Birmingham Children's Trust v K

On 24 May 2019 HHJ Bush sitting in the Family Court at Birmingham made an order that

On 31 May 2019 the Birmingham Children’s Trust sought permission to appeal against that order. HHJ Bush refused that application and stayed the assessment of the costs pending the outcome of an application for permission to appeal to the High Court. She specified that the time limit for the purposes of an appeal was 31 May 2019.

On 10 July 2019 an Appellant’s Notice was issued seeking permission to appeal against the order of HHJ Bush. Although it would appear that the Appellant’s Notice was issued out of time the contents of the Appellant’s Notice and grounds suggests that it was submitted either within time or within a short period thereafter. On 2 October 2019, following receipt of the transcript of judgment and amended Grounds of appeal and a skeleton argument I gave directions that the application for permission to appeal be listed for an oral hearing with appeal to follow immediately if permission was granted. I gave detailed directions for the preparation of the appeal. On 16 October 2019 following liaison between counsel’s clerks and the clerk of the rules the appeal was listed for hearing before me on 25 February 2020.

The proposed respondents took differing stances in response to the appeal. The first respondent mother opposed the appeal and filed a skeleton argument on 18 October 2019. Early in 2020 the solicitors for the second respondent father indicated that they had reached an agreement with the proposed appellant and that they did not intend to oppose the appeal.

Today, 25 February 2020 I heard the application for permission to appeal. After hearing submissions from Mr Wilkinson for the proposed appellant (‘the local authority’) and Mr Butterfield counsel for the proposed first respondent mother (‘the mother’) I gave the parties my decision to refuse permission to appeal with short reasons and confirmed that a short written judgment would follow. This is that judgment. I am not giving permission to cite this decision because I did not hear full argument in respect of the legal issues raised having regard to the stance that the local authority took before HHJ Bush in respect of the law and my view that it was not open to the local authority now to raise some of the arguments that Mr Wilkinson sought to pursue. I accept Mr Wilkinson’s point (agreed also by Mr Butterfield) that because there is no reported authority where a non-party cost order has been made against a local authority in respect of failures in relation to the provision of a section 7 report my judgment might if citable be relied upon in future as some sort of binding authority that section 7 reporters are by reason of that status alone within the reach of a non-party costs order. This is judgment is NOT authority for any such proposition. Because of the facts involved in this appeal full argument was not heard on the applicability of the non-party costs regime in respect

The identities of the parties and social workers are anonymised.

The appeal arises out of a private law dispute between the mother and the father. The mother sought an order that the child live with her and that she be given permission to relocate with the child to live in Canada. The father opposed that application and in turn sought an order that the child live with him.

At the first hearing on 7 March 2018 an order was made for the local authority to provide a section 7 report dealing with seven identified issues, the first of which was with whom the child should live and the second of which was the mother’s proposal to relocate with the child. The local authority had previous involvement with the family, the child was apparently on a child in need plan and so it was felt that the local authority rather than Cafcass was the more appropriate provider of such a report. The local authority did not object to the order but they did in due course write to the court asking for an extension of time to file the report. This was granted and the listed dispute resolution appointment was put back.

The section 7 report was filed late, albeit only a few days late, and the author Ms X, attended the dispute resolution appointment on 19 June 2018. Directions were given for a final hearing listed for three days before HHJ Bush on 30 and 31^st July and 3 August. This hearing was accommodated because the mother wished to travel to Canada over the summer vacation and temporary leave to remove was sought. The orders made up to and including 19 June clearly contemplate a rolled up hearing in which both factfinding and welfare issues would be determined. Unfortunately shortly after this hearing Ms X fell ill.

