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P (A Child) [2016] EWCA Civ 1127

Application for permission to appeal out of time with appeal to follow in relation to: (i) the summary dismissal of the mother’s application for a section 34 contact order; and, (ii) the making of a section 91(14) order.

P, aged 12, was initially made the subject of a supervision order in August 2010. Subsequently, in November 2011, P was removed from his mother's care subject to an interim care order. In May 2012, final care orders were made in relation to P and his half-brother R. The care plan in relation to P was placement with his father. This placement broke down after three months and P was moved to foster care, where he has remained ever since.

Following the conclusion of proceedings in May 2012, a section 91(14) order was made in relation to the mother for 12 months. The mother unsuccessfully sought to appeal the making of both the care and section 91(14) orders.

In September 2013, shortly after the expiration of the section 91(14) order, the mother applied to discharge the care orders and for a section 34 contact order. After a fully contested hearing, these applications were dismissed and a further section 91(14) order was made for two years. The mother unsuccessfully appealed the dismissal of her applications and the section 91(14) order.

On 11 November 2015, one day after the expiration of the section 91(14) order, the mother applied again for a section 34 contact order, expressly framing the application as a precursor to applying to discharge the care order prior to P's 18th birthday. By 1 December, the Guardian had spoken with P, the mother and the social worker and had provided a full analysis recommending that the application be dismissed. At a directions hearing on 7 December 2015, Her Honour Judge Cameron dismissed the mother's application and made a further section 91(14) order.

The mother appealed on the basis that: (i) it was wrong to deal with the mother's substantive application at a directions hearing without giving notice that it may be a final hearing; and, (ii) it was wrong for the judge to have made a section 91(14) order without any notice having been given to the mother or opportunity given for her to respond.

The court determined that Her Honour Judge Cameron, having had prior experience of the case and the benefit of a full Guardian's analysis, was entitled to dispose of the mother's application without a full hearing. King LJ described the matter as the sort of unusual case where such an approach is justified. The court dismissed arguments that P's wishes and feelings and his relationship with R had not been appropriately considered.

The court noted that the issue of a further section 91(14) order had only been raised in the local authority's closing submissions and the mother had been given no notice of it. The judge dealt with it very briefly in her judgment. The court determined that, whatever the underlying merits of such an order, the 'degree of informality' inherent in the process cannot possibly be regarded as fair.

The court therefore granting permission to appeal out of time, dismissed the mother's appeal against the refusal of her substantive application but allowed the appeal against the making of the section 91(14) order, which was set aside.

Summary by Thomas Wilson, barrister, 1 Garden Court Family Law Chambers

_______________________________

B4/2016/0896
Neutral Citation Number: [2016] EWCA Civ 1127

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY AND FAMILY COURT
SITTING AT MEDWAY
(HER HONOUR JUDGE CAMERON)

Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 28 July 2016
 
B e f o r e:

LORD JUSTICE McFARLANE
LADY JUSTICE KING


IN THE MATTER OF P (A CHILD)

DAR Transcript of the Stenograph Notes of 
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Mr A Laing (instructed by Osbournes Solicitors) appeared on behalf of the Appellant
Miss Y Jamil
and Miss M Ford (instructed by Medway Council and Barford Fraser) appeared on behalf of the Respondent

J U D G M E N T
(Approved) 
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1. LADY JUSTICE KING:  This is an application for permission to appeal out of time and appeal to follow if allowed brought by the mother of P, who was born on 1 January 2004(12), against orders made by Her Honour Judge Cameron on 7 December 2015 at the Medway Family Court whereby: (a) she refused the mother's application for contact under section 34 of the Children Act 1989 and (b) made an order under section 91(14) of the Children Act 1989 that no application for an order under that Act may be made with respect to P for a period of two years without permission of the court. 

2. The issues before the court are (i) whether the judge had been wrong to deal with the mother's substantive application for contact to P at what was a case management hearing when she had had no notice that this was to be a final hearing and (ii) whether the judge had been wrong to make the section 91(14) order without any notice to or opportunity for the mother to respond to the local authority's oral application in respect of the same.  

Background

3. In August 2010 P's half brother, R, was placed in the care of the local authority and P was at the same time made the subject of a supervision order.  The following year, in November 2011, P was himself removed from his mother's care under an interim care order.  He has not lived with her since. 

4. In May 2012 final care orders were made in respect of both P and R in the light of findings made by the judge about the care that the mother had given to them.  The care plan was not that P would be rehabilitated to the mother's care, but rather that he would live with his natural father. 

