Nothing else will do? A head-scratcher

 
The Court of Appeal’s decision in Re W (Children) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed134050

This was an appeal by the mother in relation to the Judge’s decision to make Care and Placement Orders in relation to the youngest three children of a sibling group of nine.

As we all know, the Court can’t make those orders (post Re B and Re B-S) unless satisfied that “nothing else will do”.

This appeal was refused, and leaves me scratching my head about what is actually meant any more by “nothing else will do”
The nub of this appeal was really that the children’s existing foster carers would consider putting themselves forward to permanently care for the children. That might be either as adopters or as Special Guardians.

The mother had been asking for the Court to adjourn the hearing, to have an assessment of those foster carers as Special Guardians.

That application was refused and the Court had gone on to make Placement Orders.

Now, the critical thing here for Re B-S and “nothing else will do” is that here there is a valid and viable placement option – placement with the current carers as Special Guardians, which would not have been expressly considered within the social worker’s Re B-S analysis, and which is an option which would have to be explicitly ruled out by the Court in order to say that “nothing else but adoption would do”

[There was, I am sure, an argument that even if these carers were to care for the children that it should be under Adoption rather than Special Guardianship, but the Re B-S formulation suggests that the Court isn’t looking at whether adoption is BETTER than the other options or has advantages or lacks the disadvantages of the alternatives, but that each of the other realistic options is ruled out. It has never been really clear to what standard the Court is supposed to be ruling them out – but “nothing else will do” is NOT the same as “nothing else is quite as good as adoption”]

The other complication here is that the Guardian, in written evidence, was AGAINST the making of Placement Orders and in support of the current carers caring for the children permanently. It appears that the Guardian shifted their position during the final hearing (and by shifted, I mean “did a reverse ferret” )

“Following discussions with the Local Authority, an amendment to the care plan has been proposed which provides for the Local Authority to assess the foster carers as adopters. The guardian was clear that even if these foster carers are not approved as adopters and if it means that D has to be separated from G and M, he still considered, following his analysis, that adoption was the right and only option available for these children.”

24. That summary of the guardian’s position is of note because it is in apparent contrast to the guardian’s position in writing as recently as 12 January 2014, a week or so before the hearing commenced, having summarised the position of the children and the three younger children and in particular highlighted the priority that the guardian gave to the benefit achieved from their current foster home.

25. The guardian says this at paragraph 62:

“That opinion, therefore, is, at this time, not to support the placement order application of the Local Authority naming D, G and M. The current foster carers are willing to care for all three children in the long term and have been seen as very capable of meeting the children’s needs to date.”

26. Then in his recommendations, the guardian is express. He says:

“I recommend that the court does not make a placement order on naming D, G and M. However, I reserve the right to change this position until after I have heard the evidence and opinions of Dr Butler and she having read this, my final report.”
Dr Butler, the child and adolescent psychiatrist who had reported in the case, had provided a very clear written report on the issue of whether the children could be placed at home with mother, but had not got into the merits of the various other forms of ORDER.

It seems that Dr Butler had been asked about this in oral evidence.

19. The judge then concluded her summary of Dr Butler’s evidence with respect to the younger three children in the second part of paragraph 29 where the judgment says this:

“As far as D, G and M are concerned, Dr Butler thought it would be helpful if they could stay in their current placement. She would be concerned about separating them for adoption. She said that they have survived as a sibling group. They all need therapeutic work some form of play therapy. She was clear in her oral evidence that only adoption would give them the stability they need.”

20. All, save the last sentence, of that quotation is a almost direct lift word for word from the concluding paragraphs of Dr Butler’s report. The key sentence for the context of this appeal is the last one where the judge records the doctor as being clear in her oral evidence that “only adoption” would give the children the stability that they need.

