Tag Archives: supreme court

Supreme Court to give judgment on emotional harm case on 12th June

Posted on June 7, 2013 by suesspiciousminds

An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment

 http://www.familylawweek.co.uk/site.aspx?i=ed114264

 The Court of Appeal decision is one that I blogged about here :-

 https://suesspiciousminds.com/2012/11/16/lies-and-the-lying-liars-who-tell-them/

 The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is  (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases). 

At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.

 On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified.  My heart is with the parents on this one, I have to say.

 There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.

 

A classic bit of Hedley J, as far as I was concerned

 

Re L (Care threshold criteria) 2006  ”Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

 

As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment  – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.

 I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.

I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title.  I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…

 

 

 

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Posted in assessment of risk, case law, supreme court, threshold criteria and tagged , , , , , , . Bookmark the permalink.

“The peril of Auntie Beryl”

Posted on June 3, 2013 by suesspiciousminds

As the 26 week time limit comes upon us (being introduced by Parliament, the President’s revised PLO guidance and behind the scenes pressure on Courts and Local Authorities via the “Stick of Statistics” TM   – not necessarily in that order), I have been musing about the elephant in the room, of what happens when late in the proceedings, the Court is presented with a suitable relative, Auntie Beryl.

 For what it is worth, I think delays in court proceedings are caused by one or more of these things :-

 (a)   Parties (including the LA) being late in filing documents and this having a domino effect

(b)   The expert report being late, and the whole carefully built timetable collapses round people’s ears

(c)   There is a material change in circumstances  (an unexpected dad emerges, or a relationship ends or begins, or someone you thought was going to be fine relapses into drug misuse, or falls pregnant, or has some sort of unpredictable illness or disease)

(d)   A relative comes forward at the eleventh hour and has to be assessed

(e)   The evidence is all ready, but the combination of accommodating social worker, Guardian, expert and more importantly Court time, means that you have to wait 3 months for a hearing

 I think the intention of the revised PLO  (which you can find here http://www.adcs.org.uk/news/revisedplo.html  )   is to try, as much as one can, to eliminate (a) and (b), and the hope is clearly that if you have much crisper and tighter and fewer Court hearings, there will be less backlog and more judicial availability for (e)    – though it would have been nice to see something spelling out exactly what the Court service is going to do about (e)  – save for having Listings offices run by Capita…

 (c )  is probably the stuff that ends up coming into the bracket of exceptional cases that get an extension to the 26 week limit, or at least where this is actively considered.

 So that leaves the elephant in the room, where it looks as though a child MIGHT be able to be placed with a family member, but doing that assessment will take the proceedings outside of the 26 weeks, because the family member has been put forward late on.

 I suspect, and am already seeing this, that the Courts will try to tackle this by very robust directions at early Court hearings, along these lines :-

“The parents shall, by no later than                       , identify in writing to the Local Authority (to be copied to all parties) the names and contact details of any person that they put forward as a potential permanent carer of the child. Any person put forward after that date will ONLY be considered with the leave of the Court and the parent would need to apply to Court for leave for such assessment evidence to be filed and would need to provide VERY cogent reasons as to why they were not put forward within the deadline period set out in this paragraph”

 

 That looks pretty strong, and will no doubt be backed up by the Court leaning forward and stressing to the parents just how important it is to focus their minds right NOW on who might be able to care for the children, if the assessments of them are not positive.

 But, human nature being what it is, at some point, lawyers and parents and Judges will be faced with an Auntie Beryl coming forward at week 18 or 19, when the LA have announced that they won’t be rehabilitating to parents and will be seeking an adoptive placement. Auntie Beryl, on the face of it, seems like she might be suitable – she doesn’t have any convictions, or history of children being removed, or any major health issues, she has a house in which the child could live, and so forth. So there is a positive viability assessment, but still a lot to be done – more than could be done in the time we have left.

 The six million dollar question, which the Court of Appeal will be grappling with pretty quickly after the revised PLO comes into force I suspect, is

 When a parent puts forward a family member late, and the assessment of that family member would push the case outside 26 weeks, what does the Court do?

 

The immediate “26 weeks or bust” approach suggests that the Court will say, “too late, you had your chance, you had the stern warning on day 12 to cough up the names, you can’t leave it until the assessments are in and the LA are talking about adoption”

 So, what happens if they do that?

 For these purposes, we will assume that the assessment of the parents is negative (since if it were positive, there would be no need to delay matters to assess Auntie Beryl) and that we are dealing with a child under six.

 The alternative care plan is therefore adoption. 

Can an application for a Placement Order be made when there is a viable carer who has not been assessed?

 

The Local Authority have a duty, pursuant to section 22(6) of the Children Act 1989

 s22 (6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—

 (a)  a person falling within subsection(4); or

 (b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

 

The LA can’t, it seems to me, determine that placement with Auntie Beryl isn’t consistent with the child’s welfare if all they have is a positive viability assessment, they have to go on to do something more, EVEN IF the Court has made a Care Order.

 Before the adoption agency can decide that adoption is the plan for the child, and thus make the application for a Placement Order, they have this duty under the Adoption and Children Act 2002

 Section 1 Considerations applying to the exercise of powers

 (4)The court or adoption agency must have regard to the following matters (among others)—

 (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

And again, how can the adoption agency decide that Auntie Beryl can’t provide the child with a secure environment if all they have is a positive viability assessment? They have to have a full assessment.

