England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2016

Mr Justice MacDonald:

1. The London Borough of Redbridge applies to adjourn this final hearing in respect of a little girl, E, aged 2 years 9 months old. In this case the London Borough of Redbridge has, by its own admission, failed so comprehensively to comply with the directions of the court that it is necessary in my view (notwithstanding that all parties accept the inevitability of an adjournment in the circumstances I will come to) to examine and record in a short, published judgment the default that has led to the need to adjourn this already very significantly delayed case.
2. I was informed today by Mr Paul Pavlou, counsel for the London Borough of Redbridge, that the local authority intends to instigate an independent review of what has, as he put it, "gone wrong" in this case. Within this context, the local authority intends within 14 days to provide the court with a comprehensive explanation of the defaults which form the basis of its adjournment application. In the circumstances, I confine myself for the present to an account of the procedural history that has led to the need for this to case be adjourned, which history is not disputed by the local authority as a matter of fact.
3. On 26 July 2016 this matter was remitted to the Family Division by the Court of Appeal following a successful appeal by the mother (see Re A [2016] EWCA Civ 820). I had the matter before me for a directions hearing on 28 July 2016 when I listed it for final hearing before me commencing today with a time estimate of 5 days.
4. As the Court of Appeal observed, the case has had a more than usually chequered history.  In February 2015 the district judge made care and placement orders in respect of E.  The mother appealed those orders and her appeal was allowed in June 2015.  The case was remitted to be re-heard by a Recorder. 
5. In November 2015 the Recorder, relying on the recommendation of the Independent Social Worker instructed in the case and against the arguments of the local authority and the Children's Guardian, determined that an attempt should be made to rehabilitate the child to the mother's care and made an interim care order.  However, at the final hearing in March 2016 and following a series of four alleged incidents between November 2015 and February 2016 that remain in issue and that I do not at present need to go into, the Recorder made a final care order with a view to long term foster care. This order was made in the face of the mother's case for a continuation of the rehabilitation plan and the local authority's case arguing for placement for adoption, supported by the Guardian.  The mother again appealed and the Court of Appeal allowed her appeal on 26 July 2016.
6. The appeal was allowed by the Court of Appeal on the basis that the Recorder had given insufficient consideration to the four incidents relied on by him to justify a change of direction from rehabilitation to long term foster care and a failure by the Recorder to address properly the local authority's care plan for adoption.  The latter failure, the Court of Appeal was satisfied, was caused in part by deficiencies in the local authority's final statement and final care plan and the failure of the local authority to have issued an application for a placement order ahead of the final hearing. Within this context, I pause to note that, during the course of her judgment, Black LJ observed as follows in relation to the case the local authority had placed before the Recorder:

"The care plan was undoubtedly defective as Mr Pavlou rightly conceded on behalf of the local authority…The deficiency was not limited to the care plan. The most up to date local authority statement, dated 4 March 2016, was to the effect that a care order should be made and E removed from the mother's care, but there was nothing in it about adoption. The local authority's position statement for the March hearing said nothing about adoption either."

and:

"…no doubt hampered considerably by this obviously confused and unsatisfactory presentation of the case, and in the absence of any placement order application before him, in my view, the Recorder went off track in his analysis of the options that there were for E and in his weighing of the various factors that were relevant to his decision."

and finally:

"…I do not want to leave the case without acknowledging that the Recorder was not assisted by the way in which it was presented to him. The local authority's documentation was not helpful. The social worker had recently changed. There was no placement application which, although understandable because of the shortness of time between the local authority's decision and the hearing, increased the danger that the hearing would fail to focus on the real issues. The Guardian's analysis of the consequences for E being adopted was inadequate as the Recorder accepted, commenting that there was an absence of evidence, both from the local authority and the Guardian about the harm that the child would suffer by being removed from the mother. All of these matters will have contributed to this careful Recorder not focusing upon and dealing with central issues."

