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Category Archives: case law

County Lines and Magical Sparkle Powers

 

 

County Lines is the name that the police have given to the involvement of young adolescents in Organised Crime Gangs (OCG), usually transporting drugs from an urban centre where supply is readily available to rural areas where there is less supply and hence the price can be more lucrative for the OCG. Often there are competing OCGs in these areas, and hence there’s a degree of physical risk to the young adolescents as well as the criminal behaviour itself as the gangs compete for territory and access to those markets.

Magical sparkle powers is the pejorative nickname I have given to the inherent jurisdiction of the High Court, largely arising from the frequently cited quotation that the inherent jurisdiction of the High Court is theoretically limitless.

 

 

Fetch the bolt cutters Ryan

 

A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) (04 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1384.html

 

6.The background can be shortly stated and is derived in the main from intelligence reports that have been communicated by the police to the local authority. KS lives with his mother in the south of the city. Since 2017 KS has been considered to be at risk of criminal exploitation. The police assessment is that KS is an active member of a named OCG. That OCG is believed to be involved in violent feuds grounded in attempts to take control of drug trafficking activity in identified areas of the city, further exaggerated by racial tensions. Police intelligence indicates that KS is presently in dispute with other members of the criminal community in the south of the city. The police consider that those ‘nominals’ he is in dispute with have the ability to use firearms and display a willingness to conduct retaliatory attacks and to seek violent acts of retribution.

 

 

7.In August 2017, KS was found in the company of an OCG drug dealer and was deemed to be a victim of criminal exploitation. Police exercised their powers of protection pursuant to s 46 of the Children Act 1989. In September 2017 KS was said to have witnessed a gang related stabbing in the south of the city that took place that month when a young male was stabbed in the neck. Also in September 2017 KS was found to be carrying a baseball bat and a brick and was arrested for a racially aggravated assault having allegedly threatened a female with a baseball bat and thrown a brick at her. In October 2017, KS was made the subject of a child protection plan by the City Council.

 

 

8.In May 2018 KS was found in possession of a quantity of heroin and offensive weapons were found in the property in which he was arrested for conspiracy to supply Class A drugs. No charges were brought on that occasion. In July 2018 KS was arrested at a festival in possession of a quantity of cocaine on suspicion of selling drugs. Later in July police received intelligence that KS had been involved in a street altercation in which he wounded a person with a knife. In October 2018 KS was convicted of possessing an offensive weapon and assault occasioning actual bodily harm arising out of the incident in September 2017 and was made the subject of a Youth Rehabilitation Order for 18 months.

 

 

9.In late 2018 KS was attacked in the street by males wielding a machete and a knife. He was stabbed five times. He stated he did not know his attackers and would not make a complaint. A month later a male from a rival OCG suffered severe knife injuries following a window being broken at KS’s home address whilst his younger siblings were present. No complaints were made by any of the parties involved.

 

 

10.In February 2019 police intelligence suggested that KS had been involved in the discharge of a firearm. In March 2019 KS was arrested following a knife attack that Police intelligence indicated was a targeted attack by members of the named OCG. A search of the family home revealed two large knives, one under KS’s bed and one under the sofa. Following a strategy meeting, it was agreed that KS could return home on condition that the mother work openly with the local authority. In April 2019 KS was served with a ‘Gun Crime Nominal Notice’. This is a ‘disruption notice’ designed to alert a person that their activities have generated Police attention and that advice and support is available should they choose. The Police identified KS as a “Gold” gun crime nominal and as being one of “top six gun crime nominals in the police force area”.

 

 

11.Thereafter, KS was identified by Police as a suspect in the shooting of an adult male who had been shot in the leg in broad daylight in the presence of members of the public. KS was arrested on that date on suspicion of attempted murder and bailed. A search of his property recovered an axe. Within this context, the police considered that KS’s life was under threat from reprisals following the shooting. However, KS rejected advice that he leave the area and reside in alternate accommodation, and refused to accept that he was at risk. As the result of a Strategy Meeting, the mother was advised to leave the family home with KS’s two younger siblings and to stay outside the area. She has done so. A secure panel meeting concluded that the risks to KS and to other’s from KS were so high as to warrant an application for an order authorising his secure accommodation.

