Cunningham, R (on the application of) v Hertfordshire County Council & Anor

This is an appeal from the order of Hickinbottom J of 8 July 2015 whereby he dismissed the appellant’s [“Mrs Cunningham”] claim for judicial review. That was expressed as a challenge to the failure of Hertfordshire County Council [“Hertfordshire”] to provide her with support for the care of her grandson [“R”] who, it was suggested, was a “looked after child” for the purposes of section 20 to 22D of the Children Act 1989 [“the 1989 Act”]. A necessary stepping stone to that conclusion was that it should have appeared to Hertfordshire on 17 October 2012, for the purposes of section 20 of the 1989 Act, that R required accommodation because his mother was no longer able to provide him with it. Had Hertfordshire come to that conclusion and arranged accommodation for him, then after 24 hours R would have become a “looked after child” with the consequence that various obligations upon Hertfordshire would have arisen, including the provision of financial support. I will continue to refer to the child as R, because we made an order in the course of the appeal that he should not be identified by name.

On 17 October 2012 R moved in with Mrs Cunningham in Derby having previously been living with his mother in Hertfordshire. He has lived with Mrs Cunningham ever since in circumstances that are to her considerable credit. She has provided R with a stable and happy home.

R was 18 months old in October 2012. He was known to Hertfordshire Social Services and had been made subject to a child protection plan from April 2012. His mother’s lifestyle was chaotic and there had been violent episodes between his mother and father. Both R and his mother were regular visitors to Mrs Cunningham. A number of stays lasted weeks rather than days. The mother had criminal convictions and in October 2012 was involved in a violent incident. On 15 October, the police informed Hertfordshire that they intended to arrest the mother. The alleged offences included aggravated burglary. Hertfordshire immediately considered a foster placement for R with one of his uncles. They undertook a risk assessment which revealed no concerns. The following day the police confirmed that they intended to arrest the mother on 17 October. A note made that day in the social services file recorded that the police would ask the mother to nominate a carer but, if she did not do so, the police would initiate a formal protection procedure, namely a “Police Protection Order”. That is a misnomer for the procedure found in Part V of the 1989 Act which enables the police to take a child under their protection if it is at immediate risk.

The judge reviewed the detailed evidence placed before him regarding the events of 17 October and those which followed. He summarised his findings of fact in paragraph 28 of his judgment. At the mother’s suggestion R ended up with a neighbour and R’s uncle. Arrangements were then made for him to stay with Mrs Cunningham. Hertfordshire played no part in making those arrangements. In the quotation that follows, M is the mother, U is the uncle, and Ms Panayotiou is the neighbour. The Council is Hertfordshire and the City Council is Derby City Council, which became involved because of R’s physical location within their area:

“It was common ground between Mr Johnson and Ms Rayson that the differences in accounts – particularly whether R was left with the neighbour or with U – are immaterial to the determination of this claim; and I broadly agree. In my view, the following can be drawn from the evidence:

i)

On arresting M on 17 October 2012, the police were sensitive to the fact that M cared for R; and, without their being satisfied as to the care arrangements for R following the arrest – care arrangements with which M, as the person with parental responsibility for R, had to approve – then they would have to obtain a Police Protection Order in respect of the child, which would have triggered various obligations in the Council. The evidence is thin, but I am satisfied on the evidence I do have that, prior to taking M away, the police considered there were arrangements for R in place that had M's approval that would result in R being adequately cared for.

ii)

Those arrangements involved R staying with the Claimant. I am not sure that the evidential differences are of any moment; but, insofar as they are and insofar as there is evidence in support of this proposition, I do not believe that R was left with U on the understanding that he would either look after R or would be responsible for finding someone to look after R. I am satisfied that the arrangement was made through M's neighbour, Ms Panayotiou – although U was also present – and it was always the intention of the arrangement that R would be looked after by the Claimant. M agreed to this arrangement.

iii)

There were no pre-arrangements. The Claimant was in London at the time, and there was no arrangement, pre-made, that she would care for R on M's arrest. She was contacted, and she readily agreed to look after R whilst M was in custody. She thought that that would be temporary, and only for a few days or at most a couple of weeks; after which (she thought) M would be granted bail or would otherwise be released from custody, and R would return to live with her. M approved this arrangement, no doubt also hoping that her time in custody would be only days.

