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Tag Archives: re w 2014

Go directly to the Ninth Circle of Hell, do not pass Go

 

Dante, in his travel guide to hell, sets out the various circles of hell and those within them. Within the ninth and final circle reside for all eternity four sorry individuals, exemplars of the worst that the world has ever had to offer (Dante’s work was written prior to certain unpleasant world leaders of the 20th century, and our current Lord Chancellor, so it may be in need of an update)

Those individuals are Cain, Athenor of Troy [betrayed his city to the Greeks], Ptolemy son of Antabus [invited people to a banquet and killed them] and finally Judas Iscariot.

We can now add to that circle of hell, a further group of terrible sinners, and one will not be surprised to learn that they are going to be local authority lawyers.

This arises from the President’s decision sitting in the High Court, in Re W (Children) 2014 [2014 EWFC 22]

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/22.html

 

The President has not yet found a power within the Family Procedure Rules to banish local authority representatives to the deepest circle of hell, but it is only a matter of time and generous interpretation. After all Rule 4.4 of the FPR 2010 sets out that the Court has powers to o)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective and that pretty much seems to cover it.

And if that unbridled power is not enough, surely the inherent jurisdiction is the answer. If only I had known during my law exams that “The Court could use the Inherent Jurisdiction” is a valid answer to 90% of questions, I could have skipped all that revision.

I will come onto the offence that has provoked such ire in a moment, but the case is yet another of the ones where the Local Authority are late filing their evidence (the social worker was off sick – how dare a human being suffer from an illness that affects the Almighty Timetable) and allows the President to use his favourite word contumelious.

(I have my own suspicion that the President once put that word down in Scrabble and was robustly challenged, and since that time has been working to revive its popularity so that this will never happen again)

Of course on a 26 week window, there is not time for slippage, and of course if the Local Authority is late, that causes a knock-on for the other parties and will mean the case not being ready for IRH at week 20. And yes, over a period of time Court orders about filing have unpleasantly become vague aspirations rather than hard deadlines. I am in agreement with the President that this is a bad thing. I also agree that something must be done.

I’m not against restoring the principle that if an order says 4th March, it means on 4th March the parties have that document in their hands, not that the author of it starts thinking about writing the document on 4th March. Court deadlines need to go back to being deadlines (and not in the Douglas Adams sense “I love deadlines, I like the whooshing sound they make as they fly by”)

And of course, if there is slippage in the timetable, the Court must be told and be able to call the case back in. I think that the President’s idea that a Court order authorising the delay must be obtained for a 15 minute delay does not work in the real world.

A real world that has some Courts in England answering correspondence in June that was sent to them in February, that has Court staff so beleaguered and overworked that the remedy is to lock the doors of the Public Counters and not let the public in. Where sending an email to the Court service is akin to dropping a message in a bottle into the ocean – one hopes it will reach its destination but it would be unwise to put money on it. A real world where if every time a person was going to be 15 minutes late filing a document a Judge would have to consider an application and grant it and get an order typed and posted out to all of the parties. A real world where, you know, human beings get sick, and they aren’t always able to tell you the day on which they will no longer be sick and can produce their document.

In principle, one can agree that delay in filing on time is bad and the mindset needs to change. And that if there is delay, the Court must be alerted to that and given the opportunity to adjust the timetable. The President points out in Re W that there is not only no power for the parties to agree a revised timetable amongst themselves they are expressly forbidden to do so.

Indeed, such agreements are forbidden by FPR 4.5(3):

“Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties

In accordance with and deriving from the court’s powers under FPR 12.24, the standard form of case management order, use of which is mandatory, spells out (as did Judge Rutherford’s order in this case) the consequence of failure to comply, namely the obligation on every party to “immediately inform the Court if any party or person fails to comply with any part of this order.”

Practitioners may have found, as a result of Re W and guidance being given to CAFCASS, that there is now a semi-official policy that the parties should inform on anyone who has the temerity to be late filing a document. The reader will of course recall that one of the major planks of the Family Justice Review was that none of the professionals or agencies working in family justice trusted each other, and what could be more conducive to rebuilding that trust than encouraging the parties to inform on each other for wrong-doing?

