This Court of Appeal decision raises a number of interesting and important issues.
(It doesn’t have anything amusing in it or any 80s references, but you can’t have it all. If you want, you can momentarily imagine that this is some litigation involving Barry Chuckle and Jimmy Krankie having a dispute as to who gets custody of a tiny hedgehog in a hat and that the key pieces of evidence involve (i) Jean Claude Van Damme doing the splits in the witness box (ii) how many ferrets Fred Dineage can pop down his trousers and (iii) the enduring mystery of exactly how much smack Zammo Maguire hoped to obtain by stealing and pawning Roland Browning’s alarm clock, thus making Roland late for an exam. It has none of this. I remain on the lookout for such a case)
P-S (Children)  EWCA Civ 1407 (18 June 2018)
Essentially, the Court at first instance, was invited by the LA and the Guardian to make Special Guardianship Orders to grandparents for two children – S aged 2 and P aged 5. The parents were seeking the return of the children to their care – it had been a FDAC (Family Drug and Alcohol Court) case and the parents had withdrawn from that process – the judgment does not deal much with the parents case, as it was not the subject of the appeal.
[The parents had withdrawn from the Court process, thus at final hearing it was only the Local Authority and the Guardian playing an active part, both of whom supported the making of SGOs]
The Court declined to make Special Guardianship Orders, in part relying on a letter circulated by Keehan J to Judges on the Midlands Circuit to the effect that
“a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.”
The Court instead made a full Care Order – in effect deciding that the Local Authority, in consultation with the grandparents, should decide the point at which the case should come back before the Court with an application for a Special Guardianship Order. That also, in effect, envisaged the Care Order being a short-term order, rather than the permanent or long-term order that it is commonly viewed as.
The Court of Appeal judgment deals with a number of issues :-
- The need for solid evidence-based research about whether SGOs being made before a trial placement are a beneficial or adverse approach
- The status of the guidance given by Keehan J – and the representations made to the effect that it was being followed by the Courts in the Midlands circuit as though it were binding upon them
- What role prospective Special Guardians should play in the Court process
- What approach the Court should take, where potential suitable carers come forward late in the process.
All of this is useful.
- There are three strands to the errors that all represented parties before this court identify in the family court’s decision: a) the lack of any adequate reasoning for making care orders rather than interim care orders or special guardianship orders, b) the reliance of the judge on informal guidance that was neither approved guidance nor peer reviewed research capable of being scrutinised or challenged by the parties and c) procedural unfairness. I shall take each in turn. The court is mindful of the fact that each of the represented parties before it (except S’s father) have taken the same position in respect of each issue and accordingly the court has tested with the interveners each of the propositions in respect of which they would otherwise have reached a consensus.
- The propositions about which there is a large measure of agreement are as follows:
- The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;
- b. The judge’s characterisation of the care orders that were made as ‘short term care orders’ was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;
- The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;
- The judge was wrong not to make provision for effective access to justice for the grandparents by their joinder, the disclosure of documents to them, time for advice to be taken by them, the facility for them to take a proper part in the proceedings, an adjournment or otherwise.
- It is helpful to trace the judge’s reasoning by setting out how he came to his conclusion in his judgment. The following extracts are sufficient:
“1….It is not a case in which I must consider rival realistic options in terms of the children’s future placements. Instead, the main question for me to resolve is the appropriate legal order which should govern a placement with the children’s respective paternal grandparents……
7.…the local authority and the Guardian contend that the children’s placements should take place under special guardianship orders………During the trial it has largely been left to me to raise concerns as to whether special guardianship orders in favour of the two sets of grandparents would be premature…….
- In this case the children might be placed with the paternal grandparents under either a care order, a special guardianship order, or a child arrangements order. These are very different orders. A care order creates parental responsibility in the local authority which, under section 33(4) of the Act may be exercised by the local authority if they are “satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare”…….