 

 

12.Within the foregoing context, in her statement dated 15 May 2019, the social worker summarises the risks to KS arising out of the circumstances outlined above as follows:

 

 

 

“The Local Authority feel that it is necessary for a continuation of deprivation of liberty in respect of KS. KS remains at risk of significant harm or harming someone else if he is to remain in the care of [the mother] and remain in [the south of the city] and immediate surrounding areas. It is known from police information that KS is in possession of a firearm and there is information to suggest that he has used this on more than one occasion. The risks to KS’s personal safety have been escalating since the beginning of the year and the police have indicated that there is a significant risk to his own safety and life due to potential reprisals as a consequence of the shooting incident…”

 

(KS disputed that any of those things were true)

 

In this case, the young person KS was 17.  (Too old for a Care Order to be made). His mother objected to him being accommodated in secure accommodation, so he could not be accommodated under section 20 of the Children Act, therefore there was no mechanism under the Children Act 1989 for him to be accommodated at all. And therefore, there was no legal basis for the LA to seek a section 25 Secure Accommodation Order

The Local Authority therefore asked the Court to authorise under the inherent jurisdiction of the High Court for authority to deprive KS of his liberty.

 

(There is talk in the judgment of it being a DOLS application – deprivation of liberty application, but it clearly can’t be, because there’s no medical evidence that KS met the test in the Mental Capacity Act 2005 for not having capacity to make decisions for himself. Many would say that he was making very BAD decisions, but people are allowed to make BAD decisions, as long as they have capacity)

 

 

Cutting to the chase of the decision

 

 

1.Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is ‘no’.

 

The judgment sets it out in more detail, of course, but that’s the nub of it.  So this is a case which adds a limit to those theoretically limitless powers, and the cases that do that are always significant.

 

DISCUSSION

45.Having considered carefully the evidence and submissions in this case, and accepting that the evidence presently before the court justifies the concerns of the professionals in this case who are endeavouring to keep KS safe, I am satisfied that this court is not permitted to use its inherent jurisdiction to authorise KS’s the placement in secure accommodation in the manner requested by the local authority. My reasons for so deciding are as follows.

 

 

46.There is no care order in force in respect of KS and an application for such an order cannot be made by virtue of his age (Children Act 1989 s 31(7)). KS has not been accommodated by the local authority for the purposes of the Children Act 1989 (whilst the order of HHJ Sharpe did result, briefly, in KS’s placement at the non-secure unit, in light of the conclusions set out in this judgment, that order was not capable of causing KS to be “accommodated” by the local authority for the purposes of the Children Act 1989). KS’s mother retains exclusive parental responsibility for him. She did not and does not consent to his accommodation and, accordingly, KS cannot be accommodated by the local authority for the purposes of the 1989 Act (Children Act 1989 s 20(7)). In the circumstances, KS is a child who is neither “in the care of” the local authority or “provided with accommodation” by the local authority. I am satisfied that this position has two key consequences.

 

 

47.First, KS is not a “looked after” child for the purposes of s 25 of the Children Act 1989 and does not therefore fall within the terms of that section. In the circumstances, this is not a case where a declaration under the inherent jurisdiction is sought by the local authority in order to render lawful a non-secure placement for a looked after child that amounts to a deprivation of liberty due to a lack of suitable secure beds preventing an application under s 25 of the Children Act 1989. Rather, in this case, the local authority seeks an order under the inherent jurisdiction because s 25 of the Children Act 1989 cannot apply to KS.

