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Re N (Children) [2016] EWCA Civ 656

Court of Appeal judgment in an appeal of a decision not to grant leave to apply for contact with the subject child in care proceedings. Appeal allowed

This is Lord Justice McFarlane's decision in an appeal brought by the brother of the subject child in care proceedings. The issue in the appeal is whether the appellant should have been given permission, by Her Honour Judge George, to make an application within care proceedings for contact with his sister.

The relevant provisions are contained within section 34(3) and section 10(9) of the Children Act 1989. The appeal raised no substantive point of law.

The child, a girl, was aged 16 and the appellant, her brother, rising 19 at the time of the appeal. Previously both had lived with their paternal aunt and uncle pursuant to a residence order. They believed their parents from their home country of Nigeria to be deceased, although it transpired that this was likely untrue. In 2010 the appellant left the home to live with foster carers. The paternal uncle died in 2012. In early 2015 the appellant applied for a Child Arrangements Order wishing to spend time with his sister. Simultaneously the appellant was in proceedings in relation to his immigration status. Within those proceedings both the appellant and child were found to have been victims of child trafficking. A section 37 report was thus commissioned in the private law proceedings, as a result of which public law proceedings were issued and the child was placed in the local authority's care. This procedurally stalled the appellant's application for a child arrangements order.

The appellant applied for leave to be joined to the public law proceedings and separately for leave to apply for contact. Both applications were refused. An appeal was brought in relation to the second application only.

Leading counsel for the appellant (Mr Frank Freehan QC) based the appeal on four submissions:

(i) That the judge had failed to consider that the appellant had an outstanding application for contact under section 8. There was no consideration of his Article 6 rights to a fair trial on the contact issue by the judge when she came to rule upon his application within the care proceedings.

(ii) The judge had expressed the view that the court could "arbitrate" on any matters in dispute. This was erroneous, and the court should engage in an ordinary forensic process of allowing an applicant for contact to present his application and then determine it, and that could only happen if the applicant was permitted to make his application.

(iii) The judge elevated the understandable concern about not upsetting the child around her exams to a finding of "harm" in order to fit in with the criteria in section 10(9) of the Children Act when the evidence simply did not reach that level of finding. 

(iv) The appellant was the closest family relative to the child in this jurisdiction; there now being currently an estrangement between the child and the paternal aunt. The Article 8 and Article 6 rights of these two young people should have been protected by the judge granting the application.

In allowing the appeal, Lord Justice McFarlane accepted each of the four grounds made on the appellant's behalf. Standing back from the grounds, a 'big point' in the decision about contact was the importance of contact to this child in her particular circumstances. There was a significant difference between the position of the local authority and Guardian and the position of the appellant in relation to contact; the former wished for it to be supervised and progress slowly, the latter with for unsupervised contact. The appellant was entitled to be heard on that issue.

Summary by Helen Pomeroy, barrister, 1King's Bench Walk
___________________________

Neutral Citation Number: [2016] EWCA Civ 656
Case No: B4/2016/0034

IN THE COURT OF APPEAL
ON APPEAL FROM THE LEICESTER FAMILY COURT
HER HONOUR JUDGE GEORGE


Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 19 April 2016


Before:

LORD JUSTICE McFARLANE
LADY JUSTICE GLOSTER
SIR STANLEY BURNTON

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IN THE MATTER OF N (CHILDREN)
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DAR Transcript of
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Official Shorthand Writers to the Court
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Mr Frank Feehan QC (instructed by Coram Children's Legal Centre) appeared on behalf of the Applicant
Ms Kathryn Taylor
(instructed by Leicester City Council) appeared on behalf of the First Respondent
Ms Paula Thomas
(instructed by R.P Robinson Solicitors) appeared on behalf of the Second Respondent
Ms Nadia Mansfield
(instructed by Messrs Emery Johnson Astills) appeared on behalf of the Third Respondent
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Judgment
(Approved)

Crown Copyright

1. LORD JUSTICE McFARLANE: 

2. This is an appeal brought by the brother of a girl who is the subject of care proceedings currently pending within the Family Court sitting in Leicester.  The issue in the appeal is whether the appellant, the brother, should have been given permission to make an application within the care proceedings for contact to his sister.  Permission to appeal was granted by King LJ at an earlier stage.