iv)

The arrest was made on 17 October 2012. Within two weeks (i.e. by 26 October 2012), M had pleaded guilty to various offences and had been remanded in custody for sentence until February 2013. Therefore, by 26 October 2012, both the Claimant and M were aware that M would be unable to care for R for at least a further three months; and, given the nature of the charges to which she had pleaded guilty, probably for a significantly longer period. Once M had pleaded guilty to the offences, the whole scenario changed: and the Claimant was by that time aware that arrangements for R would be, if not permanent, longer term. R did not simply need somewhere to stay, he need a home for some time.

v)

However, by that time, the Claimant was well aware that the Council would offer her no support: in her own statement … she says that "after a couple of days" following the arrest, she had contacted the Council which had made clear that they accepted no responsibility for supporting R because the arrangement by which he was living with the Claimant was an entirely voluntary one. It is uncontroversial that the Council unwaveringly maintained that line subsequently, and continue to do so. The Claimant says that she also contacted the City Council – as I understand it before 26 October 2012, although that is not entirely clear from the evidence – and they denied any responsibility for financially supporting R too.

vi)

The Council visited the Claimant and R in Derby twice, the first time in November 2012. The City Council also visited them from time to time. Neither authority suggested on any of these visits that they were responsible for financially supporting R and/or the Claimant as R's carer. Indeed, it is the Claimant's firm evidence that, on each occasion, they denied any responsibility for providing support.

vii)

During the period since 17 October 2012, there has been no real question but that R will live with the Claimant, unless and until M is able to offer him a home. There is a note in the social service department records for 18 December 2012 that the Claimant had said at a meeting that she did not want R to stay with her long term; but the notes go on to say that her body language gave a contrary indication. On 23 October 2013, there is a note saying that the Claimant did not want to keep R; but that was shortly before M's release from prison, when there was hope that she would be able to care for R is her own home. Generally, the notes suggest that the Claimant considers her house as R's long term home: she has claimed benefits for him, appears to have a signed consent from M concerning medical intervention and there have been frequent discussions about the Claimant (e.g.) applying for a Residence Order or some other order that will give her parental responsibility and R longer-term stability with her.

viii)

The Claimant's house has been R's home since at least 26 October 2012. The Claimant has, clearly, looked after R with commendable care and dedication since then. There has been no question of her not doing so. Her real complaint is that the Council and/or the City Council ought to have given her more support in respect of that task; but, although she says in her statement (at paragraph 14) that she is struggling to cope financially and emotionally, she has never suggested to the Council – or to anyone else – that, if they did not support her, she would not look after the child.”

Hertfordshire formally ended its child protection plan for R in May 2013. Derby City Council concluded that he was not a child in need because he was safe in Mrs Cunningham’s care. They recognised that the position might change after his mother’s release from prison. When that happened in December 2013 she moved briefly to Derby and was assessed by the City Council. They concluded that the mother was unable to provide a safe and stable home for R. She moved back to Hertfordshire. Derby City Council continued to monitor the contact between R and his mother who gave an undertaking not to remove him from Mrs Cunningham’s care. Derby City Council provided some support including assisting with the costs of a nursery. Mrs Cunningham, who works as a self-employed plumber, was struggling to juggle work with caring for R.

Section 17 of the 1989 Act imposes general duties upon local authorities to safeguard and promote the welfare of children within their area who are in need. A “child in need” is defined by section 17(10). It was common ground before the judge that R was a child in need for these purposes because of his home circumstances and the previous involvement of Hertfordshire. Section 20(1) provides:

“Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of:

(a)

There being no person who has parental responsibility for him;

(b)

His being lost or having been abandoned; or

(c)

The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.” (emphasis added)

Subsection (7) provides that accommodation may not be provided pursuant to this duty if a person with parental responsibility objects, so long as that person either provides accommodation himself or arranges accommodation. Subsection (8) enables a person with parental responsibility to remove a child from accommodation provided under section 20.

