The London Borough of Brent v D & Ors (Compliance with Guidelines on Judges Meeting Children)

In this matter, I am concerned with the welfare of three children J, aged 14, B, aged 15, and M, now aged 16.

All three children are currently Somalian citizens with permanent leave to remain in the United Kingdom. The children’s interests are represented in these proceedings by their Children’s Guardian, Lee Falksohn. M is competent to instruct a solicitor directly and is also therefore separately represented in these proceedings. She wished to attend the hearing and I permitted her to do so. She also wished to address the court in respect of her wishes and feelings during the course of the hearing and, with the agreement of the parties, I permitted her to do so, as I have done at previous hearings. Applications for British Citizenship for each of the children are pending.

The parents of the children are D, the children’s father (hereafter ‘the father’) and R, the children’s mother (hereafter ‘the mother’). They reside in the United States of America and are naturalised US citizens. The parents have seven other children together, all younger than the siblings who are the subject of these proceedings. The father is at present applying for US Entry Visas for the children with financial assistance from the local authority.

Also party to the proceedings are S, a paternal aunt of the children and H, a paternal aunt or second cousin of the children. At present J resides with S and B resides with H under the auspices of interim care orders. M currently resides in a residential unit in County Durham under the auspices of an interim care order.

The London Borough of Brent applies for final care orders in respect of all three children, those applications having been issued on 9 February 2016. The care plans in respect of each of the children can be summarised as follows:

The parties’ positions can be summarised as follows in relation to each of the care plans advanced by the local authority at this hearing:

In the circumstances, it can be seen that there is a now a very large measure of agreement between the parties with respect to the outcome for the children in this case. In the circumstances and by agreement I have not been required to hear any evidence in this case. I have heard submissions on the limited question of M’s expressed wishes and feelings insofar as they differ from the care plan of the Local Authority.

This case has also raised issues with respect to compliance with the Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872 and compliance with case management directions. I deal with those issues at the conclusion of this judgment.

Finally, before turning to the background of this matter, it will be apparent that these proceedings have been on foot for a long time and have now far exceeded the statutory time limits stipulated by a Section 32(1)(a)(2) of the Children Act 1989 as amended. The primary driver of this delay has been the complexity of the children’s immigration position both in this jurisdiction and in the United States of America, which issues the court has had to spend considerable time unravelling with the benefit of expert evidence.

With respect to the immigration position in the United States, following the transfer of this matter to the High Court in July 2016, as at September 2016 the rehabilitation of all three children to the care of their parents in the US was being actively considered subject to visas being granted to the children. However, whilst the court got as far as facilitating contact with the mother in this jurisdiction and directing contact between the children and their parents in the US with a view to progressing further a proposal of rehabilitation, ultimately the children were denied visitors visas for the US. In addition, during the period in which the immigration position in the United States was being clarified, it became increasingly apparent that B and M were reluctant to move to the US to reside with their parents and that, in any event, the timescales for obtaining permission for the children to enter the US permanently was going to be a protracted one. In the circumstances, the parties were necessarily required to re-visit the care plans in respect of each of the children, resulting in further unavoidable delay.

The background to this matter can be set out relatively shortly. The children arrived in the United Kingdom in around 2006 or 2007 with their paternal aunt, S. The circumstances of the children’s birth and the manner in which they travelled to the United Kingdom remain unclear and the subject of dispute between the parents and S.

The parents contend, in summary, that they were required to move between countries due to the war in Somalia and left the children with maternal relatives in Kenya when they decided to take opportunities that presented themselves elsewhere in the world. The parents claim that, thereafter, S removed the children from their maternal relatives in Kenya without permission, took them to Ethiopia and ultimately brought them to the United Kingdom, subsequently claiming the parents were dead. The parents further contend that S sought to prevent contact. S states that she brought the children to the United Kingdom when she brought her own son to this jurisdiction and denies that she removed the children without consent of maternal relatives. She further denies that she sought to exclude the parents from the children’s lives.

The difference between the parents and S as to the circumstances by which the children came to be in the United Kingdom has caused a breakdown in relations between these adults. Whilst there remains a dispute about the history of this matter, all parties now agree that it is not necessary nor proportionate for the court to determine those disputed facts, given the narrow scope of the issues before the court and the level of agreement that has been reached. It is accepted by all parties that the children have been exposed to significant upheaval in their lives and a significant degree of insecurity.

