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Tag Archives: judicial continuity

Appeal, Special Guardianship Order to a stranger

 

The Court of Appeal in Re H (a child) 2015 considered the decision from a circuit Judge, Her Honour Judge Wright, to make a Special Guardianship Order to a woman who knew the mother through church as opposed to placing the child with the father.  From the material before the Court, it appeared that the prospective Special Guardian had been observed with the child for about an hour.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/406.html

 

This case, as it deals with how to conduct the balance properly, and making it plain that all of the strictures of Re B, Re B-S et al still apply (as it involves the permanent removal of a child from a parent) makes for an interesting comparison with the Court of Appeal in Re E-R (a child) 2015   where they made it even more explicit that in private law disputes, there is no broad presumption that a natural parent is the best person to care for a child.

https://suesspiciousminds.com/2015/04/27/no-broad-presumption-in-favour-of-a-natural-parent/

 

The Court of Appeal (rightly so in this case) were critical that the PLO process had not been properly followed. These weren’t nitpicking complaints, but actually went to the heart of why the case had been decided in a flawed way and why there had to be a re-hearing.

 

There had been no continuity of judiciary, no continuity of representation, the parties had not properly identified the issues and hence the Judge had not been able to properly narrow the issues at IRH, and critically proper thought had not been given as to whether the expert in the case ought to be asked to either provide an addendum or to be called to address what was really the key issue in the case.

Could this father, having undergone therapy and developed insight, now care for this child to a ‘good enough’ standard, or did the expert’s prior report indicating that he would need to have another person alongside him to co-parent still stand?

  1. The threshold for jurisdiction described in section 31 of the Children Act 1989 was necessarily constructed on a broad basis having regard to the fact that there were issues of fact and likelihood of harm relating to both mother and to father. The local authority’s case against father was that he was not capable of caring for his daughter because of his autism, the effect of stress on him, the specialist skill required to deal with H’s chromosome disorder and the risk that he presented to H’s emotional wellbeing.
  2. The risk that it was said father presented was based in part on matters determined in the earlier proceedings and in part on new allegations. The risk was made up of (1) that which it was said flowed from an allegation that father left H in the care of her mother when the couple separated, (a risk which was mitigated by the fact that he chose to inform the local authority through the dedicated nursery workers), (2) that which arose out of the abusive relationship between the parents, the physical elements of which he denied, and (3) that which would arise if father was unable to engage with H as her primary carer. The judge held that the findings sought by the local authority which were sufficient to satisfy the threshold had been proved. There was undoubtedly ample justification for that conclusion based on the mother’s conduct alone. What is sadly missing from the judgment is attention to the detail of the findings that the judge made against the father so that there can be a proper understanding of the nature and extent of the risk that existed in the father’s care for the purpose of a welfare analysis.
  3. The judge identified in her judgment the key issue in the case which was the question whether father was capable of caring for H on his own, about which there was an adverse assessment conclusion supported by the analysis of the children’s guardian. Closer examination reveals that the opinion upon which the judge relied was that of a Dr Campbell, a consultant neuropsychologist who was an expert witness in the 2011/12 proceedings and who had then advised that father would need another person alongside him to co-parent H. The judge records that opinion and the fact that father disagreed with it on the basis that he had received therapy, had developed insight and had changed.
  4. Although the judge set out the fundamental disagreement on the key issue, no-one had thought in advance of the final hearing to identify whether the issue was important enough for Dr Campbell to write an updating report or even to be called to be cross examined on behalf of the father. No-one took any steps during the hearing to question how the disagreement was to be resolved. There was no application to call Dr Campbell. If the social worker and guardian were asked for their opinions during examination and cross examination this court was not taken to their answers and the judge did not rely on any of the detail of their evidence in her judgment to suggest that the issue was addressed. Furthermore, it was conceded before us that the social work assessments and analyses in this case could not substitute for or update the forensic opinion of Dr Campbell. The witnesses did not have the skill and expertise to do that.
  5. The consequence is that the judge did not give the lack of agreement that existed the importance that it deserved and that was because there were fundamental flaws in case management before the final hearing. The issue was not identified nor was there any identification of the evidence and the witnesses whose materials would go to that issue. A part 25 application to adduce expert evidence had been unsuccessful during case management and the assessment material appears to have taken the issue as being concluded when it was not. In fact the part 25 application seems to have been misguided, asking as it did for alternative adult psychological assessment. What should have been asked for was up to date evidence from Dr Campbell and given that his opinion was part of the local authority’s case, they should have made application for it, paid for all or some of it and taken the lead in giving instructions for it.
  6. In discussion before this court, the advocates acknowledged that the lack of judicial continuity was compounded by the lack of continuity of representation of the parties such that essential steps including mandatory advocates’ discussions before hearings were missed. Had there been judicial continuity it is at least likely that these issues would have been addressed.
  7. There are cases where a judge’s firm acceptance of evidence can lead this court to acknowledge that the reasoning process implicit in that acceptance is sufficient to deal with the key issue identified. Suffice it to say that having regard to the other issues in the case, to which I shall now turn, no-one seriously pursued a submission that the judge’s reasoning was sufficient or that any gaps could be filled by reference to the evidence that was accepted by the judge