 

 

48.Second, and within this context, in circumstances where KS is not and (in circumstances where his mother objects to his accommodation and where KS cannot be made the subject of a care order by reason of his age) cannot be a looked after child, the order the local authority seeks under the inherent jurisdiction is one which would not only authorise the accommodation of KS in a secure placement, but would, a priori, have the effect of authorising his removal from his mother’s care without her consent for this purpose in circumstances where his mother, who retains exclusive parental responsibility for him, objects to this course of action. In the circumstances, I am satisfied that the effect of the order sought by the local authority under the inherent jurisdiction would be to require KS to be removed from his mother’s care and be accommodated by the local authority. This course of action is prohibited by s 100(2)(b) of the Children Act 1989.

 

 

49.The intention and effect of Section 100(2)(b) is to prevent the court in wardship or under the residual inherent jurisdiction making any order which has the effect of requiring a child to be accommodated by a local authority. That end can only be achieved by satisfying the requirements of the statutory regime for accommodating children provided by (amongst other provisions) s 20 of the Children Act 1989. For the reasons I have given that outcome cannot be achieved in this case under the statutory regime. In such circumstances, it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (Re E (A Child) [2012] EWCA Civ 1773 at [16] and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 at [39]).

 

 

50.I am, of course, acutely conscious of the nature and extent of the risks to KS identified in the evidence before the court and of the duty of this court to act in a manner that is compatible with KS’s rights under Art 2, which duty includes a positive obligation on the court to protect the right to life. However, the authorities that articulate this positive obligation make clear that it is to be discharged by the relevant public authority through taking “measures within the scope of its power” (see Osman v United Kingdom). For the reasons I have given, the orders sought by the local authority lie outside the scope of the court’s power under the inherent jurisdiction.

 

 

51.Given my conclusions with respect to the determinative effect in this case of s 100(2)(b) of the 1989 Act, I do not consider it necessary to address the arguments advanced by Mr Bagchi regarding the existence of a statutory lacuna in respect of children in KS’s position and Mr Spencer’s competing submission that the use of the inherent jurisdiction to place KS in secure accommodation would be to cut across a statutory regime that excludes children in KS’s situation from the statutory scheme.

 

 

 

CONCLUSION

52.As Mr Spencer points out in his careful and comprehensive Skeleton Argument, any reader of the local authority documentation in this case would be struck by the immense seriousness of this case, involving as it does references to attempted murder, criminal gangs, firearms and ‘County lines’ drug dealing. Whilst this court has made no findings in respect of these matters, on its face it is a situation that embodies the seemingly increasing tragedy of vulnerable young people for whom involvement in Organised Criminal Groups is perceived as a means of protection, of belonging, of mattering to an apparently indifferent world and who, in consequence, grasp for these things on a path that ultimately offers nothing but futility, pain and sometimes even death. As I noted at the conclusion of the hearing, in these circumstances the local authority cannot be criticised for seeking to explore the outer boundaries of the court’s jurisdiction in an effort to protect KS from the risks it has identified.

 

 

53.Within this context, it may also be considered by some to be surprising that the High Court cannot simply invoke its inherent jurisdiction in the manner requested by the local authority to address KS’s situation. However, as Hayden J observed in London Borough of Redbridge v SA [2015] 3 WLR 1617 at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

 

 

Therefore, if the adolescent is over 17, not subject to a Care Order, and the parent objects to section 20, there isn’t a family law solution to the problem. It would have to be a criminal remand to a secure unit. That’s quite an unusual set of circumstances, because with an adolescent under 17, the LA could have sought an Interim Care Order and then secured.

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Just when you thought it was safe to go back in the ordinary residence water….

 

Oh my flip.

 

Re S (A child) 2017

https://www.bailii.org/ew/cases/EWCA/Civ/2017/2695.html

 

2017, but only published recently.

 

In a nutshell.   Parents live in Leicester City (City) and mum is pregnant.  City propose to issue care proceedings. Parents move to a new town, in Leicestershire (County).  City write to County, and invite them to do something about the forthcoming baby. Discussions don’t resolve things, and so City say “we will issue care proceedings, and ask that you be designated as local authority”.  No response.

Child is born in a maternity hospital which falls in Leicester City (City) and City issue care proceedings. ICO is made, child placed in foster care (which happens to be in the City, but that doesn’t matter because of s105 stop the clock provisions).  Court designate County as the LA.

