England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
Mr Recorder Rees
FN12C00184

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2014

Lord Justice Ryder:

Background:

1. On 18 October 2013 Mr Recorder Rees concluded a five day hearing of concurrent care and placement order applications in the Swansea County Court sitting in Cardiff relating to a child who was then aged nearly 2 ½ years. He made the orders sought on the application of the local authority, Neath & Port Talbot County Borough Council. The hearing began on 14 October 2013. Some five days before, on 9 October 2013, the child's paternal grandmother had made a formal application to be made a party to the proceedings and for an expert assessment concerning her capability to care for the child. The application was adjourned at the beginning of the hearing and refused at the end. The effect of the adjournment was, however, to refuse the grandmother party status for the hearing that was taking place. Despite this, the judge permitted the grandmother to remain in court during the hearing and to give oral evidence. He records in his judgment that the grandmother:

"… opposes the applications and has played a part in these proceedings in as much as she has given evidence and has put herself forward as a potential carer for her grandchild"

2. There was a real issue before this court about what the judge intended to decide by his case management ruling. Although it is clear from the words he used that he adjourned the grandmother's application until the end of the hearing on the merits, when he refused it, he later recollected (erroneously) that he had refused her application at the beginning of the hearing. Furthermore, although he failed to grant to the grandmother some important due process protections that a party would have, in particular notice of the issues in the case and knowledge of the evidence filed relating to those issues, he afforded the grandmother a partial opportunity to participate in a hearing which decided those issues.
3. Two applications were made to this court for permission to appeal the orders made by the judge. The lead application was that of the paternal grandmother. The child's mother also applied for permission. The applications and the appeals were opposed by the local authority and the children's guardian. At the end of the hearing the court granted the application for permission to appeal made by the paternal grandmother and allowed her appeal, setting aside the care and placement orders made in respect of the child and making case management orders for further assessment and analysis leading to a re-hearing before the Family Court in Swansea. No order was made on the mother's application for permission to appeal. Given that the applications are to be re-heard, I shall confine the description of the key issues in the case to a necessary minimum.
4. The mother of the child concerned was 18 when the child was born. She had a relationship with the child's father that began when she was 15 and he was 19. Children's services first became involved in March 2012. That involvement was as a consequence of bruising to the child's head that it is now conceded occurred because of a lack of supervision about which it is said the parents were not at the time open and honest. There was domestic abuse between the parents in front of the child (domestic violence was denied) and they had a peripatetic lifestyle involving nine changes of address in the first eleven months of the child's life. On two occasions the child's father had removed the child from her mother during the course of arguments. The child was placed with the paternal great grandparents by agreement in April 2012.
5. Although the proceedings began in October 2012, the local authority's plan for the child changed in August 2013. From 20 April 2012 until the end of August 2013 the child had lived with the paternal great grandparents. They, and in particular the child's great grandfather, became unable to offer a permanent home to the child because of ill health. One of the proposals that was considered during that placement was whether the child might live with her mother with the benefit of a supervision order at the end of the proceedings. The paternal grandmother had also been assessed by the local authority in July 2012 before the proceedings began but that assessment was equivocal. Although it expressed a conclusion that was negative, its content included some significant positives. Given that the local authority were seriously considering other members of the family including the child's mother, the paternal grandmother apparently chose not to challenge her own assessment until it became clear that the local authority had had a change of heart. There is an issue about whether she knew that she could challenge the assessment, whether anyone kept her informed about what was happening in the proceedings or took the trouble to ascertain her views and/or whether she simply waited too long before seeking to care for the child. The care plan changed to a proposal for an adoptive placement on 22 August 2013.
6. The terms in which the judge dealt with the grandmother's application at the beginning of the hearing are as follows:

"This is an application for leave to make an application under section 8 of the Children Act. I bear in mind that this is a very late application and I bear in mind the Family Proceedings (sic) Rules and the overriding principle that I have just referred to. Although this is a late application, it has the potential for disruption not only of these proceedings but the interests of this child.

I am not going to shut the grandmother out of these proceedings at this stage. She can stay and hear the evidence, she can stay during all the proceedings, she can find her seat comfortably with other parties and she will be able to give evidence and through the solicitor for the father she can cross examine the author of the assessment that was made of her which was negative. I, therefore, adjourn her application to a stage in the proceedings after all the evidence has been completed. I do so in balancing the fairness to all the parties here and to the child.

There will be no ostensible delay of these proceedings by doing this, I allow her interests at least to be considered and for her to hear all the evidence as it potentially may interest the third party."

7. At the end of the hearing the judge refused the application for five reasons that involved no analysis of the evidence, no analysis of the content of the assessment of the grandmother or the potential merits of her case, as follows:

i) the late nature of the application and the delay that an additional expert would occasion;

ii) the nature of the grandmother's proposed application, namely for a residence order which the judge described as lacking in detail;

iii) the limited connection with the child: the judge accepted that there was an emotional attachment but erroneously described the continuous and significant contact arrangements as being "some ad hoc inter-familial arrangement for contact";

iv) the real disruption that the application would cause to decision making about the child's immediate future; and

v) the fact that the grandmother did "not fall within the remit of the local authority's plans".

