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Composite threshold documents – in which, a tightrope is walked

 

Two nightmares of legal blogging this week. The first was the McKenzie Friend case in which I had to write an account of the Court roasting a person for bad behaviour when that person was not just a name on a page but someone that was in my mind a real flesh and blood person.  And now this one, where the judgment is written by my local Designated Family Judge.

That’s something that I dread seeing, because it puts me in an ethical quandary. If I praise it to the skies, I’m a suck-up. If I take a red pen to it and dissect its flaws – well, I’m stupid but I’m not THAT stupid.  So if I see one, I hope that it has nothing of wider relevance and I can ignore it. That avoids the need for me to walk a tightrope.

 

Damn. This one does have some wider relevance. It says things that have been said before and emphasises them, but it also says some things that haven’t been said before and that have been worth saying.

Behold, Suesspicious Minds walks a tightrope, without a safety net. GASP as he wobbles. WONDER if he will plummet to his certain demise?  PUZZLE as to why he has thought up too late that he could have put at the start that this particular article was a Guest post…

 

Why am I going to walk the tightrope for this case?

Firstly, it is the DFJ identifying several flaws in practice and I know that many of my readers practice in Sussex and will come before this DFJ. Forewarned is forearmed, and actually many of these practice issues would, if fixed, make for smoother running of Court hearings. What the Judge has to say about practice issues is important to read.  The less time that the Court has to spend in a hearing on fixing practice issues, the more that everyone can concentrate on the child and the child’s future, and we all want that.

 

Secondly, the DFJ says things about composite threshold documents which have wider implications for practitioners in all parts of the country.  What the DFJ says about composite threshold documents is, in my opinion, very long overdue, and I can’t think of an authority which sets out just how problematic they have become.

So I’d recommend that all Sussex practitioners put this judgment high on their “to-read” pile, and I have little doubt that these issues are troubling other Judges across the country and that similar judgments will be following, so it should go on everyone’s “to-read” pile, which will for many of you involve getting a stepladder and sliding the authority in the ever-decreasing gap between the top of the pile and the aertexed ceiling of the office.  (Top tip – avoid starting the pile directly under a ceiling fan)

 

East Sussex County Council v BH and Others 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B57.html

 

A quick note, for readers who aren’t lawyers. (Ah, how I envy you all).

The threshold document is a 2 page document prepared by the Local Authority setting out the harm that the child has suffered or is at risk of suffering and the allegations/facts that lead to that. The parents both respond to that, with the help of their lawyers. The Local Authority then prepare a final, or composite threshold document that sets out exactly what is agreed.

The problem is, and this isn’t a Sussex problem – I’ve seen it all over the county, and it has always irked me,  that often what you end up with is a “He said, she said” document, that doesn’t set out what the parties agree happened, so much as just squash the parents responses in next to the Local Authority allegation.

 

I’ll give you an example.  We are going to work on the basis of a single sentence within the LA threshold, and for illustrative purposes it is going to be  “The quick brown fox jumped over the lazy dog”

[Pedantic note – I originally used ‘jumps’ as in the typist sentence, but because the threshold is in the past tense, it made me wince every time, so I had to go back and change it. Also, because my father was a speed typist and taught me with the sentence  “The quick brown fox jumps over the lazy dog’s back”  to put a punctuation mark into the mix, I felt guilty for not using that version. ]

[That is NOT real threshold, before anyone rings the Daily Mail and claims that children are taken into care as a result of athletic foxes]

 

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

 

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

And the composite threshold document then becomes.

 

Paragraph 7.  The quick brown fox jumped over the lazy dog

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

Not only is that cumbersome and unwieldy, but it doesn’t actually tell you anything about what actually happened.  It could instead be put like this.

 

Paragraph 7.  Something happened. Nobody agrees what, but they all agree that something happened.

And you can end up with two pages of long-winded “Something happened. Nobody agrees what” as being apparently the factual basis on which the Court is invited to make final orders – serious final orders.

When a Judge comes to hear the case, and considers what the risk of a future episode of a lazy dog being jumped over by a fox might be, how on earth does that composite threshold help anyone?

 

This is a problem on two fronts. Firstly, there’s a tendency in responses to threshold to put in extraneous detail and mitigation, when that could be in a statement instead. If the response focussed on – is the allegation accepted in full, accepted in part or denied?  And if accepted in part, provide a form of words which would be acceptable to your client, we would avoid much of the superfluous detail that clouds the issues.  In this case – was there a dog, was there a fox, did the dog jump over the fox?

