England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
HIS HONOUR JUDGE SEROTA QC
WD12C01021

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/04/2014

Lady Justice Macur DBE

1. Hertfordshire County Council ("the local authority") and MW ("the father") appeal against the order of HHJ Serota QC made on 6 January 2013 whereby A and V, now aged nearly 10 and just 7 respectively were placed in the care of their maternal uncle and aunt, Mr and Mrs J subject to a special guardianship order . The grounds of appeal are identical in substance and amount to the same criticisms of the judgment below. The children's guardian supported the appeal, albeit that she did not ally herself to all of the grounds drafted. The local authority and father's appeals were heard together. Mr and Mrs J were represented by counsel and opposed the appeal.
2. Mr and Mrs J are Polish nationals and residents. MW, A and V are Polish nationals, as was the children's mother now deceased. The children were raised bilingually. The mother, father and children had resided together in the United Kingdom since 2007/2008. Latterly, the father was estranged from the mother. He has subsequently been convicted of her murder and was sentenced to life imprisonment with a minimum term of 17 years on 24 April, 2013. The effect of HHJ Serota's order implicitly envisages the children's return to and future residence in Poland.
3. The father seeks to maintain a relationship with his children and has expressed a desire to have direct contact with them. This is not realistically or reasonably achievable in the short term, if at all, but obviously will be rendered extremely unlikely in the event of the children's removal from the jurisdiction.
4. The local authority seeks to maintain the children with their present long term foster carers who have recently and tentatively indicated a wish to be considered as their special guardians. The children's guardian agrees with the local authority's care plan. The local authority do not support the children having direct contact with the father at this time, neither does the children's guardian.
5. Mr Elliott, counsel for the father in the court below, and draftsman of the grounds of appeal on his behalf, was unable to represent him at appeal due to unfortunate personal difficulties. Ms Ahmed, who appeared at late notice as substitute made application for an adjournment. It was refused with reasons to follow as now appear.
6. The children's mother was murdered in her home on 28 May, 2012. The children were present in the house. It is not known whether they witnessed the event itself but, clearly from what they have subsequently revealed, they had observed their mother's fatal injuries. It is entirely probable that they would have heard the voices and noises associated with the fatal assault. In the circumstances as can be deduced post event, it is unlikely that incidents of domestic violence were alien to them. V, both before and after the event has, over periods of time, been electively mute.
7. They were placed with their present foster parents on 28 May 2012 and have remained in placement throughout. Interim care orders remained in force from the outset. They have received exceptionally good care and have flourished. They have formed a close relationship with their entire foster family.
8. Upon notification of the mother's death the maternal family immediately indicated a wish to care for the girls. Initially they were considered favourably by the local authority and were encouraged in their aims. Mr and Mrs J visited the girls in England. Weekly Skype contact was arranged between the children, Mr and Mrs J and the maternal grandmother. A special guardianship assessment report filed in February 2013 recommended that a special guardianship order be made in favour of Mr and Mrs J. At this time the children were indicating a wish to be with their maternal family in Poland.
9. The position changed, at first subtly at a "professional's meeting" in March 2013 and then unmistakably by August 2013 when final care plans were drawn. A new social worker, allocated after the completion of the special guardianship assessment report, visited Mr and Mrs J in July 2013 to clarify "grey areas" identified in the report. She reported adversely as to their ability to support the children consistently and emotionally in their bereavement, their motivation to care for them and the impact upon their own family life. She questioned the stability of their relationship and posited the risk of disruption to the children's placement in the event of marital breakdown.
10. The case came on for a "welfare" hearing before HHJ Serota QC on 14 November 2013. By then the children were reported to have expressed the clear wish to remain living with their foster parents in the United Kingdom. Evidence took three days. The proceedings were interpreted. Mr and Mrs J were not legally represented. The decision was announced on the 20 November and written reasons given on 5 December 2013. The proceedings were adjourned until 6 January 2014 in order for the Local Authority to file a detailed special guardianship support plan.
11. The appeal was listed on 11 March 2014 with a one day time estimate. If stood out it could not be re-listed until at least May 2014.
12. The father was not produced from custody for the appeal. Whilst the father's grounds of appeal mirror those of the local authority, he too was granted permission to appeal and, Ms Ahmed argues on his behalf, has the right to have the appeal argued by his own counsel of long standing. Mr and Mrs J travelled to England to attend the appeal hearing with counsel, Mr Samuel, having taken leave from their employment to do so. They are of limited means and instruct him on a privately funded basis. For these reasons and the fact of delay they oppose the application. Ms Budden and Ms Markham on behalf of the local authority and children's guardian respectively oppose the application on the grounds of delay.