3. A second application was also made by the brother for leave to be joined as a party to the care proceedings.  Permission to appeal was refused with respect to that application and the application is not renewed at this hearing.  The issue before the court is therefore a short and narrow one.  In my view, it raises no substantive point of law and no legal controversy exists between counsel at the Bar. 

4. It is accepted that the procedural and statutory background to the application is established by section 34(3) of the Children Act, dealing with contact applications with respect to children who are the subject of care proceedings, and that the statutory approach, rather than test, is that laid out in section 10(9) of the same Act.  We have been taken by counsel to one authority, that of Re B (Paternal Grandmother: Joinder as Party [2012] EWCA Civ 737, as describing the approach to be taken in law.  I agree that that authority applies to this case.  I therefore propose to give a short judgment, as no issue of law arises.

5. It is a matter for this court to consider the issue as it was before the judge and only interfere with her case management decision, which this was, if we are satisfied that she came to a decision which was simply outside the range of reasonable decisions open to her.

6. With that background, it is necessary to say something shortly about the factual context within which the proceedings sit.  They are troubling.  The two young people, the appellant, a young man, G, who is now shortly to be aged 19, and his sister, S, who is now 16, came to the United Kingdom in the summer of 2009 and they came to live their paternal aunt.

7. The paternal aunt and uncle were granted a residence order with respect to both of these young people in 2010.  G and S had been led to believe that their parents, who were back in their home country of Nigeria, were deceased, and certainly the authorities also appear to have been told that.  It does not seem that that was the truth.  Be that as it may, G was clearly profoundly unhappy in the home of the paternal aunt.  He has complained of being mistreated and abused by her during the time that he lived with her.

8. He left that home in 2010 and went to live with foster carers and he has remained separate and apart from the aunt's home and indeed, until recently, his sister since that time.  Sadly, the paternal uncle died in 2012 and S continued living in that household with her aunt.

9. In early 2015 G applied for a child arrangements order under section 8 of the Children Act 1989 so that he could once again start to see his sister.  That application was contested and at the time it was understood that young S did not wish to see her brother.  The circuit judge dealing with the matter was, however, concerned by the background circumstances of the case.  By that time G had engaged the services of lawyers and an expert in child trafficking and was mounting proceedings in relation to his immigration status, which eventually came on before a First-tier immigration tribunal in August 2015.

10. Within those proceedings the expert provided a report, and indeed the tribunal went on to make findings, to the effect that G, and for that matter S, had been the victims of child trafficking when they moved from Nigeria to the United Kingdom.  Such were the circumstances of the case that the tribunal concluded that G should be granted asylum in this jurisdiction. 

11. That factual background was made known to the circuit judge in the Family proceedings and the judge commissioned reports from the local authority under section 37 of the Children Act 1989, and the second of those reports indicated substantial concern about S.  The concern arose because, after the social workers had been to visit S in early September 2015, she and the aunt plainly had had a substantial disagreement and S presented herself at school the next morning asking to go into foster care.  Once in foster care, she too came to make allegations about her care by the aunt in similar terms to those made earlier by her brother; and so the care proceedings started.

12. G's application for contact in the private law proceedings was therefore procedurally stalled, and it does not follow as night follows day that somebody who has had a live application for contact in private law proceedings automatically becomes an applicant for contact in the public law proceedings relating to the same child.  He therefore applied for leave to be joined in the proceedings and separately for leave to apply for contact, and it was those applications that were determined by HHJ George sitting in the Family Court in Leicester on 22 December 2015. 

13. The applications were contested.  The local authority and the children's guardian, and for that matter the paternal aunt, submitted that there was no need for G either to be joined as a party or to be given leave to apply for contact.  I do not propose to consider the separate application for party status, although some of the factors that the judge relied upon in ruling him out as a contact applicant also apply.

14. In her judgment the judge approached the contact issue firstly at paragraphs 12 and 13 as follows: 

i. "12. In care proceedings, the court must always, when ruling on applications in relation to contact, have uppermost in its mind what is best for the subject child (in this case, S) and, if the court had to adjudicate on any issues about contact and how it should progress, what S's wishes and feelings were, what the social worker and the guardian and the parents, if they were able to express a view, thought was best for her would all be relevant considerations.

ii. 13. In my judgment, the position would not be no different if a s.34 application was made because the court would still have to weigh up the same matters: what is in S's best interests, what are her wishes and feelings, what are G's views, what are the views of the professionals, what does the contact which has taken place, so far, tell us about how it should progress in the future?  The local authority remains under a duty to promote contact.  The guardian is aware that S wants it, and the court can arbitrate on any matters of dispute."