7. The matter having been remitted to the Family Division, on 28 July 2016 I made a series of directions designed to case manage this matter to a further and third final hearing on 17 October 2016, including:

i) Directions for the filing of (i) the minutes of the LAC Reviews held since March 2016 by 11 August 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 by 4pm on 22 August 2016;

ii) A direction that the local authority file and serve (i) a final care plan, (ii) a final witness statement, (iii) a Scott Schedule of facts the court is invited to find and (iv) Schedule of Issues by 4pm on 12 September 2016;

iii) A direction that the local authority issues any placement application by 4pm on 12 September 2016 together with directions consequent thereon;

iv) A direction that the mother file and serve her final evidence and response to the Scott Schedule by 4pm on 26 September 2016;

v) A direction that the Children's Guardian file and serve her final analysis and recommendations by 4pm on 10 October 2016;

vi) A direction listing the matter for a further Case Management Hearing on 1 September 2016.

8. On the face of my order of 28 July 2016 I required a recital to be included to the effect that, in light of the history of this matter, it was vital that the local authority adhered to the letter of the regulations and procedural rules that govern its conduct as between the date of that order and the final hearing. A further recital recorded that "All parties are reminded that should any issue arise that may affect the timetabling of this case then they are under a duty to inform the court of the issue and, if necessary, make an application to bring the matter back to court."
9. Pursuant to my order of 28 July 2016, the matter again came before me on 1 September 2016 for a further Case Management Hearing. On that date it was apparent that the local authority had failed to comply with parts of the order of 28 July 2016. In particular, the local authority had failed to comply with a number of the case management directions, including a failure to file and serve the minutes of any LAC Reviews that had occurred since March 2016 and a witness statement from any Police officer who attended the alleged incident on 27 December 2015. A further feature of the local authority's conduct brought to the Court's attention on 1 September 2016 was the alleged persistent failure by the local authority solicitor with conduct of the case to reply to correspondence from the solicitors instructed by the mother.
10. In light of these omissions, and the disquiet caused by them, I made a series of further case management directions, including directions in respect of some matters that had arisen since the hearing on 28 July 2016, as follows:

i) Directions extending the time for the filing of (i) the minutes of the LAC Reviews held since March 2016 and (ii) a witness statement from any Police officer who attended the alleged incident on 27 December 2015 to 4pm on 5 September 2016;

ii) A direction that the local authority file and serve the record of the Agency Decision Maker's decision by 4pm on 6 September 2016;

iii) Directions for the filing and serving of additional evidence relevant to the alleged incidents on 18 January 2016 and 18 February 2016 by 14 September 2016;

iv) A direction that the local authority file and serve the outcome of viability assessments conducted in respect of members of the maternal family by 19 September 2016;

v) A direction for the filing and serving of an updating report from the Independent Social Worker by 20 September 2016, the local authority having agreed to facilitate an observed contact on 7 September 2016 in order to inform the updating report of the ISW;

vi) A direction extending the time for the local authority to file and serve a final care plan and a final witness statement to 4pm on 28 September 2016. This direction stated expressly that the local authority's final evidence should "include (a) a transition plan which can be followed should the court consider that E should be rehabilitated to her mother; (b) a full analysis of all the realistic options for placement for E to include rehabilitation to the mother's care, long term foster care, adoption, placement with any family member or connected person."

vii) A direction extending the time for the filing and serving of the mother's final evidence to 4pm on 7 October 2016;

viii) A direction extending the time for the filing and serving of the Guardian's final analysis and recommendations to 4pm on 14 October 2016;

ix) A direction for the local authority to file and serve the further ADM decision to be made following the receipt of final evidence by 4pm on 14 October 2016;

x) A direction that the local authority file and serve a statement from the solicitor with conduct of the case by 14 October 2016 detailing her response to the allegation concerning her failure to reply to correspondence.