Deep breath.

Now, the egregious offence. The “Go to Hell” offence

Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:

“Unless the court has given some other direction or paragraph 7.5 applies” – this relates to hearings listed before a bench of magistrates – “only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses.”

Bristol City Council had lodged a duplicate bundle, marked ‘Witness Bundle’, and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
Yes, the President was actually annoyed that the Local Authority DX-ed a witness bundle to Court rather than the advocate carrying it to Court. That is strictly verboten and the Local Authority outraged the Court by defying the Practice Direction. And the witness bundle didn’t end up being necessary, which is a double-fault.

I am perplexed that at a time when the profession is in melt-down, when public funding has been withdrawn from the most deserving, when solicitors are being laid off due to cuts, when the public are being locked out of Public Counters, when the family justice system is under siege by the Press, that anyone could find the time to be annoyed that a superfluous witness bundle had arrived at a Court.

If you have a witness bundle that you don’t need, you can just send it back, you know? It doesn’t require a bomb-disposal unit to remove it from the premises. It is just a lever arch file.

But this is now law, and the President has said in Re W that Local Authorities who breach the law can be ‘named and shamed’ in public judgments, be ordered to pay for the costs of that naming and shaming. If you DX a witness bundle to Court rather than carrying it there, then you are technically liable for those sanctions. And if you avoid them from the trial judge, you might still get hit with them if the case is appealed (one hopes that the witness bundle irregularities in and of themselves don’t amount to an appeal, but frankly, who knows any longer?)

This is symptomatic of the problem – professionals have been drowned with rules, practice directions, guidance, case law, consultations, Views. One could spend so long establishing the exact precise procedure for doing anything that the task itself takes five times as long.

If you reach the point where you are regulating everything to microscopic level, then the sensible useful rules get lost within the morass of rules and guidance for things that never needed to be regulated. Who honestly CARES how a witness bundle gets to the Court building as long as there’s a witness bundle in the Court room if one is needed?

This seems to be a climate where if one says “red tape” the response is not “well, we need to cut that down” but rather “What, precisely, is the shade of red being used?” and “What, precisely is the width of the tape? Does it comply with Practice Direction 19B Dimensions of commonly used objects?”

By way of illustration – if you are playing Monopoly, there are a few problems with the game. It takes too long, for one thing. And for another, the last part of the game is only fun for the winner and miserable for everyone else. So, let’s appoint the President to tweak the rules to fix those problems.

Well, now we have a game of Monopoly where :-

if you’re buying Bond Street you need to submit a full-blown mortgage application with supporting documents

if you’re putting a house on Mayfair you need to seek planning permission, consult the local community and submit detailed architectural plans (making sure that you are familiar with the building regulations)

if you want to buy the Waterworks there should be a privatisation fully compliant with EU procurement rules and the opportunity for shares in the Waterworks to be offered at a preferential rate to certain key stakeholders first.

There is a prescribed period of time for shaking the dice, rules about what portion of the dice has to land on the board for it to be considered a null throw and whether it is permissible to whisper “Don’t be a six” to the dice in the pre-throw procedure.

And heaven help anyone who wins second prize at a beauty contest.
Has all of that fixed either of the problems we set out to resolve? Or has it made the game even slower and even more miserable for everyone involved?

Sadly, although we have a choice with “Monopoly President’s Edition” simply not to get it out of the cupboard and play it, we don’t have the same choice with care proceedings.

 

 

Care proceedings by the back door

The Court of Appeal decision in Re W (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1065.html

 

This was an appeal from a mother, about a private law decision that her child should live permanently with the grandmother. The placement with the grandmother had come about by the mother signing a Written Agreement with the Local Authority that the child should live there.   [see previous post]

 

There are some obvious, and well-known points about whether such a placement is a section 20 placement (in which case the Local Authority have to do a fostering assessment of grandmother and pay her fostering allowance) or a private family arrangement (in which case they don’t).  As a general rule of thumb – if the Local Authority’s fingerprints are all over the placement (as they were here) then it is almost certainly going to be a section 20 placement – whether anyone involved wants it to be or not.

