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Appeal, Special Guardianship Order to a stranger

 

The Court of Appeal in Re H (a child) 2015 considered the decision from a circuit Judge, Her Honour Judge Wright, to make a Special Guardianship Order to a woman who knew the mother through church as opposed to placing the child with the father.  From the material before the Court, it appeared that the prospective Special Guardian had been observed with the child for about an hour.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/406.html

 

This case, as it deals with how to conduct the balance properly, and making it plain that all of the strictures of Re B, Re B-S et al still apply (as it involves the permanent removal of a child from a parent) makes for an interesting comparison with the Court of Appeal in Re E-R (a child) 2015   where they made it even more explicit that in private law disputes, there is no broad presumption that a natural parent is the best person to care for a child.

https://suesspiciousminds.com/2015/04/27/no-broad-presumption-in-favour-of-a-natural-parent/

 

The Court of Appeal (rightly so in this case) were critical that the PLO process had not been properly followed. These weren’t nitpicking complaints, but actually went to the heart of why the case had been decided in a flawed way and why there had to be a re-hearing.

 

There had been no continuity of judiciary, no continuity of representation, the parties had not properly identified the issues and hence the Judge had not been able to properly narrow the issues at IRH, and critically proper thought had not been given as to whether the expert in the case ought to be asked to either provide an addendum or to be called to address what was really the key issue in the case.

Could this father, having undergone therapy and developed insight, now care for this child to a ‘good enough’ standard, or did the expert’s prior report indicating that he would need to have another person alongside him to co-parent still stand?

  1. The threshold for jurisdiction described in section 31 of the Children Act 1989 was necessarily constructed on a broad basis having regard to the fact that there were issues of fact and likelihood of harm relating to both mother and to father. The local authority’s case against father was that he was not capable of caring for his daughter because of his autism, the effect of stress on him, the specialist skill required to deal with H’s chromosome disorder and the risk that he presented to H’s emotional wellbeing.
  2. The risk that it was said father presented was based in part on matters determined in the earlier proceedings and in part on new allegations. The risk was made up of (1) that which it was said flowed from an allegation that father left H in the care of her mother when the couple separated, (a risk which was mitigated by the fact that he chose to inform the local authority through the dedicated nursery workers), (2) that which arose out of the abusive relationship between the parents, the physical elements of which he denied, and (3) that which would arise if father was unable to engage with H as her primary carer. The judge held that the findings sought by the local authority which were sufficient to satisfy the threshold had been proved. There was undoubtedly ample justification for that conclusion based on the mother’s conduct alone. What is sadly missing from the judgment is attention to the detail of the findings that the judge made against the father so that there can be a proper understanding of the nature and extent of the risk that existed in the father’s care for the purpose of a welfare analysis.
  3. The judge identified in her judgment the key issue in the case which was the question whether father was capable of caring for H on his own, about which there was an adverse assessment conclusion supported by the analysis of the children’s guardian. Closer examination reveals that the opinion upon which the judge relied was that of a Dr Campbell, a consultant neuropsychologist who was an expert witness in the 2011/12 proceedings and who had then advised that father would need another person alongside him to co-parent H. The judge records that opinion and the fact that father disagreed with it on the basis that he had received therapy, had developed insight and had changed.
  4. Although the judge set out the fundamental disagreement on the key issue, no-one had thought in advance of the final hearing to identify whether the issue was important enough for Dr Campbell to write an updating report or even to be called to be cross examined on behalf of the father. No-one took any steps during the hearing to question how the disagreement was to be resolved. There was no application to call Dr Campbell. If the social worker and guardian were asked for their opinions during examination and cross examination this court was not taken to their answers and the judge did not rely on any of the detail of their evidence in her judgment to suggest that the issue was addressed. Furthermore, it was conceded before us that the social work assessments and analyses in this case could not substitute for or update the forensic opinion of Dr Campbell. The witnesses did not have the skill and expertise to do that.
  5. The consequence is that the judge did not give the lack of agreement that existed the importance that it deserved and that was because there were fundamental flaws in case management before the final hearing. The issue was not identified nor was there any identification of the evidence and the witnesses whose materials would go to that issue. A part 25 application to adduce expert evidence had been unsuccessful during case management and the assessment material appears to have taken the issue as being concluded when it was not. In fact the part 25 application seems to have been misguided, asking as it did for alternative adult psychological assessment. What should have been asked for was up to date evidence from Dr Campbell and given that his opinion was part of the local authority’s case, they should have made application for it, paid for all or some of it and taken the lead in giving instructions for it.
  6. In discussion before this court, the advocates acknowledged that the lack of judicial continuity was compounded by the lack of continuity of representation of the parties such that essential steps including mandatory advocates’ discussions before hearings were missed. Had there been judicial continuity it is at least likely that these issues would have been addressed.
  7. There are cases where a judge’s firm acceptance of evidence can lead this court to acknowledge that the reasoning process implicit in that acceptance is sufficient to deal with the key issue identified. Suffice it to say that having regard to the other issues in the case, to which I shall now turn, no-one seriously pursued a submission that the judge’s reasoning was sufficient or that any gaps could be filled by reference to the evidence that was accepted by the judge

