JB v SW

It is arguable that the judge was wrong in his assessment of the impact of making the order on the children in occupation of the property and on the prospects of [the respondent] being able to remain in the property if she regained occupation.

At the time of the hearing I did not have all the witness statements to hand into the judge.

The Judge did not think realistically about the effects of making two adults and two children homeless especially with Covid 19 and the lockdowns.

The Judge was only going on hearsay from SW and her solicitor about her getting her children back there was no physical evidence that she was getting them back to the immediate effect of obtaining this property.

I feel that the whole decision was based on hearsay and that there was no evidence from Miss Woodward or her solicitor and the Judge did not think about SW’s suitability for this house at the time because it is just SW and her current partner moving in to a three bedroom house.

In the eyes of the professional that have given witness statements SW is not likely to be getting her children back in the near future and that SW would be under occupying this property in the meantime while she is in the court battles to fight for her children back.

The Judge made this decision based on SW’s solicitor saying they can only do the lengthy court battles to apply for the children back if she was to have this house, this does not guarantee she would win the court battles as you can see from the Social Care teams statement.

GROUNDS

The Learned Judge wrongly stated the legal test (judgment paras 8-12) and failed to apply it correctly or at all. In particular;

Having correctly identified that the children occupying the property were

‘relevant children’ for the purposes of the Act (pa 32) the Learned Judge failed to properly consider the effect of any order upon the health, safety and wellbeing of the relevant children (pa 40), wrongly applying a significant harm test (pa 42).

The Learned Judge’s (unreasoned) conclusion that he should make the order because the Respondent had the greater housing need was neither supported by the evidence, and nor was it the correct legal test (pa 43).

The Learned Judge erred in his approach to the evidence;

In relation to the burden of proof;

By attaching weight or too much weight to irrelevant or immaterial factors; c.

Failing to consider relevant evidence;

By misstating the evidence available to him;

By making impermissible (and wrong) assumptions relating to matters in respect of which there was no direct evidence (and which the new evidence demonstrates were wrong).

The following procedural errors in combination gave rise to unfairness:

The matter was wrongly treated as ‘urgent’ throughout, dissuading the Appellant, a litigant in person suffering from anxiety and depression, from seeking more time to obtain evidence in support.

The court made directions requiring the Appellant (who was the Respondent to the application) to file his evidence prior to the Applicant having filed any evidence in support of an occupation order and before he knew what case he had to meet. c. It is unclear from the judgment whether the judge had or had considered the Appellant’s second statement, which had been properly filed and served but had arrived too late to include in the bundle.

The Appellant’s partner was wrongly excluded from the proceedings / hearing.

alleged exclusion of the appellant’s cohabitees from the hearing and the alleged absence of any questioning of the respondent by either the appellant or the judge during the hearing. Ms Reed opposed the application on the basis that no request had been made earlier by the respondent, the matters raised were capable of being answered by the respondent herself and there was no respondent’s notice seeking to rely on other matters. I refused the application for an adjournment on the basis that the matters identified in support of the suggested need for a full transcript did not appear to be sufficiently important in the context of the appeal overall to require the transcript particularly having regard to the overriding objective to determine cases justly and bearing in mind the additional delay that would be caused and the additional court time that would have to be made available for an adjourned hearing. I indicated that were matters to develop in the course of the appeal itself that indicated the transcript bore a greater relevance than appeared at the outset I would if necessary, revisit the issue.

A letter from the children’s head teacher identifying their vulnerability and the potentially very damaging impact on the children of having to move home and school,

A statement from the cohabitee’s allocated social worker outlining the circumstances in which the cohabitee and her children came to move in with the appellant (this I believe was handed up to the Recorder during the course of the hearing).

An email from the appellant’s housing officer supporting the appellant’s occupation of the property and identifying that were the respondent to return to the property there would be an issue of under occupation which would lead to the possibility of rent arrears accruing

An email from children’s services confirming that there was no plan to rehabilitate any of the children to the care of the respondent and that housing issues were not the relevant issue.