15. Later in the judgment, after dealing with the issues in relation to party status and having noted that this summer of 2016 is the summer in which S will be taking her GCSE exams and that there was an obvious need to avoid destabilising her around that time, the judge returned to the issue of contact; and she says this at paragraph 19: 

i. "The court must also consider the plans for the child and the wishes and feelings of the child's parents because she is a looked after child.  Steps have been made to contact the child's parents, but for the moment their wishes and feelings are unclear and unknown.  The local authority is still in the process of formulating its plan for S, to be adjudicated on, of course, at a later date.

ii. 20.  So far as the Re W factors are concerned, the only one which strikes me as particularly pertinent in this case is whether G has an independent or separate point of view to put forward in this case.  It has been argued on his behalf that he does have a separate view to promote because he says contact should move from being unsupervised now.  However, that is a very narrow issue in the overall consideration of contact and, in my judgment, the question of the pace of contact, the frequency and duration of it are matters of degree, not a separate view about contact which the local authority and the guardian support.  The children's guardian and the social worker are required in care proceedings to actively consider the issue of contact between S and G, and G's views can be made known and considered as part of that exercise.  I am struggling to understand how he has an independent view in relation to contact.  His desire for contact has been achieved.  I do not find that issues about the pace and frequency of it amount to be an independent or separate point of view."

16. On that basis the judge therefore concluded at paragraph 22 that she was not persuaded that he should have permission to make the contact application:  "The nature of the application which he seeks to make, that is for contact, he has already achieved, and his wishes and feelings in respect of that contact are part of parcel of what the court will have to consider as contact progresses."

17. The reference to contact having been achieved is to the fact that in the lead-up to the proceedings contact had been considered by the social workers in consultation with the guardian and a regime of monthly visits had been established.  Indeed the first two had taken place before the hearing before the judge.  They were for two hours each and involved the visits being supervised to the extent that the supervisor, normally the social worker, would accompany the brother and sister at the rendezvous venue and if they went out into the community to the local McDonalds or wherever that might be.

18. For the record, contact has carried on on the same basis and the most recent visit was in fact extended to three hours. 

19. In mounting the appeal Mr Frank Feehan QC, who appeared before us but who did not appear below, makes four basic submissions.  Firstly, that the judge failed to consider that this applicant had an outstanding application for contact under section 8 and there was no consideration of his article 6 rights to a fair trial on the contact issue by the judge when she came to rule upon his application within the care proceedings.

20. Secondly, Mr Feehan points to paragraphs 12 and 13, to which I have already drawn attention, and submits that the judge's view, which is that the court could "arbitrate" on any matters in dispute, was erroneous, and that the court should engage in an ordinary forensic process of allowing an applicant for contact to present his application and then determine it, and that could only happen if the applicant was permitted to make his application.

21. Thirdly, the judge elevated the understandable concern about not upsetting S around her exams to a finding of "harm" in order to fit in with the criteria in section 10(9) of the Children Act when the evidence simply did not get to that level of finding. 

22. Finally the fourth ground is to point to the fact that G is the closest family relative to S in this jurisdiction; that there is now currently an estrangement between S and the paternal aunt and that the article 8 and article 6 rights of these two young people should have been protected by the judge granting the application.  We have heard brief submissions from Mr Feehan to enlarge upon those arguments before this court this afternoon. 

23. The appeal is opposed by the local authority, by the aunt and by the guardian.  All are represented by solicitors and counsel before the court, although there is little distinction between them in the arguments they seek to make.  This is a straightforward appeal on a case management issue, and for my part I would have expected counsel for parties other than the local authority to have considered whether or not they needed to be represented at the oral hearing and to engage in seeking the court's directions on that issue if they were in any doubt.

24. Conclusion

25. This court is keen not to second guess case management decisions made by experienced judges, such as HHJ George, in the ordinary run of care proceedings.  The judge is in charge of the case; it is their trial that they are managing, and for there to be appeals on these sorts of issues simply cuts across any timetable for the case and has the potential for unnecessarily complicating the whole process.  Be that as it may, I have looked at the factual background to this case, the judge's judgment and the arguments raised on both sides, and I am absolutely clear that this was an application that should have been granted.