5. P was duly placed with his father, but sadly for this young boy, the challenges presented by his disturbed behaviour were too much for his father.  The placement broke down after only three months and he returned to live in foster care.  He has, so far as I understand it, remained living with those foster carers since that time.  That placement has been to the so called permanence panel and it is intended that P will remain with his foster family for the remainder of his minority. 

6. At the conclusion of the care proceedings in May 2012, a 12 month section 91(14) order was made against the mother.  The mother, after some months, appealed both the care order and the making of the section 91(14) order.  In May 2013 her application for permission to appeal those orders out of time was refused by Ryder LJ. 

7. In September 2013, a number of months after the expiry of the section 91(14) order, the mother applied to discharge the care orders and for contact under section 34 in respect of P.  In November 2013 after a full hearing, these applications were dismissed and a further section 91(14) order was made against the mother, this time for two years.  The mother once again appealed and in May 2014 the mother's application for permission to appeal the orders of November 2013 were also dismissed. 

8. On 10 November 2015 the section 91(14) order expired.  The following day, 11 November 2015, the mother once again applied for contact to P pursuant to section 34 of the Children Act.  Two days later on 13 November 2015 standard directions were issued.  By 1 December 2015 the guardian had not only spoken with the mother, seen P, the social worker and P's foster mother, but also had written a full report and case analysis for the court. 

9. This bare recital of the procedural history reveals starkly that this Appellant has been wholly unable to come to terms with the fact that, just over four years ago following the finding of fact, the judge had concluded that P's welfare demanded that he spend the rest of his childhood in care away from his mother, albeit with some continuing direct contact.  One can only feel sympathy for the difficulty she has found in coming to terms with that decision. 

10. The evidence before the court shows that whilst P continues to struggle with the fact that his father no longer wishes to have any contact or connection with him, he is well and settled and happy in his foster family.  

Contact
11. The initial care plan was for P to have contact with his mother six times each year.  No contact order was made, the court relying on the local authority to determine from time to time the level of contact which would be appropriate.  It was therefore for the local authority to promote contact as between P and his parents, whilst at the same time ensuring that that contact was in his best interests. 

12. As a child in care, P was subject to regular looked after children reviews, (LACs).  Ordinarily in relation to children in care the parents would be invited to attend such reviews.  In the case of P, however, he has specifically asked that his mother is not present.  Therefore, in preparation for such reviews the mother is seen or spoken to by the independent reviewing officer and P also fills in a "child friendly" form setting out his perception of his life at present and his wishes. 

13. At a LAC review held on 1 April 2014 the minutes record that P had consistently asked for contact with the mother to be reduced and had informed the review that he had too much contact with his mother.  At the review various options were discussed with P, who agreed to have supervised contact with his mother once each school holidays, that is to say three times each year, for a period of two hours. 

14. It should be noted that judging by a minute of contact for the contact session which had taken place on 22 February 2014 the contact in itself appears to have been successful.  The mother was informed by a letter of a decision of the LAC review. 

15. At a subsequent contact visit which took place just before Christmas on 20 December 2014 marked another successful visit with his mother, P with his mother wrote down what he wanted to happen in the future.  He said he would like to see his friends from primary school.  He would like to see more of R, (his older brother).  He would like to go bowling the next time he saw his mum and would like to see Lolly, (Lolly being the family dog), and also his mum's flat.  Finally, the piece of paper says "a bit more of everyone". 

16. In the light of this expression of his wishes, which was then followed up by the mother, the independent reviewing officer visited P on 11 February 2015 to discuss it with him.  The independent reviewing officer went through a number of matters which the mother had raised, including a perceivedreluctance on his part to confide in his foster carers in case he should upset them. 

17. During the course of the conversation P stated that he wanted his contact to remain with his mother at three times each year, saying that it was much better happening less frequently and that that was what he wanted.  He said in terms that he did not wish his contact to go back to six times a year.  He confirmed, however, that he would like to see his best friend from primary school and that he would like to have contact with his brother, R.  He did not wish to see his disabled elder brother, M.  When asked, he said he would be happy to see his maternal grandparents with his mother, but that he did not want to "see more of everyone as his mother had said". 

18. The balance of the session was dealt with reassuring P that his father's lack of interest in him was not his fault and that the local authority would continue to try and arrange contact with the father for him. 