The statutory duty to provide accommodation for a child in need in the local authority’s area arises in the circumstances provided by the italicised words taken with the three factual alternatives that follow. By section 22 of the 1989 Act a child in need who is provided with accommodation for more than 24 hours becomes “a child who is looked after by a local authority”, more commonly referred to as “a looked after child”. Had R been treated as a looked after child, Hertfordshire would have been obliged to assess the suitability of Mrs Cunningham and her accommodation in accordance with the statutory scheme and, in particular, the Care Planning, Placement and Care Review (England) Regulations 2010. Had he become a looked after child, Hertfordshire would have been obliged by section 22C(2) and (3) to consider making arrangements for R to live with a parent or someone with parental responsibility. That would not have been feasible in this case. In those circumstances their duty would be “to place [R] in the placement” which in their opinion was the most appropriate available: section 22C(5). By section 22(C)(6):

“In subsection (5) “placement” means –

(a)

placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;

(b)

placement with a local authority foster parent who does not fall within paragraph (a);

(c)

placement in a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000;

(d)

subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.”

Section 22C(7) and (9) require the local authority to place a child within the authority’s own area unless it is not reasonably practicable to do so.

Mrs Cunningham is not a foster parent. Thus it would have been through section 22C(6)(d) that R would have been placed with her, had he been a looked after child assuming that it was not reasonably practicable to accommodate him within Hertfordshire.

Section 21(2) of the 1989 Act requires a local authority to receive and accommodate a child who has been taken into police protection. That is the mechanism which would have been engaged had the police taken R into protection rather than being satisfied, as they were, that arrangements had been made for him. Had the former occurred R would have become a looked after child through that route.

In R(A) v Croydon London Borough Council (Secretary of State for the Home Department Intervening) [2009] UKSC 8, [2009] 1 WLR 2554 the question was whether the duty under section 20 of the 1989 Act was owed to someone who was in fact a child or only to someone who appeared to the local authority to be a child. If it were the latter, then a disputed decision would be challengeable only on traditional judicial review grounds, such as Wednesbury unreasonableness; if the former, then the question whether someone was a child would be one of precedent fact and thus, in a challenge, for the court to determine for itself. The House of Lords concluded that the question was one of precedent fact. The section 20 duty was owed, provided that the other criteria were satisfied, to anyone who was in fact a child.

In paragraph 28 of her judgment Baroness Hale of Richmond drew a distinction between the question whether there was a child in need within the area and whether it appeared to the local authority that the child required accommodation. It was treated as obvious that the latter issue was a matter for the local authority’s judgement and challengeable only on traditional public law grounds. There is no doubt that R (at the age 18 months) was a child. The discussion in the A case demonstrates that the alleged failure of Hertfordshire to provide accommodation on 17 October 2012, because it did not appear to them that he required it, is vulnerable to attack only on conventional public law grounds.

In the Court of Appeal in the same case, [2008] EWCA Civ 1445, [2009] PTSR 1011, Ward LJ distilled nine questions that might arise under section 20 of the 1989 Act, an approach which was endorsed by Lady Hale in paragraph 28 of her speech in R(G) v Southwark London Borough Council, [2009] UKHL 26, [2009] 1 WLR 1299. The question in issue in this appeal is “(4): Does the child appear to the local authority to require accommodation.” In considering that question Lady Hale observed:

“In this case it is quite obvious that a sofa surfing child requires accommodation. But there may be cases where the child does have a home to go to, whether on his own or with family and friends, but needs help in getting there, or getting into it, or in having it made habitable or safe. This is the line between needing “help with accommodation” (not in itself a technical term) and needing “accommodation”.

The clear implication of this observation is that if a child has a home to go to with a family member, it cannot be said to require accommodation under section 20 of the 1989 Act.

We were shown a number of decisions of the High Court and Court of Appeal which concerned the question whether a child was a “looked after child”. These included Southwark Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181; R(Collins) v Knowsley Metropolitan Borough Council [2008] EWHC 2551 (Admin), [2009] 1 FLR 493; and R(A) v Coventry City Council [2009] EWHC 34 (Admin), [2009] 1 FLR 1202. These were cases which turned on their own facts and involved an examination of whether a local authority had, or had not, acted to arrange accommodation for a child using its statutory powers under section 20 of the 1989 Act. The starting point of that examination, although not in issue in any of these cases, was whether it appeared to the local authority that the child required accommodation.

