England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HIS HONOUR JUDGE TOLSON QC
ZC15FC00620

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2017

Macur LJ :

1. This is the mother's appeal against final care orders made by His Honour Judge Tolson QC in respect of three of her sons, J, A and C aged 16, 14 and 12 respectively, at an adjourned Issues Resolution Hearing ("IRH") on 16 May 2016. A, who instructs his own solicitor, was given permission to appeal also, albeit that his grounds of appeal add little to the substantive issue. That issue is whether the judge was wrong in the procedure he adopted to make the substantive orders at the IRH.
2. We allowed the appeal on 15 February 2017, with reasons to follow, directing in the meantime that the case be listed for directions within 7 days before Sir James Munby, President, recognising the urgency in listing the case for re-hearing, not least because of the precarious and significant emotional welfare issues affecting at least one of the boys. These are my reasons for allowing the appeal.
3. District Judge Arbuthnot made interim care orders in respect of the three children on 6 November 2015. On 24 November 2015, she made directions which approved the joint instruction by the parties of the Anna Freud Centre to undertake a multidisciplinary assessment of the family which was to include a full psychiatric assessment of the mother; the order recording that "the issues in the case are so complex that a multi-disciplinary assessment by the Anna Freud Centre is essential to the determination of the case". The report was to be filed and served by 15 March 2016. The IRH was listed on 4 April 2016. Final hearing was later set for 6-8 April 2016.
4. After the directions hearing, the mother demonstrated a disinclination to engage with the assessment. On 11 March 2016, she dismissed her solicitor. Her final evidence was due by 29 March 2016 and the Children's Guardian's position statement thereafter on 4 April 2016.
5. The matter was listed for directions on 22 March 2016, the Court having been informed that the mother was not legally represented and now wished to engage with the assessment. The mother appeared and was provided with names of family solicitors. The IRH on 4 April 2016 remained listed before District Judge Arbuthnot.
6. Thereafter the Children's Guardian obtained provisional dates (13 April 2016 and 5 May 2016) for the mother to attend the Anna Freud Centre if the Court permitted the resumption of the assessment. An advocates' meeting took place on 31 March 2016 in which the mother participated in person. Agreement was reached that the Court would be invited to approve the Anna Freud Centre recommence the assessment of the mother.
7. The hearing of 4 April 2016, was heard by His Honour Judge Tolson Q.C. The mother appeared in person and sought an adjournment for the purposes of legal representation. The children's solicitor wished to consider the position in respect of separate representation for J and/or A. Consequently, the judge vacated the final hearing dates of 6-8 April 2016 but retained 7 April as an adjourned IRH.
8. At the hearing on 7 April 2016, the Judge required the mother to give evidence, as the parties understood, to evaluate the viability of the mother engaging with the Anna Freud Centre assessment. Her solicitor had been on record for three days. At the same hearing the Children's solicitor indicated that A was competent and instructing him directly and, accordingly, the Children's Guardian was unrepresented.
9. After completion of the mother's evidence on 7 April 2016 it became clear that the Judge was considering making final orders. All parties opposed this and the Judge adjourned for written submissions.
10. All written submissions argued against the making of final orders at the adjourned hearing on 18 April 2016. However, the judge indicated that he would be making final care orders in respect of J and C and he only required submissions in relation to A. The judge ruled out the Mother as a carer for A in a judgment which did not refer to threshold and said he would give a full judgment on 16^th May 2016. By the time of the hearing on 16^th May 2016, A had been removed from his foster placement with his brother to a residential unit and the Judge made final orders.