The children first came to the attention of the local authority in January 2014 when M made an allegation of physical abuse against S. The children were taken into police protection. They were placed in foster care and then subsequently with H. The father visited the children in the United Kingdom for a short period in February 2014. During this visit the father was granted parental responsibility for the children, the local authority having made an application to the West London Family Court for an order to that effect. In August 2014, all three children were rehabilitated back to the care of S. B returned to live with H in December 2014 where she remains to date. J and M remained in the care of S.

During the course of 2015, M’s behaviour deteriorated. In January 2016, she was placed in an alternative education unit. Thereafter she absconded repeatedly, associated with unknown individuals and placed herself at risk of sexual exploitation, involvement with gangs and criminal activity. The local authority issued care proceedings on 9 February 2016, after M had again gone missing and had presented herself at an A&E Department. Whilst on this occasion the local authority did not pursue an issued application for a recovery order, a further application for a recovery order was made on 23 August 2016 and granted after M again absconded. On 19 September 2016, the local authority applied for a secure accommodation order in respect of M. On 22 September 2016 Holman J granted an interim order until 6 October 2016, on which date Holman J granted a further secure accommodation order until 21 December 2016. As I have already recorded, M now currently resides in a residential placement.

Insofar as relevant to determining the welfare issues now before the court, this court has had the benefit of the following comprehensive assessments and expert reports:

The law applicable to the determination of the application before the court is clear and considering the large measure of agreement between the parties it can be taken shortly.

Before the court has jurisdiction to make care orders under Part 4 Children Act 1989 it must be satisfied that the threshold criteria pursuant to Section 31(2) of the 1989 are met. If the court is so satisfied, the court has jurisdiction to make a care order if it is in the child’s best interests and proportionate to do so. In deciding whether to make a care order, pursuant to the Children Act 1989 Section 1(3) the court must have regard to the welfare of each child as its paramount consideration and to (a) the ascertainable wishes and feelings of the child considered in light of his or her age and understanding; (b) the child’s physical educational and emotional needs; (c) the likely effect on the child of any change of circumstances; (d) the child’s age, sex, background and any characteristics the court considers relevant; (e) any harm the child has suffered; (f) how capable each of the parents is of meeting the child’s needs and; (g) the range of powers available to the court. The court must not make an order unless it considers that doing so is better for the child than making no order at all. The court must also have regard to the general principle that delays are ordinarily inimical to the welfare of a child.

This case concerns children aged 14, 15, and 16 respectively. When considering a child’s wishes and feelings, the wishes and feelings of a mature child do not carry any presumption of precedence over any other factors in the welfare checklist (see Re PJ [2014] 2 FLR 27). The child’s preference is only one factor in the case and the court is not bound to follow it. The weight to be attached to the child’s wishes and feelings will depend on the particular circumstances of each case.

In particular, having regard to the words of Section 1(3)(a), it is important in every case that the question of the weight to be given to the child’s wishes and feelings is evaluated by reference to the child’s age and understanding. Within this context and on the face of it, the older the child the more influential will be his or her views in the decision-making process. However, in the end the decision is that of the court and not of the child (see Re P (Minors) (Wardship: Care and Control) [1992] 2 FCR 681). Once again this is important to recall in this context that the children’s best interests are the courts’ paramount consideration.

Section 31A of the Children Act 1989 places a statutory duty on the local authority to prepare a care plan. A care plan must accord with the Care Planning Placement and Case Review (England Regulations) 2010. When considering whether to make a care order and subject to the requirements of Section 34(11) of the Children Act 1989 (the duty to consider the arrangements for contact), pursuant to Section 31(3)(a) of the 1989 Act the court is required to scrutinise the care plan only to the extent of considering the permanency provisions within that plan, being those provisions of the care plan that concern the long-term upbringing of the child in his or her family in an adoptive placement or in long-term foster care.

However, this does not mean that the court is prohibited from considering certain other aspects of the plan. In Re SW (Children) [2015] 2 FLR 136 the Court of Appeal recognised that there will be situations where a particular child’s individual identified needs will mean that the court forms the view that the child’s welfare necessitates the court satisfying itself in relation to aspects of the care plan not found within the permanence provisions themselves.

