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Category Archives: case law

ADMs apple

 

What happens when a Judge disagrees with an ADM?

 

Well, if the ADM decides the plan is adoption, the Judge just refuses the placement order, very simple.

 

What happens when the ADM decides the plan is NOT adoption and so there’s no placement order application, but the Judge thinks adoption is the right outcome? What then?

[There will be no apples in this post, I just needed a title.   I don’t believe anyone pronounces ADM as a word rather than three letters. Would love to hear from anyone who has been pronouncing it like “Adam” in Fonejacker style… But imagine the case really being about choice and temptation and consequences, if it makes you feel less tenuous]

The Court of Appeal in Re TS (Children)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html

 

decided an appeal in which (bear with me)

 

The Judge wanted adoption

The Local Authority didn’t

By the time of the appeal hearing, the mother also preferred adoption to long-term fostering

The appeal was granted even though the Court of Appeal dismissed all five of the LA’s grounds

 

 

So, that’s something.

 

On 21st November 2018 at the ‘final’ hearing

 

 

 

 

4.In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.

 

 

5.During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J’s welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.

 

 

6.The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children’s attachments to their parents and siblings, together with the children’s guardian, advised that J’s welfare required adoption, if possible with his younger half-sibling, K.

 

 

7.The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).

 

 

8.The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children’s guardian.

 

 

9.As the focus of this appeal is upon the consequences of the judge’s welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J’s welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.

 

 

10.Insofar as the ADM had based her assessment on the local authority social worker’s own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.

 

 

11.At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:

 

 

 

“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother’s secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J’s plan for permanency. Therefore, care will need to be taken.”

12.The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J

 

 

The ADM had been present for the judgment and was also provided with a note of it (the transcript hadn’t been obtained in time). The ADM still considered that adoption was not the right plan for the child and thus did not authorise a placement order application.  (There’s considerable complaint in the judgment that the revised ADM statement did not really grapple with the judicial criticism of the social work assessment and his conclusions about the sibling relationship, so hadn’t been a live reconsideration of the judgment, but just a  ‘we’ve thought about it, no’ response)

 

At the next hearing on 14th December 2018, which ought to have been a dialogue between Judge and parties as to “well, what next?” (i.e making the Care Order with plan of long-term fostering, or making further ICO to allow judicial review challenge, or asking ADM to think further about x y and z) instead the LA sought to appeal that judicial decision, and the Court granted permission, so nothing else really happened.

 

 

The LA submitted five grounds of appeal (which, spoiler, I already told you they lost on all of them but won the appeal)

23.In prosecuting the local authority’s appeal Miss Henke and Mr Rees rely upon five grounds:

 

 

 

i) That the judge erred in concluding that he was in a far better position than the ADM to determine the best outcome for J, rather than considering whether the ADM’s decision could be successfully challenged on public law grounds.

 

ii) That the judge erred in failing to reconsider his decision in the light of the ADM’s December witness statement which took account of the judge’s determination and which cannot be properly challenged on public law grounds.

 

iii) Parliament has given the decision to determine whether a child “ought to be placed for adoption” to the local authority rather than the Court.

 

iv) As the decision to apply for a Placement for Adoption order is one solely within the determination of the local authority, and as the ADM had reconsidered her decision in a manner that is not open to challenge on public law grounds, the judge was in error in continuing to refuse to endorse the care plan and make a final care order.

 

v) Given that the s 31 statutory threshold criteria were satisfied and the court determined that J could not return to the care of his family, the court should have made a final care order on 20 November 2018.

 

 

 

Broadly, the Court of Appeal say that the judicial decision that he wanted the LA to consider changing their care plan to adoption falls into line with the authorities on change of care plan generally or change of order to say, Care Order at home.

 

 

They cited the recent case of Re T 2018

 

46.More recently, in Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926, this court (McFarlane, Peter Jackson and Newey LJJ) considered a stand-off between a judge, who favoured placement of an 18 month old child with his grandmother, and a local authority which favoured placement for adoption. At the conclusion of the process in the Family Court, the judge had reluctantly concluded that a placement order should be made in the light of the local authority’s refusal to change its care plan. The grandmother appealed. The appeal was allowed and the case was remitted for re-hearing. After reviewing the authorities, and having noted that the judgment of Ryder LJ in Re W appears in ‘markedly more imperative’ terms than that of Thorpe LJ in Re CH 20 years earlier, Peter Jackson LJ, giving the leading judgment, continued:

 

 

 

“[42]     Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk (para [81]) and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision (para [83]). I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

 

[43]     It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – ‘some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so’. As McFarlane LJ remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

 

[44]     The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.”

 

And decided

 

 

 

 

48.Firstly, the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child has been well established for over 20 years. Insofar as there has been movement, it has been in the direction of emphasising the role of the court during proceedings (see Ryder LJ in Re W), but, in like manner to the approach taken by Peter Jackson LJ in Re T (with whom I agreed in that case), I consider that when, as here, the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority.

 

 

49.The key authority in the canon of cases on this point is, in my view, Re S and W; subsequent authorities have confirmed the clear statement of the law given in the judgment of the court given by Wall LJ. Of particular relevance to the present appeal is the passage at paragraph 34:

 

 

 

“Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.”

 

And at paragraph 35:

 

“There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”

 

 

I have a difficulty with this. On the one hand, yes, a Judge deciding the case must be able to say “I don’t like any of the options that are before me and I want further discussions about whether there may be another way forward”.   On the other, what then is the point of the Agency Decision Maker?

 

We all know in cases that the involvement of an Agency Decision Maker in deciding whether or not a Local Authority can apply for a Placement Order and have adoption as the plan for the child adds 2-3 weeks to the timetable and requires production of a lengthy document in the form of a Child Permanence Report. That’s because the statute and regulations set up a system whereby social workers could not themselves decide that adoption was the plan, it needed to be a plan which was supported by the Agency Decision Maker (earlier after the Adoption Panel heard the case but that requirement was removed around the time 26 weeks came into our thinking).

 

Well once the Agency Decision Maker is not a gate-keeper who decides whether an application is put before a Judge or not, why not just have a social worker make an application for Placement Order, and the Judge decide it?  You either have separation of powers or you don’t.

But the Court of Appeal here basically say that the Judge can properly and legally invite the LA and ADM to reconsider and ask them to put in a Placement Order application.  What happens when and if the ADM says no still (currently) remains unknowable.  Judicial review isn’t an easy solution here. Particularly if the ADM is making a decision with which others might not agree, but is not for judicial review purposes a decision that no reasonable ADM could ever take.

I think in part, that’s why the LA were arguing that unless the ADM decision of long-term fostering was ‘wednesbury unreasonable’ (a decision that no reasonable ADM could come to), then the Court should move on and consider Care Order against Supervision Order and no order, and put adoption out of its minds. The Court of Appeal reject that, and say the Judge was entitled to ask the ADM to think again.

 

 

The Court of Appeal, as I said at the outset, granted the appeal, despite rejecting all five of the LA’s grounds of appeal. And it was, in part, because the Court on 18th December granted permission to appeal rather than continuing the process (which seems (a) harsh on the Judge and (b) a bit have your cake and eat it on the part of the LA, who win the appeal because they wrongly persuaded a Judge to give them permission)

 

 

 

 

56.Although this is not strictly how the Local Authority formulated its grounds of appeal, I am driven to the conclusion that the judge was in error in conducting the December hearing as he did. No objection was taken to the point being put in this way, and I am satisfied that it was fully ventilated at the appeal hearing. In stating that conclusion I do not intend to be critical of the judge, who plainly found himself in an unwelcome situation and who may have been bounced into a speedy decision when the oral application for permission to appeal was made at the beginning of the hearing. There was, however, as I have stated, no basis upon which permission to appeal the November determination could have been granted. Further, it was, in my view, premature for the judge to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in the light of the ADM’s statement. If, as may have been the case, following such an evaluation the court were to conclude that the ADM had failed to engage with the judge’s reasoning, a further adjournment for reconsideration by the local authority may have been justified. In short, difficult though the situation undoubtedly was, the December hearing should have run its course rather than being terminated before it had really commenced by the grant of permission to appeal the November order. In coming to this conclusion I have the words of Wall LJ in Re S and W very much in mind:

 

 

 

“[43]     As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.”

 

But the other basis for granting the appeal was this

 

 

57.Fifthly, and separately from any of the grounds of appeal raised by the local authority, I am concerned by the clear statement that appears in the judge’s November judgment concerning his approach were a placement for adoption application to be made:

 

 

 

“I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent.”

58.I consider that the father has made good his appeal on the basis that the judge was in error in stating a clear predetermined conclusion on the question of whether the parents’ consent should be dispensed with under ACA 2002, s 52 in the event that, in future, the local authority applied for an order authorising placement for adoption. Although it is plain that the option of adoption was very much on the agenda for the November hearing, given the opinions of the independent social worker and the guardian, no formal application had been made and the father had not expressed a view with respect to consent or been called to give evidence on the issue. Further, it is apparent that no submissions were made to the judge that went beyond the concept of adoption and expressly addressed issues of consent or the formal making of a placement order.

 

 

And so the case has gone back for re-hearing, and all of us have now learned that even where the LA don’t make an application for a Placement Order the Court can still ask them to reconsider after giving judgment at final hearing but before making final orders. That may be music to the ears of some Guardians.