21. Dr Butler’s report, whilst analysing the children’s position very clearly, does not actually descend to an opinion one way or the other on the issue of adoption or long term fostering or some other form of placement. All we have in this court in terms of the evidence of Dr Butler on this point is, firstly, this sentence in the judge’s judgment and, secondly, a copy of counsel for the Local Authority’s handwritten notes taken during the hearing which in particular obviously does not include any question and answer record of counsel’s own cross examination of the doctor.
So, going into the hearing, in their written evidence, both the Guardian and Dr Butler were saying that the best thing for the children would be to remain in their current placement. (But in oral evidence, although the details are sparse, both said adoption was the right thing for the children, although the reasoning is not very well set out and the Judge largely bases the conclusions on the position of those two witnesses)

The mother was saying that if they could not come back to her, she would want the children to remain in their current placement – she would prefer any form of order other than adoption. If there HAD to be adoption, she would want it to be with the current carers, rather than with strangers.

The Local Authority position was that there should be adoption – they would do an assessment of the current carers but only as adopters – if they were approved as adopters that would be Plan A. But if they were not approved as adopters, Plan B would be to find other adopters NOT to look at different orders that would allow the children to stay with those carers.
Now, there might be a raft of reasons why the Judge eventually preferred the evidence of the Local Authority and decided that this really was a case where “nothing else would do” other than adoption, but if that’s the case there needs to be some very heavy lifting done in the judgment.

It is a shame, therefore, that the Court of Appeal have to say this about the judgment

31. Some time ago I indicated the narrow focus of this appeal and the concern expressed by my Lord Jackson LJ in granting permission to appeal. The concern is one that, on the papers, I share. It arises from the difficulty that any reader of the judgment has in understanding two matters. First of all, what it was that Dr Butler and, in turn, the children’s guardian said in oral evidence which justified, in Dr Butler’s case, at least a clarification of her view that adoption was the only option and, in the guardian’s case, a change from his position of not supporting the placement applications to holding that in any circumstances adoption was the only order for these children. The second related difficulty that any reader of the judgment has is understanding what it was that the judge thought about these matters as leading in her view to making these final orders, particularly in the context of the outstanding, albeit recently identified, need to assess the foster carers. Rhetorically, the question is asked: why was it necessary to make the final orders on this occasion?
When you look at some of the successful appeals in relation to Placement Orders (I think particularly of the one where both parents were in prison at the time the orders were made), this case looks to have successful appeal written all over it. If you read the judgment and can’t see how the Judge reached the conclusions at the end, then post Re B-S, that’s the sort of judgment that gets overturned. Or rather, it WAS.

There was an option before the Court that was substantially less draconian than adoption by strangers, and to rule out that option would surely have needed rigorous analysis.

Instead, the Court at first instance seemed to have placed very heavy emphasis on adoption being the only form of order that would prevent the mother disrupting the placement.

[It MIGHT be that this was a mother who had been going to the foster home, being undermining and abusive, making phone calls or sending letters – that isn’t set out in the extracts of the judgment that we have been given in this report though, and surely it would be. So we can discount that as a possibility. There MIGHT be circumstances where the risk of mother disrupting a long-term foster placement or Special Guardianship Order with these carers was simply unmanageable, but it would need to be spelled out why the Court couldn’t control this with all of the legal remedies (s91(14) orders, non-molestation orders) at its disposal]
In any event, there seems very little weighing up of the proportionality issue and that the Court should be looking for the least interventionist form of order where possible. Unless the risk of disruption was so high and utterly unmanageable, that’s a feature of adoption which is beneficial or advantageous to be put into the balancing exercise, not a determinative factor, surely?
42. If the judge’s judgment were the only material available, it is a document upon which it is hard to rely in terms of gaining any detail as to what it was that Dr Butler said about adoption and why it was that the guardian changed his opinion. The court has made efforts to try and obtain transcripts, but they have come to nothing. The note of counsel takes matters so far, but does not provide in anyway a total answer. Yet the appeal has to be determined. In particular, there is now a pressing need for the appeal to be determined because of the prospect of the children being matched, if the appeal is unsuccessful, with these prospective adopters. I considered countenancing an adjournment to obtain a transcript, but to my mind, that is not necessary.