Finally, with respect to the question of when the court relinquishes control to the local authority under the auspices of a final care order, the court should only pass responsibility to the local authority by a final care order when all of the facts are as clearly known as can be hoped. On the other hand, the court should be alert to the danger of wrongly using an interim care order as a means of exercising the now defunct supervisory role of the court (see Re J (Minors) (Care Plan) [1994] 1 FLR 253, approved by the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402). Within this context, in deciding whether to go on to final care order, the essential question is whether the court has a sufficiently clear picture of the way forward. The child’s wellbeing demands that the court be satisfied regarding the Local Authority’s proposal (see Re H [2011] EWCA Civ 1218).

Having considered the evidence before the Court and having heard submissions from counsel, and taking into account the large measure of agreement between the parties, I am satisfied it is in each child’s best interest to make final care orders on the basis of the amended care plans before the court. My reasons for so deciding are as follows.

The parties are agreed that the threshold criteria pursuant to Section 31(2) of the Children Act 1989 are met in this case. There is an agreed threshold document before the court setting out the basis upon which the threshold is met. In the circumstances, the court has jurisdiction to make care orders in respect of each of the children if it is in their best interests and proportionate to do so having regard to the care plans advanced for each child.

I am satisfied that it is in J’s best interest to be rehabilitated to the care of his parents. There is before the court a comprehensive and positive assessment of the parents indicating that they will be able to meet J’s welfare needs were he to move to reside with them. J has expressed a strong wish to live with his parents in the US as soon as possible. As a 14-year-old young person, J’s wishes and feelings must be accorded significant weight, albeit they are not determinative. There are, in my judgment, plain welfare benefits to J growing up in the care of his parents.

It is equally plain that it is going to take some time to resolve the complex immigration position in respect of J. In particular there remains some concern on the part of the parties that the position of J is potentially complicated by the implementation of immigration restrictions in respect of Somalia by the current US administration. However, I note that in the recent decision of the United States Supreme Court in Donald J Trump, President of the United States et al v International Refugee Assistance Project et al and the State of Hawaii et al 582 US Supreme Court (2017), the Supreme Court held that these restrictions may not be enforced against foreign nationals who have a credible claim of a bone fide relationship with a person or entity in the US. This exception would, prima facie, appear to encompass J in circumstances where his parents are US Citizens.

In the circumstances, whilst I am satisfied that it is in J’s best interest ultimately to be rehabilitated to his parents, I am equally satisfied that it is in his best interest to remain in the care of S pending such a move. It is plain that S is meeting J’s needs. She supports J’s wish ultimately to be reunited with his parents. The Children’s Guardian is clear that J is happy and feels safe in the care of S and presents as relaxed in the household. J has sent me a letter via the Guardian in these terms which I have read and taken into account. Accordingly, notwithstanding that it may be up to 12 months before the final care plan in respect of J comes to fruition, I am satisfied that I have a sufficiently clear picture of the way forward to permit me to make a final care order on that care plan as being in J’s best interests.

With respect to B I am satisfied it is in B’s best interest to remain in the care of H. This outcome accords with B’s clearly expressed wishes and feelings. Once again, as a 15-year-old young person, B’s wishes must be accorded significant weight. It is plain from the special guardianship report and the addendum report before Court that H is capable of meeting B’s needs. Whilst I acknowledge that there have been difficulties with persuading B to remain in education and with her staying out, H will have support of the local authority under a final care order in dealing with these issues. Amendments that she has requested to be made to the care plan to this end have been agreed at Court. The Children’s Guardian observed a relaxed relationship between B and H. Whilst an order confirming B’s placement with H means that she will not reside with her parents in circumstances where they have been assessed as able to meet her needs, B has made very clear that she does not wish to go to the US to live with them. I am satisfied it would not be in her best interest to compel her to do so.

With respect to M, I am satisfied that it is in her best interest for the court to make a final care order on the basis of a plan for rehabilitation to the care of S subject to further work being undertaken. At the outset of this hearing I was concerned that it could not be said that the position with respect to M was as clearly known as could be hoped for. Specifically, I was concerned that the plan for rehabilitation articulated by counsel for the local authority did not emerge sufficiently clearly from M’s care plan. That difficulty has now been remedied and the local authority is clear that it pursues such plan subject to further work being done with S.

