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S (A Child) [2015] EWCA Civ 1345

Appeal against a case management decision to include as evidence a document that the Court of Appeal had previously in a separate appeal found to be fundamentally flawed. Appeal allowed.

Background facts
On 17 February HHJ Oliver made an adoption order in respect of a young boy 'S' in favour of S's step-father (on the step-father's application for an adoption order) and no order for contact (on the biological father's application for a contact order). On 15 May 2015 the Court of Appeal (LLJ Ryder, Macur and Sharp) allowed an appeal against that decision, holding that the process that led to the adoption order being made was sufficiently flawed to amount to procedural irregularity because of unfairness (In the matter of S (A Child) [2015] EWCA Civ 649).

Of particular weight, and relevant to this appeal, was the fact that the social worker who had carried out the assessment of the father  ('Annex A') was i) a colleague of the mother; and ii) did not deal with the key question of whether the father had been alienated from S and, if so, whether that was by the alleged conduct of the mother.

The matter was remitted and came before HHJ Toulson on 12 August 2015 (following a preliminary CMH before Mrs Justice Pauffley who joined S as a party). HHJ Toulson made several case management directions, to include the instruction of an independent social worker to address the issues of adoption and contact, and a direction that "the annexe A report which was the subject of this court's criticism in the first appeal, remain as an admitted document, but an addendum be prepared by the same author to address the deficiencies identified by this court."

It is this direction that is the subject of this appeal, the father arguing that in light of the Court of Appeal's criticism, the existing Annex A should not be relied upon and that work should be undertaken afresh by a new reporter, unconnected with S's mother.

The appeal
Richards LJ, Sales LJ, and the Rt Hon. Sir Ernest Ryder (President of Tribunals) allowed the appeal, the President giving judgment.

The M and her partner initially opposed the appeal but adopted a neutral stance in court. The Guardian initially supported the appeal but later adopted a position of 'more limited opposition' [10]. The local authority chose not to make formal submissions but instead provided lengthy written documentation to support the M and her partner.

When a local authority receives a notice of intention to adopt a child who has not already been placed with potential adopters by the local authority acting as an adoption agency, it must arrange for an investigation of the application and compile a report (s.44(5) ACA 2002). That report (the 'Annex A' report) must cover the matters specified in FPR 2010 PD 14C and forms a 'fundamental statutory protection for any child who a person seeks to adopt.' [15].

Three 'justifications' were advanced for the continued reliance on the existing Annex A document (and provision for the same author to prepare the addendum). The Court considered each in turn:

  1. That the Court of Appeal previously did not find as a fact that the report's author was biased: The Court rejected this argument, saying that having previously found the report to be 'fundamentally flawed' (in not addressing the key issues), no reliance could be placed on it;
  2. That the child was said to object to further questioning and assessment: The Court held that it needed the opinion of the Children's Guardian on that matter, untainted by the previous Annex A. The Court was confident that the Guardian and Independent Social Worker would be able to determine whether it would be in the child's interests for them to see the child again;
  3. That the independent social worker and Children's Guardian would be independent of the Annex A reporter so that full cross-examination could take place on the author of the report: On this point the Court held that it did not necessarily fall within the remit of the independent social worker or the Guardian to address the specific criteria set out at PD 14C and it would be wrong to rely on their reports in the hope that they did.

The Court, unsurprisingly, found that the Annex A report should be removed from the bundle (as should the father's statement associated with it and that a new annexe A report should be undertaken by the independent social worker (who should be permitted to see the child more than once, provided the children's guardian did not disagree).

Summary by Esther Lieu, barrister, 3PB
_____________________________

B4/2015/2811
Neutral Citation Number: [2015] EWCA Civ 1345

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COMBINED COURT CENTRE
(HIS HONOUR JUDGE TOLSON QC)


Royal Courts of Justice
Strand
London WC2A 2LL

Tuesday, 3 November 2015

B e f o r e:

LORD JUSTICE RICHARDS

Rt. Hon. SIR ERNEST RYDER
SENIOR PRESIDENT OF TRIBUNALS

LORD JUSTICE SALES

IN THE MATTER OF S (A CHILD)

 
DAR Transcript of
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Mr Simon Brickler QC and Mr Stephen Bartlet Jones (instructed by Platt Halpen Solicitors) appeared on behalf of the Applicant
Mr James Dove
(instructed by Oxford Law Group) appeared on behalf of the Respondent

J U D G M E N T
(Approved)

Crown copyright©

1. SIR ERNEST RYDER:  On 15 May 2015, this court allowed an appeal against an   adoption order made by His Honour Judge Oliver sitting in the Family Court at Reading on 17 February 2015.  The judgment is reported as In the matter of S (A Child) [2015] EWCA Civ 649.  The child concerned is a young boy now aged 8, who has been referred to as S during the proceedings about which the court is concerned.

