ON APPEAL FROM THE CENTRAL FAMILY COURT
His Honour Judge Tolson QC
Strand, London, WC2A 2LL
B e f o r e :
SIR ERNEST RYDER, SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE SALES
| In the matter of P-S (Children)
Miss Barbara Connolly QC & Miss Amanda Bancroft (instructed by The London Borough of Camden Legal Department) for the Local Authority
Mother appeared in person
Ms Nancy Ballard (Solicitor Advocate) for Mr S
Mr David Bedingfield (instructed by Gordon Reed of Sternberg Reed Solicitors) for the Paternal Grandparents of S
Ms Hannah Gomersall (instructed by Claire Maye of Motley and Hope Solicitors) for the Paternal Grandparents of P
Mr Sam Momtaz QC & Miss Sharon Segal (instructed by Elizabeth Cape-Cowens of Blackfords LLP) for the Association of Lawyers for Children (Intervener)
Hearing date: 7 March 2018
Crown Copyright ©
Sir Ernest Ryder, Senior President:
a. The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;
b. The judge's characterisation of the care orders that were made as 'short term care orders' was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;
c. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;
d. The judge was wrong not to make provision for effective access to justice for the grandparents by their joinder, the disclosure of documents to them, time for advice to be taken by them, the facility for them to take a proper part in the proceedings, an adjournment or otherwise.
"1....It is not a case in which I must consider rival realistic options in terms of the children's future placements. Instead, the main question for me to resolve is the appropriate legal order which should govern a placement with the children's respective paternal grandparents……
7.…the local authority and the Guardian contend that the children's placements should take place under special guardianship orders………During the trial it has largely been left to me to raise concerns as to whether special guardianship orders in favour of the two sets of grandparents would be premature…….
10. In this case the children might be placed with the paternal grandparents under either a care order, a special guardianship order, or a child arrangements order. These are very different orders. A care order creates parental responsibility in the local authority which, under section 33(4) of the Act may be exercised by the local authority if they are "satisfied that it is necessary to do so in order to safeguard or promote the child's welfare"…….
16. Section 14A provides for those who may make an application for a special guardianship order…….the grandparents come within the definition of those who may apply for a special guardianship order.
17. There is also a power for a court to make a special guardianship order of the court's own motion. That power is found at section 14A(6)(b).
20. ……It suffices to say that during my time as designated family judge here at the Central Family Court I must have made upwards of 30 special guardianship orders. I have, however, yet to encounter an application for such an order. On every occasion I have been invited by the local authority, whether opposed by another party or unopposed, to make the order of my own motion. That is not just the default position, but it appears to be the universal practice amongst authorities who use this court centre. This is the largest family court centre in England…….My purely personal impression is that the practice has changed in recent times.
23. Whilst I do not suggest that these children should be the subject of care orders for their minority, the real balance in the case is in my judgment between special guardianship orders now and care orders (although not interim orders). The care plan under such care orders would be that if all goes well, then applications for special guardianship orders should follow in due course. By the expression 'in due course' I mean 'when the new placements are regarded as settled and working well for the children'. In this case that might perhaps be in about a year from now…….
24. ……both sets of grandparents have been assessed in accordance with the Statute and the accompanying Regulations. The assessments are positive……
25. My first concern is, however, that neither child is currently living with the proposed special guardians. During the course of argument, I mentioned that, last year, a letter had been written to interested parties by Keehan J, the Family Division Liaison Judge for the Midlands Circuit. It discussed the use of special guardianship orders. The view promulgated by Keehan J, as a result of a meeting with the chairs of the Circuit's Local Family Justice Boards, was that "a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians." Such guidance is not, of course, binding upon me but in passing I observe, with some deference, that it appears to amount to sound common sense……
28. All this leads me to believe that someone has to be in charge of a process which oversees not just the move of the children to a new home, and their settling in, but also the implementation and progression of a closely controlled contact regime in circumstances where it is unclear what the parents' reaction will be to the children's move and equally unclear as to how they will handle time with the children in the very different circumstances which would apply……
30. The next matter which concerns me is the position of the grandparents – within these proceedings as well as towards the children. As I listened to the case being developed, I did so in the complete absence of the grandparents – of the proposed special guardians. They were not parties. They were not represented. They were not present. They were not intended to be witnesses. Had an application been made – properly sponsored by the local authority which after all is the prime mover in this change to the children's lives – then the grandparents would have been parties, represented, present and witnesses……
31 ….I have had the conduct of this case since the IRH on 3 February 2017. I could then have (i) made the grandparents parties (although that would not necessarily have secured representation for them); (ii) asked them to file a statement; (iii) invited them to give evidence; (iv) encouraged a special guardianship application at that stage. I did not take any of these steps, nor was I invited to do so……In truth, however, with the exception of my concerns surrounding their lack of participation in the process, the grounds on which I propose to reject the local authority case for special guardianship orders would have remained whatever step had been taken at the IRH. I know a great deal about the grandparents. I am not making special guardianship orders, but it is not because I lack information about the proposed special guardians.
32. I invited the grandparents into court before they spoke to the professionals (all of whom were of course advocating special guardianship) so that at least they could hear the guardian, the representatives and myself debating the issues as the guardian gave evidence. They spoke with professionals afterwards. The result of this exercise was that they confirmed their wish to be special guardians immediately and for the children not to be subject to care orders…….I remain concerned, however, as to the process here. I am not convinced that the grandparents have been sufficiently involved. It is stating the obvious to observe that the effect of making an application to a court is to involve the applicants closely in the process.
34. A short-term care order meets many of the concerns expressed in the previous paragraphs…..It is common ground that the transfer of the children to the grandparents, which is happening as I write this judgment, will not be delayed for want of special guardianship orders, or by any further assessment process.
37. ……There would remain untested placements.
38. ……the Guardian…….emphasised that "there was enough of a relationship that it is not an impediment to a special guardianship order……."
The impact of delay:
The guidance relied upon:
The position of the paternal grandparents and procedural fairness:
Lord Justice Sales:
The President of the Family Division:
"Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6)(7), a mandatory limit which applies to all cases."
"30 So despite the imperative demand of section 32(1)(a)(ii) of the Children Act 1989, there can be exceptions. But … it is vital to recall the equally imperative language of sections 32(5) and 32(7). An extension beyond 26 weeks is to be permitted only if it is "necessary to enable the court to resolve the proceedings justly" … Moreover, extensions are "not to be granted routinely" and require "specific justification".
31 In what circumstances may the qualification in section 32(5) apply?
32 This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate.
33 There will, as it seems to me, be three different forensic contexts in which an extension of the 26-week time limit in accordance with section 32(5) may be "necessary":
(i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed … (b) FDAC type cases …, (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent's disabilities require recourse to special assessments or measures …
(ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are: (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly "derailed" because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.
(iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks …
34 I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is "necessary" to enable the court to resolve the proceedings "justly". Only the imperative demands of justice – fair process – or of the child's welfare will suffice."
"Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child's timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child's timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that "something may turn up". Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child's timescale?"