To be honest, I had always considered that this was the real thrust of Re B-S and the successful appeals that followed – that the Court of Appeal looks at the judgment and if the reason for making the orders is not robust and rigorous within the document, then the judgment is wrong.
In this case, the judgment sets out that the Judge agreed with the Guardian and expert that nothing else but adoption would do, but doesn’t set out WHY either of those witnesses reach that conclusion (particularly since the Guardian was saying something different in writing), or WHY the Judge agreed. The Court of Appeal, for reasons that aren’t plain to me, decided that was okay.

This appears to me to be the strongest appeal since Re B-S was decided, but although many rather flimsy appeals have been granted, this one has been refused.

The reasoning appears to be that although the judgment as delivered is somewhat sparse, the parties did not invite the Judge to fill in the gaps. (that’s not something that was mooted in the flimsier successful appeals)

45. So while it does seem to me that although this court lacks the precise detail of the actual words used by these two key witnesses, we are entitled to take as the baseline the judge’s summary of what was said. It is absolutely clear in the terms that I have described. So having gone into the matter in more detail than was possible on the occasion that my Lord considered the permission application, I am satisfied that the judge must have had the clear professional oral evidence in the terms that she has summarised, which, in turn, enabled her to consider the options for these three children.

46. I therefore turn to the lack of reasons given in the judgment. This court has from time to time had to consider the absence or submitted absence of full judicial reasoning in cases across the civil justice spectrum, but perhaps particularly in the context of family justice.
47. There are a number of relevant authorities, but the most convenient is that of Re: B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, the decision of this court presided over by Thorpe LJ and Bodey J in 2003. They had the benefit of a judgment given one year earlier by my Lady Arden LJ in the case of Re: T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736. In the course of that judgment, my Lady considered the applicability of the ordinary civil authority English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to family cases. My Lady held that there was no distinction to be drawn on the question of principle as to the need for the requests to be made to judges at first instance to amplify their reasons in family cases just as in civil cases.

48. The law report is available to all. I do not intend to lengthen this judgment by repeating what my Lady said in Re: T, save to quote from paragraph 41 to this extent. My Lady said this:

“It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”

49. That approach was unsurprisingly endorsed by Thorpe LJ in the course of his judgment in the later case of Re: B. He in turn at paragraph 11 said this:

“No doubt I have hesitated as to how best to respond to these submissions. I regard a number of the criticisms of the judgment as ignoring the seniority and experience of this judge. No doubt a judge recently appointed or only recently inducted to public law would not reach the milestones and signposts to ensure that no essential stage of the process is overlooked or truncated… But there is a huge virtue in brevity in of judgment… The more experienced the judge, the more likely it is that he may display the virtue of brevity. Certainly it is not incumbent upon the judge to adopt some formula of a judgment or simply to parrot statutory provisions. For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions?”

50. The judge in this case, as I have described in the quotations from her judgment that I have set out, gives short reasons and, in effect, identifies her reasoning as being at one with that of Dr Butler and the children’s guardian.

51. They in turn conclude that the only option is adoption. If a true reasons challenge was to be mounted in relation to this judgment, the proper course to be adopted would have been to go back to the judge at the permission to appeal stage before the first instance judge, which I do not think was undertaken in this case, and to raise the reasons challenge and to invite the judge to enlarge upon the reasons that she has given. That simply was not a step that was taken here. Insofar as the mother was a litigant in person, she is not to be criticised for that, but the reality is that step was not taken. It was not taken at a later stage when, for a time, the mother had the benefit of some legal representation.

Re W makes it even more difficult than it already was (and it was already extremely difficult) to hazard a guess at how the Court of Appeal will decide any appeal on a Placement Order. Which in turn makes it even harder for the Court at first instance to know what the Court of Appeal expect to see in a bullet-proof judgment. And harder for advocates to advise their clients on the merits of an appeal and prospects of success.

I think that there MIGHT be cases where the Court could reject a plan of long-term fostering or Special Guardianship with the current carers and decide that “nothing else but adoption will do” – it will depend heavily on the circumstances of the case. But it is clearly a considerably difficult hurdle to surmount and the judgment would need to reflect the rigorous and robust analysis of why the current carers are not an option, and the judgment would need to be cogent as to the reasons for that decision.

