Re S-W (Children)

This is an appeal from final care orders made at the Family Court, sitting at Liverpool on the 7 August 2014, in respect of the three children of the appellant mother; ES born on the 27 July 2000 (14); LW born on the 9 October 2003 (11); and AW born on the 17 July 2004 (10).

On the 18 July 2014, Liverpool City Council made an application for a care order in respect of all three children. At the first hearing, known as a Case Management Hearing (CMH), held on 7 August 2014, (less than three weeks after the application was made), the judge made final care orders in respect of each child. The mother sought permission to appeal the orders by an appellant’s notice dated the 8 September 2014; her Grounds of Appeal being directed at the summary disposal of the case at such an early stage of the proceedings.

Permission to appeal was granted by Lord Justice McFarlane on the 30 October 2014. In granting permission, McFarlane LJ identified an issue of wider application saying:

“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”.

Neither Liverpool City Council nor the children’s guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.

The brief facts are as follows: The family have been known to Liverpool Children’s Services since 2006 although it was not until November or December 2012, that the children were removed from their mother’s care and accommodated under a s20 Children Act 1989 (CA 1989) agreement. The concerns of the local authority centred on the general neglect of the children, against a backdrop of alcohol and drug use, together with the mother’s inability to break free from a violent relationship.

LW and AW were placed with their paternal grandmother and ES with his maternal grandmother. ES and AW continue to live with their respective grandparents and it seems likely that that will continue to be the case. LW and AW have the same father, LW Snr, who has been represented in the proceedings but who is presently remanded in custody in relation to criminal proceedings. ES’s father is not in contact with his son and had not been served with notice of the care proceedings by the date of the CMH.

Unhappily, LW has fared less well than his brothers since he left his mother’s care in about November 2012. He has had 14 different placements, including two since the making of the care orders in early August 2014. LW is academically capable and has been described as ‘over achieving’ in school. LW is currently in local authority foster care but very much wishes to be allowed to live with his mother.

Despite the longstanding concerns about the family, the local authority did not issue care proceedings until 18 July 2014. In February 2014 the mother had been told that there was the potential for LW to return to her care. During a pre-proceedings meeting which took place on the 19 March 2014, it was decided that the mother would be assessed as a potential carer for all the children, a decision which led to a parenting assessment being filed on the 4 July 2014. That assessment was not positive and ruled out rehabilitation of all the boys to their mother. Notwithstanding that conclusion, in light of LW’s continued instability, distress and fervent desire to go home, active consideration continued to be given to some sort of placement which would allow LW to be with his mother.

Upon the issuing of the care proceedings a Guardian, Ms Deborah Cotterell, was appointed. As is required under the terms of the revised Public Law Outline (PLO), Part 12 Family Proceedings Rules 2010 (FPR Part 12: PD12A), the Guardian familiarised herself with the evidence then available and filed an Initial Evaluation for use at the CMH hearing. There is no expectation, either in the FPR 2010, or in practice, that the Guardian will have seen either the children or any of the parties prior to preparing her report for the CMH; indeed it would be wholly unrealistic to do so as, by FPR Rule 12; PD12A, the CMH is required to be listed between Day 12 and 18 starting from the date of issue of the care proceedings.

The initial evaluation of Ms Cotterell, the Guardian, brought to the attention of the court three significant matters:

Prior to the listed CMH, an Advocates meeting was held as is required by the PLO: (PD12A: Stage 2). Discussions were held at the meeting and agreement reached as to the future progress of the case, details of which were noted down by Mr Baker, Counsel instructed on behalf of the local authority, with a view to them being put into the form of an order following further discussions which it was anticipated would be held at court immediately prior to the hearing.

When they arrived for the hearing both the Advocates and Guardian were in agreement, subject to the judge’s approval, as to both directions and a timetable along the following lines:

On the morning of the hearing the court had, in addition to the Guardian’s analysis and the parenting assessment, a report from the social worker. The mother had filed a statement setting out the changes she said that she had made in her life, her desire to have the children rehabilitated to her care, emphasising her considerable concern for LW and her wish for him to live with her.

