are obtained with the utmost speed so that a view can be taken promptly on the merits of any potential appeal.

27. But with those remarks, as it were, on the side, in my view, the outcome of this appeal is that the appeal must be allowed and the placement order should be set aside. Nobody seeks to appeal the final care order in this case. The matter will have to be remitted to a circuit judge at Liverpool County Court other than HHJ Dodds. For my part, I would invite the parties, if my Lords agree that this is the outcome of the case, to spend some short time now at court this morning drawing up a tight timetable for the steps that now need to be taken before the case can come for a case management hearing before the new judge at the earliest opportunity, either in next week or very early in the following week.

You will remember that the Court of Appeal have already decided that Local Authorities have to prepare a bundle in appeal cases that they did not bring, to save litigants in person doing it, and now it is their job to obtain and pay for a transcript as well.