H (A Child) (Analysis of Realistic Options and SGOs)

On 22 January 2015 the court allowed an appeal against a special guardianship order made by Her Honour Judge Wright on 9 October 2014 at the Central Family Court and gave directions for the future conduct of the proceedings including evidential and witness requirements. These are my reasons for concurring in that decision. A transcript of the discussion in court was provided to the parties on an expedited basis to allow for an urgent re-hearing of the case.

The proceedings are public law children proceedings concerning a four year old girl which were commenced by the London Borough of Hammersmith and Fulham on 7 March 2014. I shall refer to the child as H. The order that is appealed is a special guardianship order (SGO) made in favour of a non-relative who was a member of the mother’s church who I shall call A. The appellant is H’s father. A was not made a party to the proceedings in the Central Family Court and did not intervene in this court. Although the appeal was resisted by the local authority, counsel for the authority, Ms Ancliffe, has been astute to recognise the errors that were made which led this court to the conclusion that the SGO must be set aside and the matter re-heard as soon as possible.

This was an appeal about whether a father should look after his daughter in the context that, as the judge held, he had adequately cared for her during an extended period when she had been placed in his care and there was going to be high, continuing involvement by him in the form of generous weekly contact. He was also a parent who said that he would accept whatever support was available and the judge did not find otherwise. He impressed the judge as a witness.

There were two realistic placement options before the court: supported care by H’s father or care by a relative stranger, A, under the protection of a SGO. The local authority conceded at the outset of the hearing before us that the judge had not undertaken a comparative welfare analysis of the two realistic options open to her. Given the lack of comparative analysis it followed that the proportionality evaluation was also missing i.e. an evaluation of the interference that the SGO represented with the Article 8 rights of those involved.

This was not a case that was heard and determined at first instance before the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 and accordingly it is not sufficient for this court to look to see whether the essence of the analysis and evaluation were demonstrated in the judgment (see the guidance given by Sir James Munby P in Re W; Re H (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177 at [16] and [17]. An analysis was necessary that paid more than mere lip service to the principles and the principles are now well known and helpfully summarised at [34] and [41] to [44] of Re B-S. In any event, in this case the analysis and its essence were missing.

As I shall describe, the poor case management of the proceedings included the late allocation of a judge who had not had the benefit of any previous involvement. It demonstrated classic errors including a failure to identify the issues, the realistic options (including the procedural protections that are inherent in a case where a SGO is being considered), the evidence and the witnesses who were available.

Sadly, it became clear that both procedurally and substantively there had been errors of law which this court could not correct and which would probably not have occurred had the court and the parties followed Practice Direction 12A to Part 12 of the Family Procedure Rules 2010 (FPR 2010) (Care, Supervision and other Part 4 Proceedings: Guide to Case Management - the Public Law Outline). I have sympathy with the judge who came to case for the first time at the final hearing when the errors which we identified had already had their effect and where the advocates were also new to the case. In simple terms, the case was not in a fit state to be heard. It is a matter of some significance that no-one realised that fact at the time.

The background to the case is as follows. As the judge recorded, the local authority had been involved with the family since before H’s birth. There were previous care proceedings within which, in April 2011, H was placed in foster care. She moved to her parents’ care one year later. In June 2012 a supervision order was made which reflected the success of a residential assessment and the subsequent placement of H at home. The order was extended until February 2014. It was an important element of the care plan that the parents’ care was to be supported by the father’s family and members of the mother’s church because each parent on their own was assessed to be unable to care for H. H was subsequently diagnosed as having a condition known as ‘chromosome 16’ which is linked to developmental delay and speech, language and learning difficulties. She has delayed development and is vulnerable to seizures. Her needs have been assessed to be high, requiring a level of parenting that is better than ‘good enough’ and carers who are ‘emotionally available’ to help her make sense of her experiences.

The triggering incident which led to these proceedings occurred on 5 January 2014 when the police were called to a shopping centre in West London. H had been left unaccompanied inside the centre by her mother who had been smoking a cigarette outside the main entrance. H’s father was not present and was unaware of what had happened. The incident was investigated by a social worker who discovered that the parents’ relationship was breaking down. By late January, H’s mother was insisting that the father should leave the home and on 26 January 2014 he did so, leaving H in her mother’s sole care. Despite increased local authority support the care of H by her mother rapidly broke down. That led to a trial agreement between the parents and the local authority for collaborative care by the parents under the supervision of the local authority which was to be provided for by renewed care proceedings that were issued on 7 March 2014.

H’s mother failed to abide by the agreements she had entered into and H moved to live with her father with the support of his family in March 2014. Somewhat belatedly the local authority had called a family group conference which had identified the support that the father had from his family and also a friend of the mother (A) who was subsequently identified by the local authority as the proposed special guardian.