That wasn’t the thrust of this appeal though.

 

That was, rather, that by private law proceedings where the child was placed with grandmother (and the Local Authority had never done an assessment of the mother to see if she could have the child back) this child was permanently moved from mother to grandmother without any of the safeguards that such a proposition would have had in care proceedings. Were these, in fact, care proceedings by the back door?

 

The children had been placed in July 2012, the proposed assessment of the mother by the Local Authority never took place, and the mother made an application for a Residence Order (as it then was) in May 2013

A particularly odd aspect of these situations is that when the private law case goes to Court, when the Court asks for an independent section 7 report (to make recommendations for the child’s future), such report is usually sought from the Local Authority (rather than CAFCASS) because of their historical involvement.  Can you spot an obvious flaw in that aspect, if it is the Local Authority who engineered the move from mother to grandmother?

 

This is what the Court of Appeal say about their section 7 report

 

The mother sought the return of the children. Eventually, after mediation had failed and following difficulties in obtaining legal funding, the mother issued proceedings on 28 May 2013 seeking a residence order and the return of the children to her care. The local authority was ordered to provide a section 7 report. Written by Ms Nesbitt, it was dated 4 October 2013. An addendum section 7 report was written by her successor, Ms Fitzgerald, dated 13 December 2013.
 

Ms Nesbitt expressed the view that the children should remain with the paternal grandmother under the auspices of a residence order. For present purposes it is Ms Fitzgerald’s report which is more significant. In paragraph 4.1.2 she said:
 

“Further assessment of [the mother’s] current ability to meet the needs of the children is required in order to provide evidence that she has made positive changes and more importantly is able to sustain such changes in the longer term.”
In paragraph 4.3.1 (paragraph 4.6.1 was to much the same effect) she said:

“… there is little evidence to support the children returning to their mother’s care … It is therefore the view of the Local Authority that Family Resource Team intervention is required in order to support [the mother] and her relationship with the children to include work around routines, boundaries and the appropriateness of comments made to the children by [the mother] … This intervention will enable the Local Authority to assess [the mother’s] current ability to meet the needs of the children. [The mother] reports that she has made positive changes by accessing counselling and evidence of those positive changes is required by the Local Authority in order to establish [her] current ability to meet the needs of the children in the immediate and longer-term future.”
In paragraph 4.8.1 she said:

“As previously indicated, the Local Authority are of the view that intervention is required from the Family Resource Team who will work with [the mother] and the children in relation to routines, boundaries and inappropriate comments made to the children. This will enable the Local Authority to further assess [the mother’s] current and longer-term ability to meet the needs of the children”
In paragraph 4.9.1 Ms Fitzgerald recorded a counsellor describing the mother as “engaging well with the service” which, as she commented, “demonstrates [her] willingness to engage with services to address concerns.” In paragraph 4.10.2 she observed that “mother’s current ability to meet the needs of the children remains un-assessed” and continued:

“it is the view of the Local Authority that Family Resource Team intervention is required in order to assess her ability to meet the needs of the children.”
Ms Fitzgerald’s overall view was expressed in paragraph 4.10.3:
 

“It must be acknowledged that if the children were to grow up in the care of the 2nd Respondent and not the Applicant mother, this has the potential to affect their identity and they may feel a sense of rejection from their mother. That said, at the present time, the un-assessed risk of placing the children in their mother’s care, far outweighs the risk of them remaining in paternal grandmother’s care and the ‘potential’ for this to have an impact upon their identity/emotional wellbeing.”

 

In light of Ryder LJ’s withering comments in Re P and B about the use of ‘unquantified’ as a perjorative term, the ‘un-assessed risk’ here is somewhat dubious. Particularly since it was unassessed precisely because the Local Authority had not assessed it.

 

Those representing the mother, quite rightly, sought that assessment of the mother’s parenting and any risks. That would be a basic foundation of any care proceedings and something that would be vital if deciding whether children should live permanently away from a mother. But in private law proceedings, it can often be rather more of a ‘beauty parade’  – which person is in a better position to provide care for the children here and now

 

The hearing before the Recorder commenced on 9 January 2014. We do not have a transcript of the hearing but Mr Ben Boucher-Giles, who appeared on behalf of the mother before the Recorder, as he subsequently appeared before us, has prepared a very helpful case summary for our use which sets out what we need to know. It has been circulated to the other parties and to the local authority, who have raised no objection and identified no errors.
 