The Guardian was not at court having sustained an injury of some sort, but was available on the telephone.

All parties anticipated that the matter would be dealt with by way of a directions hearing which would provide for an early IRH and which would record on the face of the order, that the IRH may well be treated as a final hearing. For the mother her expectation that the matter was to be dealt with by way of directions was of fundamental importance to her, providing as it was for the local authority to fund hair strand drug testing of her to confirm (or otherwise), her alleged cocaine use, there having previously been inconsistent results as between a hair strand test and her routine urine tests. The results would inform a decision as to whether further consideration would be given to the rehabilitation of LW to her.

The local authority had filed interim care plans in relation to each child in preparation for the hearing. The plans were already significantly out of date; for example LW’s plan, whilst dated on the front sheet 3 July 2014, had in fact been signed off on 14 February 2014. LW had been through at least two further placements since the foster placement identified in the interim care plan as a long term placement. The plan failed to recognise the current thinking about a possible placement of LW with his mother saying that the mother would “take no role in the day to day care” of LW. The judge could not have been other than misled by the content of these plans when carrying out his pre-reading for the hearing; unfortunately however, his determination to conclude the proceedings without more ado prevented any misconception he may have been under from being adequately corrected by any of the parties during the course of the hearing.

The position was more straight forward for ES and AW as they seemed to be settled with their grandparents. The plan for them was that in the event of favourable special guardianship assessments, a special guardianship order would be made by consent and there would have be no necessity for a care order ever to be made.

A transcript of the hearing in front of the judge has been made available; it reveals that within a matter of minutes, the judge had made abundantly clear, in trenchant terms, his determination to conclude the case there and then by making final care orders. The judge was fortified in his approach, he told the parties, by the fact that the previous week (30 July 2014), an application for permission to appeal in relation to another final care order he had made at the CMH in a different case had been refused by McFarlane LJ : Re H (Children) Case No: B4/2014/2033.

The judge was scathing of the Guardian’s report and her reasons for requesting further information, saying that “advice about the practice direction that came in on 31^st July” (a reference to the new Bundles Direction), would signal the end to what he referred to as “this sort of Victorian detail”.

In relation to LW’s situation he said that whilst he wished LW “every good luck in the world but the Children Act and the court has nothing to do with it”.

All the parties crumbled under the judge’s caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews).

At one stage the judge referred to the mother as looking “upset and bewildered”. It is hard to see how she could have looked otherwise given the course the proceedings were taking.

The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children.

A key feature of the family justice reforms now found in the CA 1989 as amended and FPR 2010 Part 12 and Practice Direction 12A, has been the use by the courts “vigorous and robust case management” as a tool for ensuring that, wherever possible, delay is minimised and the statutory 26 week requirement found at s32 CA1989, is achieved. It is undoubtedly the case that, as a result of the reforms, there has been a significant change in culture, driven through by dedicated judges and specialist counsel and solicitors up and down the country. Many care cases are now concluded at either the IRH or well within 26 weeks, to the considerable benefit of the children involved. The Liverpool area has been notable in its successful implementation of the reforms and its early achievement of the routine disposal of care cases within 26 weeks.

Part of the way in which effective case management is achieved is by virtue of the judge allocated to the case retaining considerable flexibility in the manner in which he manages the particular case before him; FPR 2010; PD12A has at Para 2, “Flexible powers of the court” Provision is made for :

So far as CMHs are concerned PD12A para 2.6 provides:

“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.”

The CMH then is precisely that and to that end a number of matters are prescribed for consideration at the CMH within the PLO: Stage 2,these include:

(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.

The expectation is therefore that a CMH will ordinarily be an essential management hearing designed to get the case in proper order to enable it to be ready for disposal, whether by consent or following a contested hearing, within 26 weeks. This is in contrast to the IRH when all the evidence, including expert evidence should be filed and where, unlike the CMH, the rules specifically require consideration to be given as to whether the IRH “can be used as a final hearing” (PD12A Stage 3- Issues Resolution Hearing)

Every care judge will be conscious that, whilst it is in a child’s best interests for their future to be determined without delay, it is equally in their best interests that the management of the case which determines their future should be fair and Article 6 compliant. The danger lies when, as unfortunately happened here, vigorous and robust case management tips over into an unfair summary disposal of a case.

