England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT

		Royal Courts of Justice
		22nd September 2014

MR JUSTICE HOLMAN:

1. The situation with which I am faced today is profoundly regrettable. These are proceedings for a care order in relation to a child, A, who was born in mid-August 2012, so she is now already about a month over the age of two.
2. The background is a difficult one. Each of her parents have difficulties in normal communication. The father, as I understand it, is profoundly deaf, and essentially communicates through interpreters. There may be some issue as to the level of communication disability of the mother, but it is said more generally that she has learning difficulties.
3. After the child was born, there was a time when it appears that both parents asked for her to be voluntarily accommodated. They then changed their minds, and the local authority commenced these proceedings when the child was about three weeks old. As a matter of fact, she has lived in the same short term foster home ever since then. That, of course, means that she must necessarily have formed all her primary attachments with the foster family with whom she is living. The longer she remains there, the more difficult it will be for her to make new attachments with other parenting figures, whoever they may be.
4. The case originally came before a circuit judge over a year ago. At that time the application of the local authority was for a care order on a care plan of adoption, and the circuit judge acceded to that request. Both parents subsequently appealed. It was later accepted that there had been serious deficiencies in the approach of the local authority and others to this case; in particular, appropriate and sufficient regard had not been given to the disabilities of each parent.
5. As a result, and without opposition, there was a successful appeal to the Court of Appeal who in January 2014 set aside the care and placement orders that had been made by the circuit judge the previous summer, and remitted the case for fresh hearing.
6. At that time it was thought, apparently, that the case could be heard in April, and enquiries revealed that a High Court Judge of the Family Division could be available for a hearing in early April with a time estimate of five days. I have been told that it soon became apparent to one or more of the parties that they would not be ready by April, and so the period of slippage began. The upshot is that this case has been listed for final hearing by me here, today, starting on Monday 22^nd September 2014.
7. It is quite impossible for me to embark on this case this week unless I can finish it this week. There is a considerable number of other matters all listed before me next week, and in the week after, and generally stretching out after that.
8. It seems to me that there is a whole range of reasons why it is, frankly, impossible to deal with this case fairly and with justice to both parties, and indeed the child herself, this week. I do not take them in any particular order. I do, however, start with the fact that it seems to me that there simply is not enough time available. It is likely that the course of evidence may require rather longer than it might do if there were not the communication difficulties to which I have referred.
9. A template has been produced with quite a list of professional or expert witnesses as well as the parents themselves. The template currently contemplates only an hour and a half for the evidence of the father, and about two and a half hours for the evidence of the mother. That seems to me likely to be highly unrealistic.
10. The situation at the moment is that the local authority and the guardian strongly propose and support that the child should in fact begin a process of introductions with a view to living with her father. A great deal of preparatory work would have to be done, not least because the father is only able to communicate through forms of signed interpretation, a language with which the child is not yet familiar. But although that is the case of the local authority and the guardian, the position of the mother is very different. First, she strongly opposes the proposition that the threshold criteria are satisfied in this case. One of the errors of the circuit judge that were complained about was his attempt to resolve the case on the basis of what he described as "anodyne" threshold criteria, so the whole question of whether or not the threshold criteria for the making of a care or supervision order are satisfied needs to be properly considered and faced up to in this case. Further, the mother very strongly contends that the child can and should live with her. Additionally to that, I have been clearly told today by counsel now instructed on behalf of the mother, that it is the mother's case that if the child cannot live with her, then she should be adopted, but cannot in any circumstances live safely with the father.
11. That case is in part explained in a long statement extending to 19 pages which the mother made last Friday, and which has been circulated to the parties during the course of the weekend or today. It involves a considerable catalogue of complaints and criticisms made of the father, not only during the course of their cohabitation and relationship but continuing right up to the present time. For instance, the mother says at paragraph 76 of her statement that:

"Three weeks ago while shopping in Barking, I saw the father and A outside Barking station. A had obviously done something that the father did not like and I observed him smack her on her leg. I could see from her face that she was visibly upset. I felt powerless to do anything."