 

The underlined portion of paragraph 16 is important – the LA here were relying on Dr Campbell’s conclusions that the father could not be a sole carer for H, and the Court of Appeal took the view that it was they who were responsible for updating Dr Campbell and getting fresh evidence before the Court whether the change of circumstances changed his view (and moreover, responsible for paying for that)  – rather than the father, as it was his case that he had changed.

Worth bearing in mind.

 

I found it a little odd that the Court of Appeal were not even more interested in threshold, which seems on the thin side post Re A and Re J (particularly given that this child had been with father as a sole carer during the six months of the care proceedings)

  1. The background to the case is as follows. As the judge recorded, the local authority had been involved with the family since before H’s birth. There were previous care proceedings within which, in April 2011, H was placed in foster care. She moved to her parents’ care one year later. In June 2012 a supervision order was made which reflected the success of a residential assessment and the subsequent placement of H at home. The order was extended until February 2014. It was an important element of the care plan that the parents’ care was to be supported by the father’s family and members of the mother’s church because each parent on their own was assessed to be unable to care for H. H was subsequently diagnosed as having a condition known as ‘chromosome 16’ which is linked to developmental delay and speech, language and learning difficulties. She has delayed development and is vulnerable to seizures. Her needs have been assessed to be high, requiring a level of parenting that is better than ‘good enough’ and carers who are ’emotionally available’ to help her make sense of her experiences.
  2. The triggering incident which led to these proceedings occurred on 5 January 2014 when the police were called to a shopping centre in West London. H had been left unaccompanied inside the centre by her mother who had been smoking a cigarette outside the main entrance. H’s father was not present and was unaware of what had happened. The incident was investigated by a social worker who discovered that the parents’ relationship was breaking down. By late January, H’s mother was insisting that the father should leave the home and on 26 January 2014 he did so, leaving H in her mother’s sole care. Despite increased local authority support the care of H by her mother rapidly broke down. That led to a trial agreement between the parents and the local authority for collaborative care by the parents under the supervision of the local authority which was to be provided for by renewed care proceedings that were issued on 7 March 2014.

 

The father also produced evidence from professional bodies and groups – given that what was being said was that his autism (in whole or in part) was why he could not parent as a sole carer and needed another adult to provide day to day support and care. The Court of Appeal were critical that this evidence was not properly analysed in the judgment – yes, the Court could have decided that it did not tip the balance in favour of the father, but to do so, it would have to have grappled with the evidence and set out an analysis of why it was found not to tip the balance.

 

18. Furthermore, there were independent elements of the evidence available to the court which might have impacted on all three opinions.

  1. The independent evidence that was available came from Mencap, the National Autistic Society and from father’s two siblings. The judge heard no oral evidence about any of the support that was on offer from those who could provide it. On the written materials she came to the following conclusion:

    I do not accept the support offered by way of his family, MENCAP, and NAS would be sufficient to meet [H’s] need for a co-parent to assist [the father] if she were to remain in his care in the longer term

  2. First of all that recognised the importance of the key issue I have identified, about which the only other relevant conclusion to which the judge came was:

    “The difficulty he has is that, as was made clear in the previous proceedings, he does not have a reliable person who can provide primary care for [H], who will be attuned to her changing needs, and with whom he can work in partnership. Sadly, the evidence from the parenting assessment, [the social worker] and the guardian’s (sic) indicates [H] remains at risk of harm in her current circumstances.”