11. The courts have repeatedly reminded local authorities and those representing them of the following cardinal principles applicable to complying with case management directions made by the court in public law cases:

i) Case management orders are to be obeyed, to be complied with on time and to the letter and any party finding themselves unable to comply must apply for an extension of time before the time for compliance has expired (see Re W (Children) [2015] 1 FLR 1092).

ii) Agreements between the parties to amend the timetable set by the Family Court are forbidden by FPR 2010, r 4.5(3). The parties are categorically not permitted to amend the timetable fixed by the court without the court's prior approval and every party is under a duty to inform the court of non-compliance with the timetable set (see Re W (Children) [2015] 1 FLR 1092). Within this context, writing to the court to inform the court that the timetable has been altered does not amount to seeking the court's permission. A specific request for prior approval must be made.

iii) The burden of other work is not an excuse for non-compliance with the directions of the court. Whatever the difficulties presented by resource issues, the court will not tolerate a failure to comply timeously with orders (see Bexley LBC v, W and D [2014] EWHC 2187).

iv) Casual non-compliance is not an option precisely because further harm will likely be caused to the child (see Re H (A Child)(Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406).

v) Failure by a local authority to comply with court orders causing unnecessary and harmful delay may result in a breach of Arts 6 and 8 and in an award of damages being made against a local authority (see Northamptonshire County Council v AS, KS and DS [2015] EWHC 199 (Fam)).

12. Case management directions are not mere administrative pedantry. The seemingly mundane nature of case management directions belies the fact that they are crucial to the fair administration of justice in a jurisdiction that has available to it arguably the most draconian power available to a court, namely the power to remove a child permanently from his or her birth family. Within this context, the the task of the case management judge is to arrange a trial that is fair by reference to domestic standards and Arts 6 and 8 of the ECHR (see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] 1 FLR 1250). It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.
13. Against this background, and in response to an email from the solicitor for the child sent on 7 October 2016 with the agreement of the solicitor for the mother, on 12 October 2016 I listed the matter at short notice having been notified by the solicitor for the child of continued incidents of non-compliance by the local authority. At that hearing it became apparent that the continuing default of the local authority was wholesale in nature. Specifically, notwithstanding my directions of 28 July 2016 and 1 September 2016, the local authority had failed in the following respects:

i) The local authority had failed to file and serve the initial decision of the Agency Decision Maker, due on 6 September 2016. A copy of the decision was provided to the solicitor for the child and the solicitor for the mother, on 26 September 2016, to mother's solicitors shortly before the hearing on 12 October 2016 and was provided to the mother's counsel on the morning of the hearing;

ii) The local authority had failed to issue an application for a placement order by 12 September 2016 and to comply with the directions consequent upon the direction that any such application be issued by that date;

iii) The local authority had failed to file and serve the outstanding evidence relied on by the local authority in respect of the alleged incidents on 27 December 2015, 18 January 2016 and 18 February 2016, due on 14 September 2016.

iv) The local authority had failed to file and serve the viability assessments carried out on members of the maternal family, due on 19 September 2016;

v) The local authority had failed to file and serve the updating report of the Independent Social Worker on 20 September 2016. The report was finally served on 10 October 2016. The delay was caused by the cancellation by the local authority of the observed contact on 7 September 2016 it had agreed at the hearing on 1 September 2016. A further factor in the delay in the filing and serving of the report from the Independent Social Worker was the alleged failure of the local authority to pay outstanding fees which have been due to the ISW for over 9 months;

vi) The local authority had failed to file and serve its final evidence and care plan as directed by 28 September 2016. The final evidence was served on the parties on 11 October 2016 but no final care plan was filed and served.