 

County appeal.

 

This is the fundamental question:-

 

  1. The question, therefore, arises as to whether, as is argued by Mr Kingerley on behalf of the respondent, a new-born child’s residence is derived solely from the mother’s place of residence, notwithstanding that the child has never been present at the place of the mother’s ordinary residence, and that there has been (and is) no intention that the child will ever be in the care of his mother.

 

At the appeal the two arguments are :-

 

City say it is County, because the child’s ordinary residence is with the mother in County.

 

  1. In C (A Child) v Plymouth County Council, whilst an interim care order was made in respect of the child in question immediately following her birth, that baby lived with her mother at various addresses in Liverpool and in Plymouth. The dispute centred around which of the two local authorities should be the designated local authority. It was in this context that, on the facts of that case, Thorpe LJ upheld the judge’s view that a new-born baby was incapable of having an ordinary residence apart from the mother, and that, therefore, the ordinary residence would be dependent upon the residence of the mother.
  2. This theme was picked up more recently by Ryder LJ in Medway v Kent [2016] EWCA Civ 366 at [21]:
      1. “In C (A Child) v Plymouth County Council [2000] 1 FLR 875 Thorpe LJ re-emphasised the basis of the Northampton decision which, he said, was to put an end to litigation of this kind between local authorities (see, for example at 878 and per Swinton Thomas LJ at 880). Thorpe LJ agreed with the first instance court that it was a reasonable inference of fact in the circumstances of that case that a new born baby would be unlikely to have an ordinary residence apart from her primary career and that for a child of such a tender age, the child’s ordinary residence would usually follow that of her carer.”

 

County say it is City, because the child’s physical presence in County is an essential ingredient of ordinary residence. The child never set foot in County, because the child was removed from hospital in City.  Whilst if the child had not been removed and had gone home with mum the child would have been living in County, that doesn’t apply because it never actually happened.  So the child has NO ordinary residence, and then the second limb applies, that the designated authority is the one with the background knowledge and where the circumstances that led to the care proceedings happening took place – in this case City.

 

[The Courts have found that habitual residence does REQUIRE physical presence at least at some point]

 

  1. The matter was thereafter heard by the Supreme Court- A v A and Another (Children: Habitual Residence) [2013] UKSC 60, [2014] AC1. Although there were extensive arguments before the court in relation to the requirement of presence before habitual residence can be established, the Supreme Court in fact decided the case, not on the issue of habitual residence, but upon nationality. The observations of the court in relation to presence were, therefore, strictly speaking, obiter, but, as Mr Roche rightly submits, of powerful influence upon this court. Mr Roche, therefore, relies on certain observations made in particular by Baroness Hale in her majority judgment (Lord Wilson, Lord Reed and Lord Toulson agreeing and Lord Hughes dissenting).
  2. Mr Roche highlights Baroness Hale’s reference to earlier cases where physical presence was assumed to be an integral ingredient of habitual residence and relies on Baroness Hale’s observations at paragraph [55]:
      1. “So which approach accords most closely with the factual situation of the child – an approach which holds that presence is a necessary pre-cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child’s integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been”
  1. Mr Kingerley, for his part, also properly draws the court’s attention to the dissenting judgment of Lord Hughes in A v A, and, in particular, his observation at paragraph [90]:
      1. “The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure.”

And at [92]:

“If current physical presence is not essential, then so also can habitual residence exist without any physical presence yet having occurred, at least if it has only been prevented by some kind of unexpected force majeure.”