The aim of the plan accords with M’s clearly expressed wishes and feelings which again are entitled to be accorded significant weight in light of her age and level of understanding. Whilst there have been, historically, concerns regarding the capacity of S to meet M’s needs, the local authority and the Children’s Guardian are satisfied that she is able to do so with the benefit of further work on the question primarily of implementing and enforcing boundaries. Further recent unsupervised contact between M and S has demonstrated that S is able, on that occasion, to enforce such boundaries.

Whilst I accept that there are also risks inherent in rehabilitating M to the care of S, including the risk of her coming back into the orbit of acquaintances who are a negative influence on her, I have also borne in mind that there is evidence that M has made significant progress whilst in residential care with the unit manager considering that M is doing well and has started attending school more consistently, and the risk that she will simply take matters into her own hands if her wishes and feelings are frustrated at this stage given her age.

I am further satisfied that making a care order is in M’s best interest as if her placement with S were to break down such an order would ensure that responsibility for meeting M’s needs would be clearly delineated and well established. Given the history in respect of M I am satisfied that a care order is required both to support a placement that has presented challenges in the past and to ensure proper contingencies are put in place should the placement again break down.

Balancing all these matters and having regard to the fact of the further work that will be done with S, I am satisfied that it is M’s best interest to approve a care plan of rehabilitation to S’s care.

There is one remaining issue to be determined concerning the application with respect to M. As drafted, the care plan provides for M’s rehabilitation to the care of S by 29 December 2017. M herself contends for a slightly quicker return to be completed by some time in November 2017.

In support of this proposal, and through Miss Mitchell, M points out that the evidence supports the progress she has made, which progress was apparent to the court when she addressed the court yesterday, that she has now been in residential care for a significant period of time, that she has shown realism and flexibility in moving from her original wish to return to S’s care in September 2017 and that the Children Act 1989 cautions the court against the caustic effects of delay.

I have given careful consideration to all of those matters. However, balancing these matters against the need to make sure that M’s placement with S is secure and sustainable for the long-term, as I know M would wish it to be, and to avoid the risk of M having to move again in the future, I am satisfied that it is in M’s best interest for S to have the opportunity to complete the work that will best ensure such an outcome. M has shown considerable maturity during the course of this hearing and an ability to understand why certain decisions have been made. I am confident that she will understand why this court believes that S should be permitted to complete the work required before M moves to her full-time care at the end of December 2017, which is the date I consider to be the appropriate one.

In conclusion, I am satisfied that having regard to the welfare of each child as my paramount consideration it is in each child’s best interest to make a final care order on the basis of the amended care plans before the court. In the circumstances, I make final care orders in respect of each of the children and approve their respective care plans.

Finally, I feel compelled to record in this judgment two concerning issues of compliance with the rules and guidance applicable to cases of this nature which have impacted adversely on this hearing.

The first issue concerns compliance with the Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872.

B told the Children’s Guardian on 30 May 2017 that she would like to meet the judge deciding her case. Whilst the Children’s Guardian communicated her wish immediately to the solicitor for B, and sent a reminder on Tuesday of last week, it was not until a month after B’s request, on the afternoon of the Friday before the commencement of this final hearing, that the solicitor for B emailed the court proposing that I meet B. That email was couched in terms that simply assumed that the request would be granted.

I have heard submissions from Miss Nicoles as to the circumstances that led to this situation. Whilst she sought to set out a detailed history, the bottom line is that the solicitor for B (as, to her credit, she concedes) simply failed to pick up on, or acknowledge the request by B passed on to her by the Children’s Guardian on 30 May 2017. The net result of that default on the part of the solicitor resulted in a 15-year-old young person coming to the court believing she would be meeting the judge, or at least being given that impression subsequent to her arrival, when the professional responsible to her had not taken any of the steps required to ensure that such a meeting would be facilitated in accordance with the Guidelines for Judges Meeting Children who are the subject of Family Proceedings 2010. Of particular concern is the fact that, in making the request, the solicitor for the child had failed to undertake the detailed preparatory steps articulated in the 2010 Guidelines.

The relevant part of the 2010 Guidelines, which remain in force and have not been amended, state as follows:

“Guidelines

1.

The Judge is entitled to expect the lawyer for the child and/or the Cafcass officer:

(i)

to advise whether the child wishes to meet the Judge;

(ii)

if so, to explain from the child's perspective, the purpose of the meeting;

(iii)

to advise whether it accords with the welfare interests of the child for such a meeting take place; and

(iv)

to identify the purpose of the proposed meeting as perceived by the child's professional representative/s.

