Re Avon, North Somerset and Gloucestershire Public Law Case (2013) No 1  EWCC 4 (Fam)
Judgment identifying a number of failings in care proceedings and providing important guidance as to how this could be avoided
The Local Authority applied for care and placement orders in relation to the two children of the parents, a boy, aged 3, and a girl, aged 2. The parents both accepted that they could not care for the children but the maternal Grandmother sought a special guardianship order for the boy (accepting that she could not care for both children). The Local Authority withdrew its opposition to the boy remaining in the care of the grandmother on the third day of the final hearing. Following this, HHJ Wildblood QC provided a judgment to comment on seven specific failings within the case, which were as follows:
1. The case had taken 58 weeks to come to final hearing in circumstances where that level of delay ought not to have been necessary.
2. There had been a four day fact-finding hearing listed to consider the causes of bruising to the girl. That hearing was abandoned very shortly before it was due to start in circumstances where evidence had not been adequately gathered. In the judge's view one composite fact and welfare hearing ought to have been listed. The findings sought were not determinative of the mother's ability to care for the child. The judge commented that there needed to be consideration of whether a fact-finding hearing was genuinely necessary, what evidence was required to determine the allegations, and what would happen after the hearing, none of which was done in this case.
3. There had been too many expert reports. It had not been 'necessary' in the new language of Part 25 (or indeed 'reasonably required') for there to be reports from a psychologist, an independent social worker, a special guardianship social worker, a local authority social worker and the Guardian.
4. There had been an absence of direct evidence within the local authority's case. Reference had been made to "concerns" without substantiating these with direct evidence.
5. There had been an "unprincipled approach to welfare issues" in the local authority's analysis. No mention had been made of either the effect of removing the boy from his grandmother or the importance of maintaining his place within his natural family, omissions of which the judge was roundly critical. There had also been a concentration on the grandmother's negative points in superlative terms which had been unbalanced.
6. There had been a lack of dialogue between professionals advancing opinions on the same issues and indeed a lack of clarity as to what their ultimate recommendations would be before they gave oral evidence, leading to the advocates having to respond 'on the hoof'.
7. The upshot of the proceedings was that the siblings were now to be separated during their minorities. The judge commented that "proper and considered care planning at the outset of this case could and should have mitigated this, if not avoided it."
IN THE BRISTOL COUNTY COURT
 EWCC 4 (Fam)
2 Redcliff Street
HIS HONOUR JUDGE WILDBLOOD QC
Re Avon, North Somerset and Gloucestershire Public law case (2013) – Number 1.
A local authority Applicant
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A mother First Respondent
A father Second Respondent
A maternal grandmother Third Respondent
A boy and a girl (by their guardian) Fourth and Fifth Respondents.
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The names of the advocates are omitted.
Hearing dates: 18th to 20th September 2013.
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This judgment was handed down in private on 20th September 2013. It consists of 7 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that no person may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
HHJ Wildblood QC:
1. I am issuing this anonymised judgment in a public law case where things have gone badly wrong. I will not name any person or institution that has been involved. The proceedings were issued by one of the five Local Authorities in this area.
2. The case concerns a boy who is aged 3 and a girl who is aged two. They are full siblings. Their mother suffers from severe dyspraxia and other limitations which render her unable to care for either of the children. The father has played a limited role in the children's lives and does not seek the care of either of them. The boy lived with his maternal grandmother (in a household made up also of the grandmother's husband and three other children) for the first 14 months of his life and has lived with her for the 13 months during which these proceedings have been current. For that 13 month period the girl has lived with temporary foster carers and has had contact with the mother, the grandmother and the boy. All involved in this case say that the boy and the girl have a good relationship and show obvious affection for each other. The girl's current carer cannot keep her.
3. The Local Authority applied for care and placement orders in relation to both children. The grandmother, who is in her 40's, sought a special guardianship order in relation to the boy; she considered that she was not able to offer the girl a home as well. The mother supported the grandmother in relation to the boy and recognised, with guided realism, that she was unlikely to be able to succeed in her genuine wish to care for the girl. Nature has dealt the mother some very harsh blows for which I have expressed my heartfelt sympathy. The father supported the Local Authority. Initially the guardian supported the Local Authority but did so on the basis of assumptions of fact about events within the grandmother's home; having heard evidence about those events, he changed his recommendation to support the grandmother in relation to the boy.