14. Despite this litany of non-compliance, no application had been made by the local authority to amend the directions in respect of the above matters prior to the expiry of the time for complying with those directions. Beyond the failures of the local authority articulated in the foregoing paragraph, the trial bundle is in what can only be described as a state of disarray, with key documents missing.
15. Within the context of these concerns, counsel for the Mother, Ms Esther Maclachlan, was also able to point to apparent deficiencies in the final evidence of the local authority, which deficiencies include an apparently flawed welfare analysis (the analysis seeming to omit a parallel analysis of the option of rehabilitation to the mother) and the reliance upon allegations with respect to injuries that pre-date the decisions of the Recorder and which have not previously been the subject of case management directions, expert evidence or any forensic examination by the court.
16. Further, and within this context, with respect to the proposed application for a placement order, Ms Maclachlan had little difficulty at the compliance hearing demonstrating that the initial decision of the Agency Decision Maker was flawed to the extent that any application issued on the basis of the ADM decision would readily be open to attack and the decision of the ADM will have to be re-taken. In short, the ADM had taken it upon herself to make findings about the cause and provenance of the aforementioned injuries notwithstanding that the same have not been the subject of forensic investigation or findings within these proceedings. The late service of the ADM's decision had prevented this fundamental issue being identified earlier and at a time it was still capable of remedy without impacting on the final hearing.
17. Even today, and after I had expressed myself in what, I have no doubt, can fairly be described as excoriating terms at the compliance hearing last Wednesday, Mr Pavlou attended court this morning without having been able to secure instructions from the local authority as to when the matter would be ready for an adjourned final hearing. In particular, he had been unable even to achieve instructions as to the timetable for a further decision by the ADM. This was notwithstanding the fact that on 1 September 2016 I had directed the local authority to file and serve by 4pm on 14 October 2016 a further decision of the ADM to be taken in light of additional evidence to be filed ahead of the final hearing and not available when the initial decision was made by the ADM.
18. As a result, at 11.00am today I directed that the Director of Children's Services for the London Borough of Redbridge and the head of Legal Services for the London Borough of Redbridge attend before me by 2.00pm in order to provide Mr Pavlou with definitive instructions. Both attended and I made plain to each the court's dismay at the state of the local authority case, its conduct in relation to the directions given by this court and the adverse impact of the same upon E.
19. Within this context, I pause to note that it became clear during the course of the hearing today that at no point during the long course of these increasingly complex proceedings has the local authority had a conference with counsel. That a conference with counsel has not taken place in this case is extremely regrettable, particularly as the proceedings have progressed in their difficulty. In my assessment, this omission is likely to have contributed to the fact that the presentation of this case remains, to adopt the phrase used by Black LJ in the Court of Appeal, so obviously confused and unsatisfactory. I repeat the observation I made in Wirral Borough Council v KR & Anor [2015] EWFC 54 at [26]:

"Whilst I am aware that it is, regrettably, less common than it used to be for the advocate who ultimately undertakes the final hearing to have an early conference with their client and thereafter continuing intimate involvement in each stage of the case management process, and acknowledging as I do the impact of an increasing scarcity of resources, such input is vital in circumstances where the early identification of issues requiring resolution at the IRH or determination at trial, and of the evidence relevant to the resolution or determination of those issues is central to our system of case management and to the just and efficient resolution of cases."