The case was timetabled to an issues resolution hearing on 23 July 2014 when it became clear that neither parent supported H going to live with A. Mother had ceased to have contact with H because of her anxiety and her underlying mental health difficulties. Father maintained his case. He was looking after H and he wanted to continue to do so. At the final hearing Judge Wright criticised the parties for failing to narrow the issues at the IRH and implied that she had been asked to hear evidence upon which it is clear she thought nothing turned. The truth is that the failure to identify the issues in the first place made such narrowing of them as Judge Wright thought appropriate an impossible exercise and one that in the event led to a fatal flaw.

The threshold for jurisdiction described in section 31 of the Children Act 1989 was necessarily constructed on a broad basis having regard to the fact that there were issues of fact and likelihood of harm relating to both mother and to father. The local authority’s case against father was that he was not capable of caring for his daughter because of his autism, the effect of stress on him, the specialist skill required to deal with H’s chromosome disorder and the risk that he presented to H’s emotional wellbeing.

The risk that it was said father presented was based in part on matters determined in the earlier proceedings and in part on new allegations. The risk was made up of (1) that which it was said flowed from an allegation that father left H in the care of her mother when the couple separated, (a risk which was mitigated by the fact that he chose to inform the local authority through the dedicated nursery workers), (2) that which arose out of the abusive relationship between the parents, the physical elements of which he denied, and (3) that which would arise if father was unable to engage with H as her primary carer. The judge held that the findings sought by the local authority which were sufficient to satisfy the threshold had been proved. There was undoubtedly ample justification for that conclusion based on the mother’s conduct alone. What is sadly missing from the judgment is attention to the detail of the findings that the judge made against the father so that there can be a proper understanding of the nature and extent of the risk that existed in the father’s care for the purpose of a welfare analysis.

The judge identified in her judgment the key issue in the case which was the question whether father was capable of caring for H on his own, about which there was an adverse assessment conclusion supported by the analysis of the children’s guardian. Closer examination reveals that the opinion upon which the judge relied was that of a Dr Campbell, a consultant neuropsychologist who was an expert witness in the 2011/12 proceedings and who had then advised that father would need another person alongside him to co-parent H. The judge records that opinion and the fact that father disagreed with it on the basis that he had received therapy, had developed insight and had changed.

Although the judge set out the fundamental disagreement on the key issue, no-one had thought in advance of the final hearing to identify whether the issue was important enough for Dr Campbell to write an updating report or even to be called to be cross examined on behalf of the father. No-one took any steps during the hearing to question how the disagreement was to be resolved. There was no application to call Dr Campbell. If the social worker and guardian were asked for their opinions during examination and cross examination this court was not taken to their answers and the judge did not rely on any of the detail of their evidence in her judgment to suggest that the issue was addressed. Furthermore, it was conceded before us that the social work assessments and analyses in this case could not substitute for or update the forensic opinion of Dr Campbell. The witnesses did not have the skill and expertise to do that.

The consequence is that the judge did not give the lack of agreement that existed the importance that it deserved and that was because there were fundamental flaws in case management before the final hearing. The issue was not identified nor was there any identification of the evidence and the witnesses whose materials would go to that issue. A part 25 application to adduce expert evidence had been unsuccessful during case management and the assessment material appears to have taken the issue as being concluded when it was not. In fact the part 25 application seems to have been misguided, asking as it did for alternative adult psychological assessment. What should have been asked for was up to date evidence from Dr Campbell and given that his opinion was part of the local authority’s case, they should have made application for it, paid for all or some of it and taken the lead in giving instructions for it.

In discussion before this court, the advocates acknowledged that the lack of judicial continuity was compounded by the lack of continuity of representation of the parties such that essential steps including mandatory advocates’ discussions before hearings were missed. Had there been judicial continuity it is at least likely that these issues would have been addressed.

There are cases where a judge’s firm acceptance of evidence can lead this court to acknowledge that the reasoning process implicit in that acceptance is sufficient to deal with the key issue identified. Suffice it to say that having regard to the other issues in the case, to which I shall now turn, no-one seriously pursued a submission that the judge’s reasoning was sufficient or that any gaps could be filled by reference to the evidence that was accepted by the judge. This court cannot guess whether the assessment and social work evidence and the guardian’s analysis now stand scrutiny on their own. The issue was not tackled in the way that it should have been at first instance. Furthermore, there were independent elements of the evidence available to the court which might have impacted on all three opinions.