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“…such obviously fallacious legal arguments”

 

 

The ever-continuing saga of the (imho misplaced) decision of the framers of the Children Act to express actual harm in the present tense rather than the past tense continues, and perhaps reaches its nadir in this case before the Court of Appeal, in which

 

pause, deep breath

 

a Judge was persuaded to summarily dismiss the application for a Care Order following a byzantine (and as quoted from the Court of Appeal ‘obviously fallacious’) legal argument that because the child was in a safe place at the time of issue and the LA could not say that at that date of issue the child ‘is suffering’ significant harm, the case should be thrown out

 

 

H-L (Children: Summary Dismissal of Care Proceedings)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/704.html

The threshold criteria expresses that

 

Section 31 (2)

 

A court may only make a care order or supervision order if it is satisfied—

 

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

This whole thing with the present tense was litigated to hell in the early 1990s, and it is astonishing to me that the Courts are still being troubled with it. The threshold is decided with reference to the “Relevant Date” and if one can prove that (looking back in time) at the Relevant Date the child ‘is suffering’ then the threshold is met. The Relevant Date will OFTEN BUT NOT ALWAYS be the issue date. Where the harm is neglect for example, and the child is at home, the LA will say that the child “is suffering” from that neglect at the date of issue. BUT, what happens where the child is no longer in the dangerous home at the time the proceedings start (they are with grandmother, or in foster care, or the risky adult has moved out) – well, in that case the Relevant Date is the date when those protective measures were put in place.

 

Jackson LJ opens the case with a background history that I can’t improve upon

 

1.A two-year-old child is examined by a hospital paediatrician. She is found to have about 20 bruises, including groups of bruises on the face, neck and arms that are in the doctor’s opinion highly likely to have been caused by forceful grabbing by an adult. There are three people who could be responsible: the mother, the father, and a non-family carer. The local authority is immediately informed and it begins child protection inquiries. The police also investigate. All three adults deny causing any injury. Plans need to be made for the child and for her six-year-old half-sister. The mother and the two fathers have different views about where the children should be placed.

 

 

2.A scenario of this kind would be familiar to any social services department and to any family court. Both agencies are given wide and flexible powers, mainly under the Children Act 1989, that they are under a duty to use to protect children and promote their welfare, while at the same time being fair to adults. Both agencies will recognise that a child that has suffered transient injuries may be more seriously injured over time and that other children in the household may face similar risks. They will also recognise that delay and inefficiency will work against the interests of the children and may well be harmful to them. Accordingly, on these facts the local authority will undertake a swift assessment and, on it becoming clear that the source of the risk has not been established, will take steps to ensure that proper plans can be made for the children. This requires an adjudication on responsibility for the injuries, something that can only be done by the court. The local authority will therefore issue proceedings to allow the court to reach a factual conclusion and to make any orders that may then be necessary. The court process should in all normal circumstances (and there is nothing particularly abnormal about these) be completed within the statutory period of 26 weeks, allowing the children and their family to move on with their lives on the basis of sound plans, built on the best possible understanding of what went wrong and how it might be avoided in future. That understanding is not only needed for the sake of these children, but also for the sake of any other children for whom the parents may in future be responsible.

 

 

3.Unfortunately, that is not what happened in the present case. Neither of the key agencies acted correctly. The local authority secured alternative arrangements for the children without having any legal standing for doing so, and it then delayed for three months in issuing proceedings, which it then pursued in what the court rightly described as a shambolic manner. For its part, the court departed from established case management practice and authority before striking out the proceedings in week 15 without conducting any investigation whatever into how the child came by her injuries. In doing so, it accepted and adopted a legal argument born of a profound misunderstanding of the basic statutory regime governing proceedings of this kind. During the lifetime of the proceedings the court did not make any statutory orders to govern the arrangements for the children, even to the extent of making the interim supervision orders requested by the local authority, being the least level of protection that the situation required.

 

 

4.The net result is that almost a year has passed since the child went to hospital without there being the smallest increase in our understanding of how she was injured. In the meantime, the children’s lives have continued on the basis of arrangements brokered (until the proceedings were dismissed) by the local authority without legal authority or (since the proceedings were dismissed) by the parents themselves. The process has been unproductive and substantial amounts of public money have been wasted on legal costs, along with the depletion of scarce professional time. The process has also been hard for the children, who have been separated from their main carer and from each other, and for the parents, who have been bewildered by the actions of the agencies. If there is any silver lining it is that they have to some extent become united in their bewilderment, so that their relationship with each other may be better now than it was before the events arose. It can at least be said that this case may be unprecedented, in that neither this court nor counsel appearing before it are aware of a previous instance, reported or not, of care proceedings being dismissed at an interim procedural stage against the opposition of the local authority and the Children’s Guardian.

 

 

It is easy to understand why the Judge was irritated at the two huge failings of the LA – first to remove the children from mum and place with dad without any proper agreement (and actually at the time dad was one of the possible suspects for the injuries) and second to delay for so long in issuing proceedings. That makes perfect sense to me.

 

The bruising was noticed on 13th May.

 

 

 

16.The local authority held a legal planning meeting on 28 May, when it was advised that the threshold for court proceedings was crossed. On 7 June an Initial Child Protection Conference took place and the children became subject of child protection plans. On 22 June the local authority held a legal gateway meeting at which it was decided to take the matter to court. On 9 July the social worker completed her statement. On 12 July an ‘intent to issue’ meeting was held. Despite that, it took the local authority until 23 August 2018 to issue care proceedings, seeking interim supervision orders in the short term and an expeditious fact-finding process.

 

 

17.A further consequence of the local authority’s delay in issuing was that the parents were not fully legally represented during the period of the delay. Nor did the children have a Guardian to represent them or monitor their situation. Also, the mother in particular was distressed at the children’s removal from her care, but was not given a forum in which she could readily challenge it

 

Things seem to have gone badly awry at a hearing on 1st November

 

 

 

 

24.Also at the hearing on 1 November, discussion started about the ‘relevant date’ for proving the threshold. The local authority had asserted that this was the date of the issue of proceedings, but counsel then vacillated by telling the judge that the relevant date was 14 May before returning to the pleaded case. For their part, counsel acting for Mr H and for the Guardian submitted that if the relevant date was 14 May, it was arguable that the threshold was not met since the children had been placed by the local authority with people with parental responsibility. This issue was taken up by the judge who, no doubt exasperated by the local authority’s approach, said: “I cannot think of any better way of expediting proceedings than the court concludes that threshold is not crossed and the application is dismissed.” There then followed this exchange between the judge and counsel for the Guardian:

 

 

 

 

JUDGE: … If 14 May is not the relevant date and the relevant date is the date on which the proceedings were issued, how does the Local Authority prove that on that date, either of the children were at risk of significant harm?

 

 

COUNSEL: … If the relevant date is the date of the issue of proceedings, then in my submission, the likelihood of significant harm for Lara flows from the risks that are posed by mother being within the pool of perpetrators.

 

 

JUDGE: At the time the proceedings were issued, Lara was in the care of her father… so, how could she be at any risk of significant harm?… I am intrigued, because this is a point that has never really been developed before… But it is a point that might actually be fatal to the local authority’s case.

25.The judge said there was a real question mark in his mind as to whether or not the local authority could possibly succeed, and something to be said for the court determining the issue on “a quasi-summary basis”. He therefore listed this issue and others for legal argument on 23 November and directed skeleton arguments to be filed. This led to the parties filing over 60 pages of legal submissions on this and other issues, something that I consider to be completely inimical to the scheme of the legislation. This whole sequence of events shows that the court had strayed from its mission, which was to seek to discover how a small child had received worrying injuries.

 

 

26.At the hearing on 23 November, Mr L (who, it will be recalled, had conceded in September that the interim threshold was obviously crossed) was represented by leading counsel, Mr Vine QC. It was by now common ground that the relevant date was the date of the issue of proceedings, avoiding any need to consider complex arguments about whether protective measures had been put in place in May that might have complied with the criteria set in Re M (above). I set out the core of Mr Vine’s argument, in fairness to the judge, because it is the argument he went on to accept:

 

 

 

 

“24. While the Local Authority now correctly identifies the ‘relevant date’ in their revised threshold document as being 23 August 2018, the date of issue of the application for care orders, it is not able to establish that the section 31 (2) threshold conditions were satisfied at that time unless it can establish Mr L as a possible perpetrator of Nina’s injuries… This is because, as at the relevant date, (a) Nina was already in his care, (b) the child protection plan was being complied with, in particular, the mother’s contact (certainly in relation to Nina) was being supervised, and (c) there was no need for a care or supervision order.

 

 

  1. If that is correct, there is no statutory basis for these public law proceedings, and if mother seeks to resume care of the children or unsupervised contact in a departure from the child protection plans, her remedy (absent judicial review) is to apply for child arrangements orders under s. 1 (sic). In that event, there would still be a role both for (a) fact-finding in respect of Nina’s injuries, and (b) Local Authority welfare evidence by way of a section 7 welfare report, but that does not mean that these proceedings should proceed on a flawed footing.”

27.At the hearing, there were lengthy exchanges between the judge and counsel then acting for the local authority. They included these:

 

 

 

 

“JUDGE:… I mean, the wording of the relevant provision of Section 31 is in the present tense, so it means that the court looks at 23 August and asks itself the question, is the child at risk of suffering significant harm as at that date, or has the child suffered significant harm as at that date.

 

 

COUNSEL: Well, we know in respect of Nina, that is right. She has suffered –

 

 

JUDGE: Well no, because she had suffered significant harm arguably back in May… and by the time you issued your proceedings, she has… effectively from the point of view of the Local Authority at that time been removed from the source of that danger, has she not.… I have a real conceptual difficulty at the moment with understanding how one can say as at 23 August 2018 the children were at risk of significant harm. I make no bones about it. I have had that difficulty right from when this case first came before me.”

 

And later:

 

 

“JUDGE: … So, does it come down to this then… or am I oversimplifying it, that the risk of harm as at 23 August, in fact stems from the fact that Nina is living with someone you now say was responsible for or may have been responsible for her injuries in May?

