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B (Children) [2017] EWCA Civ 1635

Appeal brought by the local authority and supported by the guardian seeks to challenge the overall fairness of a hearing concerning two young children.

The care proceedings concerned a boy of 9 and a girl B, aged 21 months at the date of the appeal 23 August 2017.

The outcome of proceedings before the circuit judge on 20 June 2017 was that the boy was made subject to a final care order (which was not subsequently subject to appeal).  The local authority plan for B, supported by the guardian, was one of adoption.  The parents had, at an earlier fact-finding hearing, made significant concessions in respect of threshold facts which indicated sustained and multifaceted failures of parenting.  The children had been removed from the parents' care in September 2016.

The judge made an interim child arrangements order for B to be placed with her paternal grandmother under an interim supervision order and adjourned B's case to a further final hearing on 27 July 2017 with limited further assessment of the grandmother in the interim.  He anticipated finalising the child arrangements order if all went well.

The local authority, with the support of the guardian, challenged on appeal the outcome for B on the overall fairness of the hearing.

The grandmother had been the subject if a positive viability assessment followed by a foster parent assessment that was negative, and negative upon review.  The guardian agreed that the grandmother did not accept that there had been any deficit in the parenting offered.  The grandmother's ability to work honestly with the local authority was doubted.

In the leading judgment on the appeal, Lord Justice McFarlane considered that the judge at first instance correctly gave early indications at the hearing that the issue in B's case was placement with the grandmother or placement for adoption.  He had identified the draconian nature of adoption and the importance of the sibling relationship. 

The judge had decided that the grandmother should give her evidence first and that he would give a further view after she had been cross-examined by the local authority and the guardian.  The grandmother had given substantial evidence in chief by which she provided information about the history of her parenting and her family that was not otherwise in evidence.   On three or four occasions the trial judge intervened in robust terms during the cross-examination on behalf of the local authority.  Before any cross-examination on behalf of B, the trial judge had remarked that the local authority made 'absolutely no inroads' in to the positive impression that the grandmother had made in chief.  He indicated that he would not be making care or placement orders.  The advocate for the child and guardian was not invited to cross examine and did not at any stage interject or insist on putting the guardian's case to the grandmother or the court.

Lord Justice McFarlane noted, however, that the grandmother had not seen the list of findings resulting from the parents' concessions until the morning of the hearing.  Neither the social worker nor the guardian had discussed the fact-finding order that had been made despite regarding the grandmother's understanding as being of great importance to their own evaluations.  His Lordship concluded that the grandmother's understanding of what had gone on in the past had not been the subject of any proper assessment at all. 

McFarlane LJ further observed that the role of the advocate is to stand up for their case and make sure, even if the judge is against them, that their case is put properly before the court and is there to be taken into consideration by the judge. 

His Lordship concluded that the process had failed properly to engage in an adequate way with the evidence that went to the central issues as to the future welfare of B:

• A failure of those assessing the grandmother either to understand her wider family or to take her through the findings, the social worker predominantly but also the guardian;
• The judge made his mind up at a very early stage, having not indicated any concern that the grandmother had not had any exposure to the detail of what had gone on the past.  He had no understanding of her response.
• There was some onus on the advocates for the local authority and the guardian to stand up for their cases.

In summary, the process was not acceptable because it did not constitute a proper evaluation of what was in B's best interests.  Given the stakes for B throughout her life, this was not a process that the court could endorse.  The judge's determination would be set aside and the welfare issues remitted for rehearing at first instance, subject to allocation and case management by a justice of the Family Division.


Summary by Nicholas Horsley, barrister, Coram Chambers

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Case No: B4/2017/1828
Neutral Citation Number: [2017] EWCA Civ 1635

IN THE COURT OF APPEAL
CIVIL DIVISION

Room E307
Royal Courts of Justice
The Strand
London
WC2A 2LL

12.43pm – 1.22pm

Date: Wednesday, 23rd August 2017


Before:

THE RIGHT HONOURABLE LORD JUSTICE MCFARLANE
THE RIGHT HONOURABLE LADY JUSTICE THIRLWALL
THE RIGHT HONOURABLE LORD JUSTICE MOYLAN


B E T W E E N :
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A LOCAL AUTHORITY
and
B (CHILDREN)
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Transcript from a recording by Ubiqus
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JUDGMENT (Approved)


If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

LORD JUSTICE MCFARLANE:
1. This is an appeal against orders made by His Honour Michael Taylor, sitting as a Circuit Judge at The Family Court in Teesside on 20 June 2017. The proceedings related to two children, a boy now aged nine and a significantly younger girl who is now aged 21 months. The outcome of the proceedings was for the judge to make an interim child arrangement order for the young girl placing her in the care of her paternal grandmother, under an interim supervision order. The judge's plan, evidenced by the order, was that the case would come back to conclude the final hearing on 27 July 2017, at which time, if all had gone well, he anticipated crystallising those arrangements in a final child arrangement order to the grandmother, probably with a supervision order around it. He sanctioned further, albeit limited assessments of the grandmother.

