Long standing (or should that be ‘suffering’) readers will be familiar with the law that care proceedings are to be concluded within 26 weeks, as a result of the much beloved [sorry, that just broke my sarcasm filter] Children and Families Act 2014.
The twenty-six week timescale… a presence that looms over us like one of Scrooge’s ghosts at the foot of the bed pointing a bony finger towards us and muttering “repent, repent” [or ‘shame, shame’ if you watched this week’s Game of Thrones]
Never shake thy gory locks at me, to provide another reference for an unwelcome spectral presence.
The Court of Appeal had to deal with an appeal arising from a Judge who concluded a final hearing in September 2014 but then did not deliver a judgment until March 2015 – i.e that the time taken between finishing the evidence and giving the judgment was itself 26 weeks long, and as long as the case is supposed to take from start to finish.
Re T (children) 2015
Over and above the delay itself, an issue arose for appeal because two of the children had been at home in that intervening period and was it wrong for the Judge to conclude the case on the evidence that he had heard in September, as though he was giving the judgment in March the day after the case had ended and thus ignoring any positive evidence that the parents might have produced about the intervening six months.
Firstly, the technical point. A Court can’t extend the duration of the care proceedings of its own motion – there has to be an application by one of the parties to extend, and the Court must then decide that application. (I’m fairly sure that this is not always happening in practice)
- (i) Delayed judgment and the 26 week time limit
- The statutory requirement under CA 1989, s 32(1) and Family Procedure Rules 2010, r 12.22 is for the court to ‘draw up a timetable’ and ‘give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to’ in order to dispose of an application within 26 weeks. The key responsibility under this provision is therefore upon the court to establish the necessary timetable and to make orders aimed at keeping the case within that timetable. The s 32 regime is all about the management and control of the process by the court. At times this will require the court to manage and control its own contribution to achieving the conclusion of the proceedings within the 26 week bracket. Where a case cannot be completed within 26 weeks and further time is required solely for the court to prepare its judgment, the CA 1989, s 32 strictures continue to apply; the key stage in s 32 is ‘disposing of the application’ and that stage can only be reached when the court hands down judgment and makes a final order. It is therefore incumbent upon a judge, who requires time to prepare a reserved judgment at the conclusion of a hearing, to make express provision for an extension (of up to 8 weeks) to the timetable for that purpose. That this is a requirement upon the judge is made clear by FPR 2010, r 12.26B which provides that:
‘[FPR] Rule 4.1(3)(a) does not apply to any period that is for the time being allowed under section 32(1)(a)(ii) of the 1989 Act.’
CA 1989, s 32(1)(a)(ii) refers to the requirement on the court to draw up a timetable with a view to disposing of the application ‘in any event within twenty-six weeks beginning with the day on which the application was issued’. FPR, r 4.1(3)(a), which by r 12.26B does not apply to a s 32 timetable, gives the Family Court a general power to:
‘extend or shorten the time for compliance with any rule, practice direction or court order (even if the application for extension is made after the time for compliance has expired).’
In a public law case, the effect of r 12.26B is that the court does not have a general power, of its own motion, to grant itself an extension from the s 32 timetable. Any extension beyond the 26 week deadline can only be determined after the formal process required by r 12.26A with the court making a positive decision on the question of extension and, if an extension (of up to 8 weeks) is given to accommodate the need to prepare the final judgment, r 12.26C must be complied with so that the court announces its decision together with:
‘(a) the reasons for that decision; and
(b) where an extension is granted or refused, a short explanation of the impact which the decision would have on the welfare of the child.’
- When deciding whether to extend the timetable in order to accommodate preparation of the judgment, the court must have regard, as with any proposed extension, to the requirements of s 32 and, in particular, to the need for any extension to be limited to what ‘is necessary to enable the court to resolve the proceedings justly’ and to the need to have regard to the impact of any extension on the welfare of the child. The judge must identify the ‘specific justification’ for an extension of time to prepare the judgment (s 32(7)). It is of particular note in the context of the present case that the court does not have jurisdiction, at any one time, to grant an extension of more than eight weeks (s 32(8)).
[Again, I am very doubtful that in practice, Courts are setting out reasons for extending the proceedings beyond 8 weeks at each eight week interval]
The Court of Appeal stress that there is a burden on the parties, if they see drift, to make an application to the Court for a section 32 extension. [This is one of those delightful quirks of English justice – even when something is obviously the Judge’s fault, it is still actually the parties fault. It is one of those irregular verbs :- The Court of Appeal contemplate, the Judge procrastinates, the parties fail to
wake the Judge up draw the Court’s attention to a potential drift]
Moving on from the technical / statutory point, was it acceptable for the Court to give a judgment six months after the evidence had been concluded?