In the D case the judge found that the child was a looked after child but the local authority contended that they had merely facilitated a private fostering arrangement between the child’s parents and the woman with whom he was placed. However, the whole thing was arranged by a social worker, who delivered the child to the woman’s house. The Court of Appeal concluded (at paragraph 59) that the only inference from all the facts was that the local authority had asked the woman to accommodate the child on their behalf. There was no issue about whether the child (who was a child in need) appeared to the local authority to need accommodation. Similarly, in the Collins case, the local authority played a central part in making accommodation arrangements for a child in need to live with the family of her boyfriend and acted in a way which suggested that they were proceeding by reference to the duties in section 20 and following of the 1989 Act. Once more, in the Coventry City Council case,the conclusion that the child was a looked after child depended on the particular facts. The local authority had induced the prospective foster parent to believe that the child was being placed as a foster child (with the usual financial support) in circumstances where the only conclusion from the circumstances was that the child required accommodation and also that the other criteria for the duty under section 20 to arise were satisfied.

The judge noted at paragraph 32 that Hertfordshire’s argument was simple. R never appeared to Hertfordshire to require accommodation on 17 October 2012 because the mother made her own arrangements in which they took no part. He accepted that submission:

“35.

On 17 October the Council did nothing to encourage or facilitate the arrangement whereby R was taken in by the Claimant. The events have to be looked at in a common sense way. The arrest of [the mother] prompted an immediate crisis so far as the care of R was concerned; The Claimant commendably and understandably stepped into the breach and agreed to take in her grandson on an emergency basis. She took him in on the basis that he could stay with her for no more than a couple of weeks, as she had done before at times of family crisis. At this stage, although [the mother] had been arrested, it did not reasonably appear to the Council that R required accommodation because R was staying with his grandmother and it was hoped (at least by her) that, after a short period, R … would be able to go back to live with [his mother]. At that stage it would have been open to the Claimant not to have agreed to this voluntary arrangement – and, had she done so, it is likely that the Council’s section 20 obligations would have arisen immediately – but she did agree to R staying with her on a short-term basis. The Council had no part in the arrangement.

36.

The position changed on 26 October 2012, when M pleaded guilty to a number of serious charges. She was remanded in custody, and sensibly faced a substantial prison sentence. At that stage, it was no longer possible for R merely to stay with the Claimant; he needed a semi-permanent home. With M's approval, the Claimant offered him that home in the full knowledge that the Council did not consider itself under any obligation to support her in doing so – nor, to her knowledge, did the City Council. It would have been open to her then to say that, whilst she had been prepared for R to stay with her short-term, she was not prepared to offer to look after him longer term and to offer her house to him as his home during that time. She did not do so. Again, without encouragement or facilitation by the Council (or City Council), and with M's approval, she agreed to continue to look after R in that role. A local authority does not exercise its statutory powers and duties by facilitating a private arrangement for the accommodation of a child by merely not objecting to a purely private arrangement that is made.

37.

The Council did not facilitate the arrangement here in any way: they did not, for example, suggest that the Claimant would or might obtain support from them if she continued to look after R (as was the case in Collins and A). To the contrary, when the Claimant took the decision to accommodate R in her house as his (at least temporary) home, she was fully aware that the Council would not support her on the basis that it was a purely voluntary arrangement. She made a fully informed decision. It was of course open to the Claimant not to enter into or continue such a voluntary arrangement; and, if she had indicated that was her wish, that again would have given rise to a section 20 obligation on the Council – which, of course, it may or may not have satisfied by placing R with the Claimant or, longer term, making an arrangement with her for R to live with her. However, that did not happen.

38.

It is also noteworthy that the Council did not act as if this were a placement under section 23(2). It never suggested to the Claimant or anyone else that this was a placement under section 23(2); nor did it attempt to fulfil its obligations under the Fostering Services Regulations 2002 that apply to such placements.

39.