2. The hearing had commenced the previous day on 19 June 2017 with the local authority, supported by the children's guardian, seeking to argue for a wholly different outcome. The local authority proposal was for this young child to be placed for adoption and move out of the family all together. As I say, that outcome was supported by the children's guardian. The placement with the grandmother was, by the time of the final hearing, supported by the children's two parents.

3. The plan for the boy, aged nine, was for him to remain in care after a full care order, that was the order that the judge made and there is no challenge to that outcome.

4. The appeal brought by the local authority and supported by the guardian seeks to challenge the overall fairness of the hearing conducted by the judge. It is not therefore necessary to dwell a great deal on the factual background that led this family and these two children to be before the court but it is right to record something of that detail.

5. The two young children, particularly after the birth of the second child to the family at the end of 2015, lived with both of their parents until social work and police intervention led to their removal on 22 September 2016, thereafter, the children were in foster care. The factual background that led to the local authority and the police taking that action went back over a significant period and related to the overall inadequacy and, it was found, abusive nature of the parenting being given to the two children.

6. A fact- finding hearing took place before His Honour Michael Taylor on 20 February 2017. On that occasion, both of the two parents made very substantial concessions as to the factual allegations that had been made against them by the local authority in support of the threshold criteria under Children Act 1989 Section 31. It is not necessary to do more than summarise the headings, albeit that the detail in the two-page order recording their concessions is significant and indicates sustained and multifaceted failures of parenting. There were findings based on these concessions of domestic violence between the couple. There was a finding that each of them, from time to time, abused alcohol to the extent that they failed to be available to parent their children. Both parents had a substantial drug history including the use of heroin by each of them and there were occasions accepted where there had been physical abuse of the boy by one, or other, parent. Upon the basis of those findings the local authority's plan, which had hitherto been to place the children in the care of the mother, changed. It was at that stage that the local authority actively prosecuted an application for the youngest child to be placed for adoption.

7. The role of the paternal grandmother, who in the end was the individual favoured by the judge's order, had been assessed during the development of the proceedings. Initially a positive viability assessment was undertaken in October 2016, but that was amended in January 2017, at a time when the local authority plan was to place the children with the mother. There was then a foster parent assessment of the grandmother which was negative and that was revisited finally on 12 May 2017 where the author of the report, which is a relatively short document, identified the grandmother's failure to understand and accept the potential for future risk of harm to the children from their parents and queried the ability of the grandmother to work openly and honestly with the local authority. That assessment was therefore, also negative. Thus, it was that the case proceeded to hearing before the judge.

8. The children's guardian had prepared her own assessment of the issues in the case and it is right to record that in her report she identified for her, a significant concern arising from the grandmother's understanding and acceptance of the parent's harmful behaviour towards the children. That part of the report is not lengthy. That is no criticism; guardians are not afforded now, the luxury of extended time and resources to undertake their own full social work assessment. The guardian indicated in her report that she was concerned that the grandmother did not accept that there had been any deficit in the parenting offered, particularly by the children's mother, and that she failed therefore to satisfy the guardian that she could safely look after either of the children in her care.

9. The case had been the subject of no less than eight case management hearings, some of them before Judge Taylor, others before other judges, and it was no doubt deemed to be the case that the necessary assessments were all adequate as they have been filed before the court.

10. The judge at the commencement of the hearing on 19 June 2017, indicated in very clear terms, the course that he proposed to follow. He rightly perceived that the issue in the case was between placement with the grandmother or placement for adoption. He identified the draconian nature of an adoptive placement. He identified, again rightly, the importance of the relationship between these two siblings being considered as a priority in any welfare assessment and he formed the view that the hearing should be conducted with the grandmother giving evidence first and as he said, being cross-examined by the local authority and the guardian. He indicated, before that process started, that at the end of it he would form a view of her and say what that view was in the hope that that might assist the parties, and so that process was embarked upon.