 Thus, even if the Court determined that they were not going to allow time for Auntie Beryl to be assessed, because she has come late into the proceedings, that won’t allow the LA to simply discount her and issue a Placement Order application.

 Unless they have done sufficient to satisfy themselves that Auntie Beryl is NOT suitable, they can’t commit to a plan of adoption and no such plan could be put before the Court. Neither can they commit to “Placement with Auntie Beryl” until they have sufficient information to be satisfied that this has good prospects of success.

 Therefore, the Court cannot have a hearing by week 26 at which a Placement Order could be made.

 

 If the Court can’t consider a Placement Order application, what can it do?

 

The Court would be left, I think, with these three options :-

1. Taking the information that is available about Auntie Beryl and taking a punt on her, by making a Residence Order (or an SGO – but bear in mind that the Court cannot make a Special Guardianship Order without a Special Guardianship report   – and the Court won’t have one of those between week 18 and 26    RE S (A CHILD) NO.2 (2007) [2007] EWCA Civ 90 )

 

2. Adjourning the proceedings in order for a Special Guardianship report to be filed and served, which will push the proceedings outside of 26 weeks.  

 

3. Determining that the Court is in a position to make a Care Order, with the care plan being that the Local Authority will assess Auntie Beryl and the child will remain in foster care pending that assessment.

 

[And of course option 4 of placement with parents, but we are dealing here with those cases where the Court has the material to determine the issue of rehabilitation to parents, since in those cases Auntie Beryl isn’t important]

 

My concern is that option 3, in a post PLO world (and more importantly a world where the Judges know that their performance on timescales is being gathered and measured), becomes superficially attractive. The case concludes, it concludes in time, the Care Order is made, and Auntie Beryl becomes the Local Authority’s problem.

 Of course, it doesn’t actually resolve the future for the child, or end the proceedings with the parents knowing what will happen, and it almost invariably will lead to satellite litigation   (either the assessment of Auntie Beryl is positive, whereupon the LA will want to shed the Care Order and get an SGO or residence order made, OR it is negative, in which case the LA will put the case before their Agency Decision Maker and in due course make an application for a Placement Order)

 The only advantage option 3 has over option 2 is determining the proceedings within a 26 week timetable. There might have to be a judgment that works hard to say that the no delay principle is more important than the no order principle  – but that isn’t the only problem.

 

Get your inchoate, you’ve pulled

 

Is a care plan which at heart is “either this child will be placed with a family member OR adopted, and we don’t yet know which”  actually a legitimate care plan? Is it in fact, an inchoate care plan?

 Inchoate care plans are bad, m’kay? Not good for the Court to hand over the keys to that sparkling vintage E-type Jag to the Local Authority without having a clear idea of where they intend to drive it.

It seems so to me, even on the new Children and Families Bill reworking of care plans as being  “don’t sweat the small stuff”    model

 Section 15 of the draft Children and Families Bill

 

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section  31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A  plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long- term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other  member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

 

And it does not seem to me that even with that more limited scrutiny, a care plan which doesn’t identify whether the plan for the child is to live with a family member or in an adoptive parent, is sufficiently clear.

 Let’s see what the law says about inchoate care plans (underlining mine) and from Re S and others 2002:-

 99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: seeTP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child’s upbringing is likely to prejudice the child’s welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a ‘wider discretion’ to make an interim care order: ‘where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future’. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead ‘is no longer obscured by an uncertainty that is neither inevitable nor chronic’.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of ‘over-zealous investigation into matters which are properly within the administrative discretion of the local authority’. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

 

 It seems very clear to me, that waiting for the assessment of Auntie Beryl removes that obscurity and uncertainty in the case, and that this uncertainty is NEITHER inevitable or chronic – it can be resolved by making a direction for the filing of the report.

So, the revised PLO doesn’t erode this, nor would the introduction of the Children and Families Bill as currently drafted – the Court still have a duty to look at the ‘placement’ aspect of care plans, and it appears very strongly that a care plan that is “either Auntie Beryl OR adoption” is inchoate.

 Well that’s fine, we can just overturn the decision about inchoate care plans, and say that it is fine to have “either or” care plans.  Just let’s not worry about inchoate care plans anymore, we’ll just airbrush the whole concept out. The slight stumbling block there is that the passages above are from the House of Lords, and thus it isn’t open to lower Courts to overturn it.

 Oh-kay, so we are just going to interpret Re S very widely, to mean that a Court can and should think about whether it is right to make a Care Order rather than an interim care order where the care plan is inchoate, BUT it is not a prohibition on making a Care Order where the plan is inchoate, they don’t go that far.

 And, you know, before Re S, the former President (Wall LJ) had made Care Orders in a case where he declared the care plans to be inchoate but still decided that making care orders was the right course of action RE R (MINORS) (CARE PROCEEDINGS: CARE PLAN) (1993) [1994] 2 FCR 136 

 

Although that predates Re S, it was specifically referred to by the House of Lords (though they call it Re J, it is the same case) and endorsed, so it is good law for the proposition that a Court is not BARRED from making a Care Order with an inchoate care plan.   [Or is it? The House of Lords seem to draw a slight distinction between inchoate care plans, and care plans where the future is not certain because there are things which can only be resolved after the care order is made]

 

This is what the House of Lords say about Re R/Re J

 

  97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

‘there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.’