  1. Mr Kingerley goes on to submit that to adopt the approach in A v A would undermine the concept of “rapid and not over-sophisticated review”, such as is required in a designation case since the days of the Northamptonshire case. A v A would lead, he says, to the introduction of a more complex and sophisticated test which is both unnecessary and goes against the approach of the Northamptonshire case, as confirmed by the Plymouth case.
  2. I accept Mr Kingerley’s submission to the extent that it would undoubtedly undermine the well-established approach to the determination of which local authority is to be designated for the purposes of a care order, if the court was expected to engage with detailed questions of fact of the type which might have been anticipated by the Supreme Court in order to determine habitual residence. It would, in my view, be both inappropriate and unnecessary to treat an application of this type in the same way, and with the same level of detail and sophistication as is sometimes found in disputes in relation to a child’s habitual residence in international cases.
  3. However, it is not that aspect of the judgment upon which Mr Roche relies. Rather, he relies on the fact that four of the five Supreme Court justices doubted that a child could acquire habitual residence in a country in which he had never been present.
  4. Since the decision in the Supreme Court, the CJEU has considered the issue of physical presence in the context of habitual residence.
  5. In W and V v X (Case C-499/15) the court held, at [61]:
      1. “Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State.”
  1. A few months later in OL v OP Case C-111/17 PPU, in the opinion of the Advocate General, the question was posed at paragraph [29] as was:
      1. “… is physical presence a necessary and self-evident prerequisite, in all circumstances, for establishing the habitual residence of a person, and in particular a new-born child?”
  2. The Advocate General had the benefit of oral argument presented to him by, amongst others, Mr Edward Devereux QC on behalf of the United Kingdom. The Advocate General’s opinion in relation to this aspect of the matter is found at paragraphs [81-83]:
      1. “81.…it is not inconceivable that there may be wholly exceptional circumstances in which it might be appropriate to disregard the criterion of physical presence. However, the present case, dealt with under the urgent procedure, does not lend itself to an in-depth examination of that question of principle. Given the circumstances of this case, an answer to such a question is not needed in order to provide a helpful answer to the question submitted by the referring court.

82. However, it seems timely to observe that, in such circumstances, and taking into consideration, in particular, that habitual residence is a question of fact, it is necessary that a tangible connection be established with a country other than that where the child is in fact living.

83. Such a connection would have to be based, in the best interests of the child, on concrete and substantial evidence that could thus take precedence over the physical presence of the child. Plainly, there would not be a sufficient connection if there were some prospect that a particular Member State might become, on an indefinite future date, the place where the child would be habitually resident, unless that prospect were reinforced by other tangible links of such a kind that the prerequisite of the child’s physical presence could be set aside.”

  1. When the matter came before the full court, the question previously put before the Advocate General was slightly rephrased to reflect the fact that the child in question had been born by agreement between the parties in a specific country and had thereafter remained in the care of the mother for a period of months. The full court, therefore, dealt with the matter only briefly saying at paragraph [42-43]:
      1. “According to that case law, the habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national courts taking into account all the circumstances of facts specific to each individual case… To that end, in addition to the physical presence of a child in a member state, other factors must also make it clear that presence is in not any way temporary or intermittent and that the child’s residence corresponds to the place which reflects such integration in a social and family environment.”
  1. What is clear from A v A, at both the Court of Appeal and Supreme Court level and in the European jurisprudence, is that, in order to establish habitual residence, there will be an expectation that the child will have been present in the area where it is suggested that he, or she, is habitually resident.

 

 

 

The Court of Appeal therefore had to consider whether those judicial pronouncements on HABITUAL RESIDENCE also applied to ORDINARY RESIDENCE (so the physical presence of the child overrides the principle that a child’s ordinary residence is with the parent)

 

  1. In my judgement, the requirement of physical presence must equally apply to a determination of ordinary residence. The majority of the Court of Appeal in A v A was robust in suggesting that presence may be an absolute requirement. The Supreme Court do not specifically deal with the issue, but favour “presence”. The Advocate General in OL v OP addressed the matter head-on, as already quoted at paragraph [81], although the Advocate General regarded it as “not inconceivable that there may be wholly exceptional circumstances in which physical presence will not be necessary”.

 

So the child, who had never been in the parents home in County, did not live in County.  The child had no ordinary residence, which left City both metaphorically and literally holding the baby.