The Recorder heard evidence from Ms Fitzgerald and her team manager, Ms Richardson. In cross-examination Ms Fitzgerald accepted that the mother was committed to her children and was prepared to work with professionals. She re-iterated that the local authority had not assessed the mother and could not therefore say that she had made sufficient progress to prove that she could safely care for them. In answer to the specific question whether there was any event since July 2012 which gave her any specific cause for concern in relation to the mother or her ability to care for the children, Ms Fitzgerald accepted that she could not think of anything in particular. She indicated that a delay in the proceedings – the assessment and associated work might take between 12 and 16 weeks – would have a “high potential of emotional impact” on the older child, though this was no more than the usual consequence of delay.
 

Ms Richardson expressed concern about the lack of assessment and accepted that the local authority had failed in its duty to provide the court with the information it required. She indicated that rehabilitation of the children to the mother “would not be beneficial until perhaps after CAMHS had reported – something may arise.”
 

Unsurprisingly in these circumstances, Mr Boucher-Giles applied at the conclusion of this evidence for an adjournment for the preparation of a full assessment of the mother’s parenting abilities. His argument, as recorded by the Recorder in the judgment she gave refusing his application, was that the court could not make a decision because it did not have any information about the mother and her ability to care for the children. The application was resisted by the paternal grandmother on the basis that the best interests of the children were served by the matter being brought to a conclusion, in circumstances where the local authority had indicated that it would not ‘walk away’ even if the case came to a final conclusion.

 

You can guess that the Recorder refused the adjournment, otherwise there wouldn’t be an appeal   (you may take it that every sentence that I have underlined could be read aloud  in a tone of total shock and wonder0

 

The Recorder dismissed the application. She explained why:
 

“In seeking that adjournment and in considering whether or not I should allow it, I must take account of various factors, one of those of course being that delay is inimical to these sort of proceedings. They need to be brought to a conclusion as soon as possible. I have to weigh against that, the fact that [the mother] has not been subject to any detailed assessment, the fact of the matter is that the court is in the position today where it has sufficient information to consider what is in the best interests of the children and if I were to adjourn where would we be then? We would be at a position where the local authority might be saying by virtue of their role in these proceedings that the matter should move to overnight staying contact. It does not mean that they would be in a position to make a final recommendation, not that anything is ever final in the lives of children because things move and things change, but I take the view that to delay these proceedings any further, these proceedings having been ongoing for some time, to delay them any further for the purpose of an assessment which might not be able to come to a final conclusion and might not be able to be effected due to the involvement of CAMHS with the older of the two children”.
The hearing proceeded. The Recorder heard oral evidence from the mother and the paternal grandmother. Cross-examined on the point, the paternal grandmother, who said she had spent a great deal of time in the mother’s company over the past 18 months, could not think of anything that had happened during that time which gave her cause for concern in respect of the mother or her ability care for her children, apart from some missed contacts.
 

In closing submissions Mr Boucher-Giles again invited the Recorder to adjourn for an assessment of the mother.
 

At the end of the hearing, on 10 January 2014, the Recorder gave judgment. She summarised the history of events, recording that, on the mother’s own evidence, she had had problems in the past with ill health, post natal depression and drug misuse and that, as a result, she had not been able to offer adequate care to the children. She described how matters had “almost reached crisis point” in July 2012. She described the mother’s position as being that she had only ever envisaged a temporary arrangement and that by April 2013 she was in a fit and proper position to deal with looking after the children herself.
 

The Recorder then said this:
 

“It has become apparent as well that there have been failings in social services dealing with this case and that was acknowledged by the team leader Miss Richardson when she gave her evidence that in fact no assessment of the mother has at any time been undertaken since the mother has recovered from all the difficulties that she had.
However I have to look at the welfare checklist and I have to decide this case on the basis of those matters”.
She drew attention to the fact that the older child appeared to be saying that she wished to live with her grandmother. She directed herself that the child’s welfare is the paramount consideration and that she had to have regard to the general principle that any delay is likely to prejudice the welfare of the child.