11. Having read the transcript, one matter strikes the reader at a very early stage and it is this. Despite the detailed fact- finding process that had been undertaken on 20 February 2017, it is apparent that the grandmother had not seen the list of findings made resulting from the parent's concessions until the very morning of the court hearing on 19 June 2017. It seems that she had gone through that insofar as she was able with her lawyers that morning, but not at any earlier stage. Following that point on, and going backwards through the assessment process as we have done this morning, it is equally apparent, that although both the assessing social worker and the children's guardian regarded the grandmother's understanding of the abusive parenting and her ability to protect the children from it in the future as being of great importance in their own evaluation, neither of them had sat the grandmother down and gone through the detail of the fact- finding order that had been made. The most that seems to have been done is to invite the grandmother to give an opinion as to whether or not she thought the mother was a good parent and then to form a social work view as to whether they thought that was a sound position for her to have. Though, with the benefit of the hindsight this court always has in a way that might not have been readily apparent on the day in court, it seems to me that the very important aspect of the case as it plainly was, namely the grandmother's understanding of what had gone on in the past and her knowledge of it at the time, had not been the subject of any proper assessment at all.

12. Once the grandmother's evidence- in-chief had been taken, and that was substantial, rightly so, led by her counsel but with significant passages in which the judge himself took over the questioning, it fell to the local authority to begin their cross-examination. It is from that stage that Mr Stoner QC, who did not appear below, leading Miss Beattie, who did, submits that the case fell off the proper lines for a fair hearing.

13. It is not necessary for me in the course of this judgment to quote the judge's words, it is sufficient to summarise them and to summarise their impact. On some three or four occasions during the local authority's cross-examination the judge intervened, the interventions were in robust terms. Miss Rachel Langdale QC, leading for the guardian before this court, who also did not appear below, characterised the tone of this stage of the hearing that the judge's intervention as being 'unnecessarily adversarial'. I agree with that description. It is unfortunate that the judge adopted that tone at that stage rather than simply sitting back and allowing the local authority to ask its questions.

14. However, the judge's intervention indicates really two matters. First, that he had formed a very positive view of the grandmother as a result of her evidence- in-chief. He had done so, and we know that because he has says so, partly, if not largely, as a result of the information that she had been able to give to him about her own family life. She is a lady in her late fifties. She has three children, a daughter aged 40, a son who is the father of the child in these proceedings aged 36 and another daughter aged 34. Between them the two daughters have had 11 children and this lady therefore is grandmother to some 11 grandchildren, some of whom are now young adults themselves. The information that she was able to give to the judge indicated that in relation to the care of her own children and indeed their parents care of her grandchildren there have been no Social Services intervention over the years, and indeed she was able to give a positive account of them and their development and their lives which was altogether wholesome in a way which rightly impressed the judge.

15. The other side of that coin was another factor that clearly played in the judge's mind which was that this information simply did not appear anywhere in the assessment reports that he had read. It had not been gleaned by the social worker or the guardian.

16. Thirdly, this was another aspect that comes out of the judge's interventions, he took particular note of the fact that the local authority until February 2017 had been intending to place both of the children in the mother's care, yet now they were seeking to criticise the grandmother, insofar as she had said in the past that this was 'a good mother'. The judge, to use my words, considered it a bit a rich for the local authority to be criticising the grandmother in that respect and he did not hold back in expressing that view in various ways. Counsel for the local authority stoically maintained her cross-examination but inevitably moved to topics which played a less prominent part of the case. One such triggered the judge to interject in a more substantial way to belittle the local authority's presentation of the case and to effectively announce, as he did, his very positive impression of the grandmother and his conclusion at that stage, which was that the local authority were making 'absolutely no inroads' in to that positive impression.

17. At the conclusion of that intervention the judge said this:

'I am not going to make the care order in this case. I am not going to make a placement order. The high point you are going to get…the high point of the order you will get from me will be a supervision order to assist with the contact '.

It was at that stage that there was a short break afforded to the parties. They requested the judge to reconvene the case the following morning. By that time, the local authority had altered its course by accepting that the judge was going to sanction placement with the grandmother but argued that that should be under a full care order. Again, on the second day the judge indicated that he remained of the view that he had expressed on the first afternoon, namely that the most the local authority would get was a supervision order, but he was prepared to allow a short period of assessment in order to indicate whether this strong preliminary view that he had formed was to be converted into a full order.