 

The underlined portion of paragraph 16 is important – the LA here were relying on Dr Campbell’s conclusions that the father could not be a sole carer for H, and the Court of Appeal took the view that it was they who were responsible for updating Dr Campbell and getting fresh evidence before the Court whether the change of circumstances changed his view (and moreover, responsible for paying for that)  – rather than the father, as it was his case that he had changed.

Worth bearing in mind.

 

I found it a little odd that the Court of Appeal were not even more interested in threshold, which seems on the thin side post Re A and Re J (particularly given that this child had been with father as a sole carer during the six months of the care proceedings)

  1. The background to the case is as follows. As the judge recorded, the local authority had been involved with the family since before H’s birth. There were previous care proceedings within which, in April 2011, H was placed in foster care. She moved to her parents’ care one year later. In June 2012 a supervision order was made which reflected the success of a residential assessment and the subsequent placement of H at home. The order was extended until February 2014. It was an important element of the care plan that the parents’ care was to be supported by the father’s family and members of the mother’s church because each parent on their own was assessed to be unable to care for H. H was subsequently diagnosed as having a condition known as ‘chromosome 16’ which is linked to developmental delay and speech, language and learning difficulties. She has delayed development and is vulnerable to seizures. Her needs have been assessed to be high, requiring a level of parenting that is better than ‘good enough’ and carers who are ’emotionally available’ to help her make sense of her experiences.
  2. The triggering incident which led to these proceedings occurred on 5 January 2014 when the police were called to a shopping centre in West London. H had been left unaccompanied inside the centre by her mother who had been smoking a cigarette outside the main entrance. H’s father was not present and was unaware of what had happened. The incident was investigated by a social worker who discovered that the parents’ relationship was breaking down. By late January, H’s mother was insisting that the father should leave the home and on 26 January 2014 he did so, leaving H in her mother’s sole care. Despite increased local authority support the care of H by her mother rapidly broke down. That led to a trial agreement between the parents and the local authority for collaborative care by the parents under the supervision of the local authority which was to be provided for by renewed care proceedings that were issued on 7 March 2014.

 

The father also produced evidence from professional bodies and groups – given that what was being said was that his autism (in whole or in part) was why he could not parent as a sole carer and needed another adult to provide day to day support and care. The Court of Appeal were critical that this evidence was not properly analysed in the judgment – yes, the Court could have decided that it did not tip the balance in favour of the father, but to do so, it would have to have grappled with the evidence and set out an analysis of why it was found not to tip the balance.

 

18. Furthermore, there were independent elements of the evidence available to the court which might have impacted on all three opinions.