The Recorder reiterated her reasons for refusing an adjournment, saying:
 

“Clearly delay is a matter which I have to take account of if it is likely to prejudice the welfare of the child or the children and I take the view that any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.
It is clear as well that such a delay is an open ended delay, because no-one can say at this stage as to how long, as to what the outcome of overnight contact would be, if it was in fact recommended by the social services department.
… I take the view that delay would not be in the interests of these children, it would not be productive in terms of their welfare and it is for this reason that [the proposition that I should] adjourn for a period of time, is not one which lends itself to me.”

She then said this:
 

Can I say that I accept that there is no assessment of the mother as she is now. I do not make an assessment of her because I have only had the opportunity of seeing her in the witness box and my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.
One can only speculate as to what the outcome of that assessment will be“.
The Recorder then considered the welfare checklist, saying in the course of this:
 

“The court must also take into account the children’s physical, emotional and educational needs, well it is perfectly plain to me and I think it is even accepted on behalf of the mother that those needs are being met by the paternal grandmother at the present time. On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Having found that in the past the children had suffered harm as a result of the mother’s inability to cope, the Recorder continued:
 

I cannot say whether they are at risk of suffering in the future, it is probable that matters will move forward in fact it is inevitable that matter that matters will move forward but I am not in a position to make any finding as to whether or not they are at risk of suffering in the future.
What I also have to take into account is how capable the mother and the grandmother are in relation to the question of meeting the children’s needs. Well as I have already indicated it appears to be accepted and in fact I make a finding that the grandmother is in fact meeting the needs of these children and has done so at least for the last eighteen months and possibly for longer so far as [the older child] is concerned.
Taking all those matters into account I then have to decide what is the proper order in this case.
This is a case where the mother has, I have no doubt the best of intentions at heart, but I am not satisfied that it would be appropriate at this stage to make an immediate order granting her residence and so in those circumstances I dismiss her application for residence.
I then have to consider what orders I should make. At the present time the paternal grandmother has no legal standing because she has no orders and nothing in place at the present time. I intend therefore to make a residence order in favour of the paternal grandmother.”

 

The application for appeal was made, and Ryder LJ gave permission, identifying four important principles

 

The mother’s appellant’s notice was filed on 31 January 2014. Considering the application for permission on the papers, Ryder LJ had the benefit of Mr Boucher-Giles’ powerful skeleton argument. In giving permission, Ryder LJ observed that the grounds of appeal and skeleton argument at least four potentially significant issues, which he described as follows:
 

“(a) whether a court dealing with a private law children application is obliged to deal with the proportionality of the order as an interference with art 8 rights – the horizontality argument;
(b) whether the judge should have attached any greater significance to the position of a mother as against a grandmother – the imperative of being brought up by a parent if that parent is a good enough parent even though the grandmother may be better;
(c) whether the judge’s refusal to order an adjournment to obtain a section 7 assessment report from the local authority deprived the mother of the evidence that might demonstrate her capability;
(d) how the court should deal with section 20 accommodation cases where the local authority is acting as the decision maker but not taking care proceedings (and has not assessed the parent when arguably it should have done so).”
Ryder LJ “invited” the local authority to intervene in the appeal to make submissions in relation to issue (d). It has declined to do so.

 

Quite so. The vital ones of public interest are (a)  (c) and (d)  – point (b) already has the benefit of a lot of settled law.

 

The Court of Appeal determined the appeal solely on ground (c), leaving us in limbo as to the important questions in (a) and (d) until they arise again. The appeal was granted and the case sent for rehearing.