 

Good news for LA’s who don’t have a maternity hospital in their area, bad news for those who do.  (If in this example, County had done pre-proceedings work, then they would have been the designated authority on the second limb, but as they hadn’t City kept it.  So it is not just ‘where was the baby physically before removal?’  but who is the authority under s31(1) (b) as you can’t rely on parents residence to establish ordinary residence with a child removed from hospital that isn’t in the same area.

 

s31 (1) (b) where the child does not reside in the area of the local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.

[I think it is still arguable that if there were ANY incidents that went to threshold in County, even a continuation of existing concerns, then ANY circumstances could still have caught County. If it isn’t obvious, my sympathies here, on the limited facts that are before me, are with City. Not least because in appealing this decision, County have introduced a brand new headache into what was already far too difficult]

The sooner we implement my Residence/Schmesidence Act the better

https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/

Tag -you’re it (or not)

 

 

This is a Court of Appeal decision in which the Court of Appeal were asked to find that the Judge had been wrong to make Interim Care Orders rather than the option of placing an electronic tag on father to keep him away from the children and also to give general guidance on the applicability of electronic tagging in care proceedings.

 

J-S (Children) [2019] EWCA Civ 894 (24 May 2019)    

https://www.bailii.org/ew/cases/EWCA/Civ/2019/894.html

 

  1. On 15 March 2019, Oxfordshire County Council removed five children from their mother under an emergency protection order. Interim care orders were then obtained and the case was listed for a contested hearing before Her Honour Judge Owens on 10 April. The threshold for interim orders was not disputed, but the local authority’s plan to keep the children in foster care was. The judge continued the interim care orders and listed a fact-finding hearing for three days on 29 May. The father of the youngest child challenges that outcome on two grounds. The first concerns the justification for making the orders: the judge refused permission to appeal, and this court’s permission is now sought. The second ground of appeal, for which the judge herself gave permission, concerns the power to order electronic tagging in a case of this kind.
  2. The background is that in 2009 the father (as I shall call the appellant) was found to have caused 17 fractures to a baby son by a previous relationship. In 2012, he was sentenced to 33 months imprisonment for inflicting grievous bodily harm on the child and for neglect. In mid-2017, he began a relationship with the mother of the older four children. The local authority told the mother about the father’s history and a written agreement was made which barred him from attending the family home. In January 2018, a psychiatric report advised that the father posed a serious risk to any child and that he is not treatable. In May 2018, the local authority issued proceedings in relation to the older four children on the basis of neglect and failure on the mother’s part to protect them from unsuitable adults. That summer, the youngest child was born. In October 2018, a social work report on the father referred to his “eruptive anger”. In December 2018, the court made a supervision order for 12 months on the basis that the children would remain with their mother. The parents and the local authority made a written agreement that the father would have no unsupervised contact.
  3. In March 2019, two of the children made statements that the father had been staying at the family home, and this was apparently corroborated by one of his former partners. The children were then removed under the emergency protection order. The parents accepted that the threshold for intervention was met because there were reasonable grounds for believing that the father had been at the home, but they denied that it had in fact happened. That issue, which is central to the current proceedings, will be resolved at the imminent fact-finding hearing.
  4. Ahead of the contested decision, both the mother and the father offered to be tagged so that their physical separation could be monitored, allowing the children to return to their mother. Information from Electronic Monitoring Services, the agency responsible for tagging, was gathered. The matter came before the judge on 5 April, when there was no time for it to be heard. It was appreciated that only a High Court judge could make a tagging order, but Judge Owens directed that at a hearing fixed for 10 April she would conduct the welfare evaluation and refer the making of a tagging order to a High Court judge if she concluded that such an order should be made in principle –a course of action that was in itself not without potential difficulties in my view. She also invited the Ministry of Justice to attend the hearing, or to provide written submissions on the question of who would bear the costs of tagging.
  5. By agreement, the hearing on 10 April was decided on submissions. The parents pressed the issue of tagging, saying that it would sufficiently mitigate the risk of what was accepted to be severe harm. The local authority argued that the risks were not manageable because, even with tagging, the father could lose his temper quickly and before help could be mobilised. A letter was received from HM Prison and Probation Service (part of the MoJ) explaining the parameters and procedures for tagging. The author stated that the MoJ would not be responsible for the costs of tagging and monitoring and expressed the view that the case was for a number of reasons unsuitable for a tagging arrangement.