The independent evidence that was available came from Mencap, the National Autistic Society and from father’s two siblings. The judge heard no oral evidence about any of the support that was on offer from those who could provide it. On the written materials she came to the following conclusion:

First of all that recognised the importance of the key issue I have identified, about which the only other relevant conclusion to which the judge came was:

The judge went on to consider what the position would be if father was not supported and also two other aspects of the case that are relevant, namely the father’s understanding of the need to act quickly if H had a seizure and what was described as a negative “snapshot” from the guardian derived from her only visit to father’s household during the extensive period that he successfully cared for his daughter with the support of family members. None of this was decisive. The key issue in the case remained whether father needed a co-parent and if not, whether the nature and extent of the available support was sufficient.

It is clear from the judge’s judgment that she had read materials from the interest groups referred to above and from the father’s relatives. It is not at all clear what part, if any, they played in her analysis. That is because the analysis is missing. It is possible that no-one wished to cross examine the authors of the documents and that their contents were taken as agreed. An alternative explanation is that the local authority took the pragmatic view that they disagreed with the contents or that the contents did not address the issue and that cross examination would not take the evidence any further. Either position would have been acceptable and understandable but given the disagreement on the key issue it would have been helpful to know whether or not the content of the documents was agreed and how that was factored into the welfare analysis. I also find it difficult to accept that a value judgment about a co-parenting or caring supporter in a contested case can be definitively made without hearing some limited oral evidence from that person in the absence of agreement or a case where the proposal is not realistic.

It is one of the grounds of appeal to this court that the judge declined to hear oral evidence from the paternal family, i.e. evidence other than that of the father. The paternal aunt and uncle attended court on the third day of the final hearing with the intention of giving that evidence. We were told that the evidence would have gone to answer some of the questions that the local authority social worker and the guardian had about the merits of the support that the father had. It is difficult to know whether that is right. The judge rejected the application for reasons that are unclear. They were neither expressed in the judgment nor in the detailed order made by the court. The reasons may have been appropriate but if not expressed the impression given is that the judge treated the father’s case as if it was not a realistic option.

All of these issues should have been addressed by the court and the parties at the issues resolution hearing when a different judge briefly had conduct of the case. It was at that hearing that the SGO option is first identified in a recital to an order. Although there is a reference to a SGO, the question of whether a SGO should be made is not then identified as an issue to be determined as it should have been on the face of the case management order. It is not until the final order of the court that the issue is identified as one for resolution. The importance of that is not merely technical. For an SGO to be made there are steps that have to be taken. The steps are part of a regulatory scheme that provides protections for the child involved and for those with parental responsibility and those who seek to obtain it. Furthermore, it is important that the court identifies the realistic options before the court so that the evidence can be focussed upon those options thereby providing the material for the judge to consider in the welfare analysis.

At first sight of the papers one could be forgiven for wondering what compliance there had been with the rules in the preparation there had been for the final hearing. The local authority did not amend the care plan to make the proposal for special guardianship until 2 October 2014 and the detail of the transition plan to move H from the care of her father to A was not provided until the first day of the final hearing. The IRH had taken place on 23 July 2014 when all of those materials should have been available. I assume that no-one was taken by surprise because there was no application to adjourn the final hearing on that basis but the extended period from July to October, which was inappropriate in itself, should have been used to regularise what was happening so that it did not occur at the last minute.

What was happening was that the local authority were seeking to persuade the court to make a SGO. Although the court has power to make such an order of its own motion in accordance with section 14A(6)(b) CA 1989, that should not be the default position. Such a process can, as it nearly did in this case, give rise to procedural irregularity for lack of notice. The special guardian or the local authority on her behalf should have made the application. The important procedural hurdle of the satisfaction of the test in section 10(9) CA 1989 would then have been addressed. It is only where parties agree that an application for a SGO should be dispensed with that the section 14A(6)(b) CA 1989 power can be exercised without good reason. In any other case, the use by the court of this power must be reasoned. The parties in this case did not agree and the use of the power was assumed not reasoned.

In accordance with section 14A(8) CA 1989 the local authority must prepare an SGO report and by section 14A(11) the court cannot make a SGO without such a report. The statutory purpose is a very real protection. The contents of such a report are set out in a regulatory scheme which is to be found in the schedule to the Special Guardianship Regulations 2005, which is designed to ensure that necessary questions are addressed before controlling parental responsibility for a child is vested in a person other than a local authority. Such a report was never directed to be prepared in this case because no SGO application was ever made.

In her judgment the judge accepts that a report, a support plan and an addendum report which she identifies are sufficient for the statutory purpose. It is only because there is a concession before this court that the content of an earlier ‘connected person’s assessment’ of A fulfil those requirements that this court has not moved on to question whether the assessment was sufficient for its purpose. During case management, the court should have addressed the question directly. On identifying that one of the realistic options that the court was being asked to consider was special guardianship, it should have made directions in the prospective application including for the SGO report and any relevant evidence. If a report which is being or has been prepared is to be deemed to satisfy the regulatory and statutory requirements, then the case management judge should say so: allowing anyone who disagrees to be heard given the statutory importance that is attached to the report. In other words, the assertion must be scrutinised. By section 14C(1) CA 1989 the holder of a SGO shares parental responsibility with the parents of a child but has the right to override the responsibilities of the parents. Such an order is a significant step in a child’s life that is intended to have long term consequences and the protections that surround it should be respected.