An email from a housing officer confirming that were the appellant’s cohabitee and children to be excluded from the home they would likely enter bed and breakfast accommodation in another town for a period of 56 days or more.

The appellant set out in his statement that he had sought information from his cohabitees social worker prior to the hearing to the hearing but it was only on 4 December 2020 that the social worker sent all of the documents that now comprise the additional evidence he seeks to rely on and he had not as a litigant in person felt able to seek an adjournment.

The new evidence was obviously relevant and would have an important influence on the outcome of the case because it went to issues which were material to the Recorder’s decision in relation to the consequences for the children, the reality of the likely position on rehousing the appellant and the likely over housing of the respondent and demonstrated that assumptions made were probably wrong.

The evidence is credible being provided by local authority or other professionals who are independent and well-placed to give evidence of those matters.

The evidence could not have been obtained with reasonable diligence for use at the trial;

The evidence was such that if given it would probably have an important influence on the result of the case, though it need not be decisive; and

The evidence was credible.

This all being subject to the overriding objective to deal with the case justly, including proportionately. In family cases relating to the welfare of children the appellate courts have recognised (see for instance Re B (Minors) (Custody) [1991] 1 FLR 137) the application of the criteria may be somewhat relaxed.

setting out why he sought to remain in the property. This seems to have been on the basis that the respondent had filed a statement in support of a non-molestation order, and it was perhaps assumed that this document set out the respondent’s case in relation to an occupation order also. However, this assumption was not correct. The nonmolestation order statement only dealt with issues of conduct. There was therefore no framework within the legally represented respondent’s statement to which the appellant could have responded. If the statement in support of the application had been based on the criteria identified in section 33(6) and (7) FLA 1996 this might have alerted the appellant to the need to address those matters. The order provided for the respondent to file a statement further addressing why she sought to return to the property. At the pretrial review on 22 October the order recites that the appellant might wish to familiarise himself with section 33 FLA 1996. However, whilst the order indicated the potential importance of documents relating to the care order in respect of the party’s five children in care and the availability of the appellant’s cohabitees former accommodation it did not identify the importance of any documents relevant to the impact on the appellant’s cohabitees children, or the issues of the appellant’s ability to be rehoused. It appears that the appellant made some attempt to obtain evidence relating to his cohabitees former accommodation as that forms the content of the social workers email which was received prior to the court hearing and which was put before the Recorder on 17 November. Whilst the recital to the order did direct the appellant to section 33 of the Family Law Act 1996 for the purposes of representing himself there is nothing in the orders or in the respondent’s statements which would have focused the appellant’s preparations on the critical importance of obtaining evidence relevant to the factors contained in sections 33(6)(a)-(d) or section 33(7). It is clear from the judgment that the Recorder identified the very limited evidence that was before him; he referred to the “paucity” of evidence and this applied both to the appellant’s and the respondent’s evidence. This suggests that neither had sufficient time to fully prepare their cases; for the respondent even with the benefit of legal representation. Whilst I accept that being a litigant in person does not absolve a party from compliance with the rules and the need to approach proceedings with great care and diligence an issue as serious as occupation of one’s home I also have to recognise that litigants in person are often illequipped to comprehend precisely what the court will need in terms of evidence or submissions. This is so whether or not they suffer from any form of condition which might further impact on their capacity to prepare for court cases of this sort. In such cases it is very often helpful to litigants in person and the court itself for represented parties and the court to draft statements and case management orders in such a way as to draw attention to the critical factors which the court will be considering. In this case (as it transpired) where the court did draw attention to one matter the appellant sought to address it and obtained information which demonstrated that his cohabitees former home would not be available to her or her children to re-occupy. True it is that the appellant could have asked the court for an adjournment, but many individuals might work on the assumption that where a date has been given that is the date on which a decision is taken. An appeal based on fresh evidence is emphatically not an opportunity for the dilatory or lazy to attempt to re-argue their case before a different judge. Ultimately, and particularly given the importance of the issue at the heart of this appeal which is the occupation of a family home and having regard to all the circumstances in the preparations for the hearing that I have set out before I am satisfied that the evidence which now exists could not have been obtained with due diligence by this appellant for the hearing on 17 November 2020. I therefore will allow the appellant to rely on that evidence.

