This is a Court of Appeal decision
RE v North Yorkshire County Council and Others 2015
(Making me wonder if it is going to get shortened to “Re RE”)
It has an unfortunate typo in the very first line of the case report which will delight those like me with a childish mind – you really do need to be very careful with the spelling of the word “Public” in Public Law Outline.
Though this version has a certain aptness – in many parts of the country it doesn’t really exist at all, in some areas only a sliver of it can be observed, everyone can agree that some pruning and trimming is wholly desirable, and nobody really pays it much attention until a bit gets stuck in your throat…
Anyway, the nuts and bolts of the case. The parties attended an Issue Resolution Hearing. The father was not in attendance – he was in prison and a production order was not sought. [As a person in prison is not in a position to simply saunter out and wander down to Court of their own volition, what needs to happen is for their solicitor to apply to Court for a Production Order so that the prison staff know that the person is required in Court on that date and must be brought there. Without a Production order, the prisoner won’t be produced. With one, they will be produced two hours later than you asked for…]
The Court made a series of final orders
i) A Care Order in favour of the Local Authority, North Yorkshire County Council;
ii) Permission to the Local Authority, to refuse contact between the child (A) and his father (F) pursuant to section 34(4) of the Children Act 1989;
iii) Leave to the Local Authority to apply for a declaration removing responsibility to consult F in relation to A;
iv) A declaration that the Local Authority should be absolved from the statutory responsibility of consulting F in relation to A’s care and their obligation to involve him in the Looked After Children (LAC) consultation process;
v) A non-molestation order (granted until further order) prohibiting F from:
a) Contacting M, A or the maternal great grandmother (MGGM) either directly or indirectly or through any third party except through lawyers or through the Local Authority for the purpose of the letterbox contact;
b) Attending within 100 metres of any address where he knows M and A or MGGM are living;
c) Should F meet M in any public or private area he is ordered to leave immediately to a distance of at least 100m away.
A power of arrest was attached to the non-molestation order.
The father appealed the order, on the following grounds
- The Grounds of Appeal have been drafted in very general terms (even as amended) but the thematic basis, which embraces each of the orders set out above, is identified in Ground 1 of the Appellant’s Amended Grounds of Appeal:
“The Judge was wrong to have made final orders at interim hearing which:
1. Prevent a child from maintaining personal relations with a parent; and
2. Prevent a child having a future determined by which both parents have played a part.”
It is argued that at the IRH the Judge was not in a position to conduct the ‘holistic analysis’ of the available options that was required in order properly to do justice either to the interests of the child or the father. In particular, at Ground 3, which is really an amplification of the same point, it was contended:
1. Before reaching the determination that it was necessary and proportionate to the identified risks, that ‘nothing else would do’ the Judge needed to be sure that all the evidence was before the Court. The Judge was wrong to have proceeded to make Final Orders at an interim hearing;
i. Without the court bundle;
ii. Without the father having had notice that the IRH might be dealt with as a final hearing;
iii. Without the father having been produced from prison
iv. Without having heard any evidence or allowed father the opportunity to properly challenge the evidence of the Social Worker and Children’s Guardian;
v. Without some form of contact being tested, the father, having made requests for contact, photographs and for the Social Worker to visit him, had the father having never met A or received any update in respect of his developments except the redacted Care Plans when the child was nearly 5 months old.
vi. Where despite a large number of concessions and acceptances by Father, enough for a court to consider the Threshold Criteria for making s.31 orders was crossed, the Threshold Criteria annexed to the order had only been agreed by the Mother and not by Father,
vii. Without having proper evidence before the court as to the impact upon the child of having no contact with the paternal family.
- Further, the Declaratory Relief granted by the Judge is attacked on the separate ground that the Judge lacked a jurisdictional basis to grant such relief and accordingly exceeded the ambit of her lawful powers. No party now seeks to uphold these declarations recognising and conceding their lack of jurisdictional foundation. The Appellant however goes further and contends that ‘even had there been jurisdiction, it would have been wrong to make the orders’. Furthermore, it is asserted ‘the declarations were in breach of the F’s Article 6 rights and were unlawful.’