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before.

 I suspect there may be dancing on the head of a pin to try to make ‘auntie beryl cases’ the Re J style of uncertainty, rather than the Re W style of uncertainty that is neither inevitable nor chronic.

It seems then, that it is POSSIBLE for a Court to make a Care Order, even where the care plan is “either Auntie Beryl OR adoption”  and even though it achieves nothing of value for the child  (since the uncertainty is there, the timing of the assessment and any applications will be no longer controlled by the Court, there will be the inevitable delay of reissuing and listing for the second wave of litigation  – whether that be for SGO or Placement Order application.

 But even more importantly, and from an article 6 point of view – how certain is the Court that the parents  (who would be represented and able to challenge the making of SGO or Placement Orders if the care proceedings continued, under their existing certificates) would get public funding in “stand-alone” applications for an SGO or a Placement Order?

 My reading of the Funding Code  (and I am not a “legal aid” lawyer) suggests that it might well not be a “non-means, non-merits” certificate for a parent faced with an application for Special Guardianship or Placement Order that is a “stand alone” application, rather than one taking place within ongoing care proceedings  -where the public funding, or “legal aid”  is covered by non-means non-merits certificates  – for the uninitiated, “non-means, non-merits” means that a person gets free legal representation in care proceedings by virtue of the sort of proceedings they are NOT based on what money they have (means) or the chances of them being successful (merits) 

 Again, underlining to assist with clarity, mine

 

20.28 Other Public Law Children Cases

1. Other public law children cases are defined in s.2.2 of the Funding Code Criteria. The definition of these proceedings excludes Special Children Act Proceedings and related proceedings. The fact that proceedings involve a local authority and concern the welfare of children will not, of itself justify the grant of Legal Representation. The Standard Criteria and General Funding Code (as varied by s.11 of the Code and including criterion 5.4.5) will apply. The proceedings include:

a) appeals (whether against interim or final orders) made in Special Children Act Proceedings;

b) representation for parties or potential parties to public law Children Act proceedings who do not come within the definition of Special Children Act proceedings in section 2.2 of the Funding Code – this includes a local authority application to extend a supervision order (which is made under Sch.3 of the Children Act 1989);

c)other proceedings under Pt IV or V of the Children Act 1989 (Care and Supervision and Protection of Children);

d) adoption proceedings (including applications for placement orders, unless in the particular circumstances they are related proceedings); and

e) proceedings under the inherent jurisdiction of the High Court in relation to children.

 

(d) seems to me to cover stand alone Placement Order applications, and they would be a matter for the discretion of the Legal Aid Agency  (oh, also, they wouldn’t be a devolved powers application, where the lawyer can just say “yes” and get on with it, it would need to be a full-blown application and waiting for the Legal Aid Agency to say yes or no)

 

Special Guardianship orders as stand-alone would be classed now as private law proceedings, and I think you can guess how the parents funding on that would go

 20.36 A special guardianship order is a private law order and the principles in s.1 of the Children Act 1989 will apply as will the Funding Code criteria in 11.11. This includes the no order principle which will be taken into account when considering prospects of success. Regard will also be had to the report of the local authority prepared in accordance with s.14A of the Children Act 1989 when considering an application for funding. When considering an application for funding to oppose the making of a special guardianship order, the way in which the proposed respondent currently exercises their parental responsibility and how this will be affected by the making of an order will also be considered.

 

 To quickly sum up then :-

 (a ) Declining to extend the timetable to assess Auntie Beryl won’t let the Court go on to determine a Placement Order application

(b) The Local Authority would be legally obliged to assess Auntie Beryl before they could even ask their Agency Decision Maker to make a decision about adoption

(c)  Making a care order with a care plan of “Auntie Beryl OR adoption” is almost certainly inchoate

(d) It almost certainly opens the door to parents to challenge that decision, given what the House of Lords say about inchoate care plans and  specifically “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.”

 

(e) There seems to be a very foreseeable chance that if the Court make the Care Order, the parents may not get the public funding to be represented to subsequently challenge or test any application for SGO or Placement Order, funding that they would have had as of right if the Court had made Interim Care Orders and had the assessment of Auntie Beryl before considering those orders  

 (f) There must be scope for an article 6 claim that losing the ability to be legally represented to challenge whether your child might be adopted PURELY so that the Court could make a care order (on an inchoate care plan) just to satisfy the 26 week criteria is, you know, slightly unfair.

 (g)     Changing this so that it is workable only requires changes to  – a House of Lords decision,  two pieces of Primary legislation (maybe 3, if you just want to allow Courts to make SGOS in cases where they feel it is right without having a full blown SGO report), the private law funding code and the public law funding code. 

 So, job’s a good un.