 

 

Obviously if the MOJ aren’t paying the costs of tagging, you can’t conceive of the Legal Aid Agency agreeing that tagging constitutes an assessment so the legal aid certificates can’t pay for it.  That leaves everyone looking meaningfully at the Local Authority, who at that point slap Kent County Council v G 1996 on the table and say “well, if you think this is an assessment whose primary focus is the child, so it comes within s38(6) good luck with making that argument’

 

Anyway, the Court of Appeal decided that there was no question of the Judge having decided the ICO wrongly

 

Ground 1

  1. The first matter for decision is whether permission to appeal should be granted on ground one. As to that, Mr Devereux submits that the judge’s overall assessment of risk was flawed. She directed herself with reference to authority on the need to consider the gravity of the likely harm, the likelihood of harm occurring, and the availability of protective measures. She was entitled to find the gravity to be serious, but she did not properly consider the likelihood of it occurring. She placed too much weight on the threshold concession, and did not take account of the fact that the parents denied breaking the agreement. Nor did she properly weigh up the protective possibilities of tagging. Had she done so, she would have been bound to refuse the application for interim care orders. Instead, she was unduly influenced by expressions of opinion in the letter from the MoJ.
  2. In response, Mr Geekie and Ms Scriven argue that the judge was right about the risks and the inability to mitigate them.
  3. I am in no doubt that the judge was right to refuse permission to appeal and that we should do likewise. The judge approached the issue correctly in law in a case in which the threshold was crossed. Moving forward, she carefully evaluated the risks and was fully entitled to find that even if tagging could be put in place it would be insufficient to mitigate them. Reading the judgment as a whole, it is plain that she considered that there was a significant likelihood of unsupervised contact taking place in the future. The evidence for that was amply sufficient for a risk assessment at the interim stage. There is no sign that she placed undue weight on opinions expressed in the MoJ letter, as opposed to its basic factual contents. Furthermore, this court will rarely interfere with an interim order, all the more so where in this case the central disputed issue is just about to be resolved. There is no prospect of this court finding the interim care orders were wrongly made. We therefore informed the parties during the course of the hearing that permission to appeal on this ground would be refused.

 

On the issue of an appeal for the Court to give general guidance, i.e an academic appeal, the Court of Appeal say “mmmmm, no”   and tell us about a case called  “Popdog”, which is my new favourite case name – replacing     Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

https://suesspiciousminds.com/2015/01/23/rihanna-youre-a-womble/

 

Ground 2

  1. Turning then to the appeal on ground two, the local authority and the Guardian submit that the court should not entertain it as it is academic in the light of the judge’s core decision that she would not order tagging in any event. For his part, Mr Devereux advanced this ground of appeal with moderation in the light of the outcome on ground one.
  2. In relation to academic appeals, we have been referred to the statement of principle in Hutcheson v Popdog Ltd. (Practice Note) [2012] 1 WLR 782, where Lord Neuberger MR held that, save in exceptional circumstances, this court may only entertain an academic appeal where three conditions are met: (1) where the appeal raises a point of some general importance; (2) where the respondent agrees to it proceeding, or is at least completely indemnified on costs or is not otherwise inappropriately prejudiced; and (3) where the court is satisfied that both sides of the argument will be fully and properly ventilated.
  3. Here, none of the conditions for hearing an academic appeal is satisfied. In the first place, this court is not aware of any pressing request from judges or practitioners for further guidance at this stage on the availability of tagging in cases of the present kind. In Re X & Y (No. 1) [2015] 2 FLR 1487, Sir James Munby P reviewed the availability of tagging in a case involving feared travel to Syria. At paragraphs 80-85 and 100 he referred to previous authority and to the HMCTS guidance, which notes that orders may only be made in the High Court and that states the question usually arises where there is a real risk of abduction. He noted that cases raising the issue of tagging are infrequent. At this hearing, we were referred to just four reported cases since 2003 and an anecdotal account of one other case. I do not consider that there is a pressing need for guidance on electronic tagging from this court at the present time. Cases where the issue may arise will be unusual and the decision will be case-specific.
  4. As to Lord Neuberger’s second requirement, the local authority and the Guardian do not consent to the appeal going ahead and there is no realistic form of costs protection that could be devised. Mr Geekie argues with good reason that it would be particularly inappropriate for guidance to be formulated without a real-life context that raised the hard practical issues that would have to be confronted.
  5. Thirdly, for the issue to be fully argued out, the court would need to hear submissions from the Ministry of Justice and the Legal Aid Agency and possibly from other organisations as well. The expense and delay of an adjournment for this to happen would be disproportionate.
  6. Returning to the present case, the priority now must be to further the children’s welfare by conventional means, rather than digressing into subsidiary issues such as tagging.
  7. For all these reasons, as we informed the parties at the conclusion of the hearing, we decline to offer further guidance on electronic tagging and we dismiss this appeal.