On 30 July the matter came before HHJ Bush for final hearing. Ms X did not attend but a colleague Miss Z did. The court was informed that Ms X was ill and was likely to be off work until at least September. The order records that the father had been told that Ms X was ill on the preceding Friday, 27 June. The mother informed the court that she had not been told that Ms X was ill until she arrived at court. Both of the parents indicated to the court that the sought an order that the local authority pay the wasted costs of that days hearing as a result of the local authority’s failure to inform the parties in good time that Ms X would not attend court. The final hearing was adjourned until 19 September. Further case management directions were given. These included a direction for the local authority to file an addendum section 7 report dealing with matters raised in recent contact reports relating to an alleged decline in the child’s behaviour and allegations of coaching. Provision was made for Ms X or her team manager Ms Y to give evidence at the adjourned final hearing along with the author of the addendum section 7 report. Provision was also made for the local authority to file a statement in relation to wasted costs by 28 August 2018 and they were joined to the proceedings solely for defending the application for a wasted costs order. They were directed to attend on the afternoon of the third day of the final hearing in order to deal with that application.

It seems that Ms Y prepared a statement dealing with the wasted costs on 20 September 2018 [D45]. Self-evidently this was late and Mr Butterfield told me it was not in fact filed until after 1 October. For reasons which are unclear this statement was not included in the bundle of documents provided to HHJ Bush at the hearing on 3 May 2019 and does not appear to have been provided to the local authority’s counsel as it is not referred to in his skeleton argument.

When the case resumed on 19 September Ms Y and Miss Z both attended. A transcript of their evidence was obtained. Ms Y gave evidence on the 19^th, 20^th and 21^st of September. Ms Z gave evidence on 21 September. I am not sure whether the local authority attended on the third afternoon or whether by then it had become clear that the hearing would not be completed. The order records the following;

“the court heard evidence from the team manager, [Ms] Y, on 19, 20 and 21 September 2018 and from the author of the addendum section 7 report, [Ms] Z on 21 September 2018. During the cross examination of Ms Y, Ms Y conceded that she had read none of the parties statements save, perhaps having glanced at the father’s statement. The court therefore had to adjourn to enable her to read the parties evidence.

Having read the section 7 report dated 15 June 2016 [error for 2018] and the addendum section 7 report dated 3 September 2018 and heard evidence from Ms Y and Ms Z the court has expressed the view that the quality of the social work evidence is so poor that the court is unlikely to be able to place any weight on those reports or Ms Y’s and Ms Z’s oral evidence. As a result the court considers that it requires a further section 7 report prepared afresh and independently of the local authority in order to assist the court to determine the parents respective applications.’

The transcript of evidence confirms these recitals. It is clear from the transcript that Ms Y had not prepared for the hearing by reading the statements or giving consideration to the issues that were identified in the original order for a section 7 report. The section 7 report addressed the question of relocation in the briefest of terms and did not deal with critical aspects of welfare related to relocation. Nor did it deal with critical issues relating to the competing ‘live with’ applications. Ms Y was clearly not prepared so as to be able to fill those gaps. Ms Z had been given a more discrete section 7 function and so her inability to answer questions relating to the relocation or the live with order is not surprising.

At the conclusion of the hearing HHJ Bush directed that Cafcass provide a section 7

I was told that that part heard final hearing was also ineffective but the costs application was dealt with on 3 May.

For the purposes of that hearing the mother and the father filed a joint skeleton in pursuit of their application. The local authority instructed counsel who filed a skeleton. I directed that a transcript of that hearing be obtained and included within the appeal bundle. The local authority did not obtain it. Mr Wilkinson was unable to explain why. As a result I have been unable to supplement my understanding of what was said to the judge and what she herself said and thus I have to rely on the skeleton arguments and upon the judgment itself to identify the submissions that were made and how the judge responded to them. The transcript would of course form part of the penumbra. The skeletons filed by the mother and father on the one hand and the local authority on the other were in broad terms in agreement as to the relevant test to be applied in determining a non-party costs order. Both referred to the leading cases within the civil sphere and to the decision of Mr Justice Cobb in HB-v-PB otherwise known as Re OB (private law proceedings: costs) [2016] 1 FLR 92. The Local Authority Skeleton refers to Re T (Children) [2012] UKSC 36 and asserts that Cobb cited it as a useful reminder that costs should not be awarded against a party, including a local authority, unless there was reprehensible or unreasonable behaviour. I do not think that Cobb J was referring to Re T in that sense but rather in rejecting an argument that hard pressed local authority resources should (as in most children cases) be a bar to a costs order. In the local authority’s skeleton argument the jurisdiction to make such an order was summarised by their counsel as

Mr Butterfield informed me that at the commencement of the hearing counsel for the local authority said that the parties were essentially agreed on the law. Mr Wilkinson was not in a position to demur from this because the transcript of the hearing had not been obtained. However I see no reason not to accept what Mr Butterfield says having regard to the contents of the skeletons which were submitted.