 

 

COUNSEL: Yes … Firstly, because of course you’re not just considering this father. Of course, section 31(2)(b) relates to ‘a’ parent… the mother is also in the pool of perpetrators –

 

 

JUDGE: But as at 23 August the child is not living with the mother… So the child cannot be at risk of suffering significant harm from anything attributable to the mother.”

 

Counsel for the local authority unavailingly pressed her case. She stressed that a dismissal of the proceedings would mean that there would be no determination of the issues. The judge, probably inspired by Mr Vine’s submissions, said that the matter could be dealt with in private law proceedings between the parents, to which counsel responded that this would lead to the “farcical” result that the local authority would then be asked to provide a section 37 report and “we are then back where we are now.”

 

Further exchanges included (in telescoped form):

 

 

JUDGE: … What you have done is… you have taken some steps, as the Local Authority thought, to protect children and then 3 months later, [you] issue proceedings and are now trying to argue that that the three-month delay is really immaterial…

 

 

COUNSEL … But it cannot be right surely just because we didn’t issue on 14 May that then we should have not gone on to issue with, as I say, the injuries unexplained to this child… And in looking at the risk of harm, one looks at the risk of harm presented by either of these parents, not both parents… one has to consider the risk looking backwards. That includes the injuries. It also then considers the risks going forwards, beyond those injuries, in as much as how it is that the parents are then preventing that risk of harm for that child going forward.… It’s a live risk that was still present then on 23 August. Whilst the child wasn’t in the mother’s care at that time, there is still the risk of significant harm because she was part of the pool of the unexplained injuries. It cannot be right that the court says, just because therefore the risk isn’t there because the child is not with the mother therefore threshold is not met.”

28.Mr Vine then pursued his written submissions to the effect that the threshold could not be established in Nina’s case, unless there was a real possibility of Mr L being responsible for the bruising. He relied on the case of Re C (above). He submitted:

 

 

 

 

“You can decide the case summarily. You don’t need to wait until the evidence has been tested if the propositions are not capable of being established, and you can exclude an issue.”

29.Counsel for the mother and for Mr H echoed Mr Vine’s submissions. Counsel for the Guardian expressed concern about the children’s position and distinguished the case of Re C, but did not squarely confront the legal issue of the threshold. By contrast, the Guardian’s submissions on the appeal crisply note that the proceedings had been dismissed without the Guardian filing an interim analysis, without the evidence of the paediatrician and without consideration of the risks that might be posed by the mother, regardless of the position of the fathers.

 

 

 

The Judge’s decision

30.In a reserved judgement given on 7 December, the judge dismissed the proceedings, and with them the direction for the paediatric report. He also amended the orders dated 10 October and 16 October “pursuant to the slip rule” by removing recordings that the court had found the s.38 interim threshold had been crossed and substituting recordings that the threshold had remained in dispute.

 

 

31.The judge described the case as “deeply troubling”. He expressed his concern about the local authority’s approach to the proceedings. He confirmed that he had kept the welfare of the girls in the forefront of his mind. They had gone from being with their mother and each other to being separated and living with their respective fathers and seeing their mother only for contact. He continued:

 

 

 

 

“11. … I am acutely aware that whatever decision I make today will not immediately improve their position and that, inevitably, there may be further delay before final decisions are made about their future.”

 

 

Father’s counsel stood by those submissions at the Court of Appeal hearing. It does not appear that the Court of Appeal found this a difficult appeal to resolve.

 

 

46.As will be apparent from what I have said above, and as we informed the parties at the end of the hearing, this appeal comprehensively succeeds. The judge erred in law by failing to recognise that the threshold for intervention was plainly crossed on the basis that at the date of the issue of proceedings both children were likely to suffer significant harm arising from the clear evidence about the very worrying injuries to Nina, for which one or other of her parents might, when the evidence was heard, be shown to have been responsible. He was in no position to prejudge that matter, and wrong to do so. It is a matter of regret that he should have been faced with such obviously fallacious legal arguments, particularly when advanced by leading counsel of Mr Vine’s standing. However, those arguments were clearly exposed as fallacies by counsel then acting for the local authority, and the judge should have given them short shrift. He should have affirmed that the threshold is to be approached from the perspective of the children, not from the perspective of the parents, one of whom may have been responsible for Nina’s injuries. He should have appreciated that delay in bringing proceedings, however lamentable, cannot of itself be determinative of the threshold. He should have realised that the fact that injuries are unexplained does not make them irrelevant, but rather raises an unassessed likelihood of future harm, aptly described in the local authority’s submissions to the judge as “a live risk.” Rather than seeking to cast doubt on the analysis undertaken by this court in Re S-W, by which he was bound and which was and remains authoritative guidance on the summary determination of public law care proceedings, he should have applied it. He should particularly have cautioned himself against terminating the proceedings when that course did not have the support of the Guardian, nor any written analysis from her. He should ultimately have seen the absurd impracticality of this unprecedented outcome, and the inappropriateness of private law proceedings as a surrogate forum for child protection. The injuries to this child cried out for investigation and the law, far from preventing it, positively demanded it.

 

 

47.For all that the judge’s task was made more difficult by the inadequacies of the local authority, courts have to work with the resources available to them. The sterile outcome in this case could easily have been avoided through normal case management procedures and loyal application of well-established law. Instead, the proceedings drifted with no strategic direction and a dissipation of energy on irrelevant issues, all greatly to the disadvantage of these children. They and the adults are entitled to a judicial determination of how Nina’s injuries were caused, and the directions that we now give will ensure that this happens as soon as reasonably possible. The order of 7 December will be set aside, so that the proceedings revive. The case will be allocated to another judge, by arrangement with Keehan J as Family Division Liaison Judge, and will be listed for an early single case management hearing at which it can be decided whether or not a split hearing remains appropriate and whether the direction for a further paediatric report remains necessary. We will also make an interim supervision order, to continue until the conclusion of the proceedings

 

“Unnourished by sense.”

 

It is always nice to see a judgment from Sir James Munby, and this one has everything, including the title above, which I intend to steal and deploy at every available opportunity.

 

(The fact that the phrase was originally coined by an American Judge whose given name was “Frankfurter” makes me even fonder of it, as does the fact that the case it was taken from is one where the US Court ruled that the historical rule that a husband and wife could not conspire to commit a criminal act was nonsense based on medieval views of women being the property of their husband  United States v Dege 1960 http://www.worldlii.org/us/cases/federal/USSC/1960/136.html

 

Such an immunity to husband and wife as a pair of conspirators would have to attribute to Congress one of two assumptions: either that responsibility of husband and wife for joint participation in a criminal enterprise would make for marital disharmony, or that a wife must be presumed to act under the coercive influence of her husband and, therefore, cannot be a willing participant. The former assumption is unnourished by sense; the latter implies a view of American womanhood offensive to the ethos of our society. )

 

What is the case about?

In a nutshell, some people got divorced on the grounds of 2 years separation when they hadn’t been separated for 2 years (in one of the cases, they’d only been married for 22 months, so couldn’t possibly have been separated for 2 years). The Court wrongly granted the divorces. The problem got flagged up by Court software after the event [apparently showing that 11 divorces were made in 2016 that shouldn’t have been granted], the Court fudged the mistake by making orders it didn’t have power to make. The people then remarried, making them inadvertently bigamists, Sir James Munby learned of the Court software throwing up divorces that had been wrongly made and looked into it, the Legal Aid Agency said (I’m paraphrasing) “Just because the State cocked up your divorce, and now says you’re not divorced, or might not be, and you might be a bigamist or might not be,  and your new husband might be deported by the immigration authorities if your second marriage isn’t lawful, and you need to be in a Court hearing to argue about that involving really complex case law going back to 1936, the case law being so complicated that it made a former President of the Family Division (but not Sir James Munby) say with exasperation “I find it impossible to discover any clear and logical principle from the decided cases.” , well all of that doesn’t mean that you get legal aid to help put this right. You are £37.17 a month over the limit for legal aid. Do it yourself. Good luck, pal. ”

 

THAT is what caused Sir James Munby to say

 

 

  • I do not criticise the Legal Aid Agency which was, no doubt, operating within the confines of a system imposed on it by others. But the idea that someone with an available net monthly income of £625.87 (the amount if one takes the actual rather than the notional amount of her rent: £1,580.87 – (1,500 – 545) = £625.87) and, for all practical purposes, no capital has the means to fund litigation of this kind is, to adopt a phrase used by Frankfurter J in United States v Dege (1960) 364 US 51, page 53, “unnourished by sense.” Nor is it immediately obvious why someone whose disposable income is so low should be denied legal aid because their aggregate income exceeds some artificial limit, let alone when it does so by a sum as trivial as £37.17. After all, P, like all of us, has to live on what is left after payment of PAYE and NI (deducted, of course, at source) and the costs of housing.
  • What ought also to be obvious to anyone with an ounce of common sense and understanding of forensic realities is that no lay person in the position of either P, or for that matter M, could possibly be expected to argue a case of this legal complexity, and this even if English was their native tongue.
  • What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created to the goodwill, the charity, of the legal profession. For what brought this matter to court was, to repeat, failures, mistakes, by the State, by the court system, and, specifically by judges. Moreover, the application has been mounted by an officer of the State, the Queen’s Proctor. Yet the State has declined all responsibility for ensuring that P is able to participate effectively in the proceedings. I make as clear as possible that in saying this I intend not the slightest criticism of the Queen’s Proctor, who has acted throughout with complete propriety and, moreover, with conspicuous concern for the predicament in which P and M find themselves. Indeed, the Queen’s Proctor, having discussed the point with the court, very properly took the highly unusual step of writing to Messrs Duncan Lewis a letter to assist with P’s application for legal aid in this case. Yet the situation is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that hapless individuals like P and M, victims of the State’s failings, are able to obtain justice? Or is society in the twenty-first century content with the thought, excoriated well over a century ago by Matthew LJ, that justice, like the Ritz, is open to all? It is deeply wrong and potentially most unfair that legal representation in a case like this, where it is a vital necessity, is available only if the lawyers, as here, agree to work for nothing.