8. As to the merits of the grandmother's case, the judge was brief. The analysis in his full judgment was limited to the following words:

"The original assessment of the grandmother on 12th July of 2012 was negative. There is scope to believe that things have not so fundamentally changed that that report should stand to be considered as being valid. Any contribution as sought by the grandmother would require considerable analysis of the family dynamics, including of course an exploration of the father's upbringing which itself has been the subject of various explanations, and also the management of contact. That was the view of the Guardian and I accept it. There is no merit in the application for the grandmother to care for the child. I appreciate that she may well have a kind heart and show commendable maturity as a grandparent herself in conceding that the time is now right for a decision to be made in respect of [the child]."

9. The grandmother's case was that she has a meaningful connection with the child who had regular contact including staying contact with her. That contact had existed before the child's placement with the great grandparents, had continued after that placement had ended and was still taking place during the proceedings on a twice weekly basis. In addition, the July 2012 assessment acknowledged that the paternal grandmother and her husband displayed genuine emotion for and were clearly concerned about the child's future. They were assessed as being fully aware of the local authority's concerns about the parents and the child's care needs. There was a significant attachment between the child and her grandparents that would be severed by the adoptive plan. By the time of the final hearing, the child's parents supported the grandmother's application.
10. The assessment also described the manifestly good care that was provided by the grandparents for a 14 year old boy and a 12 year old girl within what was evidently a long term stable relationship. There were no concerns about their parenting abilities in respect of these children and there had been no involvement of children's services.
11. The local authority response to this court about the merits of the grandmother's case was that the positives in the assessment were outweighed by the negatives which included the paternal grandmother's partner having significant mobility problems such that he might not be able to assist with his granddaughter's care. There were also fears about the impact the parents might have in undermining a placement with the grandparents, the appropriateness of the grandparents' accommodation and the grandparents' commitment to the children already cared for by them and whether that would be compromised by another child in the household.
12. In my judgment, the analysis of the negatives in the local authority's evidence and by the guardian did not exclude the grandparents as a realistic option. To put it another way, the grandparents' prima facie case on paper was stronger than that of the local authority relating to them. It is difficult to conclude other than that the grandparents' case was arguable on any basis. It went to the critical proportionality evaluation of whether 'nothing else would do' than adoption. The grandmother's application accordingly demanded rigorous scrutiny of the factors set out in section 10(9) of the Children Act 1989 in the context of the reasons for the late application.
13. The context within which these issues needed to be considered was that the mother's case in the county court was supported by an independent social worker who had advised that the mother would have the ability to look after her child if she could demonstrate that she was willing to work openly and honestly with professionals and remain separated from the father. The final hearing had been adjourned from April to October 2013 for that purpose and a subsequent report in July 2013 concluded that the mother had indeed been successful. Shortly after that report, however, and on 20 July 2013 as a consequence of an incident to which the police were called, the mother's openness and honesty were again called into question as was her ability to prioritise the needs of her child.
14. The local authority concluded that although it was right to have given mother the time limited opportunity to demonstrate her commitment to the child, there was no further support that the local authority could offer to bring about the change needed. The agency decision maker concluded that adoption was necessary but there was no consideration in the permanence report (known in Wales as the Assessment Report for Adoption) or in the agency decision maker's decision, of the benefits and detriments of the paternal grandparents' case in the context of the relevant statutory and regulatory framework. There was, for example, no analysis of the continuing significant relationship that the grandparents had or the effect on the child of breaking that relationship.
15. This court has not had the opportunity to scrutinise the case management decisions that were made in the proceedings that relate to the mother or the merits of her case. It is said, for example, that the independent social worker's assessment was itself made necessary because a parenting assessment of her by the local authority was "unfair". I make no comment about the merit of mother's case at this stage. Furthermore, this court does not purport to decide the questions that needed to be decided relating to the involvement of the local authority with the grandmother. Those are issues that will be at large in the re-hearing that this court has provided for. Given that it was decided that there needed to be a re-hearing to consider the grandparents' case, the material relating to the parents can properly be considered at the same time.