No submission was made to HHJ Bush that a local authority directed to provide a section 7 report was not sufficiently closely connected to the proceedings for a nonparty costs order to be made against them.

The written submissions which followed that summation of the approach, focused on whether the factual circumstances justified the conclusion that there had been reprehensible behaviour (or fell short to the extent required). In respect of the hearing in July it was submitted that the evidence demonstrated that the local authority had done what could reasonably have been expected and that the hearing would have been ineffective in any event. In relation to the hearing in September/ October the court was asked to view the deficiencies in the evidence having regard to the fact that these were social workers not Cafcass officers, that both Ms Y and Ms Z were attempting to assist the court neither having been directed to prepare the principal section 7 report and that they did their best in overwhelming circumstances to assist the court. It was in the

The transcript of the judgment shows that judgment was delivered over a period of about 25 minutes. The judge sets out the factual history which had led to the hearing that took place on 3 May. In this she includes her observations as to the significance of failures in terms of the process and her evaluation of responsibility for them. She then set out from paragraphs 23 to 30 a consideration of the law. That was plainly drawn from the skeleton arguments of the local authority and the parents. It is a somewhat fuller summary than was included within the local authority’s skeleton. In paragraph 30 of the judgment she draws the legal test and the facts together. The test she applies is that propounded by the local authority’s counsel namely cost should not be awarded against a party including a local authority in the absence of reprehensible behaviour. She says,

FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for procedural irregularity.

The test for granting permission [FPR 30.3(7)] is,

The court may conclude a decision is wrong or procedurally unjust where

The court must give a decision and explain the reasons for it so that the parties and the appeal judge may properly understand the basis of the decision. The trial court does not have to deal with every point raised and does not need to set out the law in detail provided it is evident from the decision that all relevant factors have been considered.

In Re F (Children) [2016] EWCA Civ 546 Munby P summarised an approach to

Lord Hoffmann also said in Piglowska v Piglowski[1999] 1 WLR 1360, 1372:

The amended Grounds of appeal filed by Mr Wilkinson on 16 September 2019 identify three grounds. The grounds are set out in lengthy narrative form (more Skeleton than Grounds of Appeal) and are supplemented by more detail in a skeleton argument which expands upon them. I shall summarise them rather than set them out verbatim.

the process adopted by the court was unfair to the appellant

The judge wrongly found that there was reprehensible behaviour by the appellant.

The judge was mistaken as to the law.

The skeleton filed by Mr Butterfield on behalf of the mother took issue with a great deal of the factual assertions made by the local authority. In this respect Mr Butterfield was proven to be right in many respects; most obviously in respect of the assertion that the local authority had somehow been taken by surprise by the non-party costs hearing and had been unrepresented. However there were several other erroneous assertions in the Local Authority’s appeal documents. In relation to the three grounds the mother’s position broadly was as follows

At the outset of the appeal I invited Mr Wilkinson to consider whether ground one was still pursued given it was plain that the local authority had been represented on the hearing of the application and that the 24 May hearing was only for delivery of judgment. After some discussion he accepted that ground one which alleged procedural unfairness could not be pursued. It seems to me that this was inevitable. How the amended Grounds of appeal and skeleton came to be filed asserting that the local authority had not been given an opportunity to be heard on the application is beyond me. In relation to the point that the court was led to believe that the local authority had not provided a statement it emerged that the local authority themselves had not referred the court to this statement and it was not referred to in their skeleton argument for the costs hearing. The assertion that the judgment erroneously refers to the mother having not been informed in advance of 30 July hearing was one which the judge was perfectly entitled to reach. It is clear that she had seen the statement of Ms Y (which the local authority assert she wrongly found had not been filed) because she refers to the content of it. The reference at paragraph 28 of the judgment to the local authority not having complied with the direction to file a statement is a reference to the fact that it was not filed by 28 August; it is dated 20 September. The deployment by the local authority of points which are unfounded in fact causes one to question the reliability of other assertions.