 [If you are representing someone in a case where the Auntie Beryl issue crops up, “you’re welcome!”  I think the answer for the Court is to identify what issues it would need the LA to deal with in a report on the carer and to get this done as swiftly as is fair and reasonable]

 

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Posted in case law, family justice modernisation, timescales and tagged , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

“Fridges and unseemly turf wars”

Posted on May 10, 2013 by suesspiciousminds

 

 The Supreme Court has handed down its judgment in the adult care case, SL v Westminster 2013 which related to whether a Local Authority owed a duty under section 21 of the National Assistance Act 1948 to provide a man who was a failed asylum seeker with accommodation.

 http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0229_Judgment.pdf

 

As the Supreme Court themselves observed, up until the mid to late 90s, there was no suggestion that providing accommodation to failed asylum seekers was going to be the job of Local Authority social services departments, or that it would fall under section 21 of the National Assistance Act 1948 which is really intended to protect people who have health or other vulnerabilities, but that as the Government squeezed immigrants and asylum seekers in other pieces of legislation, those representing them began to turn their attention elsewhere, and section 21 came to be seen as a refuge of last resort to get accommodation for people for whom all other avenues had been cut off.

 

There followed what one commentator called an “unseemly turf war” (Slough, para 28) over responsibility for homeless asylum-seekers as between, on the one hand, local authorities under section 21(1)(a) of the 1948 Act and, on the other, central government under the new national scheme.

 

Parliament tried to engineer a resolution of this turf war by changing legislation, so that section 21 was amended

 

Section 21 of the 1948 Act (as amended in particular by the Immigration and Asylum Act 1999) provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing:

(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

 (aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute…

 

(Sub-section (1B) provides that “destitute” for these purposes is defined in accordance with section 95 of the 1999 Act.)

 

 

And thus, in order to trigger the Local Authority duty to provide accommodation under section 21 of the National Assistance Act 1948, the person must show that they have needs for accommodation that arise OVER and ABOVE just not having accommodation and being destitute, or that their health will deteriorate as a result of not having accommodation and being destitute.

 

[One could of course argue, that failed asylum seeker or not, the State should either provide the person with accommodation or take steps to remove the person from the country, rather than effectively stepping over the destitute person in the street, much like Phil Collins in the Another Day in Paradise video….]

 

The Council in this case were informed of SL’s circumstances – he had fled from Iran fearing persecution over his sexuality in 2006 and his asylum claim was refused in 2007. He attempted suicide in December 2009 and was diagnosed as suffering from depression and post traumatic stress disorder.

 The Council assessed him and considered that  SL needed support and services and that they could provide him with support and services but that he did not require the provision of accommodation as a result of his needs. 

The idea then, would be that it would be central government, rather than local government who needed to provide SL with accommodation. In reality, as know, that doesn’t happen.

 There is a considerable body of cases in which the person had some additional form of physical ailment or disability (for example having only one leg or in the NASS case, spinal cancer) and whether that triggered the s21 duty.

 

 

18. Lord Hoffmann summarised the effect of section 21(1A):

“The use [in section 21(1A) of the 1948 Act] of the word ‘solely’ makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21(1A) draws the line.” (NASS, para 32)

 

The counter argument here, is that suddenly, failed asylum seekers were able to obtain s21 National Assistance Act accommodation if they were able to evidence some health problem or disability, even though that health problem or disability (were they NOT a failed asylum seeker) would NOT have triggered s 21 National Assistance Act accommodation

 

“Mr Pleming said that this case (Mani) demonstrated the absurd consequences of the decision of the Court of Appeal. If Mr Mani had been an ordinary resident, his disability would never have entitled him to accommodation under a statute intended to provide institutions for the old and retreats for the mentally handicapped. His entitlement as found by Wilson J arises simply from the fact that he is an asylum seeker. Such a conclusion is inconsistent with the policy of having a national support system specifically for asylum seekers. Furthermore, the decision undermines the policy of dispersal followed by NASS, which is intended to prevent asylum seekers from gravitating to London boroughs or other local authority areas of their choice. An asylum seeker who can produce a disability, physical or mental, which makes his need for care and attention ‘to any extent more acute’ than that which arises merely from his destitution, can play the system and secure accommodation from the local authority of his choice.” (para 48)

 

 

In the Slough case, the need for “care and attention” arose because the claimant was HIV positive and needed both various prescribed medications and a refridgerator to keep them in.

 

Lady Hale determined that this did not trigger a s21 need for accommodation

 

“I remain of the view which I expressed in R (Wahid) v Tower Hamlets London Borough Council [2002] LGR 545, para 22, that the natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded…” (para 33)

 

When the Court of Appeal considered SL’s case, they determined that the assistance and support that the Council were providing did amount to “care and attention” and that thus the s21 criteria were triggered.

The Supreme Court very neatly summarised the submissions of the various parties on the difficulties and merits or otherwise of SL being a section 21 case

 

Confined to their essentials, the respective submissions can I hope be fairly summarised as follows. Mr Howell submitted that:

i) Monitoring (or assessing) an individual’s condition at a weekly meeting is not itself “care and attention” for this purpose. It is rather a means of ascertaining what “care and attention” or other services (if any) the individual may need in the future.

ii) Care and attention means more than monitoring, or doing something for a person which he cannot do for himself. As Dunn LJ said in the comparable statutory context of attendance allowance (R v National Insurance Commissioner ex p Secretary of State for Social Services

[1981] 1 WLR 1017 at 1023F) the word “attention” itself indicates –

“something involving care, consideration and vigilance for the person being attended… a service of a close and intimate nature.”

iii) On the second issue, the services provided by the council, other than accommodation, could be provided under other statutory provisions; they were therefore “otherwise available”, and thus excluded from consideration by section 21(8) of the 1948 Act.

iv) Alternatively, in line with the reservations expressed by Laws LJ (para 41), and contrary to the decision of the Court of Appeal in Mani, the court should hold that the section applies, not to all those who need care and attention, but only to those who have an “accommodation-related need”, that is those who need care and attention “of a kind which is only available to them through the provision of residential accommodation” (Mani, para 16).

v) In any event, as the judge found, there was no link between any need for accommodation and the services needed by SL, which were being

provided wholly independently of the place where SL was or might be living.

