England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COUNTY COURT
(HER HONOUR JUDGE MARSHALL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st October 2012

Lord Justice McFarlane:

1. This is an appeal from the orders made by HHJ Marshall sitting at the Swindon County Court on 15 June 2012. On that occasion the judge was conducting an issues resolution hearing in ongoing care proceedings relating principally on that occasion to one child, who is TJ, who was born on 13 April 2011, and is therefore now 18 months or so. In fact, by the time the hearing was taking place in June, the mother had given birth to a further child, a daughter, M, in April, and there were parallel proceedings relating to that child, and one issue was whether or not the two sets of proceedings should have been consolidated. Part of the history of the case is that, sadly, this mother had lost two older children to care orders on earlier occasions, and it was part of the background that the local authority, and therefore the court, had a wealth of detail about the mother's capacity, or indeed as it had been found, incapacity, to provide or good enough care for the children in her care.
2. HHJ Marshall, as the Designated Family Judge for Swindon, had advocates before her in January, and had made detailed case management directions on that occasion. Amongst the order made were requirements on the parents to file documents in February 2012 setting out their basic position and their response to the threshold documents, but then to file their final evidence by 25 May, with a view to the issue resolution being heard, and indeed the date was fixed in January for that hearing on 15 June. What happened on 15 June is that HHJ Marshall in fact made final orders, making a care order in relation to young TJ, and then going on to dispense with the consent of the parents to a placement for adoption order and making an order providing for TJ to be placed for adoption.
3. It is against those orders that this appeal is focused. The basic criticism made of the judge in the grounds of appeal is that at this issue resolution hearing the judge effectively heard no submissions from the parents as to the merits of the case, made no provision for evidence to be filed by the parents after that hearing and conducted herself in a manner which was outside the scheme of the Family Proceedings Rules, and in breach of Article 6 of the European Convention on Human Rights in failing to provide a fair trial. I granted permission to appeal on 25 July on the basis that I was concerned about the procedure adopted by the judge.
4. The case comes on for hearing this morning before us, in the unusual setting that, apart from one observer, my Lady and I sit alone. That is because the position of all the parties to the appeal has now been clarified and, in short terms, the local authority and the solicitor for the child share the concern raised by the appellant mother and accept that the outcome of the appeal is highly likely to be a setting aside of the orders made by the learned judge, and for the matter to be relisted for a fresh issues resolution hearing before a new tribunal. That state of affairs became clear last week. This court has, therefore, made arrangements for the matter to be heard by Baker J in ten days' time in Bristol, where he will determine the future course of these care proceedings. On that basis, this court has made it plain that it is not necessary for any of the parties to appear or be represented this morning, and indeed nobody has appeared.
5. The purpose of this very short judgment, therefore, is to set out my reasons for allowing the appeal. The process adopted by the judge is recorded in a transcript of the hearing. The transcript, insofar as it deals with the stage before the judge gave her judgment, runs to two and-a-half pages. In the course of that transcript the judge questioned why the parents had not filed statements in May, or at all, in accordance with the directions she had given, and the solicitor for the parents indicated that the parents had failed to attend the one solicitor's appointment offered to them for this purpose, the explanation being given that the father was ill; but the parents had attended the solicitor on the next available opportunity, which had been a few days before the hearing. The solicitor had instructions, and was now in a position to draw up the statements.
6. That is all that the judge heard from the solicitor, and after a fairly short intervention by the guardian confirming that the guardian's evidence was before the court, as was the local authority, the judge simply launched into the judgement that she gave. That judgment records the procedural history that I have summarised, and then sets out conclusions:

"12. One of the factors that the Court must take into account is whether delay is in the best interests of the child. These proceedings started in May 2011 in relation to TJ. I also take into account the fact that these are not the only proceedings that these parents have been engaged in. there are a number of other children that the Court has previously dealt with where care orders have been granted and the children have been placed for adoption.

13. There is a great deal of information available to the Court about these parents, about their history of parenting, plus all of the assessments that have been done for Miss Burden and Mr Newman. The evidence as it stands before the Court is that none of those assessments suggests that Miss Burden and Mr Newman have accepted the concerns which the Local Authority in seeking to making changes, and that therefore the evidence on the face of it would lead the Court at the moment to a conclusion that the parents are, sadly, unable to provide good enough parenting for TJ now and, more likely than not, not within his timescales, bearing in mind his age.

14. The question is whether the Court therefore should deal with these proceedings now on the basis of the evidence available, or allow the parents to file their final evidence and deal with matters by way of a final hearing. Article 6 obviously is engaged in relation to that decision. The Court has set a timetable, the parents have been aware of it and have not complied with it.