  1. The independent evidence that was available came from Mencap, the National Autistic Society and from father’s two siblings. The judge heard no oral evidence about any of the support that was on offer from those who could provide it. On the written materials she came to the following conclusion:

    I do not accept the support offered by way of his family, MENCAP, and NAS would be sufficient to meet [H’s] need for a co-parent to assist [the father] if she were to remain in his care in the longer term

  2. First of all that recognised the importance of the key issue I have identified, about which the only other relevant conclusion to which the judge came was:

    “The difficulty he has is that, as was made clear in the previous proceedings, he does not have a reliable person who can provide primary care for [H], who will be attuned to her changing needs, and with whom he can work in partnership. Sadly, the evidence from the parenting assessment, [the social worker] and the guardian’s (sic) indicates [H] remains at risk of harm in her current circumstances.”

  3. The judge went on to consider what the position would be if father was not supported and also two other aspects of the case that are relevant, namely the father’s understanding of the need to act quickly if H had a seizure and what was described as a negative “snapshot” from the guardian derived from her only visit to father’s household during the extensive period that he successfully cared for his daughter with the support of family members. None of this was decisive. The key issue in the case remained whether father needed a co-parent and if not, whether the nature and extent of the available support was sufficient.
  4. It is clear from the judge’s judgment that she had read materials from the interest groups referred to above and from the father’s relatives. It is not at all clear what part, if any, they played in her analysis. That is because the analysis is missing. It is possible that no-one wished to cross examine the authors of the documents and that their contents were taken as agreed. An alternative explanation is that the local authority took the pragmatic view that they disagreed with the contents or that the contents did not address the issue and that cross examination would not take the evidence any further. Either position would have been acceptable and understandable but given the disagreement on the key issue it would have been helpful to know whether or not the content of the documents was agreed and how that was factored into the welfare analysis. I also find it difficult to accept that a value judgment about a co-parenting or caring supporter in a contested case can be definitively made without hearing some limited oral evidence from that person in the absence of agreement or a case where the proposal is not realistic.

 

A further criticism was that the father had wanted to call evidence from family members and had had this request refused. I know that this is an issue that greatly troubles Ian from Forced Adoption, so I will set out the Court of Appeal’s ruling on that (which he will like)

It is one of the grounds of appeal to this court that the judge declined to hear oral evidence from the paternal family, i.e. evidence other than that of the father. The paternal aunt and uncle attended court on the third day of the final hearing with the intention of giving that evidence. We were told that the evidence would have gone to answer some of the questions that the local authority social worker and the guardian had about the merits of the support that the father had. It is difficult to know whether that is right. The judge rejected the application for reasons that are unclear. They were neither expressed in the judgment nor in the detailed order made by the court. The reasons may have been appropriate but if not expressed the impression given is that the judge treated the father’s case as if it was not a realistic option.

 

If a Court is going to refuse to hear evidence from witnesses, they will have to give reasons for that, and set out very clearly in the judgment why that was decided.

Ryder LJ was very clear that the problems in this case and judgment arose fundamentally from a failure to have a proper IRH

  1. All of these issues should have been addressed by the court and the parties at the issues resolution hearing when a different judge briefly had conduct of the case. It was at that hearing that the SGO option is first identified in a recital to an order. Although there is a reference to a SGO, the question of whether a SGO should be made is not then identified as an issue to be determined as it should have been on the face of the case management order. It is not until the final order of the court that the issue is identified as one for resolution. The importance of that is not merely technical. For an SGO to be made there are steps that have to be taken. The steps are part of a regulatory scheme that provides protections for the child involved and for those with parental responsibility and those who seek to obtain it. Furthermore, it is important that the court identifies the realistic options before the court so that the evidence can be focussed upon those options thereby providing the material for the judge to consider in the welfare analysis.
  2. At first sight of the papers one could be forgiven for wondering what compliance there had been with the rules in the preparation there had been for the final hearing. The local authority did not amend the care plan to make the proposal for special guardianship until 2 October 2014 and the detail of the transition plan to move H from the care of her father to A was not provided until the first day of the final hearing. The IRH had taken place on 23 July 2014 when all of those materials should have been available. I assume that no-one was taken by surprise because there was no application to adjourn the final hearing on that basis but the extended period from July to October, which was inappropriate in itself, should have been used to regularise what was happening so that it did not occur at the last minute.