The judges who undertake the relentless diet of high-end and burdensome care cases that is the lot of the senior, and often the only, judge at a Designated Family Centre are amongst the most hardworking individuals in our justice system. Within that group of judges HHJ Meston is entitled, in my view, to hold his head high for the conspicuous care and hard work that he has consistently displayed since his appointment to the bench. Although, inevitably in the light of our decision, this judgment must point up errors in the progress of this case before the lower court, my purpose is to seek to identify lessons for the future rather than to be critical of the judge. Instead of criticism, I have more than a little professional sympathy for the situation that seemingly developed after the close of oral evidence; it is a situation which may well be familiar to many judges faced with the twin, but conflicting, drivers found in the need to spend time immediately after a substantial case in order to prepare the judgment, on the one hand, and, on the other, the need to get on and begin a fresh trial in the next heavy case which is booked to commence before them on the following working day. Once the moment for penning a judgment immediately after the conclusion of a case is lost, not only is it harder to carve out time for writing at a later date, but the very task of composing the judgment takes longer as the judge has to read back into the case in order to regain the level of knowledge that he or she had on the last day of the hearing.
it is, finally, plainly wholly unacceptable in the context of s 32, and more importantly contrary to the interests of these children, for there to be a period, which itself is just short of 26 weeks, between the close of evidence and the giving of judgment
(The Court of Appeal eschew any temptation to indicate where any notional cut-off period of time might be. That’s probably sensible. They also eschew similar temptation to impose the President’s strictures that any party being even 30 minutes late should obtain a Court order permitting that. So that even if the Judge is going to be thirty minutes later in delivering a judgment than he or she anticipates, there should be a consent order drawn up and implemented to extend the timetable. Authority for that can be found in the case of Sauce for Goose versus Not Sauce for the Gander 1742)
Six months, therefore, is too long to wait, and will expose the Judge to an appeal. A week late is clearly not going to be an appeal point. In between those timeframes, we just don’t know. You might argue that beyond eight weeks is probably going to push it, and within eight weeks the Court of Appeal are sort of envisaging that a Judge might grant an extension of time of up to 8 weeks to deliver a reserved judgment, but it isn’t definitive.
Finally, given the passage of time, wasn’t it incumbent on the Court to not just give a judgment as though it were September and the family had been preserved in amber for those six months, but to take account of what had happened in the interim period for good or ill?
- Moving away from what is to be said about the statutory requirements in CA 1989, s 32, for my part the important question in this appeal is whether, as a result of the delay of six months between the close of evidence and the judge’s determination of the welfare issues, that determination itself was compromised by the passage of time. In a case such as this, where the issues were balanced and where the children had continued to reside at home with their parents, was it necessary for the judge to acknowledge that a significant amount of time had passed since the close of evidence and, as a result, solicit a report or reports on the progress of the children during the interim period?
- I should stress that I consider that the answer to the question that I have just posed will vary from case to case and will to a large part be determined by the facts and factors that are in play in each individual case. It is absolutely not a matter that falls to be determined by the imposition of an arbitrary deadline applicable to each and every case.
- In the present case, it is a striking feature of the judgment that the judge makes absolutely no reference to the fact that so much time has elapsed between the close of evidence and the announcement of his decision. He accurately states the dates when the hearing took place and when subsequent applications were made. He describes receiving updating material from the father’s advisers in January and he describes the importance of avoiding delay at paragraph 12 of his judgment. But at no stage does he acknowledge that a very significant period of time has passed since the close of evidence. It would therefore seem likely that the judge did not himself consider the question of whether the evidence upon which his assessment was based may have become stale or require updating in the light of the fact that the four children had been in the care of their parents for such a long period.
- It is correct that the judge referred to the updating material supplied on behalf of the father in January 2015 at paragraph 80 of his judgment. But that paragraph is no more than a factual description of the material. At no stage does the judge refer to the content of the material or bring that information into his overall welfare evaluation; it is simply not mentioned again. Indeed the fact that the parents have been caring for the children during the six months since the close of evidence is not a factor that the judge refers to at all in his welfare analysis. In this important respect, the judgment reads exactly as it would have done had the judge delivered it immediately after the oral hearing had concluded.
- In some cases the passage of a significant period of time following the close of evidence may have little relevance, and require little or no reference in the judgment. Such a case may involve long term issues relating to mental health, addiction, or other seemingly intractable and unchanging factors. In the present case, however, the question of whether or not these parents could care for some of their children was a very live issue, the answer to which had not been, and remained, at least to a degree, an open one. It was what the case was about.
The appeal was allowed and the case sent back for re-hearing. I note that even in a case where the Court of Appeal stress that extending the timescales for resolving proceedings is a critical and statutory requirement where a judgment must be given, that the net effect of the appeal is to extend the timetable of proceedings for a further period when the proceedings had already been running since February 2014 – which I make 65 weeks by the time of the Appeal, there is absolutely no mention of the Court granting such an extension at the end of this appeal judgment, even though that’s precisely the effect of their decision.
The counsel bringing the appeal had also sought to claim that a six month delay for parents to wait for a decision was a breach of their human rights. The Court of Appeal dismiss this, rather sniffily. I have to say, as soon as you put yourself in the mind of a parent looking after their children day to day, and having for six months to wait to find out if they would still be doing so tomorrow, it is hard to see that this is anything other than dreadful. I think there’s a case there.
. I am unpersuaded that arguments as to possible breach of the children’s or the parents’ ECHR, Article 6 right to a fair trial add anything.
The Court of Appeal don’t say that the circumstances DON’T amount to a human rights breach, but rather that it is simply unnecessary to contemplate it because the other arguments are sufficient. I’m not so sure, myself. I think that where there’s a proper allegation that the State’s treatment of parents has been so improper that harm or stress has resulted, it is worth spending the time to give that allegation a proper determination.