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Re S (A Child) [2015] EWCA Civ 1345

Successful appeal to the Court of Appeal in respect of a direction admitting a report (albeit on the basis that an addendum to that report should also be filed) which had been found to be “fundamentally flawed” by the Court of Appeal in an earlier appeal.

The Court of Appeal had previously allowed an appeal against an adoption order (reported as 'In the matter of S (a child) [2015] EWCA Civ 649'). The father had applied for direct contact with the child, and the stepfather (the mother's second husband) had applied for a 'step parent adoption order' in respect of the same child. That appeal had been allowed given that the process that had led to the adoption order being made was found to have been sufficiently flawed to amount to procedural irregularity because of unfairness (summarised at paragraph 22 of the earlier judgment). The Court had seriously criticised the annexe A report within that first appeal.

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 this the Court of Appeal directed that case management should be undertaken by the Family Division Liaison Judge for the South-Eastern circuit. As such, at a subsequent hearing Pauffley J joined the child as a party and appointed a children's guardian to represent his interests. Pauffley J also directed a further inter partes case management hearing before HHJ Tolson QC.

At that hearing HHJ Tolson QC directed (i) there be an independent social worker to address issues of contact and adoption, (ii) five issues of fact were to be considered and (iii) the annexe A document (the document that had been criticised by the Court of Appeal in the first appeal) was to remain as an admitted document but an addendum was to be prepared by the same author to address the deficiencies identified by the Court of Appeal.

The directions relating to the annexe A report were the subject to this second appeal. The appellant sought that the original annexe A report should not be relied upon and that the new work should be undertaken afresh by a new reporter, who was unconnected with the mother. Originally the mother and stepfather supported the first instance Judge's direction, wishing to place reliance on the existing report, but on the day prior to the second appeal hearing they adopted a position of 'relative neutrality' as to the admission of the report.

As such, the question in this appeal was "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". In the first appeal it had been held that the manner in which the report was compiled was unfair due to (i) its author and (ii) the report omitting to describe and analyse a fundamental question in the cross applications (i.e. questions of fact which were yet to be determined).
In this appeal three justifications had been put forward to support placing continuing reliance upon the original report:

(a) The Court of Appeal 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; and
(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.

The Court of appeal did not agree, primarily because "the child is entitled to the protection of an untainted annexe A report" as "it goes not just to the integrity of the welfare enquiry, but also to the child's participation in proceedings which concern him." In respect of (a) it was correct that the Court of Appeal had not gone as far as making a finding of bias in the previous appeal, however the Court of Appeal had held that the report was "fundamentally flawed" and as such "no reliance can be placed upon the same".

In respect of (b) the Court of Appeal noted that the Court needs the opinion of the children's guardian on the issue of a child's apparent objection to further discussion/assessment, uninfluenced by a tainted report. The question of whether the children's guardian and the independent social worker should see the child once or more than once should have been left to the professional skill and expertise of the children's guardian, and if the guardian and independent social worker disagreed then they could always bring the matter back to the relevant Court for the case management judge's attention.

In respect of (c) neither the independent social worker nor the guardian are required to report on the mandatory elements of an annexe A report (as set out in PD 14C). As such, if the Court wants alternative annexe A advice then it must say so, otherwise there is no guarantee that there will be detailed material upon which cross-examination of the annexe A reporter can be based. 

The Court of Appeal held that no reliance could be placed upon the original 'tainted' report, and it should be removed from the bundle. A new annexe A report should be undertaken by the independent social worker who should be directed to address the PD 14C criteria, who should be permitted to see the child more than once provided the children's guardian does not disagree. The appeal was allowed and the parties were invited to submit case management directions that afternoon for the approval of the Court of Appeal.

Summary by Luke Eaton  barrister, 1 Garden Court Family Law Chambers

_____________________________ 

Case No. 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

Date: 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

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IN THE MATTER OF S (A CHILD)
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DAR Transcript of
WordWave International Limited trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

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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
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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.