It is accepted by all parties that the court must be alert to the danger of trespassing upon the province of the local authorities with regard to the making and implementing of care plans. With effect from 22 April 2014 the prohibition which had hitherto prevented the court from making a care order without considering a care plan has been repealed. The new section s31 CA 1989. provides as follows:

“(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”.

Underpinning the drafting of a care plan is a range of regulations and authority; for example the care plan must accord with the Care Planning, Placement and Case Review (England) Regulations 2010 ( Part IV), which regulations are supported by four sets of statutory guidance.

In the present case the local authority had not yet filed a “section 31A” plan, only the misleading and out of date interim care plans. The local authority cannot however be criticised for the absence of certain other information which would be required under the regulations in a “section 31A care plan” such as the identification of the Independent Reviewing Officer.

Once a “section 31A plan” is filed, the provisions for the scrutiny of the plan by the court hearing the case is now expressed in terms of “requirements” and are found in section 31(3A) CH 1989 and section 31(3B) CA 1989:

Care plans

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).”

It can be seen that a court is “required” to consider permanence plans but, save as to contact (s34(11) CA 1989), it is “not required” to consider the remainder of the care plan. The fact that the court is “not required” to consider certain other aspects of the plan does not mean it is prohibited from doing so; one can imagine any number of situations where a particular child’s individual identified needs will mean that the court, whilst not seeking to trespass on the exercise of parental responsibility of the local authority, forms the view that the child’s welfare necessitates the court satisfying itself in relation to certain important aspects of the care plan not found within the permanence provisions themselves.

In addition, Miss Burnell, on behalf of the Guardian, rightly draws the court’s attention to the provision in section 31(3B), which provides a definition of “permanence provisions” which, includes:

“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”

This subsection, Miss Burnell submits, should be read disjunctively, it is not sufficient she argues for a care plan simply to refer to a “family/friend placement”; the precise placement anticipated must be indentified and adequate information about the placement provided to allow proper consideration by the court. Miss Burnell reminds the court that it is not uncommon for the focus of a welfare hearing to be upon which of two possible family/friend placements is the appropriate placement for the child in question; it cannot have been intended that the court should be excluded from hearing evidence in relation to the various options within that class of potential carers.

I accept Miss Burnell’s submission. Where a care plan anticipates that a child will live permanently with a family or friend, the identity and sufficient information about that family member or friend must be before the court. Without such information the court will be unable properly to consider the proposed permanency provisions. Such an approach chimes with the position, as it has been for many years, in relation to the treatment of long term foster placements where, if it is intended that a child is to remain in a long term foster placement, the care plan must contain a description of the placement and of the foster carers to be provided by a social worker who knows the foster carers in question. Re J (Minors) Care: Care Plan) [1994] 1 FLR 253.

The judge relied on McFarlane LJ’s written reasons for refusing Permission to Appeal in Re H (Children) Case No: B4/2014/2033 as justification for the course he adopted. In that case McFarlane LJ said:

“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:

In Re B [1994] 2 FLR 1 Butler Sloss P considered the circumstances in which courts could make final orders in a number of different situations without a full hearing. In this context a number of her observations are still of value (page 5):

“………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?

The considerations listed by Butler Sloss P were directed towards a contact application buthave a resonance in care cases and it may be exceptionally that, if all parties consent, or there is otherwise a clear case for it, then a court will make final orders at a CMH 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. Generally the very nature of the hearing and its description as found in the PLO militates against such an outcome not least because:

It follows that whilst one can conceive of cases where a final order will be made at the case management hearing,(the application for permission to appeal of Re J referred to above was one such case), in reality it is likely that such a course will be appropriate only occasionally and in any event:

All parties agree that this is a case where the judge, in his desire to embrace and put into effect the family justice reforms, has unilaterally disposed of a case prematurely in circumstances where such a summary disposal was not only unfair to the mother but contrary to the interests of the children with whom he was concerned. It follows that for the reasons outlined above I would allow the appeal and remit the matter to HHJ de Haas.