37. Mr Knafler submitted in summary that:

i) “Care and attention” or “looking after” included not only intimate personal care, but any other forms of personal care or practical assistance. It is enough, in Lady Hale’s words, that the council is “doing something” for the person being cared for “which he cannot or should not be expected to do for himself”. Monitoring SL’s mental state was indeed “doing something” for him, and was no different in principle from “watching over” as described by Mr Howell’s concession in Slough.

ii) “Care and attention” is not an “accommodation-related need”. Care and attention can be provided to persons in residential accommodation under section 21(1)(a), and also to persons in their own homes under section 29 or other enactments. Longstanding local authority practice is to provide care and attention in residential accommodation when it can no longer be provided reasonably practicably and efficaciously in a person’s home, or elsewhere, having regard to all the circumstances, including cost.

iii) “Not otherwise available” means, as Laws LJ held, not otherwise available in a reasonably practicable and efficacious way. In this case, SL needed care and attention because he needed accommodation, basic subsistence, personal care and practical assistance. That “package” was not available at all, otherwise than by the provision of residential accommodation. Alternatively, looking simply at the care he needed for his mental illness, and given that he was homeless and destitute, the necessary care was not available to him in any reasonably practicable and efficacious way, otherwise than by providing him with accommodation as a stable base.

 

The Supreme Court concluded this

 

 

44   . What is involved in providing “care and attention” must take some colour from its association with the duty to provide residential accommodation. Clearly, in light of the authorities already discussed, it cannot be confined to that species of care and attention that can only be delivered in residential accommodation of a specialised kind but the fact that accommodation must be provided for those who are deemed to need care and attention strongly indicates that something well beyond mere monitoring of an individual’s condition is required.

 

 

45. Turning to the second issue, and assuming for this purpose that Mr Wyman was meeting a need for “care and attention”, was it “available otherwise than by the provision of accommodation under section 21”? Although it is unnecessary for us to decide the point, or to consider the arguments in detail, it seems to me that the simple answer must be yes, as the judge held. The services provided by the council were in no sense accommodation-related. They were entirely independent of his actual accommodation, however provided, or his need for it. They could have been provided in the same place and in the same way, whether or not he had accommodation of any particular type, or at all.

 

 

 

48   . The need has to be for care and attention which is not available otherwise than through the provision of such accommodation. As any guidance given on this point in this judgment is strictly obiter, it would be unwise to elaborate, but the care and attention obviously has to be accommodation-related. This means that it has at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. So the actual result in Mani may well have been correct. The analysis may not be straightforward in every case. The matter is best left to the good judgement and common sense of the local authority and will not normally involve any issue of law requiring the intervention of the court.

 

 

 

I love the continued optimism of the higher courts (as underlined) , here as in cases of designated authority, ordinary residence, section 117 after care funding, mental capacity, whether a young person presenting as homeless is section 20 Children Act, whether the burden of proof increases with seriousness of the allegations, that now that they have given a judgment, that will be the end of all that nonsense, and nobody will ever quibble about the facts of a case and try to put something in one box or another – it will be plain and agreed in all cases exactly which side of the clear bright line the case falls. Nobody need ever argue about it again.

 

It is, in my mind, rather akin, to that unbridled optimism with which the UK Foreign office decided that the best solution to disputed territorial claims was partitioning, which worked so well in Cyprus, Palestine, Berlin, Northern Ireland, (Korea, though the Americans were to blame on that one), Kashmir….        [That list seems to cover most of the world’s trouble-spots and a cynical fool might suspect that there was some correlation there between a sticking-plaster solution and festering wounds later coming to life]

 

 

 

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“Lancashire Hot Pot(ato) “

Posted on February 21, 2013 by suesspiciousminds

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not.  But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler,  Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture.  The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator.    (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

 Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009)  http://www.bailii.org/uk/cases/UKSC/2009/17.html   have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there. 

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma.  Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there.   (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

 When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

 So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one.   [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

 But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

 [*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

 There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles.  At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

 The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’  BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby.  Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

 The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.”

And here  (my underlining)

  1. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
  1. The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue  “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

 In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

 This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

 And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely   on the single  “whodunit” fact, but to rely on the totality of matters which were found in the judgment. 

 It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case  (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

 So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty’s child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles  – NO, they should not. ]

not as innocent as he looks

Oh Fred, you should have put forward an alternative perpetrator

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“If you change your mind, I’m the first in line”

Posted on February 21, 2013 by suesspiciousminds

 The Supreme Court decide that a Judge CAN change their mind after delivering a Judgment.

