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MH v Lancashire CC [2010] EWCA Civ 1257

Court of Appeal considered the striking out of an application to appeal both care and placement orders in public law children proceedings. Appeal unanimously dismissed.

In public law children proceedings during which the mother was represented, magistrates at the Flyde Coast and North Lancashire FPC made a care order and a placement order in respect of a one year old child. The mother attempted in person to appeal the full care order and placement order to a circuit judge. At the first directions hearing the circuit judge informed the mother of the procedural requirements and the test for appeal and gave the mother time to comply with the necessary procedure. The mother instructed her previous solicitors who obtained an opinion from counsel on the merits of the appeal. The consequence was that the LSC did not grant the mother funding for the appeal. At the next directions hearing before the same judge the appeal was struck out for want of compliance with both the relevant rules and the order from the previous hearing. The mother appealed to the Court of Appeal.

The Court of Appeal identified that the judge had the power to strike out the appeal of both orders if there was a compelling reason to do. Consideration was given to whether the judge had exceeded the boundaries of his discretion or otherwise had fallen into legal error on striking out the appeal. The mother's paperwork at the outset had been wholly inadequate. She was given an opportunity to rectify it. She had not done so and did not plead for further time to do so. In the background was the urgency of achieving finality of the proceedings for the child which was not the paramount consideration in the determination whether to strike out the appeal but it remained a potent consideration. There was therefore a compelling reason to strike out the appeal; the judge acted within his discretion; and the appeal was dismissed.

By way of postscript the ostensible merits of the mother's appeal were briefly considered. Had the judge heard the mother's appeal on a substantive basis and even had he, unusually, permitted her to adduce further evidence notwithstanding it had been available to her, including to her legal team, at the time of the hearing before the magistrates, there was not any measurable chance of the appeal's success. Equally were the Court of Appeal to have concluded that the judge erred in his discretion in striking out the appeal, the mother's victory would have been hollow in that any such hearing of the appeal as might then have been directed to take place would have been bound to end in dismissal.

Summary by Alfred Procter, barrister, 1 Garden Court

______________________________

Case No: B4/2010/1151
Neutral Citation Number: [2010] EWCA Civ 1257
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANCASTER COUNTY COURT
HIS HONOUR JUDGE RAWKINS
LOWER COURT No: LA10C00054
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/11/2010
Before:

LORD JUSTICE WILSON
and
LORD JUSTICE RIMER
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Between:

MH Appellant

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LANCASHIRE COUNTY COUNCIL Respondent

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(Transcript of the Handed Down Judgment of
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MH, the mother, appeared in person
Mr Paul Hart (instructed by its solicitor) appeared for Lancashire County Council.

Hearing date: 28 October 2010
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Judgment
As Approved by the Court

Crown copyright©
 
Lord Justice Wilson: 
1. On 28 October 2010 Rimer LJ and I heard an appeal by a mother against an order made by His Honour Judge Rawkins in the Lancaster County Court on 21 April 2010. Before him had been an appeal by the mother against two orders made in the Fylde Coast and North Lancashire Family Proceedings Court on 3 February 2010. Those orders related to one of the mother's children, namely a girl, M, who was born in January 2009 and who was therefore then one year old and now approaches her second birthday.

2. As she had before HHJ Rawkins, the mother presented her appeal before us in person. At the outset of the hearing she sought an adjournment of the hearing in order that she could make further attempts to obtain legal representation. We refused the application and explained our reasons in judgments which can if necessary be transcribed. We proceeded to hear the appeal.

3. At the conclusion of the mother's presentation of her appeal we decided to dismiss it without calling upon Mr Hart to address us on behalf of Lancashire County Council ("the local authority"). We announced our decision and stated that we would give our reasons in written judgments to be handed down on a later date.

4. I will explain why I considered that we should dismiss the appeal.

5. The orders of the magistrates, following a three day hearing at which the mother was legally represented, were, first, a care order in respect of M in favour of the local authority under s.31 of the Children Act 1989 and, second, a placement order, i.e. an order authorising the local authority to place M for adoption, under s.21 of the Adoption and Children Act 2002. In that regard the magistrates dispensed with the mother's consent under s.52 of the Act of 2002.

6. The order of HHJ Rawkins on 21 April 2010 was to strike out the mother's appeal against those two orders. She had, in my view, primarily been appealing against the placement order. I say so because the mother's case before the magistrates was not that she was in a position there and then to receive M into her care but, rather, that she should remain in care, albeit presumably on an interim basis, while the mother took further steps to demonstrate a capacity adequately to care for her. Thus the mother should probably be taken to have been appealing, albeit secondarily, against the making of a full care order instead of an interim care order.

7. In her appeal to this court the gist of the mother's complaint was that, although in principle, and subject to probable future changes in the relevant rules, a party to family and adoption proceedings has a right to appeal from orders of the magistrates to a circuit judge, her appeal was never heard on a substantive basis.