13. It follows from the matters referred to in paragraphs 6 to 10 inclusive above that there has been an inordinate delay for these children. Their vulnerability is the greater because of the traumatic death of their primary care giver, their consequent upheaval – physical and emotional and the uncertainty of outcome. Their welfare demands an early resolution of their future care arrangements and trumps the father's notional right of representation by counsel of his choice as it would the maternal uncle and aunt's personal inconvenience if they were to seek to rely upon it. The father's application for an adjournment was refused.
14. Ms Ahmed was given time. On behalf of the father, she has adopted the arguments of the local authority and children's guardian as appropriate and made additional submissions. I think it unlikely that anything more could have been said in support of the father's appeal which she advanced with all due care and skill. Her written submissions on transitional arrangements have been especially helpful.
15. There is nothing else of the factual circumstances that led these children to be placed in the interim care of the local authority that needs to be recorded here. The devastating consequences for the children of the murder of their mother by their father hardly required a professional opinion to iterate the need for stability, emotional succour in their grief and compassionate physical care. That this had been achieved in the crucial period immediately following their mother's death was explicitly endorsed by the judge who rightly, in my view, commended and paid tribute to the foster carers. It is hardly surprising in the circumstances that the children articulate a wish to remain living with them.
16. The assessments conducted by the local authority of the girls' wider maternal and paternal family are irrelevant for the purpose of the appeal. The reality of the situation at the time of the hearing before HHJ Serota QC in November 2013 was that the only viable family placement was with Mr and Mrs J. Other relatives, maternal and paternal, had been dismissed from consideration at an earlier stage. Mr and Mrs J were nevertheless supported in their quest to care for the girls by those other relatives. The stark difference in stance of the local authority in the interim period is related above. Miss Markham acknowledges that the children's guardian's expressed views and opinion were dependent upon "the integrity" of the social worker, Ms P.
17. The hearing before HHJ Serota QC was complicated, not least by the absence of legal representation on behalf of Mr and Mrs J, non English speaking intervenors – albeit not actually afforded party status. There was an extant application for a care order with a view to long term fostering in England outside the family and remote geographically from their biological family with no party to the proceedings opposing the same. Mr and Mrs J were deemed to have made an application for a special guardianship order given their earlier treatment by the local authority. The concept of "special guardianship may not be readily appreciated abroad. It had the potential to, and did give rise to complex legal and factual arguments. Mr and Mrs J stood alone without support for their case from any other party, all represented by legally qualified advocates experienced in the field. The judge's understandable exasperation is vented in paragraphs 70 to 76 of the judgment.
18. The judge's role in such a case is precarious, he must remain the adjudicator of fact and law and avoid descending into the arena but nevertheless ensure that all reasonable assistance is afforded to the non represented 'party' in putting their case. It is unrealistic to require advocates representing other parties who oppose the non represented litigant's application to assist in promoting it, whether by positive action in the framing of questions to be asked of other parties or a reticence to challenge the contrary evidence. In any event, quite apart from possible sub conscious taint of process, the inevitable perception of unfairness that an ultimately unsuccessful litigant in person would hold needs no amplification.
19. An advocate's professional code will require that they do not seek to gain unfair advantage on behalf of their clients by virtue of the unrepresented status of another. In this respect a judge is entitled to rely upon a professional advocate to draw to the court's attention any mistake in law or fact articulated, regardless that it would otherwise favour their client. The advocate's duty to his client is second only to his duty to the court, which is paramount.
20. The court will no doubt rejoice in any case where a non represented party or interested person may garner support from the case and arguments advocated by other parties with a similar cause who are professionally represented. However, in this respect it is pertinent to consider the role of the children's guardian and, if applicable, their legal representative in the light of patent misunderstandings as to their standing and status within the proceedings as revealed in various and several written and oral submissions made in this appeal.
21. The children's guardian is not a "neutral" party or participant. When appointed under the Family Procedure Rules ("FPR") 16.3, as here, the children's guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child. Practice Direction ("PD") 16A 6.2 requires the children's guardian to appoint a solicitor and instruct the solicitor on "all matters relevant to the interests of the child arising in the course of the proceedings" unless the child, being of sufficient understanding instructs a solicitor on their own behalf. FPR 16.29 specifically provides that a solicitor appointed by the children's guardian must act in accordance with their instructions unless in conflict with the child's instructions, if that child has sufficient understanding to give instructions on their own behalf, or in the absence of either in furtherance of the best interests of the child. Whilst FPR16.20 (2) requires the children's guardian "must also provide the court with such other assistance as it may require", quite clearly a court should never request assistance which renders the children's guardian or their legal representative effectively engaging in advocacy on behalf of a party or witness whose position creates an actual or perceived conflict of interest with that of the child.