 

 

And

 

121.The ultimate safeguard for someone faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. So the role of specialist family counsel, and of the specialist family solicitors who instruct them, is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work. There can be no higher call on the honour of the Bar than when one of its members is asked to act on behalf of a client facing the might of the State. The Bar, I am sure, will never fail in its obligation to stand between Crown and subject. And the same of course goes for the solicitors’ profession. But there is something profoundly distasteful when society, when Government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the State is so conspicuously unwilling to do or to provide for.

 

The lawyers in this case worked for free to represent people caught up in a life-altering piece of litigation because the State cocked up.

 

I also like that the Daily Telegraph headlined this story in their indupitable way

126.During the hearing on 28 February 2019, I mentioned the fact that I had discovered certain problems with an early version of the software. This, I should emphasise, was well before it was first made available to the public. The fact that I, as an elderly judge, had been able to identify such gremlins seemed to surprise the media: a report of the hearing in the Daily Telegraph of 1 March 2019 carried the headline “Online divorce service glitch revealed by senior judge, 70“, faithfully reflecting the story beneath.

 

 

 

You may be thinking at this point that blaming it on software is easy but decree nisi and decree absolute are actually made by Judges and surely even busy Judges could look at a marriage that was 22 months ago and see that it couldn’t possibly be a 2 year separation case. You are right. Ultimately the mistakes were made by Judges.  (There were 11 such cases in 2016, this is a sample one)

 

  • The parties were married in London on 19 September 2011. In June 2013, the husband, M, acting in person, submitted a divorce petition dated 14 June 2013 to the Willesden County Court. It was returned to M on three occasions before the Court was prepared to accept it: first, on 18 June 2013 because the front page needed to be completed and because of deficiencies in Parts 2 and 4; then on 27 June 2013 because the deficiency in Part 2 had still not been remedied; and finally on 3 July 2013 because with effect from 1 July 2013 the issue fee had increased from £340 to £410. It is to be noted that through all this to-ing and fro-ing no-one in the court office had spotted the fundamental problem with the petition. After these delays, the petition was issued on 26 July 2013.
  • In Part 3, “Jurisdiction”, M asserted jurisdiction in accordance with the Council Regulation, stating that he and his wife, P, were both habitually resident in England and Wales. Part 5, “The fact(s)”, follows the structure of section 1 of the Matrimonial Causes Act 1973 and requires the petitioner to mark the relevant boxes. M put a cross in two boxes, one against the rubric “I apply for a divorce on the ground that the marriage had broken down irretrievably”, the other against the rubric “The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree/order being granted.” In Part 6, “Statement of case”, M wrote: “The respondent has refused to share the same household as the petitioner since the marriage took place on the 19th September 2011.”
  • The problem which has given rise to the present proceedings is immediately apparent: given that the marriage had taken place on 19 September 2011, the period of two years referred to in section 1(2)(d) of the 1973 Act had not elapsed by the date the petition was issued on 26 July 2013. Unhappily, even at this stage the problem was not identified by the staff at Willesden County Court, notwithstanding that the Automatic Event Record generated in the court office and dated 29 July 2013, accurately recorded under the heading Case Details that the Grounds for Divorce (sic) were “2yrs separation”, that the date of marriage was 19 September 2011 and that the date of issue was 26 July 2013.
  • In her acknowledgment of service dated 12 August 2013, P, in answer to question 1C (“Do you agree with the statement of the petitioner as to the grounds of jurisdiction set out in the petition? If not, please state the grounds on which you disagree with the statement of the petitioner.”), answered “I agree with the statement of the petitioner.” In answer to question 4 she stated that she did not intend to defend the case and in answer to question 5 that she consented to a decree being granted. M’s “Statement in support of divorce … – 2 years, consent” was dated 27 September 2013.
  • On 22 October 2013 the file was put before Deputy District Judge Quin. The Deputy District Judge completed the Form D30 (“Consideration of applications for Decree Nisi / Conditional order under FPR 7.20”), by ticking the relevant boxes and making the appropriate deletions so as to say “I certify that the Petitioner is entitled to a decree of divorce on the following ground(s): 2 years separation by consent.”
  • On 21 November 2013, decree nisi was pronounced by District Judge Steel, the order stating, so far as material for present purposes: “The Judge held that the petitioner and respondent have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and that the respondent consents to a decree being granted …” The decree was made absolute on 24 February 2014.
  • On 26 January 2015, M remarried in Brazil, his new wife being a Brazilian national.
  • On 12 October 2016, a member of the HMCTS Family Improvement Team at HMCTS headquarters emailed the delivery manager at what was now the Family Court at Willesden seeking “urgent information from a divorce file where the petition should not have been issued.” The delivery manager referred the matter to District Judge Middleton-Roy the same day, with this note:

 

“It would appear that this petition was issued in error. It was issued under 2 yrs with consent but the parties were only married for 22 months. Directions/ comments please. DA has already been issued 24/2/14.”

District Judge Middleton-Roy responded the same day. He ticked the “No action necessary” box on the referral form and commented: “I am not clear why the issue has arisen now – neither party appears to be applying to set aside the DA.”

  • The next morning, 13 October 2016, the delivery manager emailed the HMCTS Family Improvement Team to report District Judge Middleton-Roy’s comment. The response from the Family Improvement Team was an email to the delivery manager the same morning:

 

“The issue has been raised as our data checking process returns has picked this case up as a case that should not have been issued, thereby possibly making the DA invalid. Can this be re-referred down to a judge for consideration of directions to be given in view of this …”

The delivery manager put the file back before District Judge Middleton-Roy the same day. On 17 October 2016 he directed that the matter be listed for directions with a time estimate of 30 minutes and instructed the court staff write to both parties as follows:

“The Judge has considered that papers and directs that I write to you as follows: An error has been identified in the process giving rise to the Decree Absolute (final divorce) in these proceedings in 2014. The matter has been listed for a directions hearing when the court will identify what steps are necessary to restore the issue.”

Letters in those terms were sent to both parties on 19 October 2016, enclosing notices, dated 17 October 2016, listing the directions hearing for 18 January 2017.

  • The hearing on 18 January 2017 took place before District Judge Middleton-Roy. M was present in person; P did not attend the hearing. The order made by District Judge Middleton-Roy “RECORDED” certain matters, including that “This hearing was listed of the Court’s own motion and not on the application of either party”; that “The Court was informed that subsequent to the granting of the Decree Absolute in this action, the Petitioner has re-married”; that “The Court determined that the original petition … proceeded erroneously by not relying upon the correct facts in support, namely two years separation, when the parties had not been separated for a full period of two years at the time of presenting the petition”; that “The Court determined that the Petitioner shall be permitted to amend the petition, to rely upon the fact of the Respondent’s behaviour”; and that “The court dispensed with the need for a formal written application to amend the petition and dispensed with the need for notice to be served upon the Respondent, the petition having proceeded on an undefended basis and no answer having been filed.” The order also “RECORDED” that:

 

“The Court determined, declared and certified that the Petitioner is entitled to a decree and that the Decree Nisi dated 21.11.13 and Decree Absolute pronounced in public on 24.02.14 remain valid”

and that:

“The Court declared that nothing in the terms of this Order has the effect of invalidating the Petitioner’s subsequent marriage.”

  • The order further ordered (“It is ordered that”) that:

 

“2.1 Permission to the Petitioner to amend the petition dated 14.06.2013 in the form of the amendment dated 18.02.2017.

2.2 Filing and service of an application to amend the petition is dispensed with.

2.3 The Decree Absolute pronounced on 24.04.2014 remains valid.”

  • The court file contains a copy of the petition marked at the top of the first page, in what appears to be District Judge Middleton-Roy’s handwriting, “AMENDED” and at the foot of the final page “18.01.2017”, again in what appears to be his handwriting, although it appears that M also re-signed the petition. In Part 5 the cross against the rubric “The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree/order being granted” has been deleted and, in its place, a cross inserted against the rubric, which was underlined, “The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.”
  • On 24 March 2017, in Brazil, P married a Brazilian national.

 

 

 

The legal argument (and it is complex) hinged on whether the decree absolutes, which were made on an incorrect premise (that the parties had been separated for 2 years when it was apparent on the face of the documents that they had not been) were VOID – which means the divorce didn’t happen and the subsequent remarriages of both parties were unlawful or VOIDABLE meaning that a Court could decide whether to void them or whether to leave the divorces legally intact.

 

The conclusion (and if you want to see how Sir James Munby got there good luck to you, its at paragraphs 45-103 inclusive) is

 

 

 

40.At the end of the hearing I reserved judgment. On 4 March 2019 I informed the parties of my decision: that the decrees are VOIDABLE, not void; that the decrees will NOT be set aside; and that the decree absolute accordingly remains valid and in force. I now (22 March 2019) hand down judgment.