2.

The other parties shall be entitled to make representations as to any proposed meeting with the Judge before the Judge decides whether or not it shall take place.

3.

In deciding whether or not a meeting shall take place and, if so, in what circumstances, the child's chronological age is relevant but not determinative. Some children of 7 or even younger have a clear understanding of their circumstances and very clear views which they may wish to express.

4.

If the child wishes to meet the Judge but the Judge decides that a meeting would be inappropriate, the Judge should consider providing a brief explanation in writing for the child.

5.

If a Judge decides to meet a child, it is a matter for the discretion of the Judge, having considered representations from the parties –

(i)

the purpose and proposed content of the meeting;

(ii)

at what stage during the proceedings, or after they have concluded, the meeting should take place;

(iii)

where the meeting will take place;

(iv)

who will bring the child to the meeting;

(v)

who will prepare the child for the meeting (this should usually be the Cafcass officer);

(vi)

who shall attend during the meeting – although a Judge should never see a child alone;

(vii)

by whom a minute of the meeting shall be taken, how that minute is to be approved by the Judge, and how it is to be communicated to the other parties.

It cannot be stressed too often that the child's meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the Cafcass officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her.”

This guidance was considered Moore-Bick LJ in the case of Re KP (A Child) [2014] 1 WLR 4326, following a comprehensive review of the case law with respect to the question of judges hearing children.

In this case, no consideration had been given to the purpose of a meeting from B’s perspective, the reasons such a meeting accorded with B’s welfare interests or the purpose of such a meeting as perceived by her legal representatives. No provision had been made for the other parties to make representations as to the desirability of such a meeting. In the circumstances, there was no opportunity for the court to consider, ahead of the final hearing, the purpose of the meeting, at what stage during the proceedings it should take place, the location of the meeting, who would bring B to the meeting, who would prepare B for the meeting, who would attend the meeting and by whom a minute of the meeting should be taken.

Ultimately, I was persuaded by the Children’s Guardian to see B at the end of the day yesterday, in circumstances where she had been brought to court with that expectation, or had been given that expectation during the day, and having been assured that consideration had now been given to the issues outlines in the foregoing paragraph. However, I was then compelled to renege on that decision when it became apparent that utter confusion still reigned with respect to the manner in which the meeting was to take place.

In Re KP Moore-Bick LJ emphasised at [52] that the manner in which the task of hearing the child is discharged will depend on the developing skill and understanding of the judge and the other professionals involved, and that the 2010 Guidelines are just that, guidelines. It is however, vital that the court has the basic information it needs to decide in a given case whether the appropriate method of hearing the child is a meeting with that child. Within this context, I cannot emphasise enough the need for parties to comply with the Guidelines for Judges Meeting Children who are the Subject of Family Proceedings 2010 and the required steps preparatory to a judge meeting a child which the Guidelines mandate.

The 2010 Guidelines exist to ensure that when a judge meets a child, the purpose of that meeting and the expectation of all who are party to it are clear both to the child and to the parties to the proceedings. The need for the purpose of the meeting, and the expectations of those who are party to that meeting to be clear is emphasised by the clear injunction in the Guidelines against using the meeting to obtain evidence and in favour of using the meeting to ensure that the child feels more involved and connected with the proceedings.

I accept that the Guidelines are silent as to the point during proceedings at which the question of the judge meeting the child should be addressed. Plainly, there are good reasons for not being too prescriptive about this. Each case will turn on its own facts. Further, children do change their minds. A child who has indicated they do not wish to see the judge may change his or her mind very shortly before the hearing.

However, as a starting point, the question of the judge seeing the child should ordinarily be raised and determined at the issues resolution hearing. This will allow the solicitor for the child or the Cafcass officer to deal with those matters set out in Paragraphs 1 of the 2010 Guidelines, will allow the other parties to make any representations pursuant to Paragraph 2 of the Guidelines and, if the judge accedes to the request to meet the child, will allow those matters set out in Paragraph 5 of the guidance to be settled with input from all parties. Where it becomes apparent only after the IRH that a child wishes to see the judge, the steps required by the 2010 Guidelines should be commenced immediately so as to ensure that a timely decision is made on the child’s request and properly considered arrangements put in place if the judge accedes to the request to meet the child.

