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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> RE v North Yorkshire County Council & Ors [2015] EWCA Civ 1169 (17 November 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1169.html Cite as: [2016] WLR 512, [2015] WLR(D) 474, [2016] 1 WLR 512, [2015] EWCA Civ 1169 |
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ON APPEAL FROM YORK COUNTY COURT AND FAMILY COURT
HER HONOUR JUDGE FINNERTY
YO14000308
Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVSION
LORD JUSTICE LEWISON
and
MR JUSTICE HAYDEN
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R E |
Appellant |
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- and - |
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NORTH YORKSHIRE COUNTY COUNCIL L O A (a child) |
Respondents |
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Mr. A Taylor (instructed by North Yorkshire County Council) for the 1st Respondent
Ms. Jennie Smith (instructed by Langley Solicitors) for the 2nd Respondent
Mr. James Hargan (instructed by Crombie Wilkinson) for the 3rd Respondent
Hearing date : 14th October 2015
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Crown Copyright ©
Mr Justice Hayden :
i) A Care Order in favour of the Local Authority, North Yorkshire County Council;ii) Permission to the Local Authority, to refuse contact between the child (A) and his father (F) pursuant to section 34(4) of the Children Act 1989;
iii) Leave to the Local Authority to apply for a declaration removing responsibility to consult F in relation to A;
iv) A declaration that the Local Authority should be absolved from the statutory responsibility of consulting F in relation to A's care and their obligation to involve him in the Looked After Children (LAC) consultation process;
v) A non-molestation order (granted until further order) prohibiting F from:
a) Contacting M, A or the maternal great grandmother (MGGM) either directly or indirectly or through any third party except through lawyers or through the Local Authority for the purpose of the letterbox contact;b) Attending within 100 metres of any address where he knows M and A or MGGM are living;c) Should F meet M in any public or private area he is ordered to leave immediately to a distance of at least 100m away.A power of arrest was attached to the non-molestation order.
"The Judge was wrong to have made final orders at interim hearing which:
1. Prevent a child from maintaining personal relations with a parent; and
2. Prevent a child having a future determined by which both parents have played a part."
It is argued that at the IRH the Judge was not in a position to conduct the 'holistic analysis' of the available options that was required in order properly to do justice either to the interests of the child or the father. In particular, at Ground 3, which is really an amplification of the same point, it was contended:
1. Before reaching the determination that it was necessary and proportionate to the identified risks, that 'nothing else would do' the Judge needed to be sure that all the evidence was before the Court. The Judge was wrong to have proceeded to make Final Orders at an interim hearing;
i. Without the court bundle;
ii. Without the father having had notice that the IRH might be dealt with as a final hearing;
iii. Without the father having been produced from prison
iv. Without having heard any evidence or allowed father the opportunity to properly challenge the evidence of the Social Worker and Children's Guardian;
v. Without some form of contact being tested, the father, having made requests for contact, photographs and for the Social Worker to visit him,hadthe father having never met A or received any update in respect of his developmentsexcept the redacted Care Plans when the child was nearly 5 months old.
vi. Where despite a large number of concessions and acceptances by Father, enough for a court to consider the Threshold Criteria for making s.31 orders was crossed, the Threshold Criteria annexed to the order had only been agreed by the Mother and not by Father,
vii. Without having proper evidence before the court as to the impact upon the child of having no contact with the paternal family.
"His (F's) instructions were clear – he did not agree to the effective termination of all contact nor the declaration that was made that purportedly restricted his rights in law as a parent. It is seriously arguable that those orders should not have been made without the father having an effective opportunity to challenge the same. The orders are not adequately reasoned in the judgment. In any event, I am not clear what power the judge exercised to make the declaration."
Summary Background
i) Aggression to M, her family and nursing staff at the hospital immediately following A's birth;ii) Shouting and aggression directed to the Independent Reviewing Officer at the Review Child Protection Case Conference on 22.04.14, and aggression to reception staff upon being told to leave the building;
iii) What is reported as extreme aggression by F to his Probation Officer, contributing to the Probation Service's conclusion that F was a 'high risk' and their view that the extant Community Order was unworkable – reported to the social worker on 25.04.14;
iv) Behaviour at the premises of his previous solicitors, reported to the Court, as a result of which they applied to come off the court record.
The Local Authority's Care Plan and F's Response
'Ideally, I would like to receive very regular updates about how he is doing and because there will be so many changes, I would like to see photographs of him so that I can have a bond with my son even though I cannot see him'.
Later in his statement :
"I ask the Court to allow indirect contact by way of regular updates and photographs to promote a relationship with my son."
The Legal Status of the Declarations
'Where a circuit judge is to sit as a High Court judge, it seems to me that this needs to be arranged deliberately, with the proceedings commenced in or transferred to the High Court. The mere fact that the judge who has heard the case happens to be authorised to sit as a High Court judge or to try Administrative Court cases might not redeem a failure to observe proper practice.'
"26 Review of cases and inquiries into representations.
(1)The appropriate national authority may make regulations requiring the case of each child who is being looked after by a local authority to be reviewed in accordance with the provisions of the regulations.