4. A very experienced independent social worker gave evidence that the grandmother's care of the boy was good enough although not optimal. A very unsatisfactory special guardianship report was filed by a Local Authority social worker that was not supportive of the grandmother's position.
5. On day three of the case the Local Authority withdrew its opposition to the boy remaining with the grandmother and did not pursue its applications in relation to him. Orders have been made that will cause the boy to live with the grandmother (there is a delay whilst financial arrangements are resolved). Care and placement orders are to be made in relation to the girl. A particularly tragic consequence of that is that the boy and the girl will be brought up separately.
6. I wish now to identify the points that I regard as having been so very unsatisfactory about this case. I have never taken a step like this before in relation to a judgment that I have given. I do not intend to back up each point by reference to authority. My remarks are based on my understanding of the judgments given in Re H-L  EWCA Civ 655, Re B-S  EWCA Civ 1146 and B (A Child)  UKSC 33 and the requirements of the Annex to Part 36C of The Family Procedure Rules 2010 (i.e. the 'new PLO').
7. Firstly, the delay. All public law cases are complex and demanding. However, there was nothing at all within this case that made it so unusual that it could not have been resolved with far greater expedition. It began before the new PLO came into force but even under the old PLO this case could and should have been completed within 40 weeks at most. It would now be completed within 26 weeks. It took 58 weeks. In this case the issue of delay had a very special significance because the children were separated throughout the proceedings. I cannot understand how a case where these young children were separated could be perceived as anything other than one where expedition was essential. Basic common sense so demands, before one even begins to get into legal and procedural provisions.
8. Secondly, the manner in which a fact finding hearing was organised. The immediate cause for the issue of the proceedings was that the girl was found to have suffered multiple bruising whilst, it is said, she was in the care of the mother and her then partner. A separate fact finding hearing was ordered in relation to that bruising. That fact finding hearing was listed for four days in month five of these proceedings. It was abandoned very shortly before the hearing was due to start. The evidence in relation to that hearing was inadequately gathered and there was inadequate medical evidence for the enquiry of fact to be properly conducted. The issues of fact that were raised were not determinative of the issue of whether the mother could care for either of the children; she faced many other obstacles to her then wish to do so. The lessons to be learnt are these, in my opinion:
i) Consideration must be given at an early stage about whether a separate fact finding hearing is genuinely necessary. In a case such as this I would have ordered a composite hearing of fact and welfare disposal.
ii) There must be an early examination of exactly what evidence needs to be adduced on issues of fact. For this hearing to have been abandoned at month five is absurd. There were no complex medical issues. A young child had bruises.
iii) If a separate fact finding hearing is genuinely necessary there must be forward planning about what will happen after that hearing takes place (and that did not happen in this case, as I will explain).
9. Thirdly, the sequential provision of evidence. Shortly before the abandoned fact finding hearing, the very experienced independent social worker was ordered to file a report about the merit of the children living with the grandmother. I very much doubt that such an order would have been made under current rules of procedure (Part 25 and the test of necessity). That report came into being in March 2013. It was balanced and cautiously supportive of the grandmother. It followed (in time) a psychological report of the grandmother and mother. When the case came before a Recorder in April an order was then made for a separate special guardianship report to be filed by a Local Authority social worker and for there to be a parenting assessment of the mother. That order was made therefore in month eight of the proceedings. The order also directed that an 'IRH' should take place in September (i.e. in month thirteen) and no date was fixed for a final hearing. I intervened in July after the file had been placed before me and my first action was to list a final hearing for three days. My criticisms are these:
i) The options for the children were not properly identified at the start. If they had been, the special guardianship report would have been ordered at the very first hearing as it should have been;
ii) I see no sense at all in ordering an independent social work report in relation to the grandmother only for that report to be followed by a separate special guardianship report by someone else. The first order should have been for a special guardianship report in accordance with statutory requirement;
iii) There was far too much expert evidence. How could it be said to be a reasonable requirement (to use old money language) or, in modern and current parlance, necessary for there to be so many experts (psychologist, independent social worker, special guardianship social worker, Local Authority social worker and guardian)? An understanding of the mother's dyspraxia was necessary but why were so many professionals instructed on basic welfare issues?