Whilst any plan arrived by way of proper application of the 2010 Guidelines may require amendment in light of changing circumstances as the date of the meeting nears, it is simply unacceptable, and indeed entirely antithetic to a child’s best interests, to leave arrangements to the day of the hearing in the hope that something acceptable might be cobbled together at that point. To take this approach can only, and inevitably lead to the confused and unsatisfactory circumstances which were reached at the end of yesterday and risk unnecessary confusion and upset for the child in question.

In this case, it was apparent a month ago that B wished to meet the judge who was determining her case. It was a serious omission on the part of the solicitor for B to fail to note that the Guardian had passed on this request. It was likewise a serious omission by that solicitor to fail to undertake the steps necessary to ensure that pursuant to the 2010 Guidelines the fact and purpose of that meeting was settled, agreed by the parties and approved by the court in a timely manner, such that the meeting could proceed and proceeded in a way that made B feel more involved and connected with the proceedings. As for B’s wish to meet the judge who is taking decisions about her, I have made clear to counsel that I am able to make arrangements for B to see me at a later date if she still wishes.

The local authority failed to comply with a series of case management directions made by the court, and in particular the provision requiring amended care plans in respect of the children to be filed and served by 9 June 2017, those plans eventually being filed and served on 27 June 2017. The local authority’s updating evidence, including a Re W analysis on the question of whether M should give evidence at this hearing, was to be filed by 26 June 2017, that evidence being filed on 27 June 2017. No application was made to the court to extend the deadlines for complying with the court’s directions before those deadlines expired. This, in combination with the late delivery of the bundles to the court in contravention of PD27A, such that the bundles were made available to me at 9.35am on the first day of the final hearing, meant the material required by the court to determine these proceedings was not available until the morning of the first day.

With respect to this second issue of non-compliance, I am acutely aware of the challenges facing social care practitioners and lawyers in dealing with public law children cases. The local authority solicitor in this case has made clear through Mr Woodward-Carlton that both the social work team and the legal team at the local authority are working under significant pressures. Mr Woodward-Carlton explained that the social work team is under-staffed and is carrying a caseload that exceeds its capacity. It is now not uncommon, Mr Woodward-Carlton informs me, for the social worker’s working day to extend to midnight in order to get through the work. Mr Woodward-Carlton also informed the court that the legal team is under-staffed and that on the Monday before the documents in this case were due to be filed, the solicitor in question had been working until 4.00am in the morning on other matters.

Mr Bull urged the court to note that all practitioners are at present under “immense” pressure given the current public law workload and the resources available to deal with it. Mr Bull, graciously, was also at pains to make clear to the court that in this case he has found that the local authority’s solicitor has responded promptly to all emails and has worked proactively on the case. He makes the point that whilst the case management orders in respect of a material to which I have referred were plainly breached, the email sending out the care plans was sent at 12.45am, indicating once again just how late the solicitor for the Local Authority was working on this case.

All that said, and whilst I have sympathy in general for the situation that Mr Woodward-Carlton describes with respect of the social work and legal teams at Brent, none of this gets around the fundamental problem that Mr Woodward-Carlton concedes was at the heart of the failure to comply with the case management directions in this case. Namely that the local authority “missed the direction to file the care plans by 9 June 2017” for reasons that Mr Woodward-Carlton could not explain. Mr Woodward-Carlton also had to acknowledge that when the omission was noted, no application to extend the time for complying with the directions was made.

Equally, it does not get around the fact that the bundles were also lodged late having regard to the terms of PD27A. In this regard, Mr Woodward-Carlton points out that there is a potential ambiguity in PD27A caused by the terms of Paragraph 8(1) of that Practice Direction, which could suggest that the requirement in Paragraph 6(4) of the Practice Direction to lodge the bundle two clear days before the hearing might be relaxed to 11.00am the day before the hearing in cases before the Family Division or Family Court cases being heard at the RCJ.

For the avoidance of all doubt, it is Paragraph 6.4 of PD27A that governs the lodging of bundles for all Family Court and Family Division hearings. They are to be lodged two clear days before the hearing. In my assessment, Paragraph 8(1) of the Practice Direction does not act to change that very clear requirement.