11. In his judgment delivered on 16 May 2016, HHJ Tolson QC considered that "Although not separately represented…the Guardian has had the benefit of the children's solicitor (by then representing A) asking the questions he wanted asked. He has at no point identified any likely different outcome following the assessment which he originally proposed. The Guardian does not now oppose the making of the care orders." [18] However, and significantly, the Children's Guardian had not filed a final analysis as defined by Practice Direction 12A at 7.1 and, since he did not give evidence before HHJ Tolson QC, had not been able to supply in oral outline his analysis of the key issues in the case.
12. The judge recognised the "unusual feature of this case is that there has been no fully contested final hearing" but proceeded to final orders "in the absence of consent from all parties". He did so since he considered that the "proposed assessment… was not necessary…because whilst it might have shed light upon the mother's mental health, it could not have resulted in a significantly different outcome to the case" and the boys welfare demanded swift decisions to be taken by the local authority.
13. He referred to Re N (a child) [2012] EWCA (Civ) 1563 in which McFarlane LJ had expressly countenanced in an "appropriate case" , a final order being made at an IRH, and that in Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136, King LJ had compared a case management hearing in which, as the name suggests management of the case gets it ready for disposal, to an IRH when all the evidence should have been filed , in which case "the rules specifically require consideration to be given as to whether the IRH 'can be used as a final hearing' ".
14. HHJ Tolson QC justified the procedure he adopted since he had "heard from the mother" and "given her the opportunity to set out anything in writing which she wishes". He quoted extensively from the statements of the social worker and available Anna Freud Centre report which he described as a "substantial body of other written evidence ... All evidence…points in one direction." [17] He indicated that during the hearing on the 4 April, he had "made it clear that [he] was very doubtful that (1) the assessment or (2) a final hearing would serve any useful purpose…it appeared to [him] to be contrary to the interests of the children… [he] said to the mother that [he] would need to hear evidence from her in order to establish that she had a reasonable case to present on both questions." [31]. On the 7 April, "[he] needed to explore with [the mother] the realities of the case in terms of final outcomes. On paper the case appeared very weak, but [he] felt it was right that she should have a proper opportunity to demonstrate to the contrary". [32] On 18^th April "all the mother had to do was to show [him] some plausible alternative outcome to the case for [him] to have provided for a fully contested hearing".
15. The single judge gave the mother and A permission to appeal. Subsequently, the President as leading judge in this constitution, granted the Association of Lawyers for Children leave to intervene on procedural issues concerning the making of final orders at an IRH. The Children's Guardian filed a position statement "aware that it is being said that there were irregularities in procedure" and that he "would have preferred to have had the opportunity to provide the court with a written report at the time" but was able to "confirm [his] recommendation orally". Wishing to maintain the final orders to avoid further disruption to the boys, he considered that since his position was "aligned with the position of the Local Authority" he did not seek to be represented at the appeal. However, the local authority did not oppose the appeal albeit that it maintains that care orders are the only realistic outcomes in the case.
16. In this appeal, Ms Bazley QC and Mr Hellens appeared on behalf of the mother; Miss Morgan QC and Miss Sprinz appeared on behalf of A; Miss Fottrell QC and Miss Segal appeared on behalf of the Association of Lawyers for Children; and, Mr McIlwain appeared on behalf of the local authority. They have submitted comprehensive and helpful skeleton arguments.
17. Rightly, no party seeks to argue against the necessity for robust case management in these times of insufficient judicial resource and the pressure of ever increasing numbers of public and private law applications launched in the family court. There can be no doubt that the Public Law Outline ("PLO") contemplates the resolution and final determination of applications under s 31 Children Act 1989 at the IRH in appropriate cases, subject implicitly to the necessary evidence being before the court. A full hearing may not always be necessary; there is no absolute right to cross-examine each witness or to embark upon a 'fishing expedition'. However, MacFarlane LJ said in N (A Child) [2012] EWCA Civ 1563 at [10] and [11]