22. This court has been invited by Mr Samuel to issue guidance in the light of increasing numbers of litigants in person in family cases refused access to public funding. I would decline to do so beyond repeating the caution urged in paragraph 18 above, reminding advocates of their duties of fair play and squashing any lingering notion that the children's guardian's exercise of duties in the advice tendered to the court, service of documentation and inspection of records in accordance with PD 16A, 6.5 to 6.10 establishes them as an advocate to the court.
23. The written advocacy of all counsel, bar Mr Samuel, contends that it was the judge's sympathy for Mr and Mrs J, as non English speaking litigants in person, which clouded his professional judgment and led him into error – procedurally and, according to Ms Budden and Mr Elliott, legally. This gives rise to the sixteen cumulative grounds of appeal in total. However, there is a considerable degree of overlap, not only as between the local authority and the father, but also within the individual notices of appeal. I consider they may be appropriately distilled as follows: (1 ) the judge failed to have sufficient regard to the evidence and opinion of the social worker or her team manager and preferred the evidence of Mr and Mrs J and failed to articulate his reasons for doing so; (2) the judge failed to give reasons for departing from the view of the children's guardian; (3) the judge failed to accord appropriate weight to individual components of the so called 'welfare check list' provided by section 1(3) of the Children's Act 1989 in the light of the circumstances of the case; (4) the judge incorrectly transmuted the principles of law to be derived from Re B [2013] UKSC 33 and Re BS (Children) [2013] EWCA Civ 1148 and others which were only applicable to the adoption of children absent parental consent.
24. The factual evidence of Ms P, the social worker, concerning Mr and Mrs J was limited. She had met them in July 2013 on one occasion in Poland for two or three hours. On the basis of what she observed she echoed the prospective concerns raised in the special guardianship assessment report of February 2013 relating to Mr and Mrs J's short term relationship after previous marriages, reputed character flaws of Mr J as alleged by his ex wives, his own childhood experiences of domestic violence and the capacity of both Mr and Mrs J to afford appropriate emotional care to the two girls in the context of their own bereavement and family commitments. Additionally, she questioned the motivation of Mr and Mrs J to care for V and A. What she did not address in her written or oral evidence were matters included in a special guardianship assessment addendum report prepared by her team manager, Miss L, said to have been derived from Ms P's visit to Poland and which had not been included in a witness statement prepared after her visit. The Judge could see "absolutely no reason at all" why it had not been referred to by Ms P in her final statement and refused "to place any weight on this evidence".
25. Understandably, Mr and Mrs J's cross examination technique lacked finesse. Some challenge to the social worker's evidence was obviously made and found target, however it is clear that during Mr and Mrs J's own evidence counsel for the father complained that other matters should have been put to Ms P and that she should be recalled. The judge attempted, but was unable, to accommodate this development by listing the case "part heard" in place of another. His efforts were thwarted by lack of translated documents as indicated in his judgment at paragraph 76. In the light of this the judge indicated that he had "borne in mind when considering the evidence of Ms P that a number of matters were raised with which she had not had the opportunity to deal with."
26. Quite simply, this case was listed with too short a time estimate to accommodate the participation of Mr and Mrs J and the judge had to conduct the hearing in the context of quite interminable delay which was disastrous for the children. This court must readily acknowledge the necessity for robust case management prior to and throughout any hearing which reflects the limitations of judicial estate, personnel and sitting days to cope with a burgeoning and relentless workload in family law. Necessarily decisions must be made to ensure proportionate allocation of resources to each case. However, that is not to say that a judge may undermine due process and exclude relevant evidence.
27. My reading of the transcripts of evidence and judgment in this case do not support such a contention and in fact lead me to conclude that it was unnecessary to recall Ms P in the circumstances and that the evidence of Ms L was rightly excluded albeit for the wrong reasons. Examination of the transcripts of Mr and Mrs J's evidence within the bundle reveal the quite limited area of factual challenge made to the written evidence of Ms P. That they challenged her opinions was obvious in the pursuit of their case. Ms P's evidence, of both fact and opinion, was before the court and was capable of assessment. It is difficult to envisage what more Ms P would have added by a re-iteration of the same.