19. This meeting with the independent reviewing officer was followed up by a LAC review where again P was present.  He again said he would like to go bowling with his mother at the next contact visit.  It was agreed that the contact time should be increased from two to three hours.  This then was the basis upon which contact proceeded throughout 2015 with the last contact visit taking place on 12 August 2015. 

20. During the course of 2015 R turned 18 and left care.  To the mother's mind, he was not provided with sufficient support or resources and found himself, as many young men do on leaving care, in considerable difficulties.  The mother's case before the judge was that her overwhelming concern is to ensure that the same does not happen to P when he leaves care in approximately six years' time and that if he seeks to come back to her care as a young adult, her relationship with him was sufficiently strong so as to permit her adequately to support him. 

21. In her application, the mother describes her reasoning as follows:

"It would be in P's best interests to rebuild these family relationships so that when he reaches 18 he is not placed in the environment that I witnessed young people being placed, causing instability and a feeling of further rejection and abandonment."

Further, she said:

"I wish to rebuild these relationships between the siblings and my own relationship with P with a view to discharging the care order before P reaches 18 and is left in the same position as R."

22. The basis, therefore, of the mother's application was that contact should be increased forthwith, not back to six times each year as part of the continuing care plan for permanence in the context of him remaining in his foster family, but rather as a precursor to a fresh application to discharge the care order. 

23. At the hearing on 7 December 2015 the judge had the benefit of the guardian's report to which I have already referred.  The report had been sent to the mother, although she said that she had not received it.  She therefore was given an opportunity of reading it at the court.  The report recorded that P had told the guardian that he would like to have contact with his father, to see more of R and that he is content with the level of contact with his mother.  The guardian was satisfied that P was not being coerced into expressing the views that he did.  Overall, the guardian recommended that contact remained at the current level with him continuing to be given an opportunity of expressing his views from time to time. 

24. The guardian said:

"P needs to remain settled in his placement and gauging contact he feels is the right level.  If he were to know that the mother was constantly challenging the local authority's decisions and seeking the intervention of the court, there is the risk that he would become less settled.  This could lead to deterioration in his behaviour at home and at school.  P is now approaching adolescence and it is crucial that he continues to live in a settled daily life out of the turmoil and disruption he suffered in his early years."

25. This court has had the opportunity of reading the transcript of the hearing.  The transcript shows the mother expressing at some length and detail her wishes, her feelings, her rationale and her aspirations in relation to contact.  She explains why support was not there for R when he left care and how she now wishes to rebuild her relationship with P.  Further, she expressed her fear that there was some discouragement from P seeing more of her and referred to the list of wishes including wanting to see her flat and "a bit more of everybody".  The mother spoke at length to the judge of the difficulties R was experiencing having left the care system. 

26. The judge, who was very familiar with the case and with the mother, commented upon her intelligence and the articulate and clear way in which she presented her case.  It should be remembered that this mother is an experienced litigant in person and has on two occasions represented herself in applications for permission to the Court of Appeal. 

27. When asked about the guardian's report specifically, the mother said that she understood that P had built up a relationship with the foster carers, but she still felt that he needs to know that he has got a family that "love, care and want him".  The mother went on to express her fear about the reduction of contact and also the fact that the placement has now been made permanent.  She explained to the judge that she felt that her "parental responsibility has as good as been wiped out". 

28. The judge gave an ex tempore judgment where he carefully recorded all that the mother had said to him in court.  The judge at paragraph 20 of his judgment put the matter in the context, saying:

"Mother very much wants, and again it is perfectly understandable on a human level, to get back to much more normality, coming round to her flat, playing family games there, enjoying the sort of things that she does with her other sons and would want to do with him.  But that, with respect to her, is not where we are.  That is not the function of the care order.  This is not a short term foster placement and children under such arrangements really cannot usually have feet in both camps.  That is bound to be confusing.  That is bound to give mixed messages and I am afraid it is not something that the court could sanction in these circumstances or really as a rule in any case at all.  It would bound to be destabilising to the child's feelings of security and permanence."

29. The judge further took into account the guardian's report, saying that he was satisfied that the local authority was fulfilling its statutory duties, but importantly that P felt independent and could be relied upon to discuss his contact needs and wishes to his foster carers or the independent reviewing officer. 

30. The judge concluded that the application for increased contact with a view to an application to discharge the care order must be refused.  He was satisfied in carrying out the balancing exercise that it was not in P's best interests for contact to increase. 

