I know… it is like autumn 2013 but in reverse. It would be nice, once in a while if the Court of Appeal would grant some appeals and refuse others, rather than having six months of granting them all and then six months of refusing them all.
At the moment, these appeals are like turning up to play 5-a-side football with your mates, and Christiano Ronaldo turns up as one of the ten.
It isn’t that hard to predict the outcome and if you are on the other side, it is a lot of hard work for not much reward. Even worse if you turn up thinking he’s going to be on your team, only to find out that the rules changed to put him on the other side whilst you were travelling to the match.
Re P (A child) 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/1648.html
Nothing much in this one about the legal test and the ongoing debate about whether when the Supreme Court and Court of Appeal say “You’ve got to do A, B, C and D if you are going to make a Placement Order” that amounts to a change in law or not.
But some things of interest.
The difficulty for a real human being (we lawyers call them “lay persons”, but “person” is also an acceptable term to use for a person) in understanding the appeal process and what to do, what form to fill out, where to send papers, who to send them to
This case yet again puts into sharp relief the difficulties which arise for the courts, the litigants and most of all the children, where unrepresented parents seek to navigate their way through a system which necessarily operates on the basis of detailed procedural rules, without which there would be chaos but which inevitably present the layman with significant difficulties. Had the father been represented, the mistakes that followed, would have been picked up by his solicitors.
The Court of Appeal explain that in this case, the father had thought he could appeal to the County Court, and the County Court had also thought that for quite a while because the Recorder who heard the case had also been sitting at that Court as a District Judge. Their explanation for this is so complicated, I had to read it three times to grasp it, so I feel for all involved.
Then the age old difficulty of getting a transcript
Meanwhile, notwithstanding that the county court had asserted that a transcript of judgment had been sent to the parties in December 2013, it was not until the 11 July 2014 that the local authority received a copy, and even then they obtained it only because counsel for the father sent it to them. Unhappily, whatever defect in the system for the obtaining and distribution of transcripts had been responsible for the delay in the onward transmission of the Recorder’s judgment did not lead to a revision of those systems as there were further significant difficulties with regard to obtaining transcripts. It is not being suggested that the resulting delays were the result of indifference on the part of the court staff. No doubt the problems stem from a lack resources leading to a shortage of appropriately trained and experienced court staff able to identify the problem and put in place a system for ensuring the prompt and efficient ordering and distribution of transcripts of judgments and evidence.
The County Court actually wrote a letter of apology to the father in this case for all of the things that had gone wrong. That’s a fairly rare occurance (in twenty years of practice, I’ve never heard of the Court apologising to anyone)
As I understand it the father has received two letters of apology from the County Court for the mistakes which led to the wholly unacceptable delay in this matter coming before the court; a delay unacceptable for the father, but also for the prospective adopters. Whilst the father was obviously distressed during the course of the hearing, he behaved with dignity and composure throughout. It will inevitably be hard for him to accept that the outcome of this appeal, and the making of the adoption order which will in due course be made in respect of S, are not a direct result of an inadequate judgment and delay within the family justice system. I can only assure him that it is not so; Mr Hayes put forward every possible argument to convince the court that the case should be remitted, but even his skill and tenacity could not undermine the fact that upon close analysis of the findings and assessments available to the court at the time of the hearing, the making of a care order and placement order in respect of S was the inevitable outcome.
In this case, the appeal was based on the judgment not being sufficiently clear about what basis various options had been discounted to arrive at adoption – one might think from reading Re B-S that when they said THIS
41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent  EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child)  EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):
“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”
She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”
42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.
that they meant that a judgment ought to grapple with the factors at play and give proper focussed attention for the specifics.
The Court of Appeal had been taking a very hard line on this, but seem to have softened their approach and are prepared to look at the totality of the judgment and the evidence heard by the Judge (which was not the case in the low-watermark case where the parents had both been in prison at the time of the Placement Order and the appeal was granted)
- One of the difficulties where a judgment lacks structure and fails to present the reader with a clear analysis of the evidence, its application to the law and thereafter of its cross check with Convention rights, is that a reviewing court is not only presented with a formidable task in determining whether the decision reached by the judge was wrong, but it potentially leaves a litigant, (often a parent destined as a consequence of that judgment to have their parental tie severed), with a sense of unfairness, even where there is no question of his or her Article 6 rights having been compromised.
- At first blush it appeared that the deficiencies in the judgment with which this court is concerned were such that, no matter what further delay was occasioned in determining S’s future, the appeal must be allowed and the matter remitted for rehearing. The process of determining whether the essentials can in fact be found within the judgment and the evidence has been immeasurably assisted by the careful analysis of Miss Morgan QC, through which it has become clear to the court that notwithstanding the difficulties inherent in the judgment:
i) All the material necessary for a proper determination of the case was before the judge and tested in cross examination.ii) That, whilst the finding in relation to developmental delay cannot stand, there were nevertheless more than adequate findings to allow the threshold criteria to be satisfied and therefore the court to proceed to consider what, if any order, should be made.
iii) The father was assessed by both the Guardian and the social worker as to his ability to care for S. The judge was entitled, having heard the evidence, which included oral evidence from the father, to accept the recommendation of the Guardian and indeed, if a court decides not to follow the recommendation of the Guardian, it should give its reasons for failing to do so. (Re J  2 FCR 44)
iv) The evidence before the judge addressed the available options and the judge took into account the father’s strengths as well as weaknesses. The Recorder gave his reasons for concluding that it was not in the best interests of S to be rehabilitated to her father.
v) Whilst the judge failed to state in terms that he made a care order before moving on to consider the placement order application, it was implicit that, having determined that the child could not return to the only parent who was a realistic option, a care order would follow. The conditions necessary for the making of a care order were undoubtedly made out.
vi) The care plan was for adoption. The necessary information was available to the judge for the welfare analysis within the extended assessment of the Children’s Guardian. The Recorder noted the exceptionality of the order sought and said that the making of such an order was ‘necessary’. Even though the case was heard before Re B-S the Recorder took into account the importance of the order for adoption being ‘proportionate’ and importantly, that it is not enough to say that “it would be better for the child to be adopted than to live with his natural parents”
vii) This was a little girl who had just turned 2 at the time the orders were made in circumstances where there was no one within the extended family who could appropriately offer her a home. Once the court had concluded that it was not in her best interests to be returned to the care of either parent then, given her age and need for a secure, stable and permanent home, it could not be regarded as wrong for the judge who had heard the case to conclude that her welfare required an adoption order to be made.
- Pieced together in this way, I conclude that the Recorder did engage with the essence of the case and that his judgment contained the essential ingredients necessary for there to be a proper determination of the issues which determination also respected the Convention rights of all the parties