  3. The judge went on to consider what the position would be if father was not supported and also two other aspects of the case that are relevant, namely the father’s understanding of the need to act quickly if H had a seizure and what was described as a negative “snapshot” from the guardian derived from her only visit to father’s household during the extensive period that he successfully cared for his daughter with the support of family members. None of this was decisive. The key issue in the case remained whether father needed a co-parent and if not, whether the nature and extent of the available support was sufficient.
  4. It is clear from the judge’s judgment that she had read materials from the interest groups referred to above and from the father’s relatives. It is not at all clear what part, if any, they played in her analysis. That is because the analysis is missing. It is possible that no-one wished to cross examine the authors of the documents and that their contents were taken as agreed. An alternative explanation is that the local authority took the pragmatic view that they disagreed with the contents or that the contents did not address the issue and that cross examination would not take the evidence any further. Either position would have been acceptable and understandable but given the disagreement on the key issue it would have been helpful to know whether or not the content of the documents was agreed and how that was factored into the welfare analysis. I also find it difficult to accept that a value judgment about a co-parenting or caring supporter in a contested case can be definitively made without hearing some limited oral evidence from that person in the absence of agreement or a case where the proposal is not realistic.

 

A further criticism was that the father had wanted to call evidence from family members and had had this request refused. I know that this is an issue that greatly troubles Ian from Forced Adoption, so I will set out the Court of Appeal’s ruling on that (which he will like)

It is one of the grounds of appeal to this court that the judge declined to hear oral evidence from the paternal family, i.e. evidence other than that of the father. The paternal aunt and uncle attended court on the third day of the final hearing with the intention of giving that evidence. We were told that the evidence would have gone to answer some of the questions that the local authority social worker and the guardian had about the merits of the support that the father had. It is difficult to know whether that is right. The judge rejected the application for reasons that are unclear. They were neither expressed in the judgment nor in the detailed order made by the court. The reasons may have been appropriate but if not expressed the impression given is that the judge treated the father’s case as if it was not a realistic option.

 

If a Court is going to refuse to hear evidence from witnesses, they will have to give reasons for that, and set out very clearly in the judgment why that was decided.

Ryder LJ was very clear that the problems in this case and judgment arose fundamentally from a failure to have a proper IRH

  1. All of these issues should have been addressed by the court and the parties at the issues resolution hearing when a different judge briefly had conduct of the case. It was at that hearing that the SGO option is first identified in a recital to an order. Although there is a reference to a SGO, the question of whether a SGO should be made is not then identified as an issue to be determined as it should have been on the face of the case management order. It is not until the final order of the court that the issue is identified as one for resolution. The importance of that is not merely technical. For an SGO to be made there are steps that have to be taken. The steps are part of a regulatory scheme that provides protections for the child involved and for those with parental responsibility and those who seek to obtain it. Furthermore, it is important that the court identifies the realistic options before the court so that the evidence can be focussed upon those options thereby providing the material for the judge to consider in the welfare analysis.
  2. At first sight of the papers one could be forgiven for wondering what compliance there had been with the rules in the preparation there had been for the final hearing. The local authority did not amend the care plan to make the proposal for special guardianship until 2 October 2014 and the detail of the transition plan to move H from the care of her father to A was not provided until the first day of the final hearing. The IRH had taken place on 23 July 2014 when all of those materials should have been available. I assume that no-one was taken by surprise because there was no application to adjourn the final hearing on that basis but the extended period from July to October, which was inappropriate in itself, should have been used to regularise what was happening so that it did not occur at the last minute.

 

The Court of Appeal were unhappy that there had not been a proper Special Guardianship report, which is of course a statutory requirement.   There is something VERY IMPORTANT in this bit, which is going to make 90% of my readers groan  – the Court of Appeal rule that if an SGO is sought, there should be an application. Rather than, as usually happens, the Court is asked to make it of its own motion.  Either the prospective special guardian or the LA should make a formal application.  [And that s10(9) applies to such applications – which in a practical sense means that anyone other than a person with whom the child has lived for at least a year, or has a residence order  OR has consent from everyone with PR to make the application, is going to need leave of the Court]

 