10. Fourthly, the absence of direct evidence. Time and again I was told that the Local Authority had 'concerns' about issues (the word 'concern was used by the Local Authority advocate more than twenty times in one day). Those 'concerns' were not substantiated by direct evidence and should have been. I give this very clear example. The head teacher of a school was called to give evidence about events relating to the other children in the grandmother's household. Her statement was about events in July 2013 and suggested difficulties within the grandmother's home then. I asked [sic] whether the events of which she was speaking were representative of the school's perception of the grandmother's overall care of those children. I was told from the witness box that there were many other things that the school could say and would want to say. They were not contained in any statement but, I was told by counsel for one of the Respondent parties, reference to them could be found 'dotted around' the four lever arch files. Evidence was also available from the health visitor (but did not feature in any statement). If a Local Authority seeks to substantiate an important contention it must do so on direct evidence where that evidence is available. Hearsay evidence is admissible but that does not mean that a Local Authority can dot its contentions around a bundle and then expect a court to reach satisfactory conclusions on issues of such fundamental importance to children and families.
11. Fifthly, the unprincipled approach to welfare issues. Entirely omitted from the special guardianship report and much of the other welfare analysis were two matters which were of utterly elementary and fundamental importance:
i) The effect now of removing the boy from the grandmother. In welfare checklist language, what would be the effect on the boy of the proposed change in his circumstances that would arise if removed from his current home and what are his emotional needs to remain a part of his current household?
ii) The significance of the boy maintaining his place as a child cared for within his natural family. The boy has an established family life with his grandmother (Article 8 of the Convention was therefore engaged). He had spent the majority of his life in a household with other children there (aged 10, 12 and 15). His step grandfather had played a very full role in his upbringing. By remaining in his family he would continue to see his mother in structured contact.
12. I found it deeply demoralising that these simplistic issues could pass without even being mentioned. What happened in the hearing is that all possible negative points about the grandmother were explored in evidence. At least some of them had no foundation at all. Some of these negative 'concerns' were expressed in superlative, wholly unjustifiable and internally contradictory terms, especially within the special guardianship report. For instance I heard in oral evidence that the grandmother was not child focussed and did not co operate with professionals; that was not borne out by the report of the person who said it (or by the evidence of others) and was manifestly unbalanced. It is to the credit of the grandmother that she maintained her decorum whilst this whirl of ill considered evidence was being given about her.
13. Sixthly, the lack of dialogue between those who were advancing opinions on the same welfare issues. There had not been a consolidated debate between the professionals who advanced differing opinions about welfare disposal. My attempts at the IRH to organise one failed and so it was necessary for the independent social worker and the special guardianship social worker to sit through some very unhelpful factual evidence for 1 ½ days before being asked to give evidence. I certainly do not say that people who disagree on welfare issues should always be made to face each other out at a meeting (and I recognise the fear that some may have of a witness being 'got at' by the other witnesses) but what happened in this case was ridiculous.
14. Witnesses gave linear evidence. Nobody knew what the witnesses were going to recommend before they came into the witness box (e.g. was the independent social worker supporting or opposing the grandmother, what was the position of the special guardianship social worker?). Important issues therefore had to be dealt with 'on the hoof' by the advocates. The Local Authority reserved its position in relation to the grandmother until the morning of the third day. The litigation strain on the family (a strain that I think it my responsibility to understand and mitigate as much as possible) was huge. The recommendations that professionals make inevitably influence the evidence that they give and advocates need to know the bottom line of recommendation in advance. The fairness of a hearing is not just a Strasbourg phenomenon.
15. Seventhly and finally, the really sad upshot of this case is that these two young children will be brought up separately. That is bound to have very significant implications for both of them, in particular for the girl. The separation of these siblings will inevitably affect her emotional welfare as a child and as an adult. Proper and considered care planning at the outset of this case could and should have mitigated this, if not avoided it. Inevitably, a particular feature of the grandmother's case before me was: 'it is far too late now to move the boy'.
16. I do not want to water down the importance of the above seven points by consideration of more mundane matters (such as the usual bundle problems). I wish to pay tribute to the advocates and family members who bore the burden of the difficulties which such tolerance. Counsel for the Local Authority was new to this case and has borne the difficulties that arose with professionalism, courtesy and consideration.
Stephen Wildblood QC
20th September 2013
Designated Family Judge for Avon, North Somerset and Gloucestershire.
- care proceedings
- expert evidence
- local authorities
- Public Law Outline
- separating siblings
- special guardianship