ON APPEAL FROM Liverpool County Court
His Honour Judge Dodds
LV14C01877
Strand, London, WC2A 2LL |
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B e f o r e :
President of the Family Division, Court of Appeal
LORD JUSTICE LEWISON
and
LADY JUSTICE KING
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Re S-W (children) |
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Clive Baker (instructed by Liverpool City Council) for the 1st Respondent
Carl Gorton (instructed by MSB Solicitors) for the 2nd Respondent
Kate Burnell (instructed by Paul Crowley & Co Solicitors) for the 3rd Respondent
Hearing date: 11th December 2014
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Crown Copyright ©
Lady Justice King :
"In any event, there is a compelling reason sufficient to justify this case being considered by the Court of Appeal. The judge's approach could not have been more robust. He sought to justify such an approach on the basis that recent family justice reforms and case law. There is a need for the Court of Appeal to consider whether such a robust summary approach is justified and/or required by the recent extensive changes to procedure and case law and, if so, how the basic requirements of a fair trial and judicial analysis are to be accommodated in such a process".
Background
i) She had not seen any of the children, each of whom was expressing a desire to live with their mother and ES was already 14 years old;
ii) She set out her grave concern for the welfare of LW and the need for the local authority to explore all available options for him, whether within the family or, potentially, with a foster carer experienced in providing therapeutic support. Her concern to ensure that the local authority conducted a proper assessment of placement options for LW was heightened by the fact that the local authority had, at one stage, placed him with his father, a man with convictions for supplying Class A drugs. When LW subsequently made complaints of ill treatment at the hands of his father, the local authority, following some investigation, sent him back to live with his father against his wishes. The placement broke down again in circumstances which have resulted in the father being charged with assault on LW;
iii) She recorded that she wished to have the opportunity to read the social work records, and wanted to see a wide range of documents, ranging from school reports to viability assessments of kinship carers.
i) The local authority would pay for a drugs hair strand test on the mother. This was a matter of considerable importance …….because
ii) the local authority were to convene a Family Group conference in order to see if a way could be found for LW to return, in whole or part, to the care of his mother. It was hoped that if that could safely be achieved, it might act as a break on the disruptive behaviour which was leading to the constant breakdown in his placements. The local authority note of the meeting says "is it just about good enough with mum, may be able to go back." The timetable was to provide for an addendum to the parenting assessment already filed by the local authority;
iii) Efforts were to be made to trace the father of ES who had not been served;
iv) Neither of the grandmothers wished to be considered as foster carers and therefore Special Guardianship assessments were to be carried out by the local authority with a view to securing the future of those two children by the making of Special Guardianship Orders;
v) It was agreed that a slimmed down number of documents from that listed by the Guardian in her report would be disclosed, but that only one or two of those documents would be placed in the bundle. This would allow the Guardian to carry out a full review of the case whilst ensuring compliance with Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)... the Bundles Direction) para 5.1 which limits the court bundle to 350 pages of A4 text; (see also Re W (Children)(Strict Compliance with Court Orders) [2014] EWFC 22);
vi) The matter would be listed for an early Issues Resolution Hearing (IRH) with a view to the case being concluded substantially within 26 weeks.
The Hearing
The Family Justice Reforms and the Public Law Outline
i) steps which ordinarily take place at various stages in the proceedings, to be taken at another step. (PD12A para 2.2);
ii) the paragraph anticipates cases in which the IRH will be the final hearing (PD12Apara 2.3)
iii) for oral evidence to be heard at CMH or IRH although PD12A, para 2.3 specifies that the court must be notified in advance of such an intention and directions sought for the conduct of the hearing at which it is intended evidence will be heard, (PD12A para 2.5), thereby ensuring that no party can be caught unawares.
"It is expected that full case management will take place at the CMH. It follows that the parties must be prepared to deal with all relevant case management issues, as identified in Stage 2 of the Public Law Outline. A FCMH should only be directed where necessary and must not be regarded as a routine step in proceedings."
(i) Drawing up a timetable for the child.
(ii) Identifying any additional parties and interveners.
(iii) Identifying key issues.
(iv) Identifying evidence necessary to enable the court to resolve key issues.
(v) Deciding whether there is a real issue about the threshold.