28. Part of the adjudicative exercise depended upon the judge's assessment of the credibility and accuracy of Ms P, Mr and Mrs J. He had seen them all give evidence. He expressly determined Mr and Mrs J to be "impressive and patently honest witnesses and [had] no hesitation in accepting their evidence….[t]he longer they were cross examined the more impressed I was. It was impossible not to be impressed by their obvious commitment and sincerity. " He thereby implicitly rejected the disputed factual evidence of Ms P. In that he found that the local authority had essentially written off Mr and Mrs J on erroneous factual grounds he was entitled to question and reject the opinion expressed by Ms P. The judgment read as a whole makes clear his reasoning. His inaccurate attribution of evidence given in relation to the foster mother as describing Mrs J as sensitive is irrelevant in the context of his own finding that she was able to be so described. There was an impoverished evidential basis for some of the concerns relating to the father. He had had the same opportunity to observe the relationship of Mr and Mrs J as had Ms P. He declined to elevate possible concerns for the future into probable events. He was entitled to take this course on his evaluation of all the available and admissible evidence before him.
29. The hearsay evidence of Ms L provided 'new' additional information regarding "availability of Children's Services in Poland…and the cultural differences that A and V would experience". In short, the information to support either investigation was sparse and adverse and negative comments were made about both. As it has transpired with the production of the special guardian support plan ordered by the judge to be filed prior to making the order on 6 January, 2014, the evidence of the availability of children's services in Poland as described in the addendum report was understated, if not completely inaccurate, and reference to facts said to demonstrate "social deprivation" and lack of "social mobility" were almost risible. It was wrong for the judge to disregard the evidence for its failure to appear in the statement of Ms P – albeit its absence called for explanation – but the judge was perfectly entitled to reject the same as so scantily expressed and reasoned to be worthless in the overall balance he had to strike.
30. To suggest , as Mr Elliott does in his skeleton argument, that if the judge rejected the evidence of the local authority he was obliged to remedy or further investigate the defective evidence by calling for a further assessment is entirely ill founded. It flies in the face of the burden of proof placed on the local authority to make good its case if it can.
31. Ms Markham, who did not appear below, concedes that the children's guardian opinion as to outcome was reliant upon the "integrity" of the social work assessment. She was precluded from making her own assessment of Mr and Mrs J by her inability to secure funding to travel to Poland and had made no independent inquiries concerning the provision of children's services in Poland. Her only independent role appears to have been in exploring and reporting the children's wishes and feelings and to comment critically upon widespread local authority delay. Therefore, in that the judge's rejected the local authority's case he must necessarily reject the opinion of the children's guardian's in that it depended on the same. His failure to express his reason for doing so in this case cannot support the argument that he had failed to give due weight to her views. It certainly is not fatal to his decision. Notably, no counsel drew his attention to the omission at the time he delivered his judgment or subsequently in accordance with good practice as described in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881.
32. Again, arguments advanced in this appeal have revealed the continuing misconception that the evidence and opinion of a children's guardian, however demonstrably poorly rooted or reasoned, carries additional weight by virtue of their "special" status. It must be firmly squashed. The children's guardian is required to proffer advice to the court but in doing so becomes a witness subject to the same judicial scrutiny as any other. A children's guardian starts with no special advantage.
33. V and A's childhood will be forever marred by the fact that their father murdered their mother whilst they were present in the former family home. Their situation is not unique but, fortunately, still relatively uncommon. Obviously the trigger event will provide the context for the balancing exercise to be conducted in the light of direction that the "court shall have regard in particular to" the 'welfare checklist' (Children's Act 1989 section 1 (3)) and is specifically catered for by subsection (e). It would rightly attract great weight in a case such as this but does not acquit a judge from the necessity to have regard to all other factors or obviate the exercise of his discretion in attributing the appropriate weight to all of them on a fact specific basis.
34. The perfected judgment of HHJ Serota QC has been revised since delivery to include specific reference to his consideration of the "welfare check list" and, in particular, with reference to the "girl's wishes and feelings". He records "[n]o advocate has asked me to deal with these matters but I consider I should do so now". Ms Budden specifically concedes that "[i]t is not the [local authority's] case that the judge gave consideration to the welfare checklist for the first time when carrying out …corrections to the judgment…[rather]…his misreading of the previous case law and understanding of the approach it required him to take must have compromised his ability to make a correct decision and give the welfare checklist factors the appropriate degree of emphasis and weight".
35. The "previous case law" to which she refers is Re B [2013] UKSC 33, Re B-S (Children) [2013] EWCA Civ 1148 and Re G (A child) [2013] EWCA Civ 965. She argues that "[t]he judge's focus on cases where the court was being asked to remove children from their parents and place them for adoption led the judge into error in this case where the facts were very different". In so doing she takes an over simplistic stance. There are clear principles to be drawn concerning the necessity to police the proportionate response of intended involuntary state intervention into family life by rigorous judicial scrutiny. The masked argument is whether the judge wrongly elevated the principle of biological family life as a paramount consideration above every other factor in this case.
36. The argument appears to gain a foothold in reading the judgment at paragraph 68 and 77 to the effect that :