 

The Court of Appeal were unhappy that there had not been a proper Special Guardianship report, which is of course a statutory requirement.   There is something VERY IMPORTANT in this bit, which is going to make 90% of my readers groan  – the Court of Appeal rule that if an SGO is sought, there should be an application. Rather than, as usually happens, the Court is asked to make it of its own motion.  Either the prospective special guardian or the LA should make a formal application.  [And that s10(9) applies to such applications – which in a practical sense means that anyone other than a person with whom the child has lived for at least a year, or has a residence order  OR has consent from everyone with PR to make the application, is going to need leave of the Court]

 

{There’s a slight bit of wiggle room here It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason.    so if everyone agrees, you could still ASK the Court to rule that a formal application isn’t needed. Given that there is an application fee, and the Court service is financially straitened, I’m not sure I’d count on that. At the very least, you are going to need to know prior to IRH whether the Court is going to agree to use that power, or insist on a formal application and possibly a s 10(9) application. Remember that both can easily be foreced by one parent saying that they resist. }

 

  1. What was happening was that the local authority were seeking to persuade the court to make a SGO. Although the court has power to make such an order of its own motion in accordance with section 14A(6)(b) CA 1989, that should not be the default position. Such a process can, as it nearly did in this case, give rise to procedural irregularity for lack of notice. The special guardian or the local authority on her behalf should have made the application. The important procedural hurdle of the satisfaction of the test in section 10(9) CA 1989 would then have been addressed. It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. In any other case, the use by the court of this power must be reasoned. The parties in this case did not agree and the use of the power was assumed not reasoned.
  2. In accordance with section 14A(8) CA 1989 the local authority must prepare an SGO report and by section 14A(11) the court cannot make a SGO without such a report. The statutory purpose is a very real protection. The contents of such a report are set out in a regulatory scheme which is to be found in the schedule to the Special Guardianship Regulations 2005, which is designed to ensure that necessary questions are addressed before controlling parental responsibility for a child is vested in a person other than a local authority. Such a report was never directed to be prepared in this case because no SGO application was ever made.
  3. In her judgment the judge accepts that a report, a support plan and an addendum report which she identifies are sufficient for the statutory purpose. It is only because there is a concession before this court that the content of an earlier ‘connected person’s assessment’ of A fulfil those requirements that this court has not moved on to question whether the assessment was sufficient for its purpose. During case management, the court should have addressed the question directly. On identifying that one of the realistic options that the court was being asked to consider was special guardianship, it should have made directions in the prospective application including for the SGO report and any relevant evidence. If a report which is being or has been prepared is to be deemed to satisfy the regulatory and statutory requirements, then the case management judge should say so: allowing anyone who disagrees to be heard given the statutory importance that is attached to the report. In other words, the assertion must be scrutinised. By section 14C(1) CA 1989 the holder of a SGO shares parental responsibility with the parents of a child but has the right to override the responsibilities of the parents. Such an order is a significant step in a child’s life that is intended to have long term consequences and the protections that surround it should be respected.

 

The final major criticism was that given that this was a stark choice between two options (dad or prospective SGO) the Court had not properly allowed the father to challenge the assertions that the SGO would be able to care for the child.