(vi) Determine any application under Part 25 (experts).
(vii) Identifying additional disclosure.
(viii) Giving directions for any proposed placement order proceedings.
Care Plans
"(1)Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan ("a care plan") for the future care of the child.
(2)While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
(3)….
(4)….
(5)….
(6)A plan prepared, or treated as prepared, under this section is referred to in this Act as a "section 31A plan".
Care plans
This sectionnoteType=Explanatory Notes has no associated
31(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).
31(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)."
"s31(3B)(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"
Discussion
"In circumstances where it is accepted that the only outcome of the proceedings would be the making of a full care order and the only issue was one of timing and process, the case management decision of the judge to press ahead and make the final hearing at the first hearing was entirely reasonable"
Two things should be noted in relation to the use to which Re H was put by the judge:
i) reasons for giving or refusing permission to appeal are not binding on the courts and should not be used as precedents (see Practice Direction 9 April 2001 paragraph 6.2 [2001] 1WLR 1001)
ii) in this case, far from there being acceptance of the outcome and/or the only issue being as "timing and process," the mother did not agree to the care plan in relation to any of the three children; the Guardian was not in a position to express a view and the local authority had not filed a "section 31A" care plan without which the court is not in a position to scrutinise the permanency plans.
"………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.
…..The considerations which should weigh with the court include:
(1) whether there is sufficient evidence upon which to make the relevant decision;
(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;
(3) whether the opportunity of cross-examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
(4) the welfare of the child and the effect of further litigation – whether the delay in itself will be so detrimental to the child's well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, and particularly D;
(5) the prospects of success of the applicant or a full trial;
(6) does the justice of the case require a full investigation with oral evidence?
i) It is listed within days of proceedings being issued, often solicitors will only just have become involved and had only limited time to take instructions it follows that the evidence to be relied on by the parents at a full trial is unlikely to be available, even in outline;
ii) The Guardian is unlikely to have read more than the Checklist documents served with the application and may well not have seen the decision making records which are only disclosed on request; further, unless he or she have been involved with the family in relation to other children he or she is unlikely to have seen the parties or the children, a significant omission particularly where, as here, there are older children who have lived with a parent for many years;
iii) A "section 31A" CA 1989 care plan will not, in all likelihood, be available.
i) Where there remains any significant issue as to threshold, assessment, further assessment or placement, it will not be appropriate to dispose of the case at CMH.
ii) It can never be appropriate to dispose of the case where the children's guardian has not at least had an opportunity of seeing the child or children in question and to prepare to a case analysis in which he/she considers the section 31A care plan of the local authority.
iii) Where, unusually a case is to be disposed of at CMH, adequate notice must be given to the representatives of the parents and Guardian; reluctance on their part will ordinarily be fatal to the proposed course. Having said that, where all that is required is for the parties to have a little more time or for the local authority to prepare a section 31A care plan one can envisage cases where the matter is adjourned for a further CMH with the intention that final orders will be made at the adjourned hearing., Another example where in exceptional circumstances it may be appropriate to make final orders at the CMH could be where, the outcome is inevitable and the child's need for an immediate resolution to the proceedings is critical to his or her welfare.
iv) A care order should not be made without some reasons or a judgment no matter how concise. It is not enough to proceed on the basis that the reasons for making a care order, and still more a placement order, can be distilled from the transcript of discussion between the judge and the parties at court. Whilst appreciating the ever increasing burden on family court judges in the preparing and giving of judgments there must at least be a short judgment/reasons noting the available options, the positions of the parties and confirming that the outcome for the child is in his or her best interests and is proportionate and therefore Convention compliant.
Outcome
Lord Justice Lewison:
"Any experienced judge worthy of his office will have had the experience of coming into court with a view, sometimes a strongly held view, as to the likely outcome of the hearing, only to find himself of a very different view once he has heard oral argument."
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
"The task of the case-management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention)."
Sir James Munby, President of the Family Division:
"The fact, if fact it be, that the circumstances are such as to justify intervention by the State, … does not absolve the State of its duty nonetheless to act fairly. It is not enough for the State to make a fair decision: the State must itself act fairly in the way in which it goes about arriving at its decision."
A parent who wishes to give evidence in answer to a local authority's care application must surely be permitted to do so.
"Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel."