(I had to go back and google to make sure I hadn’t used this before as a title – I had not, but I had hankered after it here
This case is Re M, not Re E, but is a case where the Court made a decision to re-e-wind the care proceedings.
Re M (a child) 2015
The case was decided by the President of the Family Division, because it related to a failure of the Legal Aid Agency to provide public funding for the mother to be represented.
Here is the nub of it
- M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted “by either the mother or the father, the other parent failing to protect M” but that “it is not possible to determine which of the two parents was responsible.” The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother’s relatives.
- On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking “discharge of Supervision Order and Special Guardianship Order.” That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that: i) New evidence demonstrated the full extent of the mother’s disability, rendering her a vulnerable adult.
ii) The fact finding hearing was conducted without this vital information.
iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.
- The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others  EWFC 9. He expressed his conclusion in this way:
“Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.
I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.
I therefore give the mother leave to re-open the fact find.”
Judge Bond added that his decision “does not include any indication of the ultimate result of a re-hearing.”
- Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.
The Legal Aid Agency had treated mother’s application for public funding as being an application to discharge the SGO, which would not get legal aid, rather than an application to be represented in care proceedings, which would.
It rather irks me that nobody took the simple solution here, which is – the final orders made in November 2013 are discharged (on the basis that the hearing was not a fair trial), and declare that the original application for care proceedings issued in 2012 is now a live application. The Court could then go on to make either no order (if there is agreement that the child stay with grandparents whilst the matter is being determined) or an ICO (if there is no such agreement).
Of course, that is going to absolutely BATTER the Court statistics for that particular Court, since the care proceedings when they finally finish will have taken not 26 weeks, but something more like 150 weeks.
So the alternative is:-
- Discharge the existing orders
- Direct that the LA prepare a section 37 report (which in effect will be their initial statement in fresh care proceedings)
- Make an ICO under the section 37 powers
- LA apply for fresh care proceedings, on the basis that if they do not, the child will return to mother’s care
Either of those solutions mean that the substantive litigation will be done under care proceedings, and thus the legal aid is mandatory non-means, non-merits for the mother.
But anyway, given that the case was before the President, what could be done instead is the muscle-flexing don’t mess with the President approach
- It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a “special Children Act 1989 case” in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.
- There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children)  EWCA Civ 543, is to preclude the making of any order against Her Majesty’s Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child)  EWFC 39, para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.
- I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.
- I make the following order:
“Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond
It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.”
It is not at all clear to me how everyone in the original set of proceedings missed mother’s learning difficulties, thus leading to an unfair trial, but it happened. Perhaps the State shouldn’t now compound that injustice by failing to give her the free legal advice and representation that she’s entitled to.