 

If you are going to proffer electronic tagging as your solution in care proceedings, you’re going to need to show

 

(a) How you will get one and how you will pay for it

(b) How it will work – i.e who is up 24-7 monitoring it and sounding the alarm bells if the two tags begin beating with just one mind

 

 

Good luck.

 

 

[Quick edit- the Court of Appeal also remind the judiciary that whilst it is right and appropriate that the trial Judge is asked for permission to appeal, the Court of Appeal greatly prefer that they say ‘no’ and leave that up to the actual permissions judge at the Court of Appeal.

  1. Lastly, I note that after what was otherwise a very proper decision, the judge was persuaded to grant permission to appeal on the basis that there was a compelling reason for the appeal to be heard. The outcome of the appeal shows that it would have been preferable for the judge to have left the issue of permission to appeal on ground 2 to this court, as she did with ground 1.
  2. CPR r.52.3(2) and its equivalent for appeals within the Family Court, FPR 30.3(3), provide that an application for permission to appeal must be made to the lower court at the hearing at which the decision to be appealed was made or to the appeal court in an appeal notice. It is good practice to make the initial application to the lower court: Re T [2003] 1 FLR 531. Under CPR r.52.6(1) and FPR 30.3(7) permission to appeal can only be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason for the appeal to be heard. So there is no doubt that the father was right to apply to the judge and that she had the power to grant permission to appeal. However, permission is rarely granted by the trial judge in a family case and there are good reasons for that. As Thorpe LJ put it in Re O (Family Appeals: Management) [1998] 1 FLR 431:
        1. “Exceptionally, there are family appeals that raise a difficult point of law or principle. There the judge at first instance may well wish to grant leave himself. But if the proposed appeal seeks only to challenge the exercise of his judicial discretion in a family case, it would generally be helpful to this court if the judge at first instance was to leave to this court the decision as to whether or not the appeal should be entertained.”

A similar point was made by Butler-Sloss LJ in Re R (A Minor) [1996] Lexis Citation 2264:

“This was undoubtedly a very difficult case. But in an impeccable judgment, the Judge was in error on one matter only. He should not have granted leave to appeal. … In this sort of case it is particularly important that leave to appeal should not be granted because it only gives to the appellant a false hope in a hopeless appeal.”

  1. Here, the judge gave permission under the “compelling reason” limb. In my view, there is a need for at least as much, and possibly more, caution on the part of a first instance family judge when deciding whether to grant permission to appeal under that limb as under the first limb, particularly where there is a possibility that the appeal may turn out to be academic. Overall, judges should not be deterred from exercising their power to grant permission to appeal in a proper case: where, for example, the decision has turned on a choice of conflicting authorities, or where for some reason it is likely that this court would grant permission to appeal itself, or where an immediate permission decision has clear advantages. But in most cases it would be better for a decision to grant permission be left to this court as, apart from anything else, significant and avoidable costs may be run up by the parties having to prepare for a full appeal.

 

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.

“…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.