- Section 14A provides for those who may make an application for a special guardianship order…….the grandparents come within the definition of those who may apply for a special guardianship order.
- There is also a power for a court to make a special guardianship order of the court’s own motion. That power is found at section 14A(6)(b).
- ……It suffices to say that during my time as designated family judge here at the Central Family Court I must have made upwards of 30 special guardianship orders. I have, however, yet to encounter an application for such an order. On every occasion I have been invited by the local authority, whether opposed by another party or unopposed, to make the order of my own motion. That is not just the default position, but it appears to be the universal practice amongst authorities who use this court centre. This is the largest family court centre in England…….My purely personal impression is that the practice has changed in recent times.
- Whilst I do not suggest that these children should be the subject of care orders for their minority, the real balance in the case is in my judgment between special guardianship orders now and care orders (although not interim orders). The care plan under such care orders would be that if all goes well, then applications for special guardianship orders should follow in due course. By the expression ‘in due course’ I mean ‘when the new placements are regarded as settled and working well for the children’. In this case that might perhaps be in about a year from now…….
- ……both sets of grandparents have been assessed in accordance with the Statute and the accompanying Regulations. The assessments are positive……
- My first concern is, however, that neither child is currently living with the proposed special guardians. During the course of argument, I mentioned that, last year, a letter had been written to interested parties by Keehan J, the Family Division Liaison Judge for the Midlands Circuit. It discussed the use of special guardianship orders. The view promulgated by Keehan J, as a result of a meeting with the chairs of the Circuit’s Local Family Justice Boards, was that “a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.” Such guidance is not, of course, binding upon me but in passing I observe, with some deference, that it appears to amount to sound common sense……
- All this leads me to believe that someone has to be in charge of a process which oversees not just the move of the children to a new home, and their settling in, but also the implementation and progression of a closely controlled contact regime in circumstances where it is unclear what the parents’ reaction will be to the children’s move and equally unclear as to how they will handle time with the children in the very different circumstances which would apply……
- 30. The next matter which concerns me is the position of the grandparents – within these proceedings as well as towards the children. As I listened to the case being developed, I did so in the complete absence of the grandparents – of the proposed special guardians. They were not parties. They were not represented. They were not present. They were not intended to be witnesses. Had an application been made – properly sponsored by the local authority which after all is the prime mover in this change to the children’s lives – then the grandparents would have been parties, represented, present and witnesses……
31 ….I have had the conduct of this case since the IRH on 3 February 2017. I could then have (i) made the grandparents parties (although that would not necessarily have secured representation for them); (ii) asked them to file a statement; (iii) invited them to give evidence; (iv) encouraged a special guardianship application at that stage. I did not take any of these steps, nor was I invited to do so……In truth, however, with the exception of my concerns surrounding their lack of participation in the process, the grounds on which I propose to reject the local authority case for special guardianship orders would have remained whatever step had been taken at the IRH. I know a great deal about the grandparents. I am not making special guardianship orders, but it is not because I lack information about the proposed special guardians.
- I invited the grandparents into court before they spoke to the professionals (all of whom were of course advocating special guardianship) so that at least they could hear the guardian, the representatives and myself debating the issues as the guardian gave evidence. They spoke with professionals afterwards. The result of this exercise was that they confirmed their wish to be special guardians immediately and for the children not to be subject to care orders…….I remain concerned, however, as to the process here. I am not convinced that the grandparents have been sufficiently involved. It is stating the obvious to observe that the effect of making an application to a court is to involve the applicants closely in the process.
- A short-term care order meets many of the concerns expressed in the previous paragraphs…..It is common ground that the transfer of the children to the grandparents, which is happening as I write this judgment, will not be delayed for want of special guardianship orders, or by any further assessment process.
- ……There would remain untested placements.
- ……the Guardian…….emphasised that “there was enough of a relationship that it is not an impediment to a special guardianship order…….”