Secondly, there’s a failure by the person drafting the final composite threshold (that’s someone like me, and even though I hate it, I’m sure I’ve been guilty of it) to not be able to strip away all the superfluous detail and mitigation, to be able to get to the core of what form of wording would be agreed.

 

For example, here are three acceptable composite documents.

 

The quick brown fox jumped over the lazy dog   – this is accepted

The fox jumped over the dog and the dog showed no later ill-effects – this is accepted

The quick brown fox jumped over the lazy dog – this is denied by the parents and the Court is asked to make a finding

 

(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here  http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-horse-trading-and-threshold-concessions#.VWa9FEY1Ouc)

 

So, for parents lawyers, please please please stop your documents being pleas of mitigation, and hone in on the task of ‘is this agreed, partially agreed and here’s my form of words, or denied’ .  It’s a response to threshold, not a plea of mitigation.  And for me, and those like me – produce a final threshold document that actually sets out for the Judge (and those to read it in years to come), what the AGREED basis for the order is, and where there is not agreement, set out what finding is sought from the Court.

 

The Judge deals with this without the need for fox and dog imagery.

 

  • As frequently happens, a “composite threshold document” had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.

 

Finally, the judgment makes a point about judicial reading time. There is never enough of it allocated, but the parties don’t help by not estimating it properly. We are obliged to put in the case summary how much judicial reading time is needed.  That bit is never nice to fill in – if you are realistic, and put that for an IRH the Court ought to read everything, and have a grasp and knowledge of it, then for a 350 page bundle, a minute a page gives you a 6 hour reading time.  A minute a page might be breezy for some parts of the bundle but others might take much longer than that.  Handwritten medical notes for example… Or a page of heavy analysis or cross-references – you might have to slow down to check that the quotations from other documents are fair and representative rather than cherry picked and misleading.

 

Do you think any Judge is going to thank you for putting a 6 hour – or a cut-down slightly unrealistic 3 hour (30 seconds per page) time estimate for a hearing that is listed for an hour?  So we all fudge and put 2 hours…

If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.

 

Of course, if we had the old days of special prep SIPS forms, a Judge could tackle this by saying that the reading time that counsel would get paid for would not exceed the reading time allocated to the Judge. That would have made for more accurate estimates of judicial reading time…

 

 

 

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Somerset v MK – conduct of a Local Authority and deprivation of liberty

 

 

This is a Court of Protection case, involving a 19 year old “P”.

 

Somerset v MK – Court of Protection,Deprivation of Liberty ,Best Interests Decisions ,Conduct of a Local Authority 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

P is aged 19, she was born on 10/10/1994 and has severe learning disabilities and autism spectrum disorder. She has almost no verbal capacity and communicates through gestures and via PECS

 

In May 2013, P presented with bruising on her chest and was examined by a paediatrician

 

His report (G25) said: “the bruising is felt to be comparable with a blow / blows to P’s anterior chest with a significant force or fall onto an object… this would be an unusual injury pattern to have been self-inflicted but if this was the case then it would be expected that such self-harm, which would have been demonstrably significant and painful, would have been witnessed”.

 

 

Sadly, when considering how those bruises came about, nobody seemed to have grasped the significance of the report from the school two days earlier of P being observed to hit herself hard and repeatedly on the chest.

 

The Judge notes,with a degree of acidity, that it seemed to only be when the papers in the case were sent by the Local Authority to leading counsel that the two matters were linked and the Local Authority ceased to seek a finding that P had been injured by her parents.

 

The belief that P was not safe with her parents was what had led the LA to remove her and deprive her of her liberty, and hence to make the application authorising that deprivation of liberty. Initially it had been for two weeks respite, but that stretched on and on, to over a year.

 

16. In addition the LA changed its position on the factual issues so that it was unlikely to pursue factual findings with regard to the injuries sustained by P. Previously the chest bruising seemed to form a vital part of the LA case and one might, for instance, have expected findings being sought about a perpetrator or perpetrators and failure to protect but now it was clear that no such findings were being sought. It is also clear from the document that the significance of the reported hitting by P of herself in the chest on 21/5/13 had been realised (the class trip evidence had not yet been identified). I suspect the realisation of the significance of this evidence in any Finding of Fact hearing and the instruction of very experienced leading and junior counsel just prior to this document being filed are not entirely coincidental.