31. The mother became distressed and left the court during the course of that judgment.  Sadly, since that time she has declined to take up any contact with P.  As a consequence, she has not seen him since the contact visit in August 2015, approaching a year.  I am told by the local authority that a contact visit has now been arranged for August of this year.  It is to be hoped in the interests of P that the mother feels able to take that up. 

32. Mr Laing, representing the mother, in his amended grounds of appeal says (a) it was inappropriate to dismiss the Appellant's application at a case management hearing, (b) the judge failed to explore the feelings and wishes of P and/or failed to hear directly from him, and (c) failed to afford sufficient weight to the relationship between P and his half siblings. 

33. Mr Laing rightly identifies the directions which a court would routinely make at a case management hearing.  In Re: S W (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 2 FLR 136, I reviewed the procedure in public law cases.  In brief, it is accepted by Mr Laing that the Family Proceedings Rules 2001 rule 22.1 gives the case management judge extensive powers to control evidence in children's cases and that further the Family Procedure Rules 2010 Practice Directions 12A at paragraph 2.2 make provision for steps which ordinarily take place at various stages in the proceedings to be taken at another step.

34. He accepts, therefore, that the judge has a discretion to deal with the case in its entirety at a case management hearing, but drew the court's attention to a number of passages in the case of SW which he rightly says underline that what was done by this judge was a exception and was only to be done in unusual cases.  It should be remembered that in Re: S W the order that was made was a final care order and the judge gave neither reasons nor a judgment. 

35. In my judgment, the case before the judge is the sort of unusual case where the court may properly deal with the matter at a case management hearing.  The judge, and therefore the mother, had the benefit of the guardian's report, not as an interim document but complete at the conclusion of her inquiries, including having seen and spoken to P. 

36. The mother's case was clearly understood and clearly expressed by her to the court.  That is to say that she sought contact as a stepping stone for the future discharge of the care order.  The rationale of her application rested on her apprehension as already stated that P may struggle on leaving care rather than any current concerns about his happiness or placement, which would have been topics susceptible to cross examination. 

37. In my judgment, the mother was able to put her case with clarity and at such length as she wished.  The judge, uniquely familiar with the case and had the benefit of a full guardian's report, was, in my judgment, entitled in these unusual circumstances to conclude that the proceedings could fairly be dealt with in its entirety at the hearing. 

38. Mr Laing expands his submissions by suggesting that the judge failed sufficiently to explore the feelings and wishes of P and suggests that either some direct work should be conducted with P as to why he is saying he does not wish to spend more time with his mother or even to consider hearing directly from him.  Failing to consider these options, he submits, impermissibly tainted the evidential basis on which the judge made her decision. 

39. I remind myself that the guardian was wholly satisfied that P was able to express his wishes and feelings and that, should he wish for increased contact, he would feel able to ask for it.  I note also that the guardian said that whilst P was very clear what he wished, due to his age he struggled to articulate the precise reasons for his feelings.  The material before the court shows P's complete involvement in the process.  Further, it must be borne in mind that the heart of the mother's case did not rest on P's wishes and feelings about the contact, but upon the nature of the placement and that contact should be treated as a stepping stone to rehabilitation. 

40. Mr Laing further criticises the judge for failing adequately to bear in mind the relationship between P and his half siblings.  The judge recorded P's wishes in relation to his half siblings.  The mother, however, wished P to see his elder brother, M, notwithstanding his reluctance to do so, in order for him to see that, as the mother described it, that M "is not a bad boy". 

41. In my judgment, all the documents before the court as set out in the guardian's report, make it more than clear that this is a local authority that is more than willing to facilitate contact between P and any of his siblings  should he wish to see them or any of them. 

42. In my view the judge did not err, in the circumstances of this case, in dealing with the matter on 7 December 2015, notwithstanding that this was listed as a case management hearing.  I am satisfied that the mother had every opportunity to set out her case to the judge and that the judge was in a position properly to conduct a welfare analysis against the backdrop of the guardian's report. 

43. Unlike the case of Re: S W, this judge gave a careful and full ex tempore judgment where he considered all of the issues.  In my judgment, given the case that has been put by the mother and the history of the matter overall, the judge was entitled to take the view that witness statements and cross examination of the social worker would add little other than creating further delay and continuing legal proceedings for this child.  

The section 91(14) Children Act order

44. It is accepted on behalf of the local authority and the guardian that the mother was given no notice that there would be an intention to make an application for a further section 91(14) order.  Indeed, the first mention came within the closing submissions of counsel on behalf of the local authority.  The children's guardian did not advertise any intention to make such an application in her report. 