"the core question is not whether the J's or the [foster carers] can provide better care but whether the J's can provide good enough care. It is only if they cannot provide care of at least that standard that the removal of the girls from their family can be justified";

and,

"The starting point must be that the children are best placed with close family members than strangers and should be placed with close family members unless the family is proved to be unfit, …severance from the family should only take place in very exceptional circumstances. Everything must be done to preserve families. Even if the girls might be placed in a more beneficial environment with [the foster carers] – which incidentally I do not accept – if the J's can offer good enough care the children should be placed with them".

However, it can only be maintained by reading these extracts out of the context of the whole judgment.

37. The 84 paragraph judgment is detailed in analysis of the evidence and expresses clear findings of fact which were derived from the evidence before the court. That part of the judgment which is devoted to the applicable law may on, a critical overview, be regarded as discursive in the context of the particular case but is not erroneous in its constituent parts. The judge's consideration of the 'welfare checklist' factors are present but dispersed throughout the judgment. The exercise of judicial discretion in assessing the relevant weighting of the individual factors cannot be impugned merely by reason that the judge disagrees with the views of the local authority or children's guardian.
38. Case law does not create a rule that "family trumps all" but family ties must be considered as part of the child's "background and.. characteristics" (see Children's Act 1989 section 1(3) (d)). In this case the judge considered them to have particular resonance and particularly so in the light of his entirely favourable impression of Mr and Mrs J. The judgment read as a whole illustrates that he has balanced biological family life against other considerations of the children's ascertainable wishes, the disruption of what had become an entirely successful long term placement, education and social life, their bereavement and consequent physical, emotional and educational needs. He decided that the balance came down in favour of long term benefits of a family placement.
39. The appellants are unable to satisfy me that the judge was wrong in his conclusions as to outcome. There is no merit in any one of the grounds of appeal as drafted and I would have little hesitation in dismissing this appeal in it's entirety but for the lacuna created, not only by the interregnum between judgment and outcome of this appeal, but lack of process to ensure legal recognition of the court's intent to vest Mr and Mrs J with parental responsibility in Poland. Although not argued before this court, until specifically invited to do so, it is clear that there now needs to be focused, considered and swift preparatory work to give effect to the judgment of the lower court and to ensure the welfare of the children in the process.
40. The local authority have a continuing responsibility to these girls and to Mr and Mrs J to effect smooth and secure transfer of care with all appropriate financial assistance. Ms Budden assured the court that all due co-operation would be provided to give effect to the judge's decision and it should be recorded that the parties have to all extents and purpose now agreed the steps to be taken and filed position statements as directed by this court. However, I regret to say that the dilatory execution of the local authority's role in proceedings and welfare decisions to date and the immediate negative response to Mr and Mrs J's application for costs gives me no confidence in that prospect being sufficiently and speedily maintained.
41. I would therefore affirm the judgment of the lower court but vary the order so as to make the children subject to interim care orders, the case to be listed urgently before HHJ Serota QC, and in any event prior to 8 April, 2014 to oversee transfer of physical care of the children, grant permission to Mr and Mrs J to remove them from the jurisdiction whether pursuant to Children's Act 1989 section 33 (7) pending the making of, or subsequent, special guardianship order, and to order that an equivalent order be obtained in Poland.