 

Given that the reason for keeping P apart from her family had been the suspicion that they had injured her, when the truth is that the bruising was explained by the school’s observations of her hitting herself in the very same place, the LA were in a very tough spot.

 

14. On the 26th March the LA filed its position statement dated 25/3/14 to be found at A12 to 15. In this document the LA conceded that P had been deprived of her liberty (it contended that there may have been some doubt about that before but not after the Supreme Court ruling in the Cheshire West case).

 

15. In addition the LA accepted that there had been a period when they had unlawfully deprived P of her liberty contrary to Article 5 ECHR. It had not been authorised by the Mental Capacity Act 2005 and was not therefore “a procedure prescribed by law”. This it accepted continued from 8th June 2013 (the date when the respite care was supposed to have ended and 28th November 2013 when the first authorisation was obtained. It goes on to concede that P’s deprivation of liberty and the loss of her society to her family was a breach of both P and M’s Article 8 rights and not in accordance with the law.

 

 

If they had stuck with the apology and worked up a rehab plan without delay, things probably would have gone better for them, but instead they decided that it was in P’s best interests for her NOT to return to the family home but to be in a long term placement at a care home.

 

17. The LA make it clear that the best interests decision as to what should happen from now on to P is one to be considered purely in terms of her present and future welfare needs. The document indicates that the LA wish to apologise to the family for its “procedurally inappropriate and unlawful” actions. It still proposes that the best solution is for P to be in LA care and accommodation (up to April 2014 it had suggested a long term placement at a care home in Bournemouth was appropriate). Now it accepts a new social worker should be involved and make another best interests assessment and the case should be returned to court for an interim consideration of where P should be.

 

 

As part of that, the LA had drawn up a schedule of findings of fact on other matters. It is significant to read what the Official Solicitor had to say about that schedule

“…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.”

 

 

The Judge agreed with that, and also in conclusion said this:-

 

the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.

 

 

{It is rather difficult to look sincere in your apology when you’re also trying to stick the boot in at the same time}

 

25. The siren song behind the argument is if I make the findings of fact and apply them and all the other relevant considerations to the case I will be driven to find that P’s best interests will be served by her not returning home but as far as the LA are concerned that is a matter for the judge. An outside observer might ask himself the question if everyone including the independent social worker and the OS for P are agreed on a return home and the LA are neutral why has it taken 9 days to litigate the case? However the reality is that the past conduct of the family and the LA are the context for the best interests decision and also the components of the breach of the ECHR application and thus needed to be carefully examined.

 

 

The Court did not make the findings that the LA sought, including one that the Judge said was “unprovable and irrelevant at the same time”   (a difficult combination to achieve)

 

What makes this case potentially important is the evidence of the senior manager of the LA, who the Judge remarked a number of times had the principal role of being there to fall on his sword.

 

 

The senior social work manager is a highly intelligent and senior social worker but he is essentially there to fall on his sword for the LA failings and on the best interests issue does not add anything to the LA case

 

However,

 

 

57…He was in my view a highly intelligent, experienced and well-intentioned manager and social worker who was, having observed him not just when he was giving evidence but when he was listening to evidence, genuinely shocked at some points by what he heard. At the start of his evidence he said: “I think the crucial aspect relying on what I have heard in court is a fundamental misunderstanding of the role of adult social care and how to go about their jobs“.

 

[Oh. My. God]

 

58.  He (and I) did not question the motivation of LA to do the right thing, as they saw it, for P but he described the conduct of social workers on the ground as misguided. There was no understanding of the law in this area and that extended to the LA lawyers as well as social workers. He accepted when I asked him that not only were individual actions wrong but the philosophy behind those actions was wrong as well. In particular he said that practice was inadequate when consulting with the family: “I have to ensure the staff who work in this area understand their role and I clearly failed in my responsibilities, failure as team manager, they failed to seek or take advice given the complex nature of the case. The beliefs and intentions of what people did was misguided in its approach”. He was very critical of the delay from September when the police indicated they were not taking their investigation of bruising any further to issuing proceedings which seemed to him to be time taken to, “put a good case together, which was not what we got”. He also highlighted the failure of the LA in not having a lawyer who specialised in adult social care.

 

[Oh. My. Flipping. God]

 

He was not wrong. The Judge analysed the conduct of the LA very carefully.

 

67. The police finally finished their investigation in September 2013, it was inconclusive. The LA were now in a position where prior to May they had not taken any action and the bruising in May could not be used to substantiate a retention of P. At the same time they had a very distressed young woman on their hands to whom medication was now being or about to be administered.