{There’s a slight bit of wiggle room here It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason.    so if everyone agrees, you could still ASK the Court to rule that a formal application isn’t needed. Given that there is an application fee, and the Court service is financially straitened, I’m not sure I’d count on that. At the very least, you are going to need to know prior to IRH whether the Court is going to agree to use that power, or insist on a formal application and possibly a s 10(9) application. Remember that both can easily be foreced by one parent saying that they resist. }

 

  1. What was happening was that the local authority were seeking to persuade the court to make a SGO. Although the court has power to make such an order of its own motion in accordance with section 14A(6)(b) CA 1989, that should not be the default position. Such a process can, as it nearly did in this case, give rise to procedural irregularity for lack of notice. The special guardian or the local authority on her behalf should have made the application. The important procedural hurdle of the satisfaction of the test in section 10(9) CA 1989 would then have been addressed. It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. In any other case, the use by the court of this power must be reasoned. The parties in this case did not agree and the use of the power was assumed not reasoned.
  2. In accordance with section 14A(8) CA 1989 the local authority must prepare an SGO report and by section 14A(11) the court cannot make a SGO without such a report. The statutory purpose is a very real protection. The contents of such a report are set out in a regulatory scheme which is to be found in the schedule to the Special Guardianship Regulations 2005, which is designed to ensure that necessary questions are addressed before controlling parental responsibility for a child is vested in a person other than a local authority. Such a report was never directed to be prepared in this case because no SGO application was ever made.
  3. In her judgment the judge accepts that a report, a support plan and an addendum report which she identifies are sufficient for the statutory purpose. It is only because there is a concession before this court that the content of an earlier ‘connected person’s assessment’ of A fulfil those requirements that this court has not moved on to question whether the assessment was sufficient for its purpose. During case management, the court should have addressed the question directly. On identifying that one of the realistic options that the court was being asked to consider was special guardianship, it should have made directions in the prospective application including for the SGO report and any relevant evidence. If a report which is being or has been prepared is to be deemed to satisfy the regulatory and statutory requirements, then the case management judge should say so: allowing anyone who disagrees to be heard given the statutory importance that is attached to the report. In other words, the assertion must be scrutinised. By section 14C(1) CA 1989 the holder of a SGO shares parental responsibility with the parents of a child but has the right to override the responsibilities of the parents. Such an order is a significant step in a child’s life that is intended to have long term consequences and the protections that surround it should be respected.

 

The final major criticism was that given that this was a stark choice between two options (dad or prospective SGO) the Court had not properly allowed the father to challenge the assertions that the SGO would be able to care for the child.

  1. The final element of this appeal that is troubling is the judge’s treatment of the special guardian. The judge was apparently of the opinion that it was not appropriate for the father to ‘compete’ with the special guardian. I can understand the point she was making, namely that it would be undesirable for the two potential carers of H to be engaged in an adversarial exchange when subsequently they might have to work in partnership. However, the father was entitled to the procedural protection of being able to cross examine witnesses about the capability of A to care for his child. If that was not to be A herself and I reserve judgment on that question until it is a live issue on which a case turns, then it should have been the assessor.
  2. One of the authors of the connected person’s assessment to which I have referred was called to give oral evidence. Unfortunately, she was the assessor who provided information about the birth family. The separate assessor who provided the information about A was not called to give evidence and accordingly there was no cross examination on the question of the capability of A to care for H.
  3. All of this stemmed from an assumption generated in poor case management that the special guardian was a realistic option and the father was not. That was not this case. At the time of the final hearing H had been living with her father for more than six months. It was accordingly incumbent on the court to undertake a comparative welfare analysis. That is missing and would have been difficult to construct on the evidence that was heard.
  4. The errors that I have described are fatal to the determination made by the judge. As a consequence, at the conclusion of the hearing before this court we allowed the appeal, set aside the special guardianship order, imposed an interim care order on an undertaking to file a new interim care plan to abide the event of an application to restore the status quo ante or an urgent re-hearing. We made case management directions to expedite the identification of the issues, evidence and witnesses at a new IRH.

The Court of Appeal was very damning in Ryder LJ’s final remarks

  1. I have set out the catalogue of problems in this case in rather more detail than might usually be necessary because it is essential that the rules and practice directions of the court are applied. They are there for a purpose. Casual non-compliance is not an option precisely because further harm will likely be caused to a child.
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“Here they are, they’re so appealing…”

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.