One of the first points made in relation to ground two was an assertion that the social work team manager had attended court on 30 July and could have given evidence. This also was simply wrong. Ms Y did not attend that hearing and could not have given evidence. The further assertion that the father’s application for a psychological assessment would have prevented the final hearing was similarly misplaced. That application had been refused before and was not granted on this occasion. Finally the assertion that the local authority was not responsible for the decision to adjourn the final hearing is irrelevant.

The local authority submit that the judge was wrong both in terms of her factual conclusions in relation to when the local authority notified the parties of Ms X’s unavailability and in her characterisation of that failure as reprehensible so as to warrant the making of a costs order. Mr Wilkinson argues that the judgment wrongly asserts that no one was told before the morning of 30 July that Ms X could not come and that the judge wrongly says that the section 7 report was filed 15 days late. The order records that the father had been told on the Friday, 27 July but the judgment itself concludes that the parties (or the father) was told one day (working) before the hearing. However the evidence of Miss Broadmeadow which was before the judge which asserts (without identifying how) that both the mother and the father were told on 27 July was not consistent with the statements filed by Ms Y (which was not in the trial bundle but had obviously been see by the judge) which only asserted that the father was informed by a reply to an email he had sent that day. Mr Wilkinson submitted that the local authority was unsure when Ms X would be in a position to resume work and that it was unfair to criticise them for only informing the parties on 27 July. Of course what is conspicuous in its absence from any of the evidence filed by the local authority was any attempt to inform the court of any difficulties with Ms X or any identification of what they knew in terms of Ms X being certified unfit. Whilst I accept the point that one cannot predict how long an illness will last that hardly addresses the point of the local authority’s state of knowledge of how long a period Ms X was certified unfit to work which presumably was known to the local authority and which ought to have been passed on to the court. More importantly the evidence discloses no attempt to notify the court in advance of the issue of Ms X’s illness and her probable inability to attend which would have enabled the court to consider whether three days of court time ought to remain set aside for the case or whether the case should be adjourned or converted into a hearing of a temporary leave to remove application. Thus although Mr Wilkinson may be right in identifying a minor error in the judge’s recording of the facts relating to Ms X nonattendance on 30 July 2018 that has no bearing on the cause of the adjournment and the waste of costs that accompanied the ineffective hearing. Taken at its highest the local authority’s case is that both parties were notified in the course of the Friday that Ms X would not be available on the Monday. That communication even if correct was so late in the day that neither party could have taken any meaningful action in response. As the judgment makes clear HHJ Bush was particularly concerned that no steps had been taken to notify the court. Mr Wilkinson submitted that the hearing would have been adjourned in any event and in this he relies on the direction for an addendum section 7 report. I do not accept that there is any merit in this. Had Ms X been available all the indications are that the hearing would have proceeded. The direction for an addendum

Mr Wilkinson submits that the section 7 report and the oral evidence should not be characterised as falling so far below the standard to be expected that they could be characterised as reprehensible conduct on the part of the local authority. He submits that they deal with the relocation issue albeit in brief terms. He also submitted that the criticism of Ms Y and Ms X for not having read (or fully read) the parties’ statements prior to giving evidence or completion of the report should not be criticised. He submitted that it was the duty of the parties to provide witnesses such as Ms Y with the material and to ensure that they had read it. Whilst I accept that this would be well directed in relation to updating material it is utterly without foundation when one is referring to the substantive witness statements in support of the competing child arrangements applications. It is particularly hard for Mr Wilkinson to maintain the submission when the skeleton argument filed on behalf of the local authority contained the concessions (following the obtaining of the transcripts of their evidence)