15. I am not satisfied that the explanations that have been put before the Court today, which in effect amount to the fact that the Father has been unwell, without any further evidence of that, or explanation as to why it prevented the Mother from dealing with these matters, is sufficient to say that to proceed today would be a breach of their right to a fair trial. They will know from the orders made that at the IRH the Court will narrow the issues in so far as it can, and make decisions to finalise proceedings, and final orders where that is appropriate, and even if they do not attend.

16. It seems to me, bearing in mind the threshold criteria, which in my view are made out on the evidence before the Court, and the welfare of the child as paramount, that the right course for this Court is to proceed today, on the basis of the evidence before it, to finalise these proceedings for TJ. The parents' general lack engagement in relation to these proceedings and other proceedings means there is a very real possibility, if the Court adjourns these proceedings further, that actually the parents will not take up the opportunity of properly filing their evidence, putting this matter before the Court and engaging in a proper full final hearing. It is not in TJ's interests, in my view, to delay finalising matters any further, particularly bearing in mind the weight of the evidence that is before the Court and the opportunity that the parents have had to participate."

On that basis, the judge went on short terms in the course of one paragraph each to make the final care order and placement order, recording that she was dispensing with the consent of the parents to adoption.

7. It is that process which causes all of the parties to accept was one which was one which was too robust, and went outside that which is permitted in the rules, and indeed the case law. Reference is made by counsel to a decision of this court as long ago as 1993, Re B (Minors: Contact) [1994] 2 FLR 1, in which Butler-Sloss LJ, as she then was, states the following:

"There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence."

8. In addition to that order, which in my view remains a good and helpful description of the approach, in modern times the court has the benefit of the public law outline on the approach to managing care proceedings, and that is set out now in Practice Direction 12A to the Family Procedure Rules. Insofar as a issue resolution hearing is concerned, paragraph 16(4) and 16(5) provide as followed:

"16.4 For the avoidance of doubt the purpose of an Issues Resolution Hearing is to –

(1) identify key issues which are not agreed;

(2) examine if those key issues can be agreed; and

(3) where those issues cannot be agreed, examine the most proportionate method of resolving those issues.

16.5 The expectation is that the method of resolving the key issues which cannot be agreed will be at a hearing (ordinarily the Final hearing) where there is an opportunity for the relevant oral evidence to be heard and challenged."




9. In addition to accepting that the judge was in error, I consider that counsel on behalf of the child has put forward a list of sensible options that a court might have considered in this case. Those are set out at paragraph 28 of her skeleton argument:

"28. The court had a number of options available to it:

(i) adjourn the IRH for 7 days to allow the parents a last opportunity to comply with the direction as to the filling and serving of final evidence

(ii) make it clear on the face of that order that failure to comply may well result in final orders being made.

alternatively

(iii) hear representations as to the outstanding issues and consider whether those issues could/should be further refined that day.

alternatively

(iv) if the parents, in the course of being pressed to identify issues for final hearing, indicated a purposeful intention to cross-examine a witness who was not present on 15^th June or if there was insufficient court time to hear oral evidence on 15^th to go on to fix a date for a final hearing / an abbreviated final hearing and affording an extension of time for the parents to file and serve their final evidence.

alternatively

(v) At the very least, invite the parties to make oral representations as to why the court might / might not make final orders without the benefit of either oral evidence / affording the parents an opportunity to challenge the LA case."

10. Drawing matters together, in my view it is clearly possible in an appropriate case for a Family Court to make final orders at an issues resolution hearing. The description in the Practice Direction of an issues resolution hearing plainly contemplates that course. Equally, as the words of Butler-Sloss LJ make plain, there is a spectrum of procedure in these cases, and in my view where on the spectrum a particular case sits on a particular day, and what is permissible or impermissible in terms of a court's approach will vary from case to case, and must be proportionate to the issues. In this case, the court was considering making orders at the most draconian end of the spectrum of orders open to a family court, the permanent removal by adoption of a child from not only the care of his parents, but also legally from their family.
11. The overriding objective in the Family Procedure Rules is to discharge the determination of these cases justly and fairly; that is the requirement also borne in by Article 6. There is a line beyond which it is impermissible for the court to go; that line will vary from case to case, and dependent on the facts of the case, and the proportionate approach to procedure. All the parties are agreed that the approach taken by HHJ Marshall on 15 June was plainly on the wrong side of the line, and was impermissible. I agree; it is not necessary or helpful for me in the course of this short judgment to go further than that. I have set out the parameters provided by the rules, the options that were identified now by counsel for the child, which I regard as sensible options that would have been open to the court, and I have drawn attention to Re B, which I consider to be good authority.
12. On that basis, I consider that this appeal must be allowed. I would set aside the substantive orders made by the judge, the care order and the placement for adoption order, and I direct that this matter be relisted before Baker J for a fresh issues resolution hearing.

Lady Justice Hallett:

13. I agree.

Order: Appeal allowed.