 

 68. Around about the time of the move to SASS people at last start to show alarm at the legal position. Why had they not appointed an IMCA (e-mails at O1169): “I am really not clear how we are holding P at Selwyn”, a colleague to Mr M 22/11/13, later that day in another e-mail should they not have gone to the CoP? Mr M on the same day: “P is still under safeguarding procedures”. One asks the questions why does he think that now the investigation has been over for two months and how does he think that justifies holding her?

 

 69. There had been other meetings the family should have been invited to but were not on 5/9/13 and on 12/11/13. The first of these meetings comprises of a massive amount of criticism being levelled at M and Mr E in particular most of which is either hearsay or from an anonymous source who is quoted at length but seems to be highly unreliable and possibly had some kind of personal agenda.

 

 70. At the meeting of 17/12/13 it was explained according to the minutes at J35 that the family were invited to discuss plans about P’s future and express their views. In fact it is clear that was not the reason they were invited at all. Far from a change of heart and an attempt to communicate the reason is clear. It was felt by Mr M on advice from the LA lawyers that: “The COP might pick up that no ’round table’ meeting has been held and this might disadvantage us during the hearing” (see the bundle at part O page1086).

 

[Oh. My. Martha. Flipping. God]

 

 

The Judge concludes

 

74. This is already a very long judgment and so I do not propose to go on reviewing the LA’s conduct further. The overall summing up by the senior social work manager was: “There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it’s going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”.” Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

 

 

Undertaking the best interests analysis, it is a demolition and as one-sided as a Harlem Globetrotters match

 

The balance sheet therefore shows the following –

 

 

In favour of P returning home

 

i Her wishes

 ii The wishes of her family

 

iii.             The right to a family life of P and her family

 iv The fact that at home she may not be subject to any deprivation of liberty and therefore this will be the least restrictive option

 v Concerns about the bruising have been abandoned as a reason for her not going home

 vi The OS supports return

 

vii.           The independent social work reporter supports return

 

viii.         I have found nothing in the Schedule of Facts to prevent return

 ix I have found there will be a degree of co-operation between the principal family members and the LA.

 

 

For a placement in a specialist home

 

 i The view of the LA that P will best reach her full potential in terms of her development, social life, communication skills and so on in a specialist home.

 

 

 

P therefore returned home and the Court found that there had been breaches by the Local Authority of her article 8 right to private and family life

 

76. There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

               

 

I make that five breaches

 

78. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.

 

 

 

 

 

Aunts aren’t gentlemen

 

New High Court decision ordering the LA to pay 50% of the aunt’s costs in care proceedings.  Beware, or be happy (depending on whether you’re representing a Local Authority, or a relative putting themselves forward as a carer)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1637.html

 

The case was decided by Justice Peter Jackson, who I have had the fortune of observing in a very difficult case and have a very high regard for.

 

The very bald facts are that the child’s parents were deemed to present a very high level of risk. An aunt came forward to care for the child. The LA and Guardian considered that it would be too dangerous for the child, because of the risks from the parents, to live with any family member (and thus that whatever positive qualities the aunt may have had as a carer were outweighed by that) . The Court felt otherwise and an arrangement was struck whereby the Court effectively sanctioned the placement (in line with Mr Justice Munby – as he then was, decision in Cardiff) under an Interim Care Order.

 

The aunt was represented, but being ineligible for public funding, her representatives did the work pro-bono. Their costs amounted to just under £23,000.  There was to be a five day trial, but it concluded much quicker than that, and the Judge recognised the valuable role in that that had been played by the aunt being represented, rather than a litigant in person. The LA had offered an ex gratia payment of £2,000 to the aunt to assist with her costs.

 

This hearing was then to deal with the issue of whether the Court should make a costs order against the LA, as the aunt had effectively secured what she wanted at the hearing and her solicitors had not been recompensed.

 

The LA manfully attempted to resist this, on the basis that the authorities are fairly plain that making costs orders in family cases is exceptional rather than the norm that it would be in say a civil case, and that making a cost order should essentially be reserved for the ‘wasted costs’ scenario, where the costs have been incurred as a result of bungling, ineptitude or bad faith of some kind. Had the aunt been funded through the LSC, there would have been no question of the Court making an order for costs against the LA, and this was arising purely as a result of the State (in the form of the LSC) having a cut-off point above which the aunt fell.