 

And reasoning

 

  • At the end of this long analysis of the jurisprudence, I have come to the clear conclusion that the consequence of what happened in this case is that the decrees are voidable, not void.
  • I can set out my reasoning as follows, taking the points in no particular order:

 

  1. i) First, there is no previous case directly in point. The present case turns on statutory provisions linguistically and analytically different from those in play both in Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, and in Manchanda v Manchanda [1995] 2 FLR 590.
  2. ii) Secondly, I should lean against holding the decrees void unless driven to that conclusion by the language and context of the relevant statute, here section 1(2) of the Matrimonial Causes Act 1973.

iii) Thirdly, and applying the approach articulated by Sir Jocelyn Simon P in F v F [1971] P 1, I need to ask myself whether Parliament can really have intended that the consequence here should be that the decrees are nullities and void. My answer is that Parliament surely cannot have intended the injustice which will inevitably flow, not just to M and P but also to their new spouses, if the decrees are void.

  1. iv) Fourthly, and as I have already explained, the fact that there has been non-compliance with the statute is not determinative.
  2. v) Fifthly, although recognising that the statutory context is different, the fact is that the structure of section 1(2) of the Matrimonial Causes Act 1973 – “the court … shall not … unless the petitioner satisfies the court” – is indistinguishable from that in both section 33(1) of the Matrimonial Causes Act 1965 and section 6 of the Divorce Reform Act 1969 (now section 10 of the 1973 Act) – “the court shall not … unless it is satisfied” – and the case-law is all at one that in those cases the consequence of non-compliance is not that the decree is void but rather that it is voidable.
  3. vi) Sixthly, both the statutory context and the structure and language of section 1(2) of the 1973 Act are markedly different from the context, structure and language of section 9(2).

vii) Seventhly, it is quite clear that there was here no non-compliance with section 3 of the 1973 Act, so that, in contrast to the situation in Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, the court here did have jurisdiction to entertain the petition.

viii) Eighthly, the petition correctly pleaded the only relevant ground, namely that “the marriage has broken down irretrievably”.

  1. ix) Ninthly, the error in correctly identifying the relevant fact did not prevent the court entertaining the petitioner’s subsequent application for a decree: in Leggatt LJ’s sense of the word, District Judge Steel had jurisdiction to hear the petitioner’s application for a decree nisi. The District Judge’s error was, to adopt Leggatt LJ’s words, an inadvertent failure to observe a statutory provision – section 1(2) of the 1973 Act – against the exercise of it.
  2. x) Tenthly, there was in the present case another fact in existence at the date of the petition which if properly pleaded – by an amendment of the petition – would undoubtedly have justified the court granting a decree nisi and thereafter making the decree absolute.
  3. xi) Finally, although this is not, I emphasise, a necessary pre-requisite to my conclusion, in the present case the evidence to establish that fact was actually set out in Part 6 of the petition. So, in this particular case, the defect in the petition came down to this: that the cross had been put in the wrong box in Part 5 – a defect simply curably by putting the cross in the correct box. It is sometimes said that Roger Casement was hanged by a comma, but, whatever the truth of that, one has to ask what conceivable principle of justice or public policy could possibly be served by treating as nullities decrees where the parties were the innocent victims of failure by the court itself, and where their subsequent marriages, entered into in complete good faith and in reliance upon the court’s own orders, would thereby be treated as bigamous, when the entire problem derives from the fact that a cross was placed in the wrong box. We are no longer in the days of Parke B. Surely the modern judicial conscience would revolt if compelled to come to such a conclusion.

 

(So actually, and Sir James Munby says this, DJ Middleton-Roy was right in the hot-fix that he applied to the situation, although there was quite a bit of judicial reasoning to get to that point. In old Math teacher language, DJ Middleton-Roy had the right answer, but hadn’t shown his working.)

 

I wasn’t familiar with the Roger Casement was hanged by a comma history, so there’s a link here, and it is a worthwhile side-track   (one of the things I like most about Sir James Munby is that his judgments expand your mind)

 

https://ipdraughts.wordpress.com/2013/10/14/hanged-on-a-comma-drafting-can-be-a-matter-of-life-and-death/

 

I think the portions of the judgment dealing with the human realities are also interesting and bring the case to life

 

41.The focus of the hearing was, inevitably, on the difficult questions of law to which I must come in due course. But it must never be forgotten that, at the end of the day, this application affects four human beings – P, M and their new spouses – in a matter which is of transcendental importance to all of them. P, in her statement, puts the point in understandably emotive and powerful language:

 

 

 

“I am an innocent party to these proceedings … My current husband and I married in Brazil in good faith after the amended petition … on 24/03/17 before God and our families … the idea that I have committed bigamy is convulsing and my mental health is now being affected … if it indeed the case that my former husband and I is not divorced that means I am a bigamist [Bigamy is illegal in Brazil] irrespective if it was a legal oversight, and I can be arrested, detained and prosecuted if I try to annul the divorce.”

 

She then added this very important point:

 

“In addition as my husband is a Brazilian national who travels to the UK as my spouse will no longer be able to enter the UK as he will no longer be my spouse and the Home Office don’t allow partners visitation. This is going to affect my marriage severely.”

42.Ms Bazley and Ms Dunseath make similar points in their skeleton argument:

 

 

 

“In her statement [P] raises particular concerns about the fact that the setting aside of the decrees would seem to mean, amongst other things, that she had entered into a second marriage whilst already married – coming within the definition of the offence of bigamy, contrary to s.57 Offences Against the Person Act 1861 (and, it appears, a contravention of Article 1521(VI) of the Brazilian Civil Code – acting unlawfully by remarrying whilst still being married).

 

[Her] concerns are both legal, she may have committed an offence, and moral/spiritual, in that she feels deeply disturbed by potentially having committed that offence. Further, it is enormously distressing to her to contemplate that her marriage may be invalidated, despite having taken place in good faith, in a ceremony witnessed by family and friends.

 

The setting aside of the decrees would cause [her] emotional, psychological, and financial harm, and may disturb her new relationship.”

43.The potential immigration problems in this kind of situation are all too real, as the reaction of the Home Office to the predicament in which the parties in Solovyev v Solovyeva found themselves, so clearly illustrates: see Solovyev v Solovyeva [2014] EWFC 1546, [2015] 1 FLR 734, para 4 and Solovyev v Solovyeva [2014] EWFC 20, para 7. The fact that the official policy of the “hostile environment” has recently been replaced with the semantically less challenging policy of the “compliant environment” is, one suspects, of little comfort to bewildered people like P and M.

 

 

44.To that I should add what may be obvious from what I have already said but nonetheless needs to be stated plainly and without equivocation: both M and P are the wholly innocent victims of serious mistakes by the court, mistakes not merely by court staff but, more importantly, by judges – Deputy District Judge Quin and District Judge Steel. True it is, that the original mistake was by M, when he made the mistake of marking the wrong box in Part 5 of the petition, and that if he had not made that mistake there would never have been any problem. But that is wholly beside the point. If M’s mistake was the causa sine qua non – the ‘but for’ cause of what happened –, the causa causans – the real, primary, cause was the errors of the court, of the judges

Not a vacuum but a low pressure vessel

 

The case of

            CS v SBH & Ors [2019] EWHC 634 (Fam) (18 March 2019)    

https://www.bailii.org/ew/cases/EWHC/Fam/2019/634.html

is the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point.  It also involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.

 

In case that’s prompting you to close the browser and eat some biscuits instead – it is an important decision for any solicitor representing a child, or Guardian, or a parent’s lawyer giving advice as to whether the child could be separately represented.  It also involves two children’s solicitors duking it out over which of them would represent the child, which is not something I’ve ever seen before. Read on.

 

At essence, it was an appeal from a private law order that the child should live with the father, the child expressing that she wanted to live with the mother.  The child lodged the appeal, but one of the solicitors for the child was actively opposing the appeal.  (Yes, that dull pain around your temples is normal at this point)

The child had two solicitors.

One instructed by the Guardian, who considered that the child did not have capacity to instruct a solicitor (and hence could not bring this appeal properly, as the Guardian had not given instructions to lodge such an appeal)

One instructed by the child directly (and who was acting pro bono (for free) , because she was concerned that the original proposal was that the mother was funding the child’s legal fees) who considered that the child DID have capacity to give instructions, wanted to appeal the order and so the appeal should be heard.

So the first thing for the Court to work out was which of these two solicitors was actually representing the child. If the child had capacity, it would be Ms Hopkin.  If the child lacked capacity, it would be Ms Coyle.

 

But even beyond that, the Court had to at great length decide whether an appeal was a continuation of existing proceedings or fresh proceedings.

 

  1. After all those preliminaries we were able to get onto the question of the preliminary issue. I had thought that some oral evidence from Ms Hopkin and Ms Coyle might be desired but in the event Ms Hopkin was appearing as the advocate and in any event no party wished to put questions to either Ms Coyle or Ms Hopkin and so the matter proceeded on submissions. As arguments developed this appeared to boil down to two particular issues:
  1. i) Firstly whether an appeal constituted new proceedings, such that the provisions of FPR 16.6 (3) applied, in which case Ms Hopkin’s opinion on whether the child was able having regard to her understanding to give instructions in relation to the appeal appeared to be determinative.

ii) Secondly if the appeal was part of a continuation of proceedings whether pursuant to FPR 16.6 (5) and (6) the court considered that the child has sufficient understanding to conduct the appeal concerned without a children’s Guardian. This involved consideration of both the law and the evidence.

  1. As I shall return to later this apparently clear delineation between the role of Ms Hopkin and the role of the court turns out not to be so following a deeper dive into the authorities.

 

(I’m pleased that it was ‘apparently clear’ to Williams J, because this caused me such pain in my cortex that I had to contemplate an MRI scan before moving on.  But joy, it turns out NOT to be so ‘clear’)

 

In a nutshell, if the case is new proceedings, then the child instructs a solicitor Ms Hopkins, and if Ms Hopkins thinks the child can give her instructions well then what Ms Hopkins says effectively goes on capacity. But if it is a continuation of proceedings, the Court has to consider whether the child has sufficient understanding to instruct solicitors.