The Court of Appeal tackled the declaration first, and had no difficulty in saying that it ought not to have been made. Firstly, the Judge had not been sitting in the High Court or as a s9 Judge and had no jurisdiction for a declaration of that type,
As I have already foreshadowed, none of the advocates seek to salvage the declaration releasing the Local Authority from its obligation, pursuant to statute, to consult F in relation to A’s care and to involve him in the Looked After Children (LAC) consultation process. I propose therefore to address this point first. HHJ Finnerty was sitting as a Judge of the Family Court. Though she is an experienced Judge who sits regularly as a Deputy High Court Judge of the Family Division, she was not sitting in that capacity in this case on the day of the IRH. No application had been made for her to seek permission from her Family Division Liaison Judge or other Judge of the Division to sit as a Section 9 Judge of the High Court. It is plain that, through oversight, no thought was given to the jurisdictional basis of the declaration by either Counsel or the Judge. Such declarations are made pursuant to the inherent jurisdictional powers of the High Court, they have no other foundation. If this had been the sole difficulty here and had they been otherwise sustainable I would, for my part, have been prepared to investigate some pragmatic resolution, perhaps a speedy remission to the Judge inviting her to reconstitute herself in the High Court to authorise the declarations on a free standing application pursuant to the inherent jurisdiction. It may well be that there is no such solution. However, it is unnecessary for me to investigate further as I am of the clear view that the declarations are more generally flawed.
- There are sound reasons why declarations are required to be made under the Inherent Jurisdiction and commenced in the High Court. Frequently, as here, they involve authorisation of actions which fall outside statutory obligation or may, again as here, be directly contrary to it. Thus, these are invariably complex issues which require to be dealt with in the High Court. This is given effect to, unambiguously by Rule 12.36 (1) and PD 12D.
- In Re B  EWCA Civ 964, the Court of Appeal considered whether there needs to be a formal transfer where the Circuit Judge is authorised to sit as a s.9 Judge. At para 7, Black LJ observed:
‘Where a circuit judge is to sit as a High Court judge, it seems to me that this needs to be arranged deliberately, with the proceedings commenced in or transferred to the High Court. The mere fact that the judge who has heard the case happens to be authorised to sit as a High Court judge or to try Administrative Court cases might not redeem a failure to observe proper practice.’
- I note that Black LJ does not completely exclude some pragmatic resolution, limiting herself to the observation that the matter ‘might not’ be capable of being redeemed. Here, as I have stated, Counsel on behalf of the Respondents all agree that the declarations cannot be sustained for these jurisdictional reasons.
Secondly, that a declaration of that seriousness could not be made lightly and not on the sort of facts that this case presented
- Ms. Bazley submits the case law establishes that a Local Authority may only be absolved from its duty to consult and to provide information to a parent in ‘exceptional circumstances’. I agree.
- The duty, pursuant to s.26, is directory not mandatory. But, as Ms. Bazley submits, the result of non-compliance is treated as an irregularity: Re P (Children Act 1989, ss22 and 26: Local Authority Compliance)  2 FLR 910. Ms Bazley further directs this Court’s attention to Re C (Care: Consultation with Parent not in Child’s Best Interests)  2 FLR 787;  EWHC 3390 (Fam). There Coleridge J granted a declaration to the effect that the Local Authority was absolved, in what were described as ‘exceptional circumstances’, from any obligation to consult the father. In that case the father was serving a lengthy sentence for raping the child, who did not wish the father to be informed or consulted at all in relation to her future. The child had applied, successfully, to discharge the father’s Parental Responsibility. The applications were decided on the basis of C’s best interests. The Court concluded that the father’s total disregard for C’s best interests in committing the offences, coupled with her consistently and strongly articulated wish that he be excluded from her life entirely, led to a clear conclusion that he should not participate in any discussions about her future welfare. Nonetheless even there, the court directed that he would be informed if the Local Authority intended to make significant changes to the Care Plan, such as applying for adoption. Coleridge J observed:
“ The conclusions that I have come to are really these: the considerations which govern the dismissal of this father from further involvement in the proceedings, and the granting of the declarations seem to me to be the same. Indeed, there is little point in him remaining a party if he is not going to be given any information; indeed, it would be impractical for him to remain a party if he was not going to be given information.”
 The second pivotal point, of course, is that this application is decided, first and foremost, on the basis of s 1 of the Children Act 1989 – that is to say, what is in S’s best interests. Of course, hers are not the only interests, but they are the ones which are of paramount concern to the court.
 The third factor, self-evidently, is that it is a very exceptional case only which would attract this kind of relief. Self-evidently – and it hardly needs the human rights legislation to remind one – a parent is entitled to be fully involved, normally, in the decision-making process relating to his, or her, child, and if not to be involved, then at least informed about it. However, insofar as that engages the father’s rights to family life, then by the same token it engages S’s right to privacy and a family life.”
- The factual background, giving rise to this appeal, though undoubtedly very troubling does not, in my judgement, amount to ‘exceptional’. It is not difficult to contemplate strategies which enable the privacy and security of the placement to be protected by a far less draconian level of intervention. Accordingly, Ms. Bazley submits and I agree that: ‘even had it been lawful to make the declaration, the circumstances of this case were not so exceptional as to justify it being made‘.
The appeal was granted and the declaration set aside.