It has long been a fundamental principle of English law that justice must not only be done, but must be seen to be done. Where a judge has apparently made up his mind before hearing argument or evidence that principle has undoubtedly been breached. A closed mind is incompatible with the administration of justice. But in such cases it is always possible that justice itself has not been done either. As Lord Neuberger MR recently put it in Labrouche v Frey [2012] EWCA Civ 881 at [24]:

“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.”

Longer ago in John v Rees [1970] Ch 345, 402 Megarry J said:

“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.”

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.

Parties are also entitled to know why judges make the decisions that they do. This necessarily entails giving reasons for decision, not merely announcing conclusions. The reasons may be brief but they must be explanatory. Justice will not be done if it is not apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16].

In both civil and family cases the Court of Appeal has said on more than one occasion that it will uphold robust but fair case management decisions by first instance judges: Cherney v Deripaska [2012] EWCA Civ 1235 at [17], [30]; Re TG (a child) (care proceedings: biomechanical engineering evidence) [2013] EWCA Civ 5, [2013] 1 FCR 229 at [35], [36]. Both adjectives are important. Robustness cannot trump fairness.

Family cases, however inquisitorial and streamlined they may be, are not exempt from these basic principles. As the President put it in Re TG at [37]:

“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).”

It was for these reasons, as well as those given by the President and Eleanor King LJ, that I joined in the decision to allow the appeal.

I agree so completely with the judgments of my Lady and my Lord that there is little I need to add. However there are a few points which I wish to emphasise.

My Lord has drawn attention to the famous words of Lord Hewart CJ in R v Sussex Justices [1924] 1 KB 256, 259. In the present case it is unhappily all too apparent that no dispassionate observer of the proceedings or reader of the transcript could think that justice was done, let alone that it was seen to be done. It was not.

Vigorous and robust case management has a vital role to play in all family cases, but as rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to “deal with cases justly, having regard to any welfare issues involved”. So, as my Lord has emphasised, robustness cannot trump fairness.

In the context of case management, fairness has two aspects: first, the case management hearing itself must be conducted fairly; secondly, as I observed in the passage in Re TG to which my Lord has referred, the task of the case management judge is to arrange a trial that is fair. Here, there was a failure in both respects.

We are all familiar with the aphorism that ‘justice delayed is justice denied’. But justice can equally be denied if inappropriately accelerated. An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, para 40, “Justice must never be sacrificed upon the altar of speed.”

Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG, paras 27-28. But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays due regard to two fundamental principles which apply as much to family cases as to any other type of case.

First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn. It is one of the oldest principles of our law – it goes back over 400 years, to the earliest years of the seventeenth century – that no-one is to be condemned unheard: see Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, paras 28-29. As I observed (para 55):

“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.

Secondly, there is the right to confront ones 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.

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 theirevidence that may have a significant impact on the outcome.

Quite apart from the fundamentally important points of principle which are here in play, there is great danger in jumping too quickly to the view that nothing is likely to be achieved by hearing evidence or allowing cross-examination, in concluding that the outcome is obvious. My Lord has referred to what Megarry J said in John v Rees. The forensic context there was far removed from the one with which are here concerned, but the point is equally apposite. As I said in Re TG, para 72:

“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.”

I agree with my Lady that 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. Re H, to which my Lady has referred, was such a case, but the particular and unusual facts which there justified a summary process need to be borne in mind. Re H is not and must not be treated as justification for any general principle, let alone for proceeding as the judge did in the present case.

Quite apart from the fact that such a ruthlessly truncated process as the judge adopted here was fundamentally unprincipled and unfair, it also prevented both the children’s guardian and the court doing what the law demanded of them in terms of complying with the requirements of the Children Act 1989 and PD12A. I agree with my Lady’s analysis, in particular in relation to care plans and the meaning and effect of the various provisions in sections 31 and 31A of the Act to which she has referred.