  1. The final element of this appeal that is troubling is the judge’s treatment of the special guardian. The judge was apparently of the opinion that it was not appropriate for the father to ‘compete’ with the special guardian. I can understand the point she was making, namely that it would be undesirable for the two potential carers of H to be engaged in an adversarial exchange when subsequently they might have to work in partnership. However, the father was entitled to the procedural protection of being able to cross examine witnesses about the capability of A to care for his child. If that was not to be A herself and I reserve judgment on that question until it is a live issue on which a case turns, then it should have been the assessor.
  2. One of the authors of the connected person’s assessment to which I have referred was called to give oral evidence. Unfortunately, she was the assessor who provided information about the birth family. The separate assessor who provided the information about A was not called to give evidence and accordingly there was no cross examination on the question of the capability of A to care for H.
  3. All of this stemmed from an assumption generated in poor case management that the special guardian was a realistic option and the father was not. That was not this case. At the time of the final hearing H had been living with her father for more than six months. It was accordingly incumbent on the court to undertake a comparative welfare analysis. That is missing and would have been difficult to construct on the evidence that was heard.
  4. The errors that I have described are fatal to the determination made by the judge. As a consequence, at the conclusion of the hearing before this court we allowed the appeal, set aside the special guardianship order, imposed an interim care order on an undertaking to file a new interim care plan to abide the event of an application to restore the status quo ante or an urgent re-hearing. We made case management directions to expedite the identification of the issues, evidence and witnesses at a new IRH.

The Court of Appeal was very damning in Ryder LJ’s final remarks

  1. I have set out the catalogue of problems in this case in rather more detail than might usually be necessary because it is essential that the rules and practice directions of the court are applied. They are there for a purpose. Casual non-compliance is not an option precisely because further harm will likely be caused to a child.
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About suesspiciousminds

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

5 responses

  1. Haven’t had time to read judgment yet so it may deal with this, what about the s. 14(A)(7) notice – which doesn’t have a waiver provision, and can’t be given until after leave has been granted in cases where it is required? That rather scuppers 26 weeks …

    • Oh, that’s good. You are quite right

      (7)No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application— .
      (a)if the child in question is being looked after by a local authority, to that local authority, or .
      (b)otherwise, to the local authority in whose area the individual is ordinarily resident.

      (I must say, in practice, everyone always works on the basis that the LA can waive that, but the Act doesn’t actually provide for anyone to waive it. It never properly arose before, as the Court was dealing with these using the s14(6) (b) power for the Court to make it of its own motion.

      (6)The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if— .
      (a)an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or .
      (b)the court considers that a special guardianship order should be made even though no such application has been made.

      The SGO application would normally come in just before the IRH, so at week 20 – but that is going to mean that to properly comply with the Act, the prospective SGO’s have to give notice of their intention to apply to the LA by week 8. Its very unlikely that the assessment of them will be concluded by then.

      My initial solution was to say that the prospective SGOs, when putting themselves forward as a potential carer are in effect giving such notice, but the Act says “in writing”, so I think that LA’s might have to actually prepare a letter to be signed and returned that says something like “I would intend to apply for a Special Guardianship Order within these proceedings and give the Local Authority notice of that intention in accordance with section 14A (7) of the Children Act 1989”

      Whilst Ryder LJ kicks off by suggesting that the ‘of its own motion power’ ought not to be the norm, in practice it will continue to be, he retreats at the end by saying that there should be an application in any case where the parents object to the application being made. That’s pretty rare – of course parents often say “don’t make the order, the child should be with me” but they rarely object to the application being lodged as a better Plan B for them than adoption.

      I applaud your point here, and wish someone had made it.

  2. And Lord Justice McCombe was, in some ways, even more critical than Ryder. I don’t think one needs to be psychic to realise that the Court of Appeal rightly regarded this as disgraceful…

  3. Pingback: Appeal, Special Guardianship Order to a strange...

  4. The Human rights act ,Article 6,para 3(d) states of the rights of anyone charged witha criminal offence “d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
    Admittedly the case cited was a civil matter,but at the beginning Article 6 specifies that it applies “in determination of civil rights” and surely the only reason judges should in such cases refuse to hear witnesses is because they judge that anything they say would be irrelevant and therefore a waste of the court’s time.
    Unfortunately in nearly all of the literally thousands of cases I deal with re applications for an interim care order, the barristers representing parents refuse to let them call family support witnesses ,or in the case of litigants in person the judge refuses.Parents are thus regularly stitched up !
    The case cited by Suespicious is not exceptional ,it is the norm !

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