Next, the substantive part of the appeal – was it wrong for the Judge to have made final orders, particularly final orders which in effect ended the father’s relationship with the child when the father had not expressly agreed, had not attended Court (as a result of Production Orders not having been obtained) and had not had the opportunity then to oppose those final orders?
That may seem something of a no-brainer, but bear with me. All advocates will need to be aware of particularly paragraph 49 and the duty that this places upon them
- The following uncontentious facts require highlighting:
i) The Care Plan provided for mother and baby to remain together;
ii) No Party opposed the plan;
iii) It was agreed by all the parties that the question of A’s direct contact with F was not an issue for the final hearing, in consequence of F’s incarceration;
iv) All agreed that a Care Order was the appropriate order;
v) All agreed as to the extent to which F should be able to provide photographs / cards to A;
vi) All Parties and the Judge were aware of the indeterminate Restraint Order passed by the Crown Court preventing F from having contact with M (and others);
vii) F had not asked to be produced from custody at any stage in the case.
- It is axiomatic that this was precisely the kind of case that had every potential for resolution at the IRH. It was the professional duty of all concerned to ensure that it did. I regret to say that the profession fell short in that duty. The Judge had done everything she could. By contrast, the Advocates’ Meeting appears to have been formulaic and ineffective. It was plain that F wished to have photographs of his son. F’s solicitors had not obtained a Home Office Production Order to facilitate F’s attendance at Court. Accordingly, F’s counsel was not in a position to take instructions on last minute and important details. Ms. Bazley asserts that F repeatedly elected not to come to court because he considered his presence to be an impediment to the mother’s case. The obligation of his lawyers here was to ensure that F’s own case was not compromised by his non-attendance.
- It requires to be stated that Court Orders are there to be complied with, they are not aspirational targets. I strongly suspect that if the advocates’ meeting had absorbed the true objectives of the IRH, and F produced at court, this case would have resolved by agreement. Moreover, I have no doubt at all that had there been proper thought given to concluding the case, the advocates would, at the final meeting, have paid greater attention to the legal basis of the Local Authority’s application for a declaration.
- I agree with King LJ in Re S-W (supra) that a Final Order at a CMH will be appropriate only occasionally. However, the message must go out loudly and clearly that the Court will and must always consider the making of Final Orders at the IRH. It must be understood that it is the professional duty of the advocates and all the lawyers, in every case, to direct their attention to the obligation to achieve finality at the IRH wherever possible. It follows that the lay Parties are always required to attend. If a Party is in custody a Home Office Production Order should be obtained and, if necessary, at the instigation of the Judge.
- In granting permission to appeal Ryder LJ considered that this case raised an important issue. Though the Court of Appeal has considered these points before it has been in the context of Judges who have been too robust in concluding cases where evidence required to be tested. This case, for the reasons I have set out, is one of wholly different complexion. It provides an opportunity to signal the cultural shift brought about by the Family Justice Reforms and the particular responsibilities on all involved at the IRH.
- Though I regret to say it, where the Judge’s objectives (i.e. to facilitate the potential for resolution of the case) are thwarted by non-compliance with Case Management Orders then this may in future have to trigger the consideration of appropriate sanctions in costs. Such orders are counterintuitive in a court arena where much reliance is placed on cooperation and common endeavour. However, the Family Justice Reforms are not merely administrative; they are designed, as I have emphasised above, to reconnect the profession with a core welfare principle: the avoidance of delay.
- The approach of the first instance Judge has been entirely vindicated in this Court. The Parties have been asked to consider whether the key issues were capable of resolution given the very narrow ambit of dispute. It struck me that it would have been hugely disproportionate to adjourn them for hearing before a High Court Judge, as it was submitted the outcome should be.
In the event, the parties at the Appeal hearing were able to reach agreement on indirect contact and Christmas cards etc, so in part the appeal fell by the wayside. But putting that to one side, was the Judge wrong to have made final orders when father’s attendance had not been facilitated, or was this robust case management? It seems from my reading that the Court of Appeal would have backed the trial Judge here (other than on the declaration) and the appeal if it had been on those grounds alone would have failed. The responsibility here was with the advocates for not ensuring that either father’s position was entirely in keeping with the orders sought or to obtain a Production Order so that negotiations / representations could have been dealt with at the IRH.
The Court of Appeal put down a marker here that advocates must always be alive to the possibility that the case may be concluded at IRH and turn their minds to the final orders. [They didn’t actually expressly deal with some of the important issues in the appeal – to whit, whether this Judge had made such serious final orders without a Court bundle i.e reading all of the papers, and the threshold having been finally determined taking into account mother’s concessions but including within it matters that father disputed without the Court hearing evidence about the disputed matters and making findings]