So is an appeal new proceedings, or a further stage in existing proceedings?

 

  1. The following matters suggest that an appeal is fresh proceedings:
  2. i) The appeal is made in the High Court not in the family court and is allocated a specific number. It is made by an Appellants Notice not a C2 ‘Application in existing proceedings.’

ii) Legal Aid treats proceedings with a different case number as ‘new proceedings’ and an appeal after a final order is not covered by the same certificate.

iii) Cost are dealt with separately.

  1. The following matters suggest that an appeal is part of a continuum of proceedings:
  1. i) An application for permission to appeal may be made in either the lower court or the appeal court. This suggests the appeal process is linked as between the lower court and the appeal court.

ii) The appeal court has all the powers of the lower court (FPR 30.11)

iii) The appeal court’s powers directly affect the order made by the first instance court, including the power to vary any order or judgment, refer any application or issue for determination by the lower court, order a new hearing (FPR30.11 (2) and stay the order of the first instance court. These all suggests a direct jurisdictional connection.

iv) The appeal court’s function is identified at FPR 30.12 is reviewing the decision of the lower court unless it considers it to be in the interests of justice to hold a rehearing.

v) The appeal court powers include substituting its own decision or exercising its own discretion fresh rather than remitting the matter to the first instance court; Fallon v Fallon [2010] 1 FLR 910 CA. The court may also admit fresh evidence and may hear oral evidence.

vi) The respondents to the appeal are the other parties to the proceedings in the lower court (see FPR 30.1 (3)) and the appellant’s notice must be served on any children’s Guardian.

vii) Where a child is a party to the first instance proceedings they are automatically a party to the appeal proceedings the rules do not provide for the court to reconsider their party status or whether they will be represented by a Guardian and who will be appointed as the solicitor.

 

  1. Notwithstanding the points which point towards an appeal being separate proceedings I conclude that the factors pointing in favour of an appeal being a continuation of proceedings are far more compelling. In particular the seamless continuation of party status and the powers of the appeal court all point to an appeal being another stage of proceedings; albeit different in nature. I don’t consider that the use of an appellant’s notice, rather than a C2, shed much light on the issue. Applications in existing proceedings can also be made by the use of other forms under the part 18 procedure. Seems to me the appellant’s notice and the giving of a separate case number are administrative matters rather than affecting the substance of the proceedings. Nor do I consider the rules relating to the availability of legal aid shed much light on whether the proceedings are separate or part of a continuum. The rules applied by the Legal Aid Agency are a matter for that agency.
  2. For all of the reasons identified above I conclude that an appeal is a continuation of the first instance proceedings. It is another step or stage in those proceedings and thus the provisions of FPR 16.6 (5) apply.
  3. That being so it is for me to decide whether the child has sufficient understanding to conduct the appeal proceedings without a Guardian.

 

 

(The Court also took the view that as a result of Re CT the Court ultimately had discretion anyway, so all of that was rather academic, but at least we all now know that an appeal is a continuation of existing proceedings, not new proceedings)

In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said

‘…if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor’

 

 

Moving on then, as the Court had to decide whether the child had sufficient understanding to instruct a solicitor, what did they take into account?

 

 

 

  1. Having regard to the jurisprudence I consider that Lady Justice Black’s summary in paragraph 36 of her judgment in Re W (highlighted above) draws together much if not all of the earlier observations on the issue. What is clear is that there has been a shift away from a paternalistic approach in favour of an approach which gives significantly more weight to the autonomy of the child in the evaluation of whether they have sufficient understanding. Thus the earlier authorities need to be approached with a degree of caution in terms of the level at which they set the ‘bar’ of understanding. The autonomy issue sounds both in pure ‘understanding’ terms and in welfare terms.
  1. i) In assessing understanding the court is likely to attribute more weight to the child’s views of the issues and the reasons they give for wishing to be involved amongst others. The expression of a wish for an objectively ‘unwise’ (or unsound) outcome might now not undermine the evaluation of sufficient understanding in the way it might have in 1993. It is perhaps also likely to hold the child to a somewhat lower expectation of understanding of the litigation process than emerges from Booth J’s judgment cited in Re N (above) which appeared to contemplate an ability to negotiate complexities of litigation which many adults might struggle with.

ii) In so far as the welfare of the child is a primary consideration in the decision-making process (Art 3 UNCRC and Mabon suggest it is) the welfare of the child sounds both in favour of their involvement (recognising the value they may add to the process and their rights as a person significantly affected by the decision) and against (where involvement may expose them to harmful emotional consequences).

  1. Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including
  1. i) The level of intelligence of the child

ii) The emotional maturity of the child.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. Some degree of influence is a natural component of decision making but the closer to the ‘parrotting’ end of the spectrum one gets the lower the level of understanding there is likely to be. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

  1. Ideally the assessment would be swift and pragmatic without too deep a dive into the issues in the case and the competing analyses of the solicitors involved. In some cases, an expert assessment might be required in particular where the solicitors assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view

 

 

In this case, the Court had two solicitors, both experienced at representing children, and both with competing views as to whether the child had capacity to instruct them.

Discussion

  1. Each case must be approached on its own facts. The stage at which I am assessing the issue of sufficiency of understanding comes relatively late in these proceedings where an experienced family court circuit judge has already determined the substantive issue and made findings which are relevant to my evaluation of the sufficiency of the child’s understanding.
  2. The views of Ms Hopkin on the one side and Ms Coyle on the other are diametrically opposed. There is however an immediate and obvious difference between them. That is not the age and experience of the solicitor conducting the evaluation but rather the extent to which the evaluation is an informed evaluation. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.
  3. Turning thus to some of the factors which I need to weigh in the balance in making my own evaluation of whether this child is of sufficient understanding to conduct the appeal without a children’s Guardian my conclusions are set out below and draw upon all that I have set out in this judgment as well as what I have read and heard.
  1. i) The level of intelligence of the child: she has the intelligence of or slightly above her chronological age.

ii) The emotional maturity of the child: she lacks emotional maturity, this being evidence by an inability in particular to hold a balanced view of her father or an understanding of her position.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state: the extent of her enmeshment with her mother and the emotional harm that she had suffered from that is likely to diminish her ability to understand the true nature of the issues.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role: I accept that the child has felt her voice has not been listened to or heard but that actually does not reflect the reality given that she has had a Guardian and solicitor both in the original proceedings and recently. Whilst inevitably her reasons for wanting to have a solicitor and appeal will be mixed, arising at least in part from the fact that her solicitor and Guardian did not achieve the outcome she desired I consider that it is also likely that her position has been influenced by her mother and maternal family either directly or indirectly. Although every child is of course different the fact that this child has not been in direct contact with Mr Burrows or Ms Hopkin pushing for information, seeking answers or otherwise proactively pressing her case indicates to me that her desire to have her own solicitor in Ms Hopkin and to pursue the appeal is not particularly strong. Her acceptance of the possible withdrawal of proceedings in summer 2018 is further evidence of this.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position: the child’s lack of a full appreciation of the reasons for living with her father in part at least arises from the fact that the issue has not been addressed in therapy although I note that the Guardian understood that the child had knowledge of the reasons but had not processed it. The child’s wish to live with her mother was accepted by the Guardian and HHJ Meston QC as a genuine one. Inevitably it is in part a product of influence (whether direct or indirect and see HHJ Pearl’s conclusion) but all our views are in part a product of influence of others views. The child’s wishes in this case are closer to the authentic end of the spectrum than the parroting end although they probably fall closer to the middle.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation: Ms Coyle’s analysis but also the contents of some of the child’s expressed views whether in letters or to the Guardian do not indicate much of an understanding of the court process, the functions of a solicitor, the role and function of a judge or the consequences of having a solicitor acting directly. They emerge as very simplistic and unrealistic. Although neither Ms Hopkin or Ms Coyle specifically addressed the question of the child’s understanding of the appeal process, the nature of an appeal is in many ways harder to understand than the first instance process given it is a review of the judge’s decision rather than a rehearing of the application.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm: both the Guardian and HHJ Meston QC considered that the child would accept an outcome that was contrary to her expressed wishes. It is clear from the Guardian’s report that continued litigation is contrary to the child’s welfare. In particular the burden that it is considered that she carries to promote the mother’s position is harmful. Further involvement in litigation in this appeal or otherwise will likely be contrary to her welfare interests. Exposure to sensitive information to a child of this age and with this history will be harmful. Although her actual involvement in this appeal might be limited the process of challenging the judgment would inevitably involve detailed discussions with the child about the evidence. On the other hand, she has expressed a desire to have Ms Hopkin act for her and to appeal. This has endured since HHJ Meston QC’s adverse judgment. However it is not pressed proactively and the Guardian and Ms Coyle did not detect any real desire to appeal in any event. Thus preventing the child from engaging directly in this litigation with the effect that it would very probably bring the appeal to a juddering halt is not likely in my view to be perceived by the child as a significant insult to her autonomy as an individual.

  1. Giving all due weight to the child’s personal autonomy and having regard to the welfare implications of her not being able to instruct a solicitor to pursue her appeal overall and taking account of all of those matters which weigh in favour of the conclusion that she does have sufficiency of understanding I am quite clear that the factors which support the conclusion that the child does not have sufficient understanding substantially outweigh those pointing the other way. Inevitably the evaluation is more an art than a science and the weight to be given to each component cannot be arithmetically totted up. The overall impression that clearly emerges is one of a child who does not have sufficient understanding to conduct the appeal without a children’s Guardian. That is not to say that Ms Hopkin’s initial evaluation was wrong; it has to be looked at in the light of the totality of the material available. The test in FPR 16.6 (6) is not met. My conclusion would be the same as if I were considering the test under 16.6 (3) as to whether the child is able having regard to her understanding to give instructions in relation to the appeal.