2. The applications before the court were cross applications by S's father for direct contact with S and by his stepfather; that is, his mother's second husband, for what is colloquially known as a step parent adoption order in respect of S.

3. I need not dwell further on the background to the issues between the parties, because they are sufficiently described in the first judgment of this court.  We concluded for the reasons that I gave on 3 July 2015 that the process that led to the adoption order being made was sufficiently flawed to amount to procedural irregularity because of unfairness.  In order to assist the first instance court, the unfairness was summarised at paragraph 22 of this court's judgment in the following terms:

"In summary, the process was unfair because 

(a) the court was misled about the involvement of the child and his representation in the adoption application and, given the issues in question namely adoption with no contact, it was inadvisable at the very least to discharge the child's guardian and remove the child as a party: it removed the child's voice from the process;

(b) the limitation in the oral evidence that was heard, albeit caused by an agreement between the parties that cannot have been right, created a procedure within which the father's case was not put in any sufficient way, if at all, so that the process was unfair;

(c) the evidence of the local authority social worker while apparently coherent and professional, did not deal with the issues of history relating to the the mother and was compiled by a professional colleague of the mother so as to give rise to an unacceptable perception of bias; and.

(d) the court did not deal with the significant issues of fact that had arisen about why contact had not occurred in the past and why the child's mother had not engaged with the previous proceedings."

4. It was neither necessary nor appropriate to deconstruct the individual component parts of the unfairness so as to evaluate cause and effect, but sadly as I shall describe, that is what the parties    or at least some of them    went on to try to do.  The consequence is that two of the flaws described in paragraph 22 have been repeated in the subsequent case management directions made by the Family Court.

5. At the conclusion of the first appeal, the applications were remitted for rehearing before a different family judge outside the local family justice area.  To facilitate that, we directed that case management should be undertaken by the Family Division Liaison Judge for the South Eastern circuit.

6. On 4 August 2015, Mrs Justice Pauffley joined S as a party and appointed a guardian to represent his interests.  Of necessity, therefore, the child's representatives were not present at that hearing.  Unhelpfully, the local authority was neither present nor represented, with the consequence that the judge was unable to deal with further case management as this court had intended.

7. Furthermore, they sent a letter to the court for that hearing, containing this submission:

"The evidence at the hearing in December was in good order and there is unlikely to be any need for further assessment or reporting in order to determine the issues at a rehearing."

8. Given the basis upon which the first appeal was allowed, that was an unfortunate and arguably misleading submission.  Mrs Justice Pauffley directed a further inter partes case management hearing before His Honour Judge Tolson, QC on 12 August 2015, at which the directions that are the subject of this appeal were made.  On that day, the judge disagreed with the appellant and directed that:

(1) There be an independent social worker to address the issues of contact and adoption.

(2) Five issues of fact be considered, the determination of which would help resolve whether the father had been alienated from S by the mother and in any event, inter alia why there had been a cessation and non resumption of contact between S and his father. (The judge emphasised the five issues of fact were not restrictive or exclusive and that the independent social worker was at liberty to consider other issues, including alleged domestic violence).

(3) The annexe A report which was the subject of this court's criticism in the first appeal, remain as an admitted document, but an addendum be prepared by the same author to address the deficiencies identified by this court.

9. The directions relating to the annexe A report are the subject of this second appeal.  The appellant had submitted to Judge Tolson that the existing annexe A report should not be relied upon and that the work should be undertaken afresh by a new reporter, unconnected with S's mother.

10. Through Mr Brickler, QC he repeats that submission to this court today.  The respondent mother and stepfather wished to place reliance on the existing report and supported the judge's direction in their opposition to this appeal until yesterday, when they wrote to the court excusing their absence for good childcare reasons and took a less firm view of their position, that is relative neutrality as to the admission of the annexe A report, providing the child's wishes and feelings were properly described and analysed.

11. The children's guardian has moved from a position of support for the appellant, through neutrality, to limited opposition today.  In fairness to Mr Dove, he has taken a more intuitive line than the papers might suggest and understands the position of this court, having regard to the determination on the first appeal.

12. The local authority is a respondent to the adoption application by rule 14.3 of the Family Procedure Rules 2010 (FPR 2010).  They have not chosen to make formal submissions on this appeal, although they appeared before Judge Tolson and supported the mother and stepfather and have written to the court today to repeat those observations.

13. Much of the written submissions before this court and Judge Tolson were concerned with a different question than that raised on this appeal; namely the distinction between perceived and actual bias in a tribunal.  No one has ever suggested that any of the judges dealing with the matters in issue in the proceedings are biased or have acted or omitted to act in such a way that a perception of bias might arise.  The question in this appeal is whether it is fair for the report condemned in the first appeal to be relied upon in the proceedings and/or for the report's author to be the person who writes the addendum to address the deficiencies previously identified.   The first appeal was never about bias per se.  It was about fairness and procedural regularity.
 