The grandmother's application for permission to appeal:

16. The principles to be applied to an application such as that brought by the grandmother are well known and can be summarised quite quickly. The judge had to apply section 10(9) of the Children Act 1989 and additionally should have considered whether the grandmother had an arguable case (see, for example, Re B (A Child) [2012] EWCA Civ 737 per Black LJ at [37] and Re J (Leave to issue an application for a residence order) [2002] EWCA Civ 1364 at [17] and [18]. The overriding objective in rule 1 of the Family Procedure Rules 2010 [FPR 2010] applied which engaged the active case management principles to be found in r 1.2 FPR 2010. That part of the application that related to the need for expert evidence was additionally governed by part 25 FPR 2010 and in particular the test of necessity to be found in r 25.1 (as to which see, for example, Re H-L (A Child) [2013] EWCA Civ 655).
17. So far as the judge's substantive decision making is concerned, the threshold in section 31 of the 1989 Act was agreed by the parents and in the context of those facts and such other facts and value judgments that he made at the hearing, he was required to analyse the factors set out in the welfare checklist in section 1(3) of the 1989 Act and section 1(4) of the Children and Adoption Act 2002. Having conducted a welfare analysis of all of the options open to the court and come to a value judgment about what was in the best interests of the child he was required to conduct a proportionality evaluation of his decision making. He was also required to consider contact and to make a decision about whether to dispense with the parents' consent to adoption.
18. The paternal grandmother submits and I agree that the case management decision that the judge made was plainly wrong because it was procedurally unfair. If, by his case management decision, it was the judge's intention to exclude the grandparents from the care of the child, then he did not have regard to evidence relating to the section 10(9) factors or to the potential merits of her case which he would have found in the content of the assessment to which I have referred. His reasons lacked sufficient or any analysis. Case management decisions that have the character of deciding a substantive issue must be treated with particular care: hence the nature and extent of the enquiry that is made necessary by section 10(9) of the Act and its associated case law.
19. The purpose of section 10(9) of the 1989 Act and the case law that supports it is defeated if there is no analysis of the benefits and detriments inherent in the application and the arguability of the case. The section provides a framework for decisions of this kind to be made so that there is an appropriate balance between case management principles and the substantive issues in the proceedings. Furthermore, the lack of attention to detail and in particular the lack of analysis of what had been happening during the proceedings in particular as between the local authority and the grandmother and the child, including the timetable for the child and for the proceedings, deprived the decision of the character of individual and collective proportionality that application of the overriding objective would have provided. In simple terms, the decision was too superficial and un-reasoned to stand scrutiny.
20. If it was the judge's intention to consider or re-consider the grandmother's case at the end of the evidence, in what would then have been an holistic overview of the options to which a welfare analysis and proportionality evaluation were applied, then he failed to put in place any procedural protections for a person whose case was distinct from the other parties. In particular, his decision at the beginning of the hearing had the effect of refusing to make the grandmother a party, thereby denying her access to the documents so that she could challenge matters relating to her own case and condemned her to giving evidence without knowledge of the relevant evidence in the case. The essential due process protections of notice of the issues and an opportunity to challenge evidence relating to those issues was missing and in my judgment that was also procedurally unfair.
21. By reason of the manner in which the case management decision was made, the evidence relating to whether grandmother was a realistic option was not identified and tested. It was neither tested by reference to applicable case management principles nor substantively as one of the options in the case about which the court was hearing evidence with the usual due process protections. The judge allowed the issues raised by the grandmother to fall between two stools. That was plainly wrong and as a consequence the process was procedurally unfair.
22. At the end of the hearing, the case management decision made by the judge was re-iterated as a substantive decision to exclude the grandparents from the care of their granddaughter. Whether or not the grandmother as a non-party to that decision has the locus to challenge that aspect of the case, the mother does. She submits that as an exercise of value judgment it was wrong and in any event the judge failed to conduct a non linear, holistic welfare analysis and proportionality evaluation of all of the care and placement options and that was an error of law. The judge did not reason why the grandparents were to be excluded, there is no comparative welfare analysis of the benefits and detriments of each option and a proportionality evaluation is entirely missing from the judgment. Further and better reasons of the judgment were requested but they do not assist in any of these respects. That has the effect that there is no consideration in judgment of the effect on the child of breaking family ties, in particular her attachment to her grandparents and whether nothing else would do other than adoption.
23. In summary, the grandmother supported by the mother submit that the judge failed to address that which is required by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 in analysing whether 'nothing else will do' and the subsequent Court of Appeal cases of Re P (A Child) (Care and Placement: Evidential Basis of Local Authority Case) [2013] EWCA Civ 963, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) [2013] EWCA Civ 1146. I agree. There was no overt analysis of the child's welfare throughout her life nor the likely effect on her of having ceased to be a member of her original family in accordance with section 1(2) and 1(4)(c) of the 2002 Act. The distinctions between the factors in the welfare checklists in the 1989 Act and the 2002 Act were not explored. The essence of the recent case law and of the statutory tests was not sufficiently demonstrated.
24. The local authority concede that the judge's approach to the welfare analysis and proportionality evaluation was not in accordance with the authorities. Their case rests on the ability to exclude the grandmother from that exercise. That would have involved an analysis by the judge of the timetable for the child and the timetable for the proceedings as part of the overriding objective, the section 10(9) factors and the arguability of the grandmother's case. That analysis was missing with the consequence that neither the grandmother's case nor the local authority's case was properly considered during case management and the grandmother's case was not considered on the merits. It is fortunate that the child's interests can be protected by an expedited re-hearing before the Designated Family Judge for Swansea.

Lord Justice Tomlinson:

25. I agree.

Lady Justice Arden:

26. I also agree.