Some extraordinary appeals kicking around – there’s a cracker called Re A, which involves a judge shouting at a 13 year old child and threatening to make costs orders against her personally (but I’m waiting for that to go up on Bailii).
In the meantime, this little treasure.
Re S-W children 2015
http://www.bailii.org/ew/cases/EWCA/Civ/2015/27.html
Three children, 14, 11 and 10. They’d been living with grandparents for about a year and a half by the time the case came to Court, because the mother was having problems with alcohol and drugs and was struggling to end a violent relationship. There had been a period just before issue where rehabilitation looked like a possibility, but the assessment looking at that had been unsuccessful.
It wasn’t an initial hearing where there looked to be great prospects of these children returning to mother’s care, but one has to bear in mind that these were not tiny tots, but children of 14,11 and 10, and who would have their own views to express and be considered.
The Children’s Guardian had made it plain in the initial document that she hadn’t been able to meet the children yet, but knew that all three were saying they wanted to go home to mother, and that this would be an important part of her work.
The first hearing then, was one in which all of the lawyers were in agreement that there was some work to be done
i) The local authority would pay for a drugs hair strand test on the mother. This was a matter of considerable importance …….because
ii) the local authority were to convene a Family Group conference in order to see if a way could be found for LW to return, in whole or part, to the care of his mother. It was hoped that if that could safely be achieved, it might act as a break on the disruptive behaviour which was leading to the constant breakdown in his placements. The local authority note of the meeting says “is it just about good enough with mum, may be able to go back.” The timetable was to provide for an addendum to the parenting assessment already filed by the local authority;
iii) Efforts were to be made to trace the father of ES who had not been served;
iv) Neither of the grandmothers wished to be considered as foster carers and therefore Special Guardianship assessments were to be carried out by the local authority with a view to securing the future of those two children by the making of Special Guardianship Orders;
v) It was agreed that a slimmed down number of documents from that listed by the Guardian in her report would be disclosed, but that only one or two of those documents would be placed in the bundle. This would allow the Guardian to carry out a full review of the case whilst ensuring compliance with Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)… the Bundles Direction) para 5.1 which limits the court bundle to 350 pages of A4 text; (see also Re W (Children)(Strict Compliance with Court Orders) [2014] EWFC 22);
vi) The matter would be listed for an early Issues Resolution Hearing (IRH) with a view to the case being concluded substantially within 26 weeks.
The Judge, His Honour Judge Dodds (who you might remember from https://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you – they did, he lost) took something of a robust approach, making Care Orders and ending the case at the first hearing, making that decision within minutes, not listening to anyone, and not giving a judgment.
- A transcript of the hearing in front of the judge has been made available; it reveals that within a matter of minutes, the judge had made abundantly clear, in trenchant terms, his determination to conclude the case there and then by making final care orders. The judge was fortified in his approach, he told the parties, by the fact that the previous week (30 July 2014), an application for permission to appeal in relation to another final care order he had made at the CMH in a different case had been refused by McFarlane LJ : Re H (Children) Case No: B4/2014/2033.
- The judge was scathing of the Guardian’s report and her reasons for requesting further information, saying that “advice about the practice direction that came in on 31st July” (a reference to the new Bundles Direction), would signal the end to what he referred to as “this sort of Victorian detail”.
- In relation to LW’s situation he said that whilst he wished LW “every good luck in the world but the Children Act and the court has nothing to do with it”.
- All the parties crumbled under the judge’s caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews).
- At one stage the judge referred to the mother as looking “upset and bewildered”. It is hard to see how she could have looked otherwise given the course the proceedings were taking.
- The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children.
I imagine there was something of a sprint or scissors-paper-stone battle as to which of the parties was going to appeal this first. Bear in mind that this was a DIRECTIONS hearing, the first hearing in the case and that nobody had been suggesting that the Court should make final orders.
The Court of Appeal had to consider whether the Judge might, just might, have exceeded his robust case management powers, and instead made an order which was disproportionate and unfair.
The fact that when Permission to appeal was granted, McFarlane LJ had effectively said to the appeal judges “Bloody hell folks, you really need to check THIS ONE out” was rather telling:-
“In any event, there is a compelling reason sufficient to justify this case being considered by the Court of Appeal. The judge’s approach could not have been more robust. He sought to justify such an approach on the basis that recent family justice reforms and case law. There is a need for the Court of Appeal to consider whether such a robust summary approach is justified and/or required by the recent extensive changes to procedure and case law and, if so, how the basic requirements of a fair trial and judicial analysis are to be accommodated in such a process”.