An error of law has been made,

A conclusion on the facts which was not open to the judge on the evidence has been reached Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93

The judge has clearly failed to give due weight to some very significant matter, or has clearly given undue weight to some matter, B-v-B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602.

A process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: (has there been an unseemly rush to judgment) Re S-W (Care Proceedings: Case Management Hearing) - [2015] 2 FLR 136

A discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible; G v G (Minors: CustodyAppeal) [1985] FLR 894,

appeals,

Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The Judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

33 Occupation orders where applicant has estate or interest etc or has home rights (6) In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including –

the housing needs and housing resources of each of the parties and of any relevant child;

the financial resources of each of the parties;

the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and

the conduct of the parties in relation to each other and otherwise.

The driving force for the application is for the respondent to proceed to apply for a discharge of the care orders although it is important to note that it is raised so soon after the final order.

The cohabitee’s children were relevant to children for the purposes of the act.

The appellant, his cohabitee and her children would be a priority whereas the respondent would not be a priority.

The domestic abuse the respondent alleged did not amount to more than the sort of behaviour that one might see in the breakdown of a relationship and did not satisfy the significant harm component of section 33 (7)

The appellant’s cohabitee would have been able to apply for housing and had a priority had she not moved in with the appellant.

Both the appellant and respondent had broadly similar needs and resources if one took the respondent on his own.

Both parties have health issues, and both are living in properties at present and so have their housing needs met.

If the occupation orders were made his cohabitee and her children would have to move which would cause “in effect, instability”. From the email he had seen from the social worker she did not go on to say any more than instability or “that it would cause any more disruption than I suspect any family would have to endure if they had to move home’

Conduct of the parties does not stand out as a feature in the case.

I stress again the absence of corroborative evidence, corroborating evidence that could have been obtained, supporting evidence, statements could have been more structured to reflect what the actual considerations are that the court has to undertake.

It was unwise of the appellant to allow his cohabitee to move in in the circumstances.

The order made will make no difference to the children in care. It is important to have regard to the purpose of the family home. It was intended as a home for the parties and their respective children. It cannot be right that the applicant is forever excluded from her right of occupation when the[appellant] takes in a new partner and her family.

An occupation order would cause instability to the cohabitee’s children and that would to some extent be unsettling but that is not significant harm.

The respondent has established on the balance of probabilities a housing need greater than that of the respondent as her accommodation is far from ideal and her health may as a result be affected together with her somewhat precarious position around her new partner.

The appellant, his cohabitee and her children would be a priority to be rehoused. It would be far easier for the cohabitees to find alternative accommodation than the respondent.

The respondent is more likely to apply to discharge the care order in the immediate future and if successful it would permit some of the children to return home. However, the case turns more on priority housing needs than those considerations.

on the evidence before him. In her oral submissions Ms Hudson realistically acknowledged that following on from my decision to admit the fresh evidence it was difficult to effectively argue the appeal and she focused her submissions on the need for the case to be remitted for further hearing if the appeal was allowed.

the same situations none of which could necessarily be said to be wrong. In many cases there will be a range of outcomes within the parameters of legitimate judicial decisionmaking. Hence the appellate courts allow a wide latitude to 1^st instance judges in terms of case management, in terms of their evaluation of competing factors and in their exercise of discretion. However, in cases such as this where the court has concluded that evidence secured after the determination should be admitted the decision has to be based on the new evidential foundation which exists. On the evidential foundation is now before the court it is clear to me that the decision was wrong. I have little doubt that Recorder Willetts would say the same. I will therefore allow the appeal on the basis that the Recorder’s evaluation of the competing factors has been demonstrated to be wrong by reason of the availability of the fresh evidence. I will therefore set aside the occupation order.