20. Finally, with respect to the allegation that the local authority solicitor with conduct of this matter has failed to reply to correspondence from the solicitors representing the mother, at the compliance hearing last Wednesday Ms Ekine instructed Mr Pavlou (in a manner audible to the court) that she had responded to each and every email sent and Mr Pavlou advised the court accordingly. However, the signed statement that I have this morning received from Ms Ekine concedes that she has replied to only a little more than 50% of the correspondence sent to the local authority by the mother's solicitor.
21. Within this context, it will be seen that the conduct of the local authority has (whatever the explanation for that conduct) conspired to place this case in exactly the position that was deprecated by Black LJ in the Court of Appeal. Namely the local authority's evidence and care plan being deficient and the local authority having failed to issue their application for a placement order in time for the final hearing.
22. E has now been the subject of proceedings since 12 January 2014. Indeed, save for 9 days following her birth, she has spent the entirety of her young life the subject of proceedings. She is now approaching her third birthday. Proceedings that have a statutory time limit of 26 weeks are about to enter their third year. Whilst, pending the outcome of the independent investigation the local authority says that it intends to conduct, I have foresworn from a detailed investigation of the reasons for the local authority's serial default, it is plain from the conclusions of the Court of Appeal, and the subsequent accepted history that I have described, that that default conceded by the local authority has already resulted in shocking levels of delay for this young child. Plainly, this is a factor that must weigh very heavily indeed in the court's decision whether to adjourn the final hearing, particularly in circumstances where it would appear that E is displaying anxiety and confusion consequent upon changes made to her living and contact arrangements whilst these proceedings remain ongoing. I have born this very carefully in mind.
23. However, against this very weighty consideration, I am satisfied that to proceed in the current state of disarray caused by the local authority's non-compliance would not only to be to proceed in a manner already deprecated by the Court of Appeal as having led the Recorder into the shoals, but would also be manifestly unfair to the mother and to E.
24. In care proceedings in which the local authority is proposing a care plan of adoption, the care proceedings should proceed concurrently with the application for a placement order. The ADM's decision should be timetabled so that both applications are before the court, otherwise the court is likely to be missing important evidence and analysis relevant to evaluating the local authority's care plan. Indeed, without the ADM's decision, the care plan is likely to be inchoate or at least conditional (see Surrey County Council v S [2014] EWCA Civ 601). Thus, whilst it may be said that the court is able, in light of the observations made by the Court of Appeal, to anticipate the risks created by the absence of a placement order application, I remain satisfied in light of these well-established principles that it would be inappropriate to proceed to a final hearing absent the decision of the ADM, a placement application and the associated evidence in circumstances where the court is being asked to approve a care plan that will permanently remove E from her mother's care and place her for adoption.
25. Further, whilst counsel tried gamely last week to cobble together a very, very tight timetable to get the outstanding evidence ready for this week (involving the mother having 24 hours to respond to the totality of the local authority's final evidence and the Guardian submitting her report without sight of the mother's evidence) I am satisfied that to attempt to proceed with the hearing in this manner would plainly result in the mother having insufficient notice of the totality of the evidence the local authority rely on to establish that this is a case in which nothing but adoption will do and the terms of the local authority's care plan to that end and, accordingly, insufficient time to fairly respond to that evidence and final care plan (not least because, even today, some of that evidence and a completed care plan remain outstanding).
26. Within this context, and in the circumstances I have set out above, I am satisfied that, with an extremely heavy heart, it is necessary to adjourn the final hearing and give directions to ensure an effective adjourned final hearing. As matters stood last Wednesday, no judge of the Family Division could accommodate an adjourned five-day final hearing before the end of February 2017. Whilst there is a possibility that the matter could be heard in mid-November, that possibility has yet to be confirmed and remains subject to developments in another case. Further investigation is accordingly required to determine whether this matter can come on for hearing on those dates or whether an alternate date will need to be found. I nonetheless intend today to give directions that will move this case towards an adjourned final hearing in the shortest time reasonably achievable.
27. Ms Tara Vindis on behalf of the E submitted that this case is one that requires to now be put into 'special measures'. That is an apt analogy. Within this context, it is my intention that the local authority will provide a written report to me each Friday morning at 10.00am by way of email to my Clerk confirming the continued compliance with the timetable the court intends to impose. In the event of default on the part of the local authority, the matter will be brought back into the list for a compliance hearing. It is my expectation that the local authority will comply with its heavy duty to obey the directions of the court. In this respect, I repeat the following words of the President from his seventh View from the President's Chambers:

"What ...is for me a real concern is something symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders. This principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Both parties and non-parties to whom orders are addressed must take heed. Non-compliance with an order by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body. Non-compliance with orders should be expected to have and will usually have a consequence: see Re W (A Child), Re H (Children) [2013] EWCA Civ 1177."

28. Finally, and within this context, I am invited by Ms Maclachlan and Ms Vindis to order that the local authority show cause as to why it should not pay the costs thrown away by the need to hold a compliance hearing last Wednesday and the need to adjourn this final hearing. Having regard to the terms of s 51 of the Senior Courts Act 1981, the principles set out in the case of Ridehalgh v Horsfield [1994] 3 All ER 848 and the matters set out above, I am entirely satisfied that this is a case where it is appropriate to order that the local authority show cause why it should not pay the costs thrown away in respect of the hearing on 12 October 2016 and the adjourned final hearing. Whilst Mr Pavlou asks that the court await the results of the independent enquiry into the failures set out above that is to be held by the local authority before the court orders that the local authority show cause, I remain satisfied that such an order is appropriate at this stage having regard to the matters I have set out above. The outcome of the independent enquiry will, if relevant, no doubt be relied on by the local authority as part of its effort to show cause when the application for wasted costs comes on for hearing.
29. In the sorry and depressing set of circumstances I have outlined during the course of this short judgment, I adjourn the final hearing of this matter. I order the London Borough of Redbridge to show cause why it should not pay the wasted costs of the hearing on 12 October 2016 and this final hearing. I will give directions to ensure the efficacy of the adjourned final hearing on a date to be identified.
30. That is my judgment.