14. In the first appeal, this court decided that the manner in which the report was compiled was unfair.  That had two components: (a), its author and (b), the fact that the report omitted to describe and analyse a fundamental question in the cross applications; an issue which Judge Tolson has very properly crystallised into questions of fact which are yet to be determined by a court.

15. Turning to the principle behind the practical issue that has arisen.  An adoption application which concerns a child who has not been placed with the prospective adopters by the local authority as an adoption agency, must be on notice to the appropriate local authority.  In this case, the local authority is Slough Borough Council.  Once a local authority receives a notice of intention to adopt, it must arrange for an investigation of the application and submit a report to the court, in accordance with section 44, subsection 5, of the Adoption and Children Act 2002.  Regulations and Practice Direction 14C  make provision for the content of that report in its consideration of the suitability of any person to adopt a child.  By rule 14.11 FPR 2010 the report, known as an annexe A report, must cover the matters specified in PD 14C.

16. An annexe A report is a fundamental statutory protection for a child who any person seeks to adopt.  It is produced by a local authority officer and a local authority is subject to statutory duties in its compilation that directly relate to the safeguarding of the welfare of the child concerned.

17. I have read with care the three part justification that was made for placing continuing reliance upon the original report and for asking the same author to write an addendum.  I do not agree that the case is made out under any of the asserted bases, primarily because the child is entitled to the protection of an untainted annexe A report.  It goes not just to the integrity of the welfare enquiry, but also to the child's participation in proceedings which concern him.  Although the question of separate representation has now been addressed in these proceedings, there will be adoption applications where the child is not represented and the annexe A reporter is a fundamental backdrop protection.

18. The three justifications were:

(a) This court did not find as a fact that the report's author was biased.

(b) The child was said to object to further questioning and assessment.

(c) The independent social worker and the children's guardian between them would, in any event, be independent of the annexe A reporter, so that full cross examination could take place on the latter's report and addendum.

19. Dealing with each justification in turn.  First, this court decided that the annexe A report was fundamentally flawed.  The court did not deal with the question of whether that was because of actual bias by the author, a failure to understand the reason why lack of contact between father and son was a key issue that on any basis required investigation, or both.  It remains surprising that an annexe A reporter would not deal with an issue that important when considering whether the potential adopter is suitable and the mother who is the wife of that potential adopter is the only person other than the child who knows why contact did not take place.

20. Short of the court deciding that there was no bias and there was an innocent reason for the failure to examine an issue that was so important, the report remains fundamentally flawed and no reliance can be placed upon the same.

21. In an appropriate case, but probably not this case, it would have been open to the case management judge to have heard evidence at the case management hearing on the question of bias and the reasons for the fatal omission, so as to come to a conclusion that it was in the interests of the child to allow continued reliance to be placed on a report.  But that process did not occur in this case.  The asserted justification is accordingly based on an assumption that is, in the context of this court's earlier conclusion, insufficient.

22. Second, the child's apparent objection to any further discussion and/or assessment is part and parcel of the key issue in the case.  The court needs the opinion of the children's guardian about that, uninfluenced by a tainted report.  Whether the children's guardian and the independent social worker see the child once or more than once should have been left to the professional skill and expertise of the children's guardian.  Insofar as that guardian may disagree with the independent social worker, one or other of them can bring the matter back to Judge Tolson.

23. Third, the independent social worker will report on adoption and contact, but neither she nor the children's guardian are required to report or advise on the mandatory fields that comprise an annexe A report as set out in PD 14C.  If the court wants alternative annexe A advice, it must say so; otherwise it will be by no means certain that there will be detailed material upon which cross examination of the annexe A reporter can be based.

24. Given the conclusion to which I have come on two occasions, it is necessary to spell out the inevitable result.  The report of an annexe A reporter is an important welfare protection for a child who is the subject of an adoption application.  The court has already decided that it is tainted.  Reliance upon it, on the facts of this case, should not be permitted.  The report should be removed from the bundle, as should the father's statement associated with it, a concession very sensibly made by Mr Brickler on his behalf.  A new annexe A report should be undertaken by the independent social worker who should be directed to address the PD 14C criteria and that reporter should be permitted to see the child more than once, provided the children's guardian does not disagree.

25. I would allow this appeal for the reasons I have set out, and I would invite the parties to submit case management directions this afternoon for our approval, to include the removal and replacement of the relevant documents from the bundle, so that all that remains to be read by experts and judges alike are the regular and admitted statements of evidence and experts' reports.

26. LORD JUSTICE SALES:  I also agree. 

27. LORD JUSTICE RICHARDS:  I agree.