I blogged about the case in the Court of Appeal here :-

https://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

 In brief, a Judge heard a finding of fact hearing about an injury to a child, gave a judgment that the father was the sole perpetrator. After judgment, father’s representative sent in some aspects for clarification  (i.e things that they considered had not been properly considered in the judgment) and some months later, at another hearing, the Judge announced that she had changed her view of the case and that it was not possible to exclude mother from having caused the injuries, and stopped short therefore of a positive finding that father had caused the injuries.

 The mother, who had of course, been off the hook, in the initial judgment, appealed.

 The Court of Appeal decided, two to one, that the Judge could not change her mind about the judgment she had given (save for if some fresh evidence had come to light) and that she was bound by her first judgment.

 The father, understandably, having been all the way in, then half-way out, then all the way in again, appealed that.

 The Supreme Court determined the issue in Re L and B (Children) 2013    

 

http://www.bailii.org/uk/cases/UKSC/2013/8.html

 One of the things that troubled me about the Court of Appeal decision was the unspoken but inexorable consequence that although an advocate unhappy with a judgment is told to raise points that needed clarification or exploration with the judge prior to any appeal, if doing so cannot lead to a Judge changing their mind, it seems a rather fruitless exercise.   I think for that reason, the Supreme Court were right in giving the Judge power to change the findings made if the representations swayed her.

 The Supreme Court concluded here that what had happened in reality, was the Judge reconsidering the conclusions reached in the light of the representations made by father’s counsel, and had changed her mind accordingly.

 

  1. Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.

Exercising the discretion in this case

  1. If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the “general slackness” that left the order unsealed. He was also somewhat puzzled as to why the result of her change of mind was “seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator” (para 56). Sir Stephen Sedley held that something more than a change in the judge’s mind was required, because “it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice” (paras 79, 80). Rimer LJ, on the other hand, held that the judge was “honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. . . . the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong. The court should not be required to make welfare decisions concerning a child on such a false factual basis”. It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction.
  1. The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result. The care plan may have been developed (we do not have the details of this) but the child’s placement had yet to be decided and she had remained where she was for the time being. The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration. While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case.
  1. Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. As the court pointed out in Re Harrison‘s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.
  1. For those reasons, therefore, we ordered that the father’s appeal against the decision of the Court of Appeal be allowed. No party had sought to appeal against the judge’s decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date. We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half-brother and maternal grandparents under a care order and, after a settling-in period, have visiting and staying contact with her father and her paternal family. The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years.

 

 The Supreme Court then took a look at the issue of whether a Judge could change her mind post the order being sealed. (In this case, the sealing of the order had taken place long after the judgment had been given, or maybe it did, and there is authority to suggest that a judgment cannot be changed after the order is sealed or maybe there isn’t)

 

  1. On the particular facts of this case, that is all that need be said. But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case?
  1. The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74). Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing. They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21. This was a case in which the mother challenged the adequacy of the judge’s reasons for finding her complicit in the sexual abuse of her daughter in a fact-finding hearing in care proceedings. Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part-heard, Munby LJ continued, at para 21:

“Consistently with this, the findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.”

  1. This court has since agreed with that proposition. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that:

“It is now well-settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319).” (para 46)

  1. There are many good reasons for this, both in principle and in practice. There are two legal issues in care proceedings. First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the child’s welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry. It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues. In this case, for example, there was no dispute that the threshold had been crossed. Nevertheless, it was convenient to attempt to identify who was responsible for the child’s injuries before moving on to decide where her best interests lay. In such a composite enquiry, the judge must be able to keep an open mind until the final decision is made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned, but particularly to the children, if the only way to correct such an error were by an appeal.
  1. This is reinforced by the procedural position. As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact-finding hearing there may not be an immediate order at all. It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal. Nevertheless, it would be very surprising these days if there were no order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then. But this is merely a recital in what is, on any view, an interlocutory order.
  1. Both the Civil Procedure Rules and the Family Procedure Rules make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on application or of the court’s own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.
  1. Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised “judicially and not capriciously”. It must be exercised in accordance with the over-riding objective. In family proceedings, the overriding objective is “enabling the court to deal with cases justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child’s injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother’s apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.
  1. The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut.
  1. On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact. That would have been just as true if the December order had been sealed as it was when it had not.
  1. In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.
  1. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.
  1. On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.

 

 

 

They then realise that this is really really really difficult, and sidestep the question in a way that any rugby fan would admire.

 

The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place.

 

That, for my mischievous mind, raises the interesting question of what happens if a Judge delivers a finding of fact judgment, and instantly in front of the parties, produces an order that she has prepared setting out the findings that were made and stamps it. 

It seems that the judgment is then frozen, and can’t be altered, and that she would not be entitled to change her mind despite any representations, and is simply inviting the wounded parties to put up and appeal, or shut up.   That’s probably grounds for appeal in itself.

Probably good practice is for a short window of opportunity (say the appeal window) to be given, before the order is then stamped, and the Judge considers only representations made within that window.

But, what if, as happened here, father makes representations, and the judgment changes? Does mother then get a second window to make her own representations, to try to change the judge’s mind a second time?  Her window of appeal must, it seems to me, start from the time that the Judge settles an order arising from the judgment  (you appeal orders, not findings). 

And if mother succeeds, is that the end of it, or does father get another crack at it?