The final element of this appeal that is troubling is the judge’s treatment of the special guardian. The judge was apparently of the opinion that it was not appropriate for the father to ‘compete’ with the special guardian. I can understand the point she was making, namely that it would be undesirable for the two potential carers of H to be engaged in an adversarial exchange when subsequently they might have to work in partnership. However, the father was entitled to the procedural protection of being able to cross examine witnesses about the capability of A to care for his child. If that was not to be A herself and I reserve judgment on that question until it is a live issue on which a case turns, then it should have been the assessor.

One of the authors of the connected person’s assessment to which I have referred was called to give oral evidence. Unfortunately, she was the assessor who provided information about the birth family. The separate assessor who provided the information about A was not called to give evidence and accordingly there was no cross examination on the question of the capability of A to care for H.

All of this stemmed from an assumption generated in poor case management that the special guardian was a realistic option and the father was not. That was not this case. At the time of the final hearing H had been living with her father for more than six months. It was accordingly incumbent on the court to undertake a comparative welfare analysis. That is missing and would have been difficult to construct on the evidence that was heard.

The errors that I have described are fatal to the determination made by the judge. As a consequence, at the conclusion of the hearing before this court we allowed the appeal, set aside the special guardianship order, imposed an interim care order on an undertaking to file a new interim care plan to abide the event of an application to restore the status quo ante or an urgent re-hearing. We made case management directions to expedite the identification of the issues, evidence and witnesses at a new IRH.

I have set out the catalogue of problems in this case in rather more detail than might usually be necessary because it is essential that the rules and practice directions of the court are applied. They are there for a purpose. Casual non-compliance is not an option precisely because further harm will likely be caused to a child.

I agreed that the appeal against the special guardianship order should be allowed in this case, to some extent for the reasons given by Ryder LJ in his judgment.

I would, however, wish to add a few words of my own in relation to the analysis, or lack of it, in the court below, of the proposal to appoint A as H’s special guardian, which seemed to me to be a compelling reason for thinking that this case needed to go back for a rather more thorough re-hearing.

It was submitted for the father that the judge had refused to enter into a competitive analysis of the relative benefit of H continuing to be cared for by the father with the assistance of family and friends. Whether that was so or not, I was very troubled by the apparent unquestioning acceptance that A was a suitable alternative carer for H, if it were found that there were difficulties in H continuing his sole care of his child.

The material before the court, such as it was, as to A’s suitability in this regard was in a section of an “Assessment of Family, Friends and other People connected to the Child” dated 2 July 2014. It described A as having “a busy lifestyle” and “[enjoying] being involved in different activities”. The authors said that there had been an opportunity to observe A with H on one day “for just under an hour”.

It seemed that initiative to engage A came from “some church members…aware of [the mother’s] situation and that H was going to be coming into care. They approached [A], knowing that she was an approved foster carer, asking whether she would come forward as a potential carer for H. This was prior to H’s birth…” (i.e. in November 2010) (my emphasis).

It was reported that A had had limited contact with the mother since April 2014 and had not seen H since February 2014, although it appears there must have been the short observation in June 2014 to which I have referred. The report went on to state that A was also responsible for two other children under SGOs and had other children and grandchildren residing with her. There was also a fairly lengthy section dealing with the matrimonial and other fluctuating relationships of A, about which it is not necessary to say a great deal, save that what was written did not paint a picture of the type of domestic stability that one would hope for a child in H’s difficult position.

Quite apart from A’s domestic arrangements, it was reported that, while living in the Northolt area of London (some distance from the father’s home elsewhere in the capital) she was employed 23 hours per week as a health worker at a hospital in Reading. This seemed to me to raise serious questions, which ought to have been examined, as to the viability of this special guardianship and A’s ability to care properly for H. It was also being proposed that H was to be moved from her current nursery, with its specialist provision, to a nursery local to A’s home in Northolt of A’s choosing, she being “aware of the resources in her vicinity”.

The idea that an order should be made appointing A as special guardian, without a thorough examination of the viability of this, and apparently with little opportunity being given to the father to challenge the proposal, struck me as highly unsatisfactory in the light of the available evidence which I have sought to summarise It was clear to me for this reason alone that a re-hearing of this matter was required and that , to put it at its mildest, the proposed SGO in favour of A was highly questionable.

I agree with both judgments.