12. The mother raises a considerable range of other matters also in relation to the father. So, in short, this is a case in which almost everything is disputed and there is not even consensus between the parents that the child should be living with one or other of them. I do not believe that this case can realistically and fairly be fully considered and determined in the time available this week.
13. But the next matter is that the mother has very recently indeed changed her legal representation. I do not know the reasons behind that and they may be privileged. There were difficulties with public funding, and the result was that her current legal team only received the papers, which are very considerable indeed, last week. Her newly-instructed counsel, Miss Joanna Toch, has so far only met her once, last Friday, that is, one working day before the start of this hearing. Miss Toch has told me that she has had no opportunity to go through the voluminous documents with her client and take instructions. Further, Miss Toch feels that there are a number of documents and material which have not yet been obtained and certainly are not available to her. So, frankly, Miss Toch, who appears today without even her instructing solicitor present, is in no position at all properly to embark on this case on behalf of her client.
14. Another consideration is that the mother, through Miss Toch, very strongly complains that the existing assessment of the mother by a so-called independent social worker, Lynne Ferdinando, and others, is seriously deficient. The mother knows that there are limitations upon her parenting capabilities, and proposes that she should have much practical and other forms of support from her own mother.
15. There has been some limited assessment of the mother's mother, but at paragraph 3.20 of the report of Lynne Ferdinando and others dated April 2014, they merely say:

"During a meeting with maternal grandmother, it became clear to us that she had not fully thought through the role she would take on board in supporting the mother with A."

16. As I understand it, there was a long period when there was a rift between the mother and her own mother, and they only resumed a normal relationship round about the beginning of this year. The result is that no-one has really properly assessed and investigated whether or not the mother's mother is somebody who can fulfil a proper supportive role.
17. For all these reasons, separately and cumulatively, it just seems to me impossible to embark on a so-called final hearing of this case this week. I have been strongly pressed by the local authority, supported by the guardian and of course the father, that I should nevertheless make some interim order to the effect that in the interim the child moves progressively to living with her father. I feel quite unable to do that. It would be completely pre-judgmental and pre-emptive of the case and position of the mother here. The fact is that this child has now lived for two years continuously in a settled and secure environment with the short term foster parents. Nobody could possibly conceive of interrupting and breaking that secure placement by moves to the father if, further down the line, the child in fact was going to live with her mother. Manifestly, the welfare of the child requires that a firm decision is taken as to whether she may live with her mother or with her father or, indeed, with third parties, whether on a fostering or on an adoptive basis, before one could sensibly contemplate the process of moving her.
18. All the advocates have, of course, expressed horror at the prospect of a delay of several months until probably February of next year. I wish to say as strongly as I possibly can that I share that horror. The difficulty is that Parliament and the government have said that all these cases must be dealt with rapidly and without delay but, unfortunately, have failed to supply the necessary resources, in this instance judicial resources. I have already personally discussed with the Clerk of the Rules whether there is a possibility of this case being heard within the next two months or so, and she satisfies me that currently that is simply impossible. Judges work to itineraries. Many judges of the Family Division are out on circuit at any given time, or dealing with other work, such as the work of the administrative court. Currently, one judge of the division is about to be removed on promotion to the Court of Appeal. Another judge of the division has unexpected health problems. But the system is not resourced to provide for any elasticity or slack to cope with these difficulties. I understand that, although it has been known for a number of months that there would be a vacancy due to the promotion of a judge to the Court of Appeal, no competition has yet been started to identify a replacement judge. These, I am afraid, are just practical realities and imperatives. I may have a theoretical power to direct that this case must be heard at a given time or in a given window; but, realistically, if I were to exercise that power it would simply mean other cases concerning other needy children being taken out of the list. I cannot responsibly do that. I can only work within the resources that I am told are available.
19. So, sympathetic though I am to the request that I should fix a much earlier date for final hearing, it just does not seem to me that I realistically can do so. I am prepared to say that if, unexpectedly, a significant vacancy occurs in the lists, for instance as a result of another long case settling or otherwise being adjourned, then that slot might be offered to this case. That would of course require that all the expert witnesses and other professionals engaged in the case are able to make themselves available at relatively short notice to take advantage of the slot. But, for the reasons that I have given, it seems to me that at the moment I simply have no alternative but to say that the final hearing of this matter has to be adjourned. It can only be adjourned to the first date that the court can offer with two clear weeks allowed, which the case is likely to require. Currently, that is February.
20. I will now, it being half past four, break off, and we will resume tomorrow, by which time all parties can take stock of this situation and decide what further use can sensibly be made of the time available this week.

[Note: the Clerk of the Rules was later able to list this case for final hearing starting on 17 November 2014, with 8 clear days allowed, due to another case settling.]

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