 

 

Should a Local Authority serve notice of proceedings on a father suspected of abusing the mother?

 

If that title sounds familiar, it is because this was a huge hot-button topic not very long ago, involving a case in which a woman (now named in the public domain as Sammy Woodhouse) complained that a Local Authority was in effect inviting her abuser – who had groomed and abused her as a minor – to have contact with her baby.

I rather stayed out of that story, because there wasn’t a reported judgment to make sure that the newspapers were reporting the case accurately, but if you want the background, the Transparency Project has a good piece on it here

 

http://www.transparencyproject.org.uk/when-should-i-apply-for-permission-not-to-notify-a-father-about-a-court-case-concerning-his-child/

 

Lawyers at the time were saying that the Local Authority, according to the Family Procedure Rules 2010 have to serve notice of the proceedings on the father. That’s not inviting him to have contact, or wanting him to be involved in the child’s life, but following the procedure that they have to follow. However, a lot of lawyers also said that in a case of this kind, where the pregnancy was a result of child sexual exploitation, it would have been better to put the issue before the Court and have the Court hear arguments as to why father should NOT be served and make the decision.

This case is not binding authority.  The boundaries about what’s precedent, what’s information as to how a particular Judge dealt with a particular issue in a particular case, what’s obiter and what’s mostly a speech masquerading as a judgment has gotten very blurry in the lifetime of this blog. But this is not a binding authority.

However, it uses wording that makes you think it might be.

P (Notice of care proceedings to father without parental responsibility) [2019] EWFC 13 (11 March 2019)    

http://www.bailii.org/ew/cases/EWFC/HCJ/2019/13.html

 

1.  In 2018 a local authority obtained a final care order in respect of a teenage girl, Z. In its threshold document the local authority alleged that Z was ‘at high risk of sexual harm as she has previously been groomed and sexually exploited’. Z’s parents accepted that the threshold criteria set by s.31(2) of the Children Act 1989 were met. The local authority sought a final care order based on a care plan of long-term foster care. Z’s parents accepted that that plan was both proportionate and in Z’s best welfare interests. A final care order was made.

  1. At the time of those proceedings Z was pregnant. Z’s baby, P, was born in December 2018. The local authority promptly issued care proceedings and obtained an interim care order. The local authority’s interim care plan was that upon discharge from hospital P should be placed with Z in her foster placement. That plan was implemented.
  2. This case relates to issues of child sexual exploitation. P’s father is believed to be T. T is more than 10 years older than Z. He is believed to be part of a group of predatory men who have groomed and sexually exploited a number of teenage girls of whom Z is one. He has been prosecuted for offences relating to his sexual relationship with Z and is presently serving a custodial sentence.
  3. It is not known what information, if any, T has concerning Z’s pregnancy and P’s birth. He has never had contact with P, either direct or indirect. It is believed that he is not aware of these care proceedings. He does not have parental responsibility for P.
  4. The local authority wishes to be relieved of its responsibility to comply with the provisions of Family Procedure Rules 2010 (FPR) Practice Direction (PD)12 §3.1 which provides that, ‘every person whom the applicant believes to be a parent without parental responsibility for the child’ is ‘entitled to receive a copy of Form C6A (Notice of Proceedings/Hearings/Directions Appointment to Non-Parties’.

 

So quite similar to the Sammy Woodhouse case, although here (probably mindful of the awful press that Rotherham got in that case) the Local Authority asked the Court to decide on whether father should be told about the proceedings.

His Honour Judge Bellamy (sitting as a Deputy High Court Judge) heard the case.

He placed reliance on a previous judgment he had given (again, not binding authority) Re CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34, [2017] 4 WLR 110 (‘ Re CD ’).

 

And said that as the case had not been overturned on appeal, nor was there any later judgment saying that the decision in Re CD was wrong in law, he felt able to rely on it

 

My decision was not appealed. So far as I am aware it has not been the subject of criticism in any subsequent case or any academic criticism. In those circumstances I propose to proceed on the basis that the law is as set out in that case

 

 

And in conclusion

 

23.          Against that background what, then, should be the approach of the local authority and the court to the requirements of FPR 2010 PD12C §3.1 in any case involving child sexual exploitation? In such cases, is there a requirement, or at least an expectation, that the local authority should apply to the court for permission not to serve Form C6A on the person believed to be the birth father? Or, to put that another way, is it open to a local authority unilaterally to take the decision to serve Form C6A on a person believed to be the father of a baby born as a result of child sexual exploitation where that person does not have parental responsibility and is believed to be unaware of the care proceedings?

  1. It is for the court to decide whether the requirements of FPR 2010 PD12C §3.1 should be disapplied in any particular case. It can only make that decision if the local authority brings the matter before the court by issuing an application for the requirements of FPR 2010 PD12C §3.1 to be disapplied.
  2. In my judgment, on a proper reading of the requirements of FPR 2010 PD12C §3.1, it is open to a local authority, without reference to the court, to serve Form C6A on a person believed to be the father of a baby born as a result of child sexual exploitation without reference to the court. The court has no power to impose a requirement that in every case relating to a child born as a result of child sexual exploitation a local authority must apply to disapply the requirement to send a copy of Form C6A to a person believed to be the father of the child. Whether there should be such a requirement is an issue for the Family Procedure Rule Committee and not for the court.
  3. However, in my judgment it is open to the court to state clearly that as a matter of good practice there is an expectation that in every care case relating to a child born as a result of child sexual exploitation the relevant local authority should apply to the court for the requirement to send Form C6A to the person believed to be the father of the child to be disapplied. Such an expectation would make it clear that in every such case the decision whether or not Form C6A should be sent to the putative father is a decision of such importance that it should normally be taken by the court and not by the local authority. In my judgment there is such an expectation.

 

So this case is persuasive for a Local Authority who WANTS the Court to decide whether a father in that situation should be told of the proceedings.  The Court accepted that they could not make it a REQUIREMENT that a Local Authority in these circumstances MUST ask the Court to decide before serving notice, but then goes on to say that it is good practice for a Local Authority to do that, and that the decision is of such importance that it SHOULD NORMALLY be made by the Court and not by the Local Authority.

 

(I’m not myself sure that the Judge at first instance as a Deputy High Court Judge has sufficient authority to seek to establish good practice beyond the case in question, but to be honest, I think every Local Authority would be rather glad not to find themselves in the same position as Rotherham did with Sammy Woodhouse, so it ends up being a piece of good practice that mothers  and Local Authorities will agree with.  People will want to follow it, even if it isn’t actually authority)

I’m not sure what happens where there’s no conviction and the child sexual exploitation is an allegation yet to be proven, or what happens at final hearing or afterwards if the Court decides the child is to be placed for adoption, but we’ll cross that bridge when we come to it.

 

Judgment critical of delay from expert

 

It’s a very sad indictment that if told that there’s a family law judgment about a medical expert who was egregiously late in filing a report and not very communicative in what was happening, a large number of family lawyers would be able to guess who it was without reading the judgment.

 

I think it is probably the problem that you see very often on a small scale, but here writ extraordinarily large.  Expert A does a report, people think it is great. Next time an expert is needed, they say “go to Expert A”, when colleagues mention a case they say “oh, you should get Expert A”,   Expert A’s workload increases exponentially, because the more work they do the more work they get and more recommendations were made. Then the volume becomes overwhelming and timescales slip. Generally, there’s then a rebalancing and the expert decides to say “no, I can’t take anything for four months, I’m snowed under”.  It becomes an even greater problem when the expert is really good AND practising in a field where there’s high demand for an expert of that discipline, and limited supply. I imagine it just becomes harder and harder to say no, and the volume just becomes utterly unmanageable.

 

            X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 (11 March 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B9.html

 

The judgment names the expert, but I’ve chosen to anonymise it.

 

For many years, Dr __________  has regularly been instructed as a medical expert witness in cases proceeding in the Family Court. She has had a distinguished career. As a consultant paediatrician, she is held in high regard. It is particularly sad, therefore, that at the end of her career she should face the kind of criticisms from the court that I am about to set out in this judgment. Put shortly, the problem is one of delay and failing to honour commitments and promises made to the parties and, through them, to the Family Court. It is appropriate that I should consider separately Dr ________’s failings with respect to X and Y.

 

40.          So it is that six months after Dr ______________ was instructed to prepare a report in respect of X and four months after she was asked to prepare a report in respect of Y, neither report has been written. Neither X nor Y has been seen by Dr _________________. It very much appears to be the case that Dr __________________ has thus far spent little, if any, time reading the medical records that have been made available to her.

  1. The parties have come to the conclusion that in terms of both time and cost it would be appropriate for Dr __________’s instructions to be terminated and an alternative expert instructed. I agree.
  2. That leaves an outstanding issue concerning Dr ______________’s fees in respect of any work she can prove she has undertaken since she was instructed. Without hearing argument on the point I am unable to resolve that issue. However, in light of the history set out above it is at this stage difficult to see how any fee could be justified.

 

49.          The Family Court is heavily dependent upon medical experts from a wide range of specialties to assist it in dealing with some of the cases that come before the court. Experts are required to assist the court in determining threshold issues – for example, in determining whether a child’s injuries have been sustained accidentally or whether they are inflicted injuries, in identifying the likely mechanism by which injuries were caused, in identifying the likely window of time within which the injuries were sustained. Experts are also required to assist the court in making welfare decision – for example, as to whether the child is suffering from any mental or psychological difficulties and as to her treatment or therapeutic needs. The Family Court simply could not operate without the assistance of medical expert witnesses.