Mr Wilkinson also submitted that any deficiencies in the section 7 report ought to have been identified by the court and by the parties on 30 July and that Ms Y ought to have been directed to address those issues. He submitted that it was inappropriate to criticise the practitioners’ evidence in September, particularly bearing in mind they are social workers not Cafcass officers, when the defects were not identified either at the dispute resolution appointment or at the hearing on 30 July. Mr Butterfield responded that it is not unusual for defects in a section 7 report to be made good by exploration with the witness in oral evidence and that hindsight should not now be deployed to criticise the way the case was managed by the parties and the judge. Whilst I am prepared to accept that in an ideal world defects in a section 7 report will be identified at DRA and the author invited to address them the reality is that in a very significant number of cases there will indeed be omissions which might be plugged or uncertainties which might be clarified and practice in the real world suggests that these are usually adequately dealt

Mr Wilkinson submitted that the criticism of Ms Z recorded within the transcript of evidence and referred to at paragraph 15 of the judgment was unfair and indicated (along with other matters) that the evaluation that the local authorities conduct was reprehensible was wrong. I am prepared to accept that there are extracts from the transcript which would suggest that Ms Z was criticised for not having considered issues which did not fall within the remit of the addendum section 7 report. However those isolated examples that Mr Wilkinson took me to are hardly representative of the entirety of the transcript of evidence or the overall impression which clearly emerges from it of a failure to grapple with the really significant issues which confronted the court and the parties. It hardly needs to be said that the section 7 report on such issues can be hugely significant in equipping the court with the evidence to determine the issues and in making reasoned recommendations to assist the court in understanding what will best promote the child’s welfare. For reasons which I am not entirely clear (and I accept may be related to pressures of work, inexperience, lack of support) the preparation that was undertaken both in the report and in the oral evidence was plainly so defective that the court was simply not provided with useful evidence on which it might seek to rely in the determination of these important applications.

The Local Authority also argued that a further section 7 report would have been required anyway because the judge reached different conclusions on the facts to those reached by Ms X. That is simply incorrect as no findings were made by HHJ Bush at the September/October hearing. The actual basis for requiring a further risk assessment is set out in paragraph 16 of the judgment and relates not to findings made but matters not addressed in the original report.

It is plainly a most unusual course for a judge to take to direct an entirely new section 7 assessment from a different agency. Having heard evidence from Ms Y and Ms Z over the space of some three days HHJ Bush adopted a most unusual course because she clearly concluded that the evidence she had heard had not provided her or the parties with the material required to justly determine the applications. Having dipped my toe into the transcripts her conclusion that the evidence was so poor would appear to be irrefutable. It is of course also supported by the concessions made by the local authority at the hearing on 3 May.

I note that in Cobb J characterised the failings in Re OB as ‘not minor, they are extensive, and have had a profound effect on the conduct of the proceedings… they have failed fundamentally to investigate, address or analyse the serious issues in the case…. ‘HHJ Bush’s description of the failures of the Local Authority is certainly within the parameters of the kind of failure Cobb J relied on. Some judges might have taken a more benign view of the failings but many (perhaps most) would have taken an equally robust view of the failings. I see no reason at all to disagree with HHJ Bush’s characterisation of those failures as falling within the scope of reprehensible or unreasonable conduct.

As set out above it is asserted that the judge was mistaken as to the law.

Returning then to the general terms of the Grounds I am therefore entirely satisfied that

In the circumstances I do not consider that the local authority has demonstrated any real prospect of success in relation to any of the grounds. On closer examination which has been afforded by this hearing and the benefit of sight of the skeleton argument submitted on behalf of the local authority to HHJ Bush and the benefit of submissions from Mr Butterfield as well as Mr Wilkinson it is clear that the appeal never had a realistic prospect of success and I therefore declined to grant permission to appeal. There might have been a compelling reason to grant permission had the issue of ‘sufficient connection’ been open to the Local Authority to argue but that issue will have to await a case where it has been argued at first instance.

I gave judgment in respect of the costs application determining that in respect of grounds one and three the appeal was unreasonably brought in respect of ground two I accepted that there were some matters which made it not unreasonable for the local authority to have pursued the appeal albeit I ultimately found against them. I therefore determined that the local authority should pay two thirds of the appellant’s costs which I assessed on an indemnity basis in a summary fashion.

I therefore confirm that I will make the following order