 

Essentially, that there are two situations in which the Court can make costs orders in family cases :-

    1. It is unusual to order costs in children cases. This proposition was stated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1992] Fam 40 at p 57C, and by Wilson J in Sutton London Borough Council v Davis [1994] 2 FLR 569. In fact, the proposition applied in neither case, the first being a financial case and the second concerning the registration of a child-minder, but the unusual nature of costs orders is well-known to those practising in public or private law children proceedings.

 

    1. “The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party. Thus, even when a local authority’s application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties.” (Sutton). Wilson J is there referring to the corrosive effect of an order for costs as between family members in private law proceedings, a consideration that does not apply in care proceedings.

 

    1. There are established exceptions to the general proposition. The first, as stated in Sutton is that “the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable.” A recent example of an order being made against a local authority that had failed in its duty of disclosure is Kent County Council v A Mother, F and X, Y and Z (IR Intervener) (Costs in Care Proceedings) [2011] EWHC 1267 (Fam) [2011] 2 FLR 1088 (Fam), a decision in which Baker J emphasised the exceptional nature of such orders.

 

    1. The second exception is where the costs are referable to a distinct issue that has been decided in favour of one party, such as at a fact-finding hearing. Instances are Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLR 1893 and Kent County Council v A Mother (above).

 

  1. A further instance of this kind is Re T (A child) [2010] EWCA Civ 1585. Grandparents who did not qualify for public funding applied for their costs of a fact finding hearing at which they were exonerated. The Court of Appeal, reversing the judge, made an order that the local authority should pay their costs. It said that the judge should have started with “a clean sheet” and not with the general proposition in favour of no order as to costs. That local authority has obtained permission to appeal and the matter will be heard in the Supreme Court later this year. The local authority will argue that it was bound to have pursued the fact-finding as part of its child protection duties and that it was not criticised for its decision to do so.

 

Until this case, that was the position in terms of the authorities. However, Mr Justice Jackson reminded himself of the broad powers within the Family Procedure Rules 2010 and the need to ensure justice,

    1. I do not consider that the circumstances in which an order for costs may be made are limited to the two exceptions mentioned above. That would improperly hinder the court in its duty to make an order that is just. Nor do the rules speak of such a limit: on the contrary, they require the court to take account of all the circumstances, and not just the conduct of the parties. Likewise, in Sutton, Wilson J specifically refers to unreasonable conduct as an example of circumstances in which the proposition will not apply.

 

  1. The present case has been a welfare inquiry into C’s future, and I therefore start from the proposition that there will normally be no order for costs. To succeed in her application, the aunt must demonstrate that there are unusual or exceptional circumstances that justify departure from that proposition

 

He then determined that there were such exceptional circumstances : –

 

    1. I find that this is an exceptional case that justifies an order requiring the local authority to contribute towards the aunt’s costs. The combination of the following unusual features, elaborated upon above, takes the case outside the norm:

 

      • The extreme history surrounding C’s placement with her aunt (#4-5)
      • The importance for C of the placement succeeding (#12)
      • The exceptional challenge faced by the aunt in caring for C (#20)
      • The need for the aunt to be a party (#21) and to have legal representation (#22)
      • The risk to the placement from the poor relationship between the aunt and social services (#23)
      • The stance of the local authority, leading to uncertainty about the outcome until a very late stage (#25)
      • The reduction in the length of the final hearing as a result of the aunt being represented (#24)
    1. In this case, departure from the usual outcome is warranted by the need for some degree of equality of arms between a state body and an unrepresented litigant who is of cardinal importance to the welfare of the child in question, and where the local authority has elected to put her to the test over a protracted period.

 

  1. Also, while costs do not follow the event, the court is entitled to have some regard to the trajectory of the proceedings. In November 2010, the local authority strongly opposed placement with the aunt: in May 2012, she was granted an adoption order. To note this outcome is not to be critical of the local authority but to recognise how much the aunt has achieved.

 

This is obviously an important authority (at least until such time as the Supreme Court address Re T, which I understand will be on 25th June 2012, and might dramatically alter matters) because it establishes that (a) the need for equality of arms can be a relevant factor in making a costs order and (b) that a cost order can be made without being unduly critical of the LA but in recognition of progress that the unfunded party has made.