In my judgment, the Council was reasonable to conclude throughout that it did not appear to them that R required accommodation. Insofar as he might have required other support in terms of benefits or maintenance, that is outside the scope of this challenge. Suffice it to say, that there are clearly a number of potential sources of support for the Claimant in the position she now finds herself.

40.

In this claim, this court has simply to determine whether the Council acted unlawfully in determining that it did not appear to them that R was a child in need who required accommodation. Mr Johnson, despite his able best efforts, has failed to persuade me that, at any material time, the Council did so err. On the evidence, I firmly find that the arrangements made for the care of R by his grandmother, the Claimant, were purely voluntary in nature; and did not come about by any exercise of any statutory power or duty by the Council.”

The judge dealt with the position as it developed on 26 October 2012, but there was no challenge to any decision (or lack of decision) relating to that date. The principal relief sought in the judicial proceedings was a declaration relating to 17 October 2012.

The appellant submits that Hertfordshire was working on the basis that it might have to accommodate R on 17 October because it made contingency plans two days before. On the 17 October there was no reason for Hertfordshire to conclude that Mrs Cunningham would accommodate R and so, whatever the arrangements which were put in place by the family, it must have appeared to them that R required accommodation. It became apparent on that day that Mrs Cunningham would step in on an emergency basis but Hertfordshire knew nothing of the terms upon which she was prepared to do so. Whatever may have been the position on 17 October, when it became clear on 26 October that the mother had been remanded in custody until February 2013, the position changed. In particular, after 26 October it could not be assumed that Mrs Cunningham had given her “informed consent” to look after R. It is submitted that “as a matter of principle accommodation provided as a stopgap or on an emergency basis … cannot mean that accommodation is not required for that child.” Moreover, the effect of the judge’s conclusion is that Mrs Cunningham would have had to threaten to make R homeless before Hertfordshire would have been fixed with a duty to accommodate him and assume any consequential obligations to him as a looked after child. There is a perverse incentive for family members not to help in these circumstances but rather to offer assistance only after the local authority has recognised that a child requires accommodation and thereby secure a financial advantage.

Mr Westgate QC emphasised what he described as “mission creep” from Mrs Cunningham’s point of view. She took in R on a short-term basis but, by force of circumstance, it became a long-term arrangement. She was reluctant to bring the arrangement to an end. Had R been a looked after child he would have been maintained financially by Hertfordshire. He recognised that the consequence would have been much more local authority involvement in R’s life (and thus Mrs Cunningham’s); but the position is that she has been left to support R in circumstances where, had she turned her back on him, the local authority concerned would have assumed responsibility. She felt abandoned by both Hertfordshire and Derby City Council. She needed both financial help and practical support from social services.

I note that the 1989 Act imposes obligations on local authorities in connection with children in their areas. We heard no argument on the legal implications of R moving to Derby.

A recurrent theme in the appellant’s submissions is that if she had not agreed with her daughter to accommodate R, then Hertfordshire would have been fixed with a statutory duty to accommodate him and then support him as a looked after child. That, however, is not how the statutory duty under section 20(1) of the 1989 Act is couched. The duty arises when it appears to the local authority that a child in need in their area requires accommodation. Only then are they obliged to provide accommodation. That is an intensely fact-sensitive enquiry. It is for the local authority to make the assessment. Their conclusion is vulnerable to challenge only on conventional public law grounds, including that it was not one reasonably open to them.

The authorities cited on behalf of the appellant all involved factual circumstances where the local authority were deeply involved in the arrangements for the accommodation of the child. That led to them being found to have acted under their section 20 statutory duty with the result that the child was a looked after child. Indeed, a recurrent theme was that the local authorities in question had misled the person who ended up accommodating the child into believing that public support would be provided. It is in that context that the term “informed consent” was used in the D case at paragraph 39:

“If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents … for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of a child under a private funding arrangement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and that the arrangement was not a private one at all.”

There is no gloss on the statutory duty, as at least seems to be contended for on behalf of the appellant, that if a private arrangement is made without the implications being apparent to the relative or friend who had agreed to care for the child, the statutory duty under section 20 of the 1989 Act arises. The reference to informed consent in the passage I have quoted arose very particularly on the facts on that case.