Could we end up with an interminable oscillation between judgment and representations to alter that judgment?

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“When they begin, to intervene…”

Posted on August 7, 2012 by suesspiciousminds

Sorry, the titles just get worse.  (but I bet you’re humming it already)

 Two important cases on Interveners in fact-finding hearings, or  “Re T for two”

 

The first is the Supreme Court decision in Re T.

 

http://www.supremecourt.gov.uk/docs/UKSC_2010_0244_Judgment.pdf

 

 

This relates to an appeal from the Court of Appeal, which in turn considered an appeal from a County Court.  It related to the order at the conclusion of a finding of fact hearing (which took 5 ½ weeks) that one of the Interveners, who was not publicly funded and who was not found to have perpetrated the injury, should have his costs paid by the Local Authority, who had brought the care proceedings.

 

This was a very important case for both Local Authorities and those who represent Interveners, particularly those who would not financially qualify for legal aid.

 

The costs that the Intervener had to pay was £52,000 so one can see why the  Court of Appeal were looking around for someone to foot that bill, since the Intervener was found to be blameless.

 

The children had made allegations of a sexual nature against the father and six other men, all of whom intervened. Five received public funding, the sixth did not.

 

All of the interveners were exonerated at the finding of fact hearing.

 

4. It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents. The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based “on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs”.

The judge dismissed their application. He did so on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct has been reprehensible or its stance unreasonable. In support of that proposition the judge cited authorities that included the judgments of Wilson J inSutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.

The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with “potentially life-changing allegations” without being able to gain some financial assistance from the State.

 

 

I don’t disagree with that at all, and I think the judge at first instance got this entirely right. It is deeply unfortunate that someone faced with allegations as grave as this, particularly where they are disproved has to pay their own costs, but that misfortune can’t extend to making the Local Authority pay unless their conduct in bringing the case is reprehensible or unreasonable.  Otherwise one runs the risk of very serious cases not being put before the Court as a result of fear of costs orders being made if the allegations are not established.

 

[Frankly, I think non means, non merits legal aid ought to be available to any party who is able to satisfy the Court that they should be involved within the proceedings, whether as an Intervener or a party given leave to make an application; but that was obviously beyond the scope of the Courts]

 

This is interesting, from paragraph 6  (and these were some heavy-hitters in the world of counsel)

 

It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given.

 

CAFCASS in the case submitted that the Court of Appeal decision was the first one where a Local Authority were ordered to pay costs where there was no criticism of its conduct of the litigation  (effectively adopting a civil – “loser pays” philosophy)  and that, of course, is why the case was important enough to make it to the Supreme Court.

 

Particularly, this passage at para 18 of Wilson LJ’s judgment in the Court of Appeal on this case  (the ‘general proposition’ being that costs orders shouldn’t be made in family proceedings in the absence of unreasonable conduct)

 

            “I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact-finding hearing the judge concludes that they have not established them, the general proposition is not in play.”

 

 

The Supreme Court sum up the issues admirably here:-

 

39. The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigant’s costs should be publicly funded. The former question is for the court; the latter for the legislature. Whether a litigant’s costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights. Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the intervener’s costs. We consider that this argument was misconceived. The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.

 

40. The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989. The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C-427 of the Legal Services Commission Manual. There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.

 

 

And I would suggest that the Supreme Court here were expressing a deal of sympathy for the suggestion that the LSC ought to be stumping up for interveners, but are obviously bound by the funding code  [in the absence of a judicial review challenge to the construction of that funding code or its exercise in a particular case]

 

 

And they conclude the case here:-

 

41. If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.

In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs. The burden of costs awarded against local authorities in such circumstances is likely to be considerable. When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.

 

42. In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.

 

43. Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate “in the vast run of these cases to make an order for costs in whole or in part by reference to the court’s determination of issues of historical fact”. But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant.

 

44. For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse’s costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.

 

 

I’m usually a believer in Kim Hubbard’s remark “Whenever someone says, ‘it’s not the money it’s the principle’ it is always the money”    but in this case, the Local Authority involved (Hull) have clearly taken this case up to the appropriate level of judicial decision-making as a matter of principle  (they’d already paid the grandparents their costs, and weren’t seeking to recover them), and I thank them for it.

 

 

Just when I thought I was out – they pulled me back in – Michael Corleone

 

 

The second case also involves a very heavyweight group of counsel, and a case involving an Intervener. 

 

Again, it is Re T  (how thoughtless)   but this time RE:  T (Children) [2011] EWCA Civ 1818

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed99436

 

(That also contains a very good summary of the case, and is indupitably going to be better than my attempt)

 

Within care proceedings, allegations were made of physical abuse and sexual abuse against one of their uncles ‘DH’  who was 18 by the time the appeal was heard, and one must assume an adolescent/child at the time the allegations were said to have occurred.

 

There were a raft of other threshold concerns in the case, and it was accepted that findings of sexual abuse, though capable of being made, were going to be challenging as opposed to straightforward.

 

The Local Authority sought, amongst other matters, a finding against the father that he had sexually abused DH and that it was this sexual abuse that had led to DH in turn abusing the other children.