Nicely put. The approach adopted ‘could not have been more robust’ – well, not unless the advocates in sequential order had carefully and precisely driven their cars into the Judge’s own car in front of him, moments before the hearing. The Court of Appeal do wonders with their “hell to the power of no, squared”
- The expectation is therefore that a CMH will ordinarily be an essential management hearing designed to get the case in proper order to enable it to be ready for disposal, whether by consent or following a contested hearing, within 26 weeks. This is in contrast to the IRH when all the evidence, including expert evidence should be filed and where, unlike the CMH, the rules specifically require consideration to be given as to whether the IRH “can be used as a final hearing” (PD12A Stage 3- Issues Resolution Hearing)
- Every care judge will be conscious that, whilst it is in a child’s best interests for their future to be determined without delay, it is equally in their best interests that the management of the case which determines their future should be fair and Article 6 compliant. The danger lies when, as unfortunately happened here, vigorous and robust case management tips over into an unfair summary disposal of a case.
The President took up the baton
- My Lord has drawn attention to the famous words of Lord Hewart CJ in R v Sussex Justices [1924] 1 KB 256, 259. In the present case it is unhappily all too apparent that no dispassionate observer of the proceedings or reader of the transcript could think that justice was done, let alone that it was seen to be done. It was not.
- Vigorous and robust case management has a vital role to play in all family cases, but as rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to “deal with cases justly, having regard to any welfare issues involved”. So, as my Lord has emphasised, robustness cannot trump fairness.
- In the context of case management, fairness has two aspects: first, the case management hearing itself must be conducted fairly; secondly, as I observed in the passage in Re TG to which my Lord has referred, the task of the case management judge is to arrange a trial that is fair. Here, there was a failure in both respects.
- We are all familiar with the aphorism that ‘justice delayed is justice denied’. But justice can equally be denied if inappropriately accelerated. An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, para 40, “Justice must never be sacrificed upon the altar of speed.”
- Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG, paras 27-28. But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays due regard to two fundamental principles which apply as much to family cases as to any other type of case.
- First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard: see Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, paras 28-29. As I observed (para 55):
“The fact, if fact it be, that the circumstances are such as to justify intervention by the State, … does not absolve the State of its duty nonetheless to act fairly. It is not enough for the State to make a fair decision: the State must itself act fairly in the way in which it goes about arriving at its decision.”
A parent who wishes to give evidence in answer to a local authority’s care application must surely be permitted to do so.
- Secondly, there is the right to confront ones accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so.
- I stress the word important. I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to ‘testing the evidence’ or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome.
- Quite apart from the fundamentally important points of principle which are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing cross-examination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:
“Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel.”
- I agree with my Lady that there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate. Re H, to which my Lady has referred, was such a case, but the particular and unusual facts which there justified a summary process need to be borne in mind. Re H is not and must not be treated as justification for any general principle, let alone for proceeding as the judge did in the present case.
- Quite apart from the fact that such a ruthlessly truncated process as the judge adopted here was fundamentally unprincipled and unfair, it also prevented both the children’s guardian and the court doing what the law demanded of them in terms of complying with the requirements of the Children Act 1989 and PD12A. I agree with my Lady’s analysis, in particular in relation to care plans and the meaning and effect of the various provisions in sections 31 and 31A of the Act to which she has referred.
Now, of course Judges are human beings, and can have a bad day. And of course, there are some Judges who would have read the background and thought “well, this is one that has some inevitability written all over it”. There might even be Judges who would cut back on the timetable proposed by the parties and view this as a fast track case. One could make a reasonable argument for finishing this case in 10 weeks rather than 26.
There might even be Judges who are unable to supress what their eyebrows think of the whole state of affairs.
But if you’re a Judge in a family case who has made a decision which the appeal Courts can describe as ruthlesss, fundamentally unprincipled and unfair, then things have gone very badly wrong.
I don’t practice in this particular area of the country, but I wonder whether any advocate representing a parent could possibly feel that their client is going to get a fair hearing from a Judge who was capable of making a decision of this sort.
suesspiciousminds 