26. I accept each of the four grounds of appeal that Mr Feehan puts before this court, but, standing back from those grounds, the big point is that this decision about contact between this young man and his 16-year old sister is important.  It may be one of the most important features, looking to the future, for young S.  The relationship with her brother and the ability to rekindle that relationship, it having been put in abeyance for some three or four years, is plainly important both now but, more significantly, for the future.  It will be but a moment before she is an adult and out in the community herself.  She is likely to need a real, live, ongoing, ordinary relationship with her brother.  That is what he wishes to achieve.

27. I anticipate that the local authority and the guardian may also wish to achieve that, but he has a legitimate need to be heard before the court that can determine the issue of contact.  It is submitted on behalf of the local authority that there really was very little difference between his wish for contact and the plans of the local authority.  I beg to differ.  There was a real difference.  He wished to have unsupervised contact at that stage, whereas the local authority and the guardian were seeking to progress matters at a slower pace, albeit contemplating that contact might become unsupervised at a later stage.  There was an issue between them.  Whether contact is supervised, even by a social worker chaperone out in the community, or unsupervised is a significant difference.  It certainly is in the context of this case, and he was entitled to be heard on that. 

28. The judge describes the process of evaluating applications in paragraph 12 and 13, to which I have already made reference.  This was an extempore judgment and I take no point upon the apparent illogicality in comparing paragraph 12 with paragraph 13, but the process that the judge describes in those two paragraphs requires there to be an applicant prosecuting his separate application for contact before the court, and I do not put the weight that Mr Feehan seeks to put upon the word "arbitrate" at the end of paragraph 13, but the judge does mean ultimately, if there remains an issue, the court would have to decide it, and she can really only decide the issue by hearing from the person who has the view which is at odds with that of the local authority.

29. Two further matters have arisen during the course of the hearing.  In the course of her submissions on behalf of the local authority Ms Taylor, who appeared below and who presented the authority's case before this court with clarity this afternoon, points to a phrase noted by the contact supervisor in the first contact.  The phrase is to record G saying to his sister "stick to the plan," and the suggestion is that there was some unknown agenda between the two young people that was being surreptitiously discussed during contact, but that is a matter, to use Ms Taylor's phrase, of "concern". 

30. Mr Feehan answered the point by drawing attention to the paragraph within which that phrase sits, which relates entirely to G talking about S's forthcoming GCSE exams.  Quite what the rights and wrongs of the issue are is not for me to determine, but Mr Feehan highlights this point as an example of how "concern" about G's behaviour at contact might be elevated to a decision to alter the arrangements for contact, and if G is not a party to the case that will be done without hearing from him and without, for example, someone on his behalf pointing out the context in which that phrase, again for example, was used, as Mr Feehan did before the court today.

31. A further matter that has achieved prominence in my own thoughts during the hearing is that, given the importance of the contact between these two young people in the future, it may well be that there should be a contact order at the end of the proceedings, even if everybody is in agreement what the current regime of the contact at that stage should be.  It is highly unlikely that the local authority and the guardian would ask the court to make a contact order recording that G must have contact with his sister but it is likely that G would want such an order, so that if, after the court steps back and hands total responsibility over to the local authority, they seek to change the arrangement, he could once again be heard on the issue.

32. So despite the respect that I have for the position of the judge, I disagree with her analysis at paragraph 20 of her judgment.  This was not an unimportant issue.  Whilst there was some acceptance of the principle of contact, the way it could go forward and indeed the very plan for S at that time in terms of her long-term care had not been settled.  Her brother is, on my understanding of the case, likely to be the most important person in S's life.  He has a view about contact and a view as to what contact is best for S.

33. In my analysis of the case, no judge could have properly refused his application for permission to apply for contact, and on that basis I therefore allow the appeal and give him leave to apply for contact.  It is our collective hope that, despite the delay that the appeal process has generated, this decision of ours will not impede the conclusion of the case either at the IRH planned for 3 May or very soon thereafter.

34. LADY JUSTICE GLOSTER:

35. I agree, for the reasons given by my Lord, McFarlane LJ.  This case management decision by the judge was clearly wrong.

36. SIR STANLEY BURNTON:

37. I also agree. 

38. Order:  Application granted