 

 

At the pre-hearing review, DH did the smartest thing I have ever seen an Intervener do within care proceedings, and that is to say in terms “this doesn’t seem to be a very good idea for me to be involved in this, and I’m out”   (I hope he said it in a Duncan Bannatyne accent, but given that he was being represented by the splendid Rachel Langdale QC – my third favourite Rachel/Rachael, I somewhat doubt it)

 

The Judge agreed that he should cease to be an Intervener, and instead give evidence as a witness.  The Local Authority, supported by the father, appealed that decision.

 

The Court of Appeal determined that the appropriate decision on whether any particular allegation proceed to a finding of fact hearing is as set out in

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

And then went on to consider whether the allegations that the LA made that directly involved DH  (that he had abused the children, and that had arisen because he had himself been abused by father) were such that they needed to remain live issues in the case.  The resonant (though unpleasant to the squeamish) phrase “the allegations of sexual abuse have come dripping in during the course of the proceedings”  kept being used in the judgment.

 

The finding of fact hearing that was already listed was down for 20 days, and had five silks, six if Miss Langdale QC remained representing DH.

 

The father’s case was essentially that DH could not be relied upon as a witness and was of bad character – as a witness there would be limits in what could be put to him, whereas as an Intevenor, it would be possible to go further. There were, the father submitted, significant problems in the LA seeking a finding that the father had sexually abused DH without considering what was the root of that finding (the allegations that DH had abused the other children)

 

The Court of Appeal considered that it was a matter for the trial judge to determine what allegations it was appropriate to consider in a finding of fact hearing and which were peripheral, and therefore whether DH was required to be an Intervener, or whether he could be discharged as an Intervener and merely be a witness

 

24. The problem, therefore, is essentially one of case management.  Was the judge entitled to regard this as peripheral?  In my judgment, yes.  The main complaint is of emotional abuse.  The main complaint of sexual abuse lies at the door of M, not of P or DH.  The sexual allegations against them towards children of the family are not strong.  The sexual allegations relating to KE when he was nine or ten and she was five or six are buried in the dim depths of history. It is, it seems to me, quite unfair to charge a boy now 18, damaged as he may be by life’s experiences at his home and in care, with inappropriate sexual shenanigans between those young children.  And it may not be the best pointer towards his disposition or sexual tendencies as he grows up.  I think he has a girlfriend.  I know not.  The allegations against N are again the allegations made against a boy of 13.  And the extent, therefore, to which the local authority can rely upon findings of that kind to portray that this boy in his present condition is a danger to children is a matter upon which I for my part, though it will be a matter for the judge eventually, am rather sceptical.

25. So I agree this is a peripheral issue in the case and in the context of the case the judge is also entitled to think it is disproportionate to extend this already extended trial by raising three separate allegations or two other allegations, namely N and KE, as a complication to an already complicated case.

26. I said it was a matter of case management and it is.  As things stand at the moment, it would be for the judge to judge the credibility of this boy.  He may be able to say “I am not satisfied by him, therefore I cannot be satisfied that the complaint against the father is made out.”  That is the end of it.  He can, of course, come to a conclusion that, having heard DH, he is quite satisfied that DH has in fact abused KE and N and, although he said he is not intending to make findings, he may be driven not to make findings in the care proceedings as such, but to explain his judgment by expressing his conviction in that way.

27. In any event, he, the judge, will deal with this on the disposal.  He will have seen four weeks of this case.  He will know full well how much weight to place upon the various factors and how important it is in the life of these five children whether or not this boy has done what is alleged against him. 

 

 

Unfortunately, though the principles are interesting, it is quite case specific, and doesn’t really analyse whether an Intervener can actually bail out as a strict matter of choice, having seen the totality of the evidence and taking a view that he no longer wishes to participate. 

 

It is clear that someone cannot be compelled to intervene in proceedings or compelled to be a party, because we always ‘invite X to consider becoming an intervener’   but once they are in, are they in for the long-haul, or not?

 

I think that I would argue that since one cannot stop a father, say, in care proceedings from simply ceasing to give instructions or attend Court, and effectively playing no role  [save for the possibility of witness summonsing him to give evidence]  it cannot be right that someone is forced to continue as an Intervener against their will.  But it is of course an application for leave to withdraw, and with any application, it must be at least theoretically possible for a Judge to say ‘yes’ or ‘no’  since if not, it isn’t an application at all, but a rubber stamp.

 

In this case, if the Court of Appeal HAD considered that the allegations against DH did warrant a finding of fact hearing, they could have overturned the decision to give LEAVE for DH to withdraw as an Intervener, but the Court would have been fairly powerless had DH said “I am sacking my legal team, I will not file any statement and I will not attend the hearing or make any representations unless I am witness summonsed, whereupon I will attend only to give evidence”   – he would have been an intervener in name, but not in reality.

 

I had thought that I recalled a case that findings against a non-party could only ‘stick’ if they had been an intervener, but I can’t find it, and my memory of it is going back to the late nineties, so I am probably wrong.  [It did lead me down an interesting sideline of seeing just how many of the 1990s cases about inteveners were a judicial “I should coco, sunshine, on your bike” whereas we now have people intervening at the drop of a hat]

 

 [So the long and the short of it is – as an intervener, you won’t get your costs so you may as well ‘get your coat’]

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Aunts aren’t gentlemen

Posted on June 20, 2012 by suesspiciousminds

 

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)

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