"…. 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. ...

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."

18. The determination of what procedure to adopt calls for the exercise of judicial discretion dependent on the circumstances of the case before the judge. It is impossible to formulate a 'one size fits all' policy. This court will be slow to interfere in that exercise of judgment carefully articulated and soundly based. However, the principles of procedural fairness formulated in several recent cases decided by this Court provide clear guidance to the first instance judge in his/her decision of the appropriate and fair procedure to be adopted at various stages in family proceedings.
19. In Re W (Cross-Examination) [2011] 1 FLR 1979, the Court of Appeal recognised that: "It is very common for the parties' respective cases to be set out in writing before the hearing and even argued between them in more formal areas of the law. This is, of course, the purpose of pleadings. This process is rarely, however, a substitute for the giving of oral evidence, which is tested in cross-examination ..".
20. My Lord, Sir James Munby, President in Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136 iterated that:

"57. … there is the right to confront one's accusers. So, a parent who wishes to cross examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so."

58. I stress the word important. I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to 'testing the evidence' or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome."

He considered that:

"60.… there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate."

21. In Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136 [41] King LJ considered that

"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."

22. It is obvious that Art 6 and 8 ECHR convention rights necessarily will be engaged at every stage of the process. As Pauffley J so aptly characterised in Re NL (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), 'Justice must never be sacrificed upon the altar of speed'.
23. The relevant statutory provisions also indicate procedural and welfare safeguards. Section 41(1) of the Children Act 1989 and FPR 2010, r 16.3 (1) indicates that it will be exceptional for a Children's Guardian not to be appointed for the child in s 31 public law proceedings.
24. The statutory role and function of the Children's Guardian is clearly set out in FPR 2010 and Practice Direction 16A. Further, there are many cases in which the import and pivotal nature of a Children's Guardian role has been recognised by this Court. See, for example, R & Ors v Cafcass [2012] EWCA Civ 853 when McFarlane LJ stated:

"… the children's guardian is on any view pivotal to the whole scheme. The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian. In a jurisdiction where the State is seeking to intervene – often very drastically – in family life, the legislature has appropriately recognised that determination of the child's best interests cannot be guaranteed if the proceedings involve no more than an adversarial dispute between the local authority and the parents. Parliament has recognised that in this very delicate and difficult area the proper protection and furthering of the child's best interests require the child to be represented both by his own solicitor and by a guardian, each bringing to bear their necessary and distinctive professional expertise."

25. That is not to say that the Children's Guardian view is determinative of any point. A decision of the family court is not armour plated against criticism merely by their agreement or acquiescence. In Re K and Ors [2011] 2 FLR 817, the late Sir Nicholas Wall, President stated:

"The reasoning of the Cafcass guardian, whether given orally or in writing is always open to challenge in cross-examination, which can always go to method. Added to which, of course, where the report is in writing, good practice requires the investigative and reasoning processes to be set out. Once again, the decision is for the court, which is heavily dependent upon the quality of the advice it receives."