45. Whilst the mother was asked if she had anything further to say.  She was not specifically asked about the application for an injunction.  She therefore expressed her observations to other issues connected with P. 

46. The judge, as already indicated, gave an ex tempore judgment and the mother left court during the course of the judgment before the judge even dealt the section 91(14) order.  The application could not have been dealt with more briefly.  The judge said:

"36.  I also go on and consider the application that has been made by the local authority.  The mother, I should record, has just left court during my judgment.  An application is made by the local authority, very much buttressed by the guardian, to refuse mother leave to make any other application for enhanced contact or indeed any other application without the express authority of the Circuit Judge.  I so order without any hesitation at all given the circumstances of this child's case and history."

47. The judgment in fact did not specify the length of the order, but upon counsel subsequently asking the judge to clarify the duration, she specified a period of two years.  The breadth of the order made, which is also a focus at the heart of Mr Laing, is reflected in the judgment, which says:

"The mother is barred from making applications for a period of two years from today."

48. The local authority and guardian rightly point out that this mother of all mothers understands the nature of and implications of an application made under section 91(14), having been the subject of such orders on two previous occasions. 

49. Mr Laing carefully and effectively sets out the law in relation to such applications in his skeleton argument.  The law, as he acknowledges, is well settled in relation to the making of such injunctions.  In particular, he reminds the court of Re: C (Service Allocation) in regards to litigants in person and Re: P in regard to the matters which should always be taken into account. 

50. I have thought anxiously about the grounds of appeal that relate to the making of the section 91(14) order.  On the one hand, one can see how the making of such an order could be said to be in P's interests.  P is still only 12 and has had the most difficult childhood to date.  He is settled and making progress, although unsurprisingly he continues to have some significant behavioural issues.  I am satisfied that P is able to and has made his wishes about contact with his mother more than clear, no matter how painful to the mother those wishes may be. 

51. The mother for her part has been unable to accept the decision of the court.  Applications for appeals which have inevitably have unsettled P have been the feature whenever there has not been a section 91(14) injunction been in place to prevent her from doing so.  Had the application, even made informally, been dealt with more fully and the mother had a proper opportunity to think about it and respond to it, it may have been that any challenge to the making of a further injunction at the time this order was made would be untenable. 

52. I thought too about whether in circumstances of this case where the mother has been the subject of the two earlier injunctions, has a full understanding of their implications taken together with the fact that she is an able litigant in person, even issuing fresh applications the next day after the injunction expired, might allow this court to leave the order in place. 

53. I have, however, come to the conclusion that this application was made effectively as an aside during the course of closing submissions and oral application to which the mother did not even respond.  The judgment dealing with the application in the briefest terms made hardly any reference to any of the so called Re:P practice even without necessarily referring to the case by name.  I have come to the conclusion that this is a degree of informality that, whatever the strength of the application may or may not have been at that time, it cannot be possibly be regarded as fair.  Accordingly, the injunction must be set aside. 

54. In those circumstances, therefore, I grant permission to appeal out of time in relation to all the grounds of appeal.  I, however, dismiss the appeal relating to the mother's application for increased contact, but allow the appeal in relation to the section 91(14) injunction, which injunction should be set aside.

55. LORD JUSTICE McFARLANE:  I agree with all that my Lady has said and offer these words simply as a steer as to the immediate future for the local authority and for the mother. 

56. The focus now must be upon the mother reestablishing contact and a relationship with her son, which has been in abeyance for now effectively 12 months.  The effect of our order is to set aside the section 91(14) direction.  It seems to me that there should be no need for the local authority to make a fresh application for a section 91(14) order at this stage. 

57. The mother would be advised to use her best efforts to demonstrate restraint at this time.  There must be little merit in any application being made by her now to increase contact when she has not seen him for nearly a year.  She would be well advised to show restraint and to show that she can conduct her relationship with the local authority in such a way at this stage that does not require the making of a section 91(14) order.  It is an opportunity for her, therefore, to identify that such an order may not be necessary.  There may be occasion in the future for matters to come back to the court, but for the moment the focus should be on this boy and the mother reestablishing her relationship with him. 

58. The only other observation I make is simply to record, because we have not formally said it, that nothing is to be published in relation to this hearing which identifies any of the young people involved or the parents as being individuals who are the subject of these proceedings.