The Court of Appeal considered this carefully
16.It is evident that the judge recognised that the only realistic placement options that he had were with the paternal grandparents. His concern was the viability of those placements: not because they were unassessed but because they were untested in the specific context of the possible interference with them by the children’s mother and the father of S. It was in that context that on the merits the judge wanted to be assured that the control and parental responsibility which vests in special guardians would be sufficient to manage the relationship with the parents. The alternative was control and parental responsibility being vested in the local authority through care orders. The problem to be solved was whether the relationships and capabilities of the grandparents were strong enough or needed to be supported and tested before SGOs were made.
- The solution to the problem was in the choice of order: SGO, care order or interim care order and an adjournment. The route to the solution lay in an evaluation of the evidence including oral evidence from professional witnesses, the parents and the proposed carers i.e. the paternal grandparents. It is clear from the judgment and from a transcript of the judge’s discussions with the advocates during the hearing that the judge had the problem and the solutions in mind. What was missing was a route to the preferred solution. Having identified the problem and the range of solutions the judge did not go on to evaluate that evidence. That necessarily meant that the propositions advanced in the discussion and the conclusions reached in the judgment take the form of assumptions that were not reasoned and which are now challenged.
- As I remarked at  and  it was the absence of any testing of the assumptions raised in discussion which created the problem with which this court now has to grapple. The judge was concerned about the relationship between the grandparents and each of the children in the context of continuing discord with the mother and the father of S. It is also right to note that it was not until the commencement of the appeal before this court that the special guardianship support plans were agreed between the local authority and the grandparents. The judge identified what were potentially adverse factors to balance against the positive factors in the special guardianship assessments which might lead to the conclusion that a trial placement of the children was required before vesting parental responsibility and control in the grandparents. That deserved more than a cursory analysis not least because the local authority and the children’s guardian had come to a clear and agreed contrary opinion on the basis of rigorous assessment material that apparently demonstrated that the positives outweighed the negatives.
- In order to test the assumptions the judge had described in his discussion with the advocates, he could have heard evidence about them and from that drawn conclusions. The judge records in his judgment that he heard some oral evidence but it is plain from his judgment that such evidence as there was either did not touch on the issues that he was raising or was unhelpful. That may be unsurprising given that the local authority and the children’s guardian disagreed with the judge and were agreed among themselves and also that no advocate was pursuing the issues the judge wanted to pursue. In that circumstance, as inquisitorial tribunals know, there must be an enhanced caution in a judge not to ‘simply’ rely on his or her own pre-conceptions or opinions and to ensure that as provisional conclusions are formed in judgment they are adequately tested so that they are soundly based on evidential conclusions.
- It would also have been legitimate, if properly reasoned, for the judge to conclude that he needed more evidence with the consequence that the time for the proceedings might need to have been extended. In order to come to either conclusion the judge needed to identify the risk that he sought to protect the children against and reason the options that were open to him on the evidence. He ought to have tested his own assumptions and the opinions of the professional witnesses in oral evidence and by hearing evidence from the paternal grandparents. He would have been assisted by evidence from the mother and the father of S but, as has sadly been the case more than once in these proceedings, they had absented themselves and the judge was left with a history from which only inferences could be drawn. Had the judge reasoned his concerns on the evidence he would have had a proper basis for conducting an evaluation of the benefits and detriments of each order that was available to him.
- In that context, it is not surprising that the judge’s evaluation of the merits of each option and the available orders was incomplete. The judge agreed with the parties that a child arrangements order was not in the interests of either child and he was right to do so on the merits. No-one pursues that option before this court. That left SGOs, full care orders and interim care orders with an adjournment.
- I agree with the paternal grandparents of S that if and in so far as the judge needed more time to ensure that the relationship of the grandparents with the child and the parents was such that it was in the interests of each child to make an SGO, that could, if reasoned, have been an appropriate basis upon which to adjourn the proceedings