(2)The regulations may, in particular, make provision—
(a)as to the manner in which each case is to be reviewed;
(b)as to the considerations to which the local authority are to have regard in reviewing each case;
(c)as to the time when each case is first to be reviewed and the frequency of subsequent reviews;
(d)requiring the authority, before conducting any review, to seek the views of—
(i)the child;
(ii)his parents;
(iii)any person who is not a parent of his but who has parental responsibility for him; and
(iv)any other person whose views the authority consider to be relevant,
including, in particular, the views of those persons in relation to any particular matter which is to be considered in the course of the review;
(e)requiring the authority . . . , in the case of a child who is in their care
(i)to keep the section 31A plan for the child under review and, if they are of the opinion that some change is required, to revise the plan, or make a new plan, accordingly,
(ii)to consider whether an application should be made to discharge the care order;
(f)requiring the authority. . . , in the case of a child in accommodation provided by the authority
(i)if there is no plan for the future care of the child, to prepare one,
(ii)if there is such a plan for the child, to keep it under review and, if they are of the opinion that some change is required, to revise the plan or make a new plan, accordingly,
(iii)to consider whether the accommodation accords with the requirements of this Part;
(g)requiring the authority to inform the child, so far as is reasonably practicable, of any steps he may take under this Act;
(h)requiring the authority to make arrangements, including arrangements with such other bodies providing services as it considers appropriate, to implement any decision which they propose to make in the course, or as a result, of the review;
(i)requiring the authority to notify details of the result of the review and of any decision taken by them in consequence of the review to—
(i)the child;"
"[30] The conclusions that I have come to are really these: the considerations which govern the dismissal of this father from further involvement in the proceedings, and the granting of the declarations seem to me to be the same. Indeed, there is little point in him remaining a party if he is not going to be given any information; indeed, it would be impractical for him to remain a party if he was not going to be given information."
[31] The second pivotal point, of course, is that this application is decided, first and foremost, on the basis of s 1 of the Children Act 1989 – that is to say, what is in S's best interests. Of course, hers are not the only interests, but they are the ones which are of paramount concern to the court.
[32] The third factor, self-evidently, is that it is a very exceptional case only which would attract this kind of relief. Self-evidently – and it hardly needs the human rights legislation to remind one – a parent is entitled to be fully involved, normally, in the decision-making process relating to his, or her, child, and if not to be involved, then at least informed about it. However, insofar as that engages the father's rights to family life, then by the same token it engages S's right to privacy and a family life."
'The overriding objective in the Family Procedure Rules is to discharge the determination of these cases justly and fairly; that is the requirement borne in also by Article 6. There is a line beyond which it is impermissible for the court to go; that line will vary from case to case and depend on the facts of the case and the proportionate approach to procedure'
'[52] Vigorous and robust case management has a vital role to play in all family cases, but as a rule 1.1 of the Family Procedure Rules 2010 makes clear, the duty of the court is to "deal with cases justly, having regard to any welfare issues involved.' So, as my Lord has emphasised, robustness cannot trump fairness……
[54] …..An unseemly rush to judgment can too easily lead to injustice. As Pauffley J warned in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) [2014] 1 FLR 1384, para 40, "Justice must never be sacrificed on the altar of speed."
[56]..a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn……no-one is to be condemned unheard…….A parent who wishes to give evidence in answer to a local authority's care application must surely be allowed to do so.
[57]….there is the right to confront ones accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so.
[60] I agree with my Lady that there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate. ……'"
"The expectation is therefore that a CMH will ordinarily be an essential management hearing designed to get the case in proper order to enable it to be ready for disposal, whether by consent or following a contested hearing, within 26 weeks. This is in contrast to the IRH when all the evidence, including expert evidence should be filed and where, unlike the CMH, the rules specifically require consideration to be given as to whether the IRH 'can be used as a final hearing. (PD12A: Stage 3 – issues resolution hearing)"
"Dealing with a case justly includes, so far as is practicable –
1. ensuring that it is dealt with expeditiously and fairly;
2. dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
3. ensuring that the parties are on an equal footing;
4. saving expense; and
5. allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."
"Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence. …The considerations which should weigh with the court include:
(1) whether there is sufficient evidence upon which to make the relevant decision;
(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of proceedings;
(3) whether the opportunity to cross examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
(4) the welfare of the child and the effect of further litigation – whether the delay in itself will be so detrimental to the child's wellbeing that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children, particularly D;
(5) the prospects of success of the applicant at a full trial;
(6) does the justice of the case require a full investigation with oral evidence?"
"Where it is possible for all the issues to be resolved at the IRH, the court may treat the IRH as a final hearing and make orders disposing of the proceedings."
"9. The matter shall be listed for an Issues Resolution Hearing before HHJ Finnerty 2nd September 2014 at 10am with a time estimate of 1 hour. The parties are directed to attend by 9am for pre hearing discussions."
"10. There shall be an advocates meeting by telephone, arranged by the child's solicitor, on a date to be arranged no later than Friday 29th August 2014."
"In the event that the directions are not complied with the Parties responsible must contact the court and provide an explanation asking for the court to list the matter for directions."
i) The Care Plan provided for mother and baby to remain together;
ii) No Party opposed the plan;
iii) It was agreed by all the parties that the question of A's direct contact with F was not an issue for the final hearing, in consequence of F's incarceration;
iv) All agreed that a Care Order was the appropriate order;
v) All agreed as to the extent to which F should be able to provide photographs / cards to A;
vi) All Parties and the Judge were aware of the indeterminate Restraint Order passed by the Crown Court preventing F from having contact with M (and others);
vii) F had not asked to be produced from custody at any stage in the case.
"A shall have indirect contact with father as follows:-
i) Father may send a suitable card and present for A's birthday and at Christmas, all cards and presents to be sent via the local authority and be promptly delivered to the child.
ii) Father may include a photograph of himself in each card.
iii) The local authority, alternatively the mother, shall send to father an update on A's developmental and general progress at least every 6 months;
iv) The local authority shall, within 14 days of the date of this order, send to the father in prison two photographs of A, one taken at or about 6 months of age and one taken at or about 12 months of age."
Lord Justice Lewison :
Lord Justice Moore-Bick :