  1. However, it is also the case that although the Family Court needs the assistance of medical experts it also owes a duty to the child concerned to determine the proceedings without delay. That is a statutory obligation clearly set out in s.32 of the Children Act 1989. As Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations makes clear, it is also an obligation that is placed on medical expert witnesses.
  2. There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied. Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met. Courts and experts must work together in a co-operative co-ordinated way. That simply has not happened in this case.
  3. A draft of this judgment was provided to Dr ___________ in advance of today’s hearing. She was invited to attend court today to make representations before the judgment is handed down. Dr ______________ did attend.  She handed in a letter explaining the personal difficulties she has faced in recent months. The explanation she gave was much the same as the explanation she has previously given to the parties’ solicitors. She was profusely apologetic for her failings in this case. She indicated that she has decided not to accept any further instructions in cases in the Family Court.
  4. I am deeply concerned about the way Dr ______________ has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.

 

Can you make an Interim Care Order that lasts beyond the child’s 17th birthday?

 

Long term readers of the blog will be familiar with Betteridge’s Law – questions posed to which the answer is “no”   – as much beloved by sub-editors at The Daily Express et al   (Can Pomegranate Juice cure Cancer? Did the Ghost of Diana speak to Meghan? etc)

The heading of this blog post is a Betteridge’s Law question – the answer is no, but in this case it is helpful to have the answer.

 

[To the chagrin of our former President, I’m going to say “The High Court” when I mean “The Family Division of the Court, sitting in the High Court” because the latter is too much of a mouthful. ]

The question has been bubbling around since the 2014 Children and Families Act  – that Act introduced the change in law that Interim Care Orders (which used to last for 8 weeks for the first order, and 28 days for each subsequent order, meaning lots of admin in long-running cases) could now last until the conclusion of the case or further order.

So in pre 2014, even if the Court made an interim care order at just before the child’s 17th birthday, the ICO would run out at most 2 months later. Whereas now, technically, it could run right up to the child’s 18th birthday.

It is settled law that the Court can’t  MAKE a CARE ORDER for someone who is over the age of 17 (or, if they are married, over the age of 16) but it hasn’t been clear whether that also prohibited an Interim Care Order.  [The Care Order can LAST until their 18th birthday, but you can’t MAKE one on a child who has passed the age of 17]

Section 31 (3)  Children Act 1989  No care or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen in the case of a child who is married).

 

So the theoretical argument went

 

I can’t make a CARE ORDER on a child who is 17, but if I can make an INTERIM CARE ORDER then that can last until the end of proceedings, which will suffice.

 

If I had a pound for every time someone had asked me if that was okay, I would not have zero pounds.

I’ve always said “No, because section 31 (11) says that for the purposes of the Children Act, any reference to a Care Order ALSO means an interim care order, unless the reference specifically excludes that”

And if they persist

 

“Well, the point of an interim order, is a holding position until the Court can decide whether to make the full order.  The interim care order is made because the Court has adjourned the application for a full order under s38 (1) (a). And if there’s no jurisdiction post 17 to make the final order, how can that be a legitimate use of an interim order?”

 

(Okay, sometimes I just say ‘no, trust me, you don’t want me to explain , it is just no‘)

 

s31 (11)In this Act—

  • a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

  • a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.

 

s38 “(1) Where –

(a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned or

(b) the court gives a direction under section 37(1), the court may make an interim care order or an interim supervision order with respect to the child concerned.

 

The High Court, in Re Q (A Child: Interim Care Order) 2019

http://www.bailii.org/ew/cases/EWHC/Fam/2019/512.html

 

Also say no, but they didn’t reference s31 (11)  (They put it in to their citation of the statute, but don’t use it in their reasons)

They go on the second limb of my answer

 

  1. I endorse Mr Barnes’ submissions that Parliament chose in passing the Act to demarcate seventeen or sixteen (if married) as the age after which a child could not be placed in the care or supervision of a local authority without a full disposal of the case having been achieved. That was a recognition of the growing autonomy of the individual child. Likewise, the ability of a final care order to persist until the age of eighteen is a recognition of the obligations placed on a local authority, once parenting has been established to fall below the reasonable standard expected, to ensure a child is not left without appropriate care before becoming an adult. Those matters support my analysis of section 38(4) as amended.
  2. All the above brings me to the conclusion that no interim care or supervision order will endure beyond the date of a child’s seventeenth birthday or the date of a child’s marriage if aged sixteen. To be clear, interim care and supervision orders made for a period during which the child turns either seventeen or gets married (if aged sixteen) are impermissible. If, prior to the 2014 amendments, interim public law orders were being made which extended beyond the child’s seventeenth birthday, they should not have been given (a) the absence of an explicit power to continue such orders beyond a child’s seventeenth birthday and (b) the age thresholds set out in the Act. The dicta of McFarlane LJ in Re W [see above] support this proposition.
  3. If my interpretation of section 38(4) is correct, where does that leave the existing section 31 proceedings? Mr Woodward-Carlton submitted that an interim care order which continued beyond a child’s seventeenth birthday led nowhere. It was not a precursor to a final section 31 order as there was no jurisdiction to make such orders after a child turned seventeen. Mr Barnes strongly supported those submissions, suggesting that it would be absurd if an interpretation were given to section 38 which permitted the imposition of compulsory care arrangements on an adjournment of proceedings without purpose. Such an approach would conflict with section 1(2) of the Act and the court’s overriding objective. Contrariwise, Mr Devereux QC submitted that the continuation of the existing section 31 proceedings may have a purpose in that the court might be able to make findings of fact which might inform either the making of other orders or future local authority decision-making.
  4. I observe that the jurisdiction to make an interim care or supervision order only arises on an adjournment or in the event of a direction pursuant to section 37 of the Act. It is thus not available as a freestanding remedy. Lord Nicholls in paragraph 89 of Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10 noted that the source of the court’s power to make an interim care order arises on an adjournment of section 31 proceedings and in paragraph 90 he stated as follows:
  1. “90. From a reading of section 38 as a whole it is abundantly clear that the purpose of an interim care order, so far as presently material, is to enable the court to safeguard the welfare of a child until such time as the court is in a position to decide whether or not it is in the best interests of the child to make a care order. When that time arrives depends on the circumstances of the case and is a matter for the judgment of the trial judge. That is the general, guiding principle. The corollary to this principle is that an interim care order is not intended to be used as a means by which the court may continue to exercise a supervisory role over the local authority in cases where it is in the best interests of the child that a care order should be made.”

Those words support the proposition that interim public law orders are not freestanding remedies but take their life from proceedings in which the court has the jurisdiction to make substantive public law orders. Where those remedies are not available, the continuation of the proceedings appears, at first glance, illogical

 

HOWEVER, the High Court did consider that there would be jurisdiction to continue the care proceedings themselves, if issued before the child’s 17th birthday.  (I’m not sure I agree, but where the High Courtand I disagree, hot newsflash the High Court win that argument)

The thinking, I believe, is where the proceedings might be used to determine contentious findings of fact, and of course, the Court in care proceedings also have the power to make no order, or a section 8 order as to where a child would live and how much time they would spend with a parent.

 

(I think the rationale for saying on an application for an order the Court can no longer make, the proceedings can stay open once the Court can no longer make those orders is thinner than Christian Bale in The Machinest, but the High Court win this one). Obviously if there are younger children in the same set of proceedings, the need for them to remain live for the 17 year old falls away a little, but the advantage to keeping them open is that the 17 year old has a voice as to what happens to their siblings.

 

  1. In my view, there is a distinction between the making of interim public law orders on an adjournment where a child has turned seventeen and the continuation of the section 31 proceedings themselves. I remind myself that no court seised of public law proceedings is required to make either interim or final public law orders. It may decide that a section 8 order or indeed no order is an appropriate disposal at either an interim or final stage. Whilst no interim or final public law order would, on my analysis of section 38(4), be available in respect of a seventeen year old child (or sixteen if married), I am not persuaded that these welfare-driven proceedings themselves would necessarily lack purpose and must fall away once the jurisdiction to make either interim or final public law orders is lost. In some cases, it may be crucial to establish whether the threshold criteria have been met because this might determine the basis for future decision making by a local authority, for example, as to the type of support available to the child or family concerned. Whether that exercise is necessary and proportionate will be a matter for the good sense of the judge managing/determining the proceedings. For example, it might not be where a child of seventeen wishes to be accommodated against the wishes of those with parental responsibility. Additionally, although final public law orders would not be available to the court, the court might conclude the proceedings before the child is eighteen by making other orders available to it such as a section 8 order (assuming exceptional circumstances applied) or by making orders under the inherent jurisdiction. Whilst the latter could not operate to require a child to be placed in either the care or supervision of a local authority or to require a child to be accommodated by a local authority, other orders under the inherent jurisdiction may be entirely suitable in the circumstances of the individual case. I conclude that, when the jurisdiction to make interim and final public law orders is no longer available, careful scrutiny of the circumstances of each case is required by the court in order to discern whether the proceedings themselves lack merit and whether it is proportionate and in the child’s welfare interests for them to continue. Discontinuance of the proceedings is likely to be the proportionate, welfare-driven outcome in many such cases and, if that is so, the local authority should be permitted to withdraw its application. There will, however, be some cases where a useful forensic and welfare-driven purpose might be served by the continuation of public law proceedings albeit without the structure provided by interim public law orders.

 

I don’t think the LA could legitimately ISSUE care proceedings on a child who was now 17, but if the proceedings are already in force, this paragraph does create an argument for keeping them open until the Court is in a position to make final Children Act 1989 orders, notwithstanding that the Court can’t make the orders that were actually applied for.