42. Mr and Mrs J make application for their costs of and incidental to the appeal. A schedule of costs has been filed. The Local Authority opposes the award of costs in principle and sum.
43. Ms Budden argues that the principle to be derived from the judgment of Baroness Hale in Re T Children [2012] UKSC 36 in relation to the costs of interveners at first instance are as applicable in the present circumstances on appeal. That is, she argues absent reprehensible behaviour or unreasonable stance that the Local Authority should not be ordered to pay the costs of the appeal. She relies on the fact that the Local Authority pursued its appeal, as did the father his, supported by the Children's Guardian with permission of the single Judge and were bona fide in pursuing a course which they believed was in the best interests of the children to negate any such criticism.
44. As made clear in Re T (above) at paragraph "The Children Act 1989 imposes duties on the local authority in respect of the care of children…a duty to investigate…[where applicable] to institute care proceedings…..It is for the court and not the local authority to decide whether the allegations are well founded."

Therefore, that a local authority's liability for costs at first instance should be protected subject only to a finding of discreditable behaviour or unreasonableness is entirely justified, acknowledging the demands upon its limited resources.

45. The situation is quite different on appeal for the reasons given by Wall LJ in Re M (A Child) [2009] EWCA Civ 311 at paragraphs 23 and 24:
46. "..At first instance, nobody knows what the judge is going to find …
47. …A party to a hearing at first instance who then faces an appeal has the opportunity to take stock, and [if necessary] to. …compromise it…"
48. In this case HHJ Serota QC unequivocally disagreed with the views of the local authority, father and Children's Guardian as to the best outcome for the children looking beyond the short term. As indicated in the body of this judgment, the judgment at first instance is plausibly reasoned and, read as a whole, withstands all criticism. The fact of its later amplification is irrelevant. This took place well before appeal. The local authority and any other appellant has a responsibility to evaluate the merits of the appeal objectively, not merely at the times of drafting grounds when disappointment is rife, but subsequently and up to the date of hearing applying a critical analysis in the cold light of day. The grant of permission does not obviate that responsibility or otherwise necessarily provide a shield against an application for costs against a victorious respondent or appellant.
49. That is not to suggest that costs will follow the event. This court must obviously consider the circumstances of and arguments deployed in an appeal quite apart from the matters set out in the CPR 44.4.
50. Having done so I am satisfied that it is just to make an order for costs against the local authority, the lead appellant in this case. For the reasons given above the appeal is without merit. A dispassionate appraisal of the first instance judgment in this case in the light of the explicit re-statement of the inherent difficulty of mounting a successful appeal against findings of fact, their evaluation or the subsequent exercise of discretion in the judgments in Re B (above), should have lead to this conclusion. However, the local authority pursued this appeal – I consider unreasonably- and Mr and Mrs J were forced to respond, and at their own cost.
51. However, I do accept Ms Budden's argument that it was unnecessary for Mr and Mrs J to attend at this court with counsel, solicitor and paralegal. The element of costs relating to the paralegal should be disallowed, but I would otherwise order costs in accordance with the schedule as filed.

Lord Justice Kitchin:

52. I agree.

The Chancellor:

53. I agree.