 

(*My heading by the way, is a tribute to P G Wodehouse and not any attempt to besmirch the aunt in this case, who sounds like a jolly nice person, or aunts in general. They have, as a body of people, been traditionally very kind to me what with gift tokens and scottish pound notes at birthday times and such)

Not just clean-bowled

I’ll be doing a more detailed analysis of the Government’s decision, when responding to the Family Justice Review, to not adopt the recommendation to abolish Court fees for care proceedings, which went up from £175 per case to around £5000 (if the case goes to final hearing, it is cheaper if it is resolved at Issue Resolution Hearing), but in very broad terms :-

The consultation about the change to fees was rolled out on a Government website on New Year’s Eve  (I like to think Local Government lawyers are hard-working and don’t keep the hours that the general public might stereotypically associate with public sector workers, rightly or wrongly, but even we have better things to do on New Year’s Eve)

The consulation proceeded on the premise that the principle that the full costs of care proceedings to the Court service should be met by Local Authorities. And basically gave a range of choices about whether they wanted to be punched in the stomach, kidneys or face while they were being mugged. There was plenty of talk about how the fee increase wasn’t intended to be a lever to drive down the number of care applications within that consultation. Most LA lawyers who responded to the consultation made exactly the point that there was a risk of it being used that way. The consultation disregarded this.

The numbers of care proceedings issued dropped like a stone (there was the additional complication of the PLO, which got rid of delay in care proceedings (ha!) by front-loading them so that all the delay happened before the case got to Court, so I couldn’t claim that they were responsible for the entireity of the plummet)

Then Baby P came along, the numbers spiked up and have kept doing so, and the Government invited Lord Laming to report, saying that they would accept all his recommendations. He reported, saying that he feared that if even one application that should have been made to Court had not been because of the fees, then they should be scrapped and recommended that a report look into that.

The Plowden review reported and recommended the abolition of Court fees.  The Government didn’t respond to that. In fact, it took a Parliamentary question to get from them that they intended to kick it into the long grass and leave it for whoever won the (at the time imminent) election to resolve.

The new Government kicked it into the long grass, and waited for the Family Justice Review. The interim FJR recommended the abolition of court fees. The full report came, and recommended the total abolition of Court fees in care proceedings. The Government accepted most of the other recommendations (wavering about presumptions of shared parenting) and rejected the abolition of Court fees in care proceedings.

To me, this is a batsman at the crease who is clean bowled, and says he wasn’t ready, then is LBW next ball, and says the sun was in his eyes, and then finally is caught and just stands at the crease, refusing to walk and says “Come on, next ball – I’ve got a good feeling about this innings”

Why does it matter?  Well, it has a huge financial impact on Local Authorities – it would be fair to say that most of them don’t get anywhere close to breaking even from the money Central Government gave for this purpose, and pay out far, far more. But more importantly, it has an impact on parents.

When I started out, I used to issue care proceedings on parents who were in danger of losing their children if they didn’t turn things around – we applied for Supervision Orders and Interim Supervision Orders. And in many cases, being in Court, and having representation, and hearing from a Guardian and a Judge who would explain to the parents that they could be helped to avoid an awful calamity did the trick.  LA’s don’t apply for many Supervision Orders now – despite the spike in the numbers of proceedings, most of the time, LA’s go to Court when they perceive they are at the end of the road with the parents (sometimes we’re right, sometimes we’re wrong, but the mindset is that we are in Court to say ‘we can’t manage this at home any more’).   The application form for Care proceedings has a section on it (before the page where the form asks you the gender of the mother…) where you indicate whether you seek an Interim Care Order or an Interim Supervision Order.  If I had any confidence that HMCS kept stats, that would be a fine Freedom of Information question – the proportion of cases where an LA issues seeking an Interim Supervision Order  (reflecting that it isn’t the end of the road, but a significant junction where a parent can choose a better course)

And the other huge impact that the Government hasn’t thought about, is that if you keep the Court fees as they are, and implement the hard six month cap; you exclude Local Authorities reaching a conclusion in cases where there’s general progress, but a wobble (a parent is abstinent for five months, but has a lapse just before the final hearing for example) to say “Let’s give this a try with a Supervision Order – we can always bring it back to Court”  if giving that benefit of the doubt is going to cost £5000 to get it wrong. Much easier to do it under a Care Order.  Which is fine if the lapse was just a lapse, and no more, but what happens when it is a relapse instead, and rather than having to bring it back to Court and prove it, the Care Order (which remember will come with a much looser care plan than at present) just kicks into force and the child is removed without a hearing?

I rather suspect we might be seeing an increase in the number of Care Orders made at final hearings, as an accidental consequence of a flawed system.