In the circumstances, and again acknowledging the matters that Mr Woodward-Carlton has prayed in aid, the issue I have outlined above is symptomatic of what, in my experience, remains a stubbornly prevalent culture in proceedings of this nature, namely a persistent disregard for orders of the court.

Despite repeated and damning judgments by the judges of this Division, case management orders continue routinely to be ignored, compliance often being replaced with reams of emails which fail entirely to do that which they should in such circumstances, namely to explain the reason for the default and seek the permission of the Court to vary the directions in question before the time for complying expires (see Bexley LBC v W&D [2014] EWHC 2187 (Fam), Re W (Children) [2015] 1 FLR 1092, Re HA (Analysis of Realistic Options and SJOs) [2015] EWCA Civ 406, Northamptonshire County Council v AS KS and DS [2015] EWHC 199 and London Borough of Redbridge v AB&E (Failure to Comply with Directions) [2016] EWHC 2627).

A failure to comply with orders of the court plainly risks prejudice to the welfare of children in respect of whom the court is concerned. I make no apologies for repeating what I said in the London Borough of Redbridge v AB&E (Failure to Comply with Directions). Whilst my comments in that case were directed towards the local authority, the principles apply to all parties to public law proceedings:

“Case management decisions 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 task of a case management judge is to arrange a trial that is fair by reference to domestic standards and Article 6 and 8 of the ECHR (see Re TG Care Proceedings Case Management Expert Evidence [2013] 1 FLR 1250). It is because the 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 in Section 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”.

The default on the part of this local authority, including the failure to lodge the bundles on time, resulted in the court not having available to it prior to the commencement of the final hearing the material it required to determine the issues before it, including whether a 16-year-old should give evidence and be cross-examined.

What should be done about the breach of case management orders and the requirements of PD27A in this case? The first point is that the default cannot go unmarked. Whilst I accept that the picture is a complex one and that, as Mr Bull and Mr Woodward-Carlton have eloquently explained, practitioners are working hard to get through a huge amount of work on very limited resources, the court cannot simply accept these defaults. Further, the courts have made clear that the burden of other work is not an excuse for none 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&D [2014] EWHC 2187 (Fam) ). With respect to the failure to comply with case management orders I repeat the following words of the President from his Seventh View of the President’s Chambers:

“What is for me is a real concern is something symptomatic with deeply rooted culture in the family courts which have been long established will no longer be tolerated. I refer to the slap-dash, lackadaisical and on occasion almost contumelious attitude which still too far frequently characterises the response to orders made by the 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, there 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 none 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 a defaulter is a public body. None 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 117”.

The second point is that, given the subject matter of public law children proceedings, there is of course a balance to be struck. Not marking the default at all because the case involves the welfare of a child risks turning the welfare principle into a gross caricature of itself. At the same time, any penalty visited on the defaulter must not act to prejudice the welfare of the children who are subject of proceedings.

Within this context, a failure on the part of social care practitioners, solicitors or barristers to comply with case management orders in public law proceedings places the court in a particularly invidious position. In circumstances where the proceedings before the court concern the welfare of vulnerable children, which welfare is the courts paramount consideration, it will rarely be appropriate for the court to deal with the default by means of an adjournment, unless this is the only way of ensuring that the proceedings remain fair. For the same reason, the court does not have available to it the kind of draconian remedies that may be appropriate to mark default in civil cases, for example striking out. Given the pressures on local authority budgets and the fact that the respondent parties are usually legally aided, an order for costs as a punitive measure will also likely be an order of last resort. Where it is a local authority that is a serial offender, the court has an option of placing proceedings into ‘special measures’ in the way that I did in London Borough of Redbridge v A, B and E, requiring weekly compliance reports from the local authority in question, although this places an added administrative burden on both the local authority and the court. Whilst the court can demand that a letter from the offender in question be written explaining their default, such letters in my experience inevitably promise that ‘lessons will be learnt’ before precisely the same species of default is seen in future cases involving the local authority in question.

In this case, I decided that the appropriate remedy was to summon the local authority solicitor to the court at short notice to explain the failures I have outlined. The solicitor has, to her credit, attended today and has, through Mr Woodward-Carlton as I have outlined, given an explanation to the court. This has allowed the court to mark the failure to comply with its case management directions and to examine the reasons for that failure. In other cases, as I have already outlined, it may be necessary to take more draconian steps. I am, however, satisfied that these steps meet the justice of this case.

That is my Judgment.