18. The local authority therefore took part in a process of drawing up an order which recorded all of that but they were plainly disquieted by the process and they immediately applied for permission to appeal to this court in notice of appeal 4 July 2017. The papers came before me on 10 July 2017. I directed a stay of the order and on 18 July 2017 I granted permission to appeal. I am grateful to all of the parties and to the court staff for the arrangements that have been made for this effective hearing to take place one month later – today.

19. The case before this court, argued with firmness and charm by Mr Stoner, is one that is conducted with respect to the judge but plainly criticises his early intervention in the case and the early announcement of his conclusion. Secondly, that he did so in a way so as to intimidate the local authority advocate and indicate his view for the local authority's case in a manner which, Mr Stoner says, placed the hearing on the wrong side of the line that is accepted to exist that runs between robust case management and (on the other side) an early indication that the judge had closed his mind to the issues in the case and told the parties that that was so.

20. Mr Stoner accepts that there may well have been inadequacies in the local authority's assessment of the grandmother. In particular he accepts that the process that I have described with respect to the fact-finding determination and how that was then used or, in this case, not used by the social workers, is worthy of criticism. However, at the end of the day, he submits this was not a proper process and, by conducting the hearing as he did, the judge failed to put himself in a position to make a full and thorough assessment of the welfare interest of this young child, thereby making a lifetime long determination for her care on an inadequate and an unfair basis.

21. As I have indicated, the appeal was supported by Miss Langdale for the guardian. Part of the case for the guardian is that, as a result of the process that was undertaken, the voice of this young child was not heard and one can understand that submission. However, it has to be said that the transcript, particularly of the first day where Mr Stoner says matters went so awry that they were irredeemable by the end of that process, does not include any interventions on behalf of the child by the solicitor for the child acting on that day to flag up to the judge, as Miss Langdale did, the central paragraphs of the guardian's report in which the concern as to the grandmother's understanding of the abusive parenting was flagged up, and inform the guardian's view.

22. Although the judge indicated at the start of the day's hearing that he would listen to the grandmother's evidence in full, including cross-examination by the local authority and the guardian, at no stage was the guardian invited to cross-examine, but, equally, at no stage did the child's advocate interject and insist upon putting the guardian's case to the grandmother or putting it to the judge.

23. Whilst I understand the submission that is made which is that in the outcome the process may have failed to hear what might have been said on behalf of the child during the course of this particular hearing, if criticism is to be made it should not all focus upon the judge. Sometimes hearings in cases, no matter what area of the jurisdiction that we may be concerned with, are difficult. Advocates encounter judges who they perceive are not "with them" and may be stoically against them. Part of the role of the advocate is to stand up for their case and make sure, even if the judge is against them, that their case is put properly before the court and is there to be taken in to consideration by the judge.

24. The appeal is opposed by the grandmother and by the two parents and we have been assisted by skeleton arguments by Miss McKay and Miss McGuiness respectively on behalf of the mother and father and by a skeleton argument and oral submissions by Mr Norton QC and Miss Kitchen on behalf of the paternal grandmother. They make a number of strong and sound points. They indicate that this was a highly experienced judge who was entitled to form a view and that nothing, they submit, he said or did went beyond the line between a fair hearing with robust case management on the one hand and an early impermissible announcement of the result on the other. In reply to an observation from me, Mr Norton makes the point, which I accept, which is that that line varies depending upon the nature of the party who is the subject of adverse judicial behaviour. What might be acceptable in terms of a judge challenging professional parties such as a local authority and a guardian, might be unacceptable if the same words were used in the same way to those representing a vulnerable family member and I accept that and I approach my evaluation of what went on at this hearing on that basis.

25. Standing back and looking at this process, as we have the privilege of doing with hindsight and at second hand, it seems to me that the process that was engaged in, in this case, failed properly to engage in an adequate way with the evidence that went to the central issues as to the future welfare of this child. In making that observation I do so deliberately to bring in aspects of the case prior to the hearing before the judge. If matters went wrong here they did not go wrong just because of the way the final hearing turned out.

26. I have particularly in mind, first of all the failure of those assessing this grandmother, the social worker predominantly but also the guardian, to gain any knowledge of or understanding of, her wider family. If the account given by her to the judge is correct, and I certainly have no reason to doubt it, then she describes an impressive track record as a lady bringing up three children and then acting as a hands-on grandmother and supporter of the wider family as it has developed over the years. In terms of her ability and the wider family's ability to provide a safe nest, as it were, for this young girl to settle and develop in the future, that is clearly very positive evidence and yet it was not before the court, and should have been.