The stark facts here are clear and obvious. There had been no assessment of the mother. Ms Fitzgerald’s report was peppered with the recognition that an assessment was “required” in order both to provide evidence that the mother had indeed changed, and was able to sustain that change, and to assess her current and longer-term ability to meet the needs of the children. The Recorder acknowledged that there had at no time been any assessment of the mother, made clear that she herself had not made any assessment of the mother, and, most strikingly of all, found that, to repeat:
 

“I cannot say whether [the children] are at risk of suffering in the future … I am not in a position to make any finding as to whether or not they are at risk of suffering in the future (emphasis added).”
It is quite apparent that the Recorder’s decision was driven by her concern about delay. She says so explicitly in the passage, already cited, where she said:
 

“my decision is based not on the fact that I have made an assessment of her, it is based on the fact that I feel that delay in the case would be prejudicial to the children.”
That is elaborated in the passage where she said:

“any delay in this case, any extension of these proceedings with all the necessary conflicting views of all the parties, would mean that it is likely, it is probable that certainly [the older child] would be adversely affected in terms of her emotional wellbeing by knowing that these proceedings were on going.”
As to this I merely observe that one needs to bear in mind what Ms Fitzgerald had said in evidence (see paragraph 8 above) and that the Recorder’s comment about the delay being “open ended” (paragraph 16) involved little more than an educated guess – what the Recorder herself described (paragraph 17 above) as speculation – as to what might be revealed by the strictly time-limited assessment being proposed by Mr Boucher-Giles. There is also, in my judgment, much force in his submission that the Recorder focused too much on the short-term disadvantages without addressing, as she should, the medium and longer term implications.
 

The simple fact, in my judgment, is that the Recorder fell into a double error. By refusing an adjournment for the assessment which had never taken place, which the local authority acknowledged was required and which Mr Boucher-Giles was understandably pressing for, the Recorder denied herself vital evidence to fill what on her own findings were serious gaps in her knowledge of the mother and of the mother’s ability to care for the children. This was, as Mr Boucher-Giles submitted, an essential piece of information if the Recorder was properly to do her duty in accordance with section 1(3)(f) of the Children Act 1989. On top of that she placed far too much weight on a view as to the consequences of delay which was not borne out by the evidence.
 

This all fed into an approach which ended up being unfair to the mother and went far in the direction of effectively reversing the forensic burden. I have in mind in particular the passage in her judgment where the Recorder, having correctly found that the children’s needs were being met by the paternal grandmother, went on to note that:
 

“On the other hand so far as the mother is concerned I have no evidence before the court that she is able to provide them with the same level of support in terms of their physical, emotional and educational needs.”
Indeed, but why was that?

It follows that, for all these reasons, the mother in my judgment succeeds on issue (c) and accordingly succeeds on her appeal.

 

The Court of Appeal then went on to have a go at the Local Authority (deservedly so in this case)

Moreover, the “Agreement” was expressed, more than once, to be “whilst further assessments are completed”, yet it seemingly remained in place even after the assessment had been cancelled. And the children were not returned to the mother even after she had asked. If this was a placement under section 20 then, as my Lord pointed out during the hearing, the mother was entitled under section 20(8) to “remove” the children at any time. Why were they not returned to her? I can only assume it was because the local authority believed that the arrangements were not within section 20, so that it was for the mother, if she wished, to take proceedings, as in the event she had to, against the paternal grandmother. But if this was so, why did the local authority arrogate to itself effective decision-making power as to whether the mother’s contact with the children should be supervised or not? And why was the local authority as recently as January 2014 seemingly arrogating to itself decision-making power as to whether or not there should be overnight staying contact?
 

The local authority’s decision to decline Ryder LJ’s invitation to intervene makes it impossible for us to get to the bottom of these issues. The picture we have, however, is disturbing. I can well understand why Mr Boucher-Giles complains that the local authority has in effect instigated and resolved what ought to have been public law proceedings without legal authority to do so, sidestepping the need to prove ‘threshold’ and thus avoiding the important protections against State interference which Part IV of the Children Act 1989 provides. The mother, he says, was by virtue of the State’s actions placed in a position whereby her children were being cared for, against her wish, by the paternal grandmother and without any legal order in place. I place these submissions on record without expressing any concluded view, though agreeing with Mr Boucher-Giles that it would be a matter of concern if ‘back door’ care proceedings such as this were to become prevalent.

 

It is a great shame that the Court did not get to grips with the issue of ‘back door care proceedings’, but one can see why the appeal so obviously suceeds on point c that it was not strictly necessary.