In fact, the detail of the arrangement between Mrs Cunningham and her daughter is unclear. In reality it is likely that she stepped in, as would most close family members, to provide support for R in circumstances where it is uncertain what otherwise would happen to him, and without any regard for finances and the like. The position was no different on 26 October when it became apparent that the arrangement would be likely to last until at least February 2013.

The terms of section 20 of the 1989 Act do not support the submission that, as a matter of principle, it should appear to a local authority that a child requires accommodation when any private arrangement only provides accommodation on a temporary or stopgap basis. On the contrary, the need for accommodation to be provided pursuant to section 20 will often arise as an emergency and for a short time, sometimes only for a day. The statute contemplates a child being accommodated for less than 24 hours under section 20, because it is only after the child has been accommodated for more than 24 hours that it becomes a looked after child: see section 22(2) and R (GE) Eritrea v Secretary of State for the Home Department, at paragraph 39, disapproving the dicta in the D case at paragraph 55 that a child becomes a looked after child as soon as the section 20(1) duty arises. The need for accommodation, even if clearly for more than 24 hours, may be short-lived. A sudden but short-lived crisis in the life of a parent may trigger the duty. In this case, Mrs Cunningham expected, or at least hoped, that R’s mother would be able to resume his care after a short period. That said, nobody could foresee exactly what the need would be following the mother’s arrest on 17 October 2012. The mother might have been charged and kept in custody, as in fact occurred, or released on police bail. Having been charged and brought before a court she might have indicated a not guilty plea, with or without bail being granted, or a guilty plea as in fact happened. The papers do not indicate whether she sought bail or, as is not uncommon, recognised that a custodial sentence would follow and did not apply. The likely duration of the need for accommodation does not determine the answer to the question whether it should appear to the local authority that a child requires accommodation.

That is not to say that a relative or friend may not genuinely indicate to a local authority that he or she can accommodate the child only for a short period under a private arrangement, but thereafter the local authority will have to assume responsibility. If someone in Mrs Cunningham’s position were to say to a local authority that from a particular date she would no longer accommodate the child then from that date it would become apparent that the child required accommodation. I recognise, as Mr Westgate QC submits, that gives rise to the possibility that cynical relatives of a child might seek to manipulate the system for what they perceive to be financial advantage, albeit putting secure arrangements for the child at risk. But that possibility cannot transform the section 20 statutory duty to one that requires a local authority to conclude that a child requires accommodation, when it does not, or to treat the child as a looked after child when the statutory conditions for that status to arise have not been satisfied.

As the judge recognised, the factual circumstances in this case led inexorably to the conclusion that on 17 October 2012, R did not require accommodation. It matters not that Hertfordshire, in conjunction with the police, had laid contingency plans to accommodate him in the event that his mother did not make arrangements. As Mr Cohen QC, for Hertfordshire, submitted the duty would arise only if the person with parental authority did not make suitable arrangements. The police envisaged the use of statutory powers under Part V of the 1989 Act which, independently of section 20, would have required Hertfordshire to receive and accommodate R, who then would have become a looked after child. The need for the police to act under Part V of the Children Act did not arise because independent arrangements were made between Mrs Cunningham and her daughter. There was no question of R requiring accommodation to be provided by Hertfordshire on 17 October because private arrangements were made for him which did not involve the local authority. The position did not change on 26 October, for the reasons which the judge gave.

Mr Westgate made some criticism of the judge’s findings of fact. The arguments advanced in the appeal evolved some way beyond those of the original grounds; but there was no ground for contending that the judge reached factual conclusions not open to him. The proceedings were launched two years after the events of October 2012. The contemporaneous written records were not in all respects clear. The evidence filed in the judicial review claim from both sides did its best to clarify the position. Even if such a challenge were a part of this appeal I do not consider that the appellant could succeed. The judge’s conclusions on the facts are unassailable, even though Mrs Cunningham does not agree with all of them.

In my judgment, Hickinbottom J was correct to find on the facts of this case that there was no legal flaw in Hertfordshire’s conclusion that the trigger for the section 20(1) duty to arise was not present on 17 October 2012. In those circumstances I would dismiss this appeal.

I agree.