27. Secondly, as I have already described in setting the ground, there was an inexplicable failure to take up the fruit of the fact- finding hearing, namely the two pages of detailed admissions made by the parents, and sit down with the grandmother and go through it so that she was confronted in a precise and direct way with what was now known about how life had been lived in this little family in the year or so prior to the children being removed by the police in September 2016. One might say that only by using that material which had come out of the court process in that detailed and direct way could one begin to form a view as to her ability to understand how harmful the previous parenting had been and understand how in the future the children had to be protected from any recurrence of it, if that was at all possible. That simply had not been done.

28. By the time we get to the hearing I accept the overall criticism made by Mr Stoner which is that the judge did make his mind up at a very early stage, seemingly at the end of the evidence- in-chief of the grandmother, and that relatively early on in the local authority's cross-examination he made his view plain. It seems that the judge was very influenced in a positive way by what he had seen and heard from the grandmother herself, unchecked by any other source at that time.

29. Secondly, he was adversely affected by the negative view that he formed of the local authority's past conduct in the case and unfortunately, his view as to the effectiveness of counsel's cross-examination on behalf of the local authority on that day.

30. At no stage in any of the judge's interventions either on the first day of the hearing, or indeed, on the second, when the detail of the order was drawn up, does he indicate any concern about the fact, as it became known in the grandmother's evidence, that she had not had any exposure to the detail of what had gone on in the past. He did not have any understanding of her response to that detail. I agree with the submissions made by Miss Langdale that that was, if not the, certainly a very important point in the case and because of the way the case had been prepared and unfortunately, because of the way the hearing was conducted, it was simply lost sight of in the judge's approach. If I were in any doubt as to the overall acceptability of the structure of the hearing, that doubt is dispelled by the announcement of the judge, to which I have already made reference, towards the end of the first day, that the most that the local authority were going to get was a supervision order in this case.

31. The process ultimately is the responsibility of the judge. However, as I have already indicated, I also consider that there was some onus on the advocates for the local authority and the guardian to stand up for their case and to make sure that if the judge was going to be against them, at least they had it in terms of the major points in it before him during the course of the hearing.

32. In terms of whether this overall process was acceptable, in my view it was not. What was needed in these proceedings was for there to be, at the end of the day, a proper evaluation of what was in this child's best interests. It is hard to understate the importance of the decision that was being made for this very young child. The whole course of her future life was to be determined by the judge and it was incumbent upon the system as a whole and the judge in particular to take care to make sure that the outcome was one in which he had been able to engage fully and taking onboard all of the relevant factors. Because of the way the case was conducted by the judge, and because of the way the case was prepared by those responsible for the assessment work on this occasion, I am satisfied that this was not overall a proper process, and given the stakes involved, as it were, for the child, it is not one that is possible for this court to endorse.

33. On that basis, I would therefore allow the appeal. All parties accept that if that were to be the outcome of this hearing then the only course for the future is for the matter to be reheard. If My Lady and My Lord agree, we will therefore direct that the judge's determination should be set aside and the welfare issue in these care proceedings should be remitted to be reheard again at first instance, initially, subject to case management and allocation directions, to be given by Cobb J who is the Family Division Liaison Judge for the North Eastern circuit. It is plainly necessary for the hearing to come on as promptly as possible but it is equally necessary for there to be a full assessment of the lacunae that I have identified in this judgment.

34. Coming to the Court of Appeal is never a healing process. Unfortunately for the grandmother, really through no fault of her own she has 'lost' the appeal. This is not a time for either side, as I perceive they are in this case, the local authority on the one hand and the grandmother and family on the other, to look back at this hearing and to have any recriminations. This is the very time that the grandmother needs to accept what has happened and work with those who will now carry o ut any assessment sanctioned by the family court so that the case can come on for a proper and final hearing in due course.

35. Finally, I underline this if it is not already clear, nothing I have said indicates that I think the judge's decision at the end of the day was wrong in any childcare sense. He may well have come to a view as to the future which was the right one. My finding as it is, is to the process that was conducted both before the hearing and during it and not in any way a reflection to the rights or wrongs, one way or the other of the plan for this child.

LORD JUSTICE MOYLAN
: I agree.

LADY JUSTICE THIRLWALL: I also agree.

End of Judgment

This transcript has been approved by the judge.