Correction – the last sentence there is how I would have IMAGINED the law to be, but post Re W, who knows any more?

I am slightly surprised (to put it mildly) that the appeal did not dwell more on the judicial refusal of the application for an adjournment in light of Re MF – finding out whether these carers could keep these children seems to me to be a piece of information whose absence does prevent the Court from resolving the proceedings justly and that the adjournment was necessary.

The Court of Appeal simply say this (in effect – because the Judge was in favour of adoption, it wasn’t a piece of information that the Judge needed. Again, scratching my head on that one)
64. The judge in the present case was plain that the expert and professional evidence was to the effect that only adoption would do for these three children. That was also the judge’s conclusion. Therefore, in my view, as a matter of structure and of law it would not have been open to the judge to contemplate the court carrying on to oversee the assessment process of the foster carers if a placement for adoption order was to be granted at the end of the day.

65. The working out of the plan for the assessment of the foster carers and the development of an alternative plan if they were not acceptable as long term carers for the children were matters and should be matters for the Local Authority under the placement for adoption order and the care order and not for the court. So as a matter of structure, I am not persuaded by Ms Jones’ submissions.

66. In any event, we would only be able to intervene and overturn the judge’s conclusion on this point if we were satisfied that the judge was “wrong” and that she had acted in a disproportionate manner in making a placement for adoption order at this stage without proper regard to the Article 8 rights of the children, which may well include the relationship they have with the current foster carers. It simply is not open, in my view, to the mother in this case to sustain that submission.

67. The evidence before the judge was that adoption was what was required. It was necessary to take a decision at that stage partly to avoid delay, but partly to achieve clarity. On the evidence before the judge which she accepted, no other outcome other than the adoption of these children was justified unless that could not be achieved. Therefore, there was no benefit for the children in holding back from making a final order at that stage. It was the only tenable outcome of the case on the evidence and on the findings of the judge. So even within the compass of the appeal as it was on paper before my Lord when he gave permission and this court before we had the extra information from the Local Authority, I would refuse the appeal on that basis.

As more general practice for appeals, the Court of Appeal put down this marker about transcripts of evidence
70. I wish to add brief comments on one procedural issue. From time to time when this court grants permission to appeal, it directs that the evidence of a particular witness be obtained. If the appeal concerns the adoption of children, it is by definition an urgent matter and the hearing will be listed at an early date. Indeed, as here, the court granting permission to appeal may direct an expedited hearing.

71. In such a case, the parties must use their best endeavours to obtain any transcript of evidence which is required as soon as possible. If, as here, the transcript cannot be obtained in time, then solicitors and counsel should co operate in producing a composite note of the relevant evidence.

72. That did not happen in this case. Instead, part way through the hearing today, counsel for the Local Authority stood up and informed us that she had a note of the evidence given by Dr Butler and the guardian. In those circumstances, the hearing was adjourned for 40 minutes so that counsel’s note could be photocopied and considered by all present. I say at once that counsel’s note of the evidence is clear and extremely helpful, although it does not include her cross examination of the two witnesses. I am grateful for the copy of that note which we have received.

73. Nevertheless, in any future case where a necessary transcript of evidence is not obtained in time for the hearing, then any available notes of the relevant evidence must be circulated in advance to all parties and the court. That will avoid any risk of ambush. Also, it will avoid the need for an adjournment in the middle of the hearing of the appeal.

So, just as the President has shown us in Re X that “must” in a statute means “ah, just ignore that bit”,  the Court of Appeal have now shown us that when they said in Re B-S that “nothing” else will do, they didn’t mean that a possible placement with existing carers under an SGO or long-term fostering could be SOMETHING else that might do. They meant an entirely different kind of nothing.

This wouldn’t be  teh interwebs if I didn’t use that as an excuse for the Inigo Montoya meme.

No, I am NOT the Red Viper of Dorne