26. The PLO requires that during Stage 2 Case Management Hearing, the court will give "detailed case management directions, including… Directing a Case Analysis for the IRH". At the IRH, having identified the remaining key issues in the case, the court will "give final case management directions, including the filing of a Case Analysis for Final hearing (if required)".
27. PD16A, para. 6.2 (a) provides for the Children's Guardian to appoint a solicitor for the child unless: a solicitor has already been appointed; or, the child wishes to instruct a solicitor direct and the Children's Guardian or the court considers that the child is of sufficient understanding to do so or, the Children's Guardian intends to have conduct of the proceedings on behalf of the child as "officer of the Service or Welsh family proceedings officer to conduct litigation or exercise a right of audience."
28. There can be little doubt that J and C at that stage were not competent to instruct a solicitor independently. The Children's Guardian in this case, understandably, would be 'out of his depth' in exercising rights of audience on their behalf; I would regard this latter prospect to be untenable in a case such as this.
29. I find it striking that the judge was not deterred by the absence of an updated case analysis or legal representation for J and C at the hearing on 7 April, despite the Children's Guardian seeking it, and reasonably so, on the basis that J and C deserved no less equal rights of representation to that of their brother A, and in the complex circumstances of their individual cases. The Children's Guardian's seeming acquiescence to care orders being made in their regard was given in the absence of any up to date written analysis or oral reasoning of the same, and in the face of his prior proposal of the need for a professionally led assessment. There has been no opportunity for the Children's Guardian to consider the Mother's evidence or her challenge to the case against her. No party cross-examined him, or could do so, about the change in his perspective. He had no independent legal representative to advise and remind him of the extent of his duty to safeguard the interests of the children and to advocate the same to the court.
30. Further, in the absence of fresh information or a change in circumstances, it was inappropriate for HHJ Tolson QC to allow an appeal of his own motion or second guess the determination of District Judge Arbuthnot, made on 24 November 2015, that the information to be derived from the Anna Freud Centre multi-disciplinary assessment was necessary or essential to the court's determination of the issues. However, I do consider that it was reasonable and appropriate for the judge to interrogate the mother's initial resistance to the programme at the IRH, even despite the views of all parties that she would be committed to re-engaging with the same.
31. Reasonably, it seems, all parties thought that this was the reason for the judge to require the mother to give evidence to the court on 7 April, and proceeded accordingly. Consequently, no thought was given to challenge the evidence filed by the local authority. I agree that the question of whether the assessment should go ahead was entirely distinct from the question of whether it was necessary for there to be a contested final hearing. The evaluation of each question calls for a different analysis and evaluation.
32. However, following that hearing, the judge added to the order prepared by the parties, that the purpose was to see whether the mother 'could, seriously, resist a care order...'
33. This was an unorthodox and unacceptable approach. In Re S-W (above) Para Lewison LJ could not have been more explicit:

"45. Moreover where parties arrive at court expecting to participate in a"

hearing that is to deal only with procedural aspects of progressing a case

towards a final hearing, it is quite wrong for the court, on its own initiative

and without prior notice to the parties – let alone any invitation from any of

them – to treat the procedural hearing as if it were the final hearing and to

make such a drastic order as the judge made in the present case. Had a party

invited the judge to make the order that he in fact made without notice to the

other parties one would have described it as 'an ambush'. The fact that it came from the court makes it worse, not better."

34. What is more, HHJ Tolson QC proceeded to make his evaluation of the mother's case which challenged that the necessary 'threshold' had been crossed and opposed the making of a care order in respect of the boys, on the basis that the evidence against her had been established. In fact, it was untested and disputed.
35. It is entirely understandable that this judicial approach raised the collective hackles of all parties. The parties' united stance in this appeal demonstrates an objective unease at the lack of fairness in the process. The burden of proof rested on the local authority throughout, not only in relation to establishing the threshold for the making of statutory orders but also that the intervention in the family's life proposed in the care plans was necessary and proportionate. The local authority sought the outcome delivered but did not support the mechanism adopted to achieve it.
36. In this case I have had little hesitation in concluding that the proceedings were not fair to the mother or the children. I am satisfied that the Judge failed to accord to the mother her Article 6 rights to a fair hearing, and in all the circumstances fell short of safeguarding the procedural and substantive Article 8 rights of the children as provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms.
37. However, I recognise that the judge at first instance faced a case that was undoubtedly highly charged in that two of the boys had threatened suicide "in terms which professionals take seriously". The contents of the statement of the local authority social worker and the report of a family therapist and child and adolescent psychotherapist employed by the Anna Freud Centre, undoubtedly support the judge's conclusions that only final care orders would suffice and be a just and proportionate response to the apparently dysfunctional family situation. Objectively, the mother had been fickle in her commitment to engage with the assessment and court process which could have been perceived as being manipulative. The real issue, however, is not whether the judge's assessment of the evidence will ultimately be regarded to be wrong but whether the process adopted by the judge so undermined any objective concept of procedural fairness as to undermine the integrity of the decision. This is regardless of the distinct likelihood that these boys will not be returned to their mother's care in the foreseeable future.

Hallett LJ:

38. I agree.

Sir James Munby:

39. I also agree.