8. Notwithstanding that she had legal representation before the magistrates, the mother was unable to secure it for her appeal to the judge. She purported to appeal by a hand-written document which, though undated, bears a stamp, presumably of the county court, dated 10 February 2010. To the extent, therefore, that such was, or was taken as, a notice of appeal, it was clearly within time. This is what the mother wrote:

"To whom it may concern,
I'm writing this letter as I fully want to make it clear that I want to appeal against a decision that resulted in my daughter been put up for adoption. I do truly believe I was misrepresented in a huge way. Due to this and the interest of justice I think I should have another hearing. There's lots of things the court should of known about very positive things. I'm currently trying to get legal representation but as you can understand time is rapidly running out. My time limit is only 20 days left. Please will you consider this as I don't know what else to do. I do truly believe I was misrepresented as there should have been people called to the hearing. I don't feel I had the right advice. Thank you for taking the time to read this."

9. Wisely, in my view, the relevant officer of the Lancaster County Court treated the mother's document, if not as a valid notice of appeal, then, at any rate, as a document which, for the time being, should set in train the procedure for appeal. The court issued a notice to the parties that the mother had "applied to the court to appeal" and notified them of a hearing for directions on a date which was later brought back to 6 April 2010.

10. The hearing for directions on that date was conducted by HHJ Rawkins. The mother appeared before him in person and counsel appeared for the local authority and for M by her Children's Guardian.

11. On that date the judge considered that, as it stood, the mother's appeal was incapable of proper hearing. We have a copy of the directions made by him on that date and issued with the seal of the county court; and although at the later hearing on 21 April he was to note that his directions, as thus drawn, had been subjected to written amendments on his part which for some reason had not been incorporated into the order as sealed, it is clear, as he was constrained to accept, that the relevant formulation was in the order as sealed. The order provided as follows:

"It is recorded that:-
a. The court explained the grounds which an appeal might ordinarily be justified and the procedure requirements and that they had not been complied with.
b. The mother outlined the grounds of appeal that she was relying on.
c. The court identified the requirement of showing that the justices were plainly wrong in reaching their decision.
d. The mother confirmed that she would seek immediate legal advice as to whether grounds for appeal existed.
e. If mother does not comply with the direction to file and serve a notice of appeal, the Court may summarily determine her appeal.

It is ordered:
1. The mother is to file and serve a properly drawn notice of appeal and complying with all the necessary procedural requirements by 4pm on 16/4/10.
2. The matter is listed for further consideration of mother's appeal … on 21/4/10…"

12. On 21 April 2010 the mother again appeared before the judge in person and counsel again appeared for the local authority and for M. I turn first to the judge's order, under appeal today. Again the order is very poorly drawn. Clearly there is a problem about the quality of drafting of the orders in the Lancaster County Court and no doubt HHJ Rawkins will be the first to have been asking what steps should now be taken urgently to improve their quality. The problem about this second order is that the fourth and fifth recitals are instead inserted as orders. I make the necessary correction when I set out the order and its recitals as follows:

"… it is recorded:
1) The appellant mother informed the Court that she has obtained an Advice on Appeal from Counsel who was not involved in Care Proceedings heard by the Lancaster Family Proceedings Court.

2) The mother has not secured funding from the Legal Services Commission and, as a result, is not legally represented.

3) The mother has not met the procedural requirements rehearsed by the Court at the Court hearing recorded in the Order dated 06/04/10 and, as such, there is not a properly constituted appeal before the Court.

4) Further the mother has not complied with the requirements for the presentation of the appeal.

5) The court identified for the benefit of the mother that in such circumstances it was not possible for her to pursue this appeal and, further, that there were clear difficulties with which she was faced if she sought to make further application.

Further, it is ordered:
1) The mother's appeal is struck out…"

13. We have a note of the judge's judgment dated 21 April 2010, presumably prepared by counsel for the local authority and the child; and the judge has approved the note. In his judgment the judge noted that, unsurprisingly, there was a particular urgency about the despatch, in one way or the other, of the mother's appeal or purported appeal; for, pursuant to the placement order made by the magistrates, prospective adoptive parents for M had been identified but had indicated that they felt unable to tolerate any significant delay in her placement with them. The judge then recorded – as was later included as a recital – that the mother had informed him that, apparently within the ten clear working days which had passed since the directions dated 6 April, she had returned to the solicitors who had represented her before the magistrates and, through them, had managed – to some extent – to consult counsel other than counsel who had then represented her but that public funding still remained unavailable to her. The judge therefore proceeded as follows:

"We are today in the position that the purported appeal is not in the appropriate and required form and the mother understands – responsibly and reasonably – that this leaves the court with no other option than to fulfil its duty to the child, recognising that the matter cannot be allowed to drift. I therefore strike out the appeal."

14. It appears from the judge's words that the mother had in the end conceded to him that her appeal could not go forward. But, lacking a transcript of the proceedings, we do not know quite what she said or the context in which she said it; her contention before us was that she felt unable to disagree with what the judge was saying. At all events we now have before us a complaint by the mother that her appeal against orders of profound importance to her, and in particular to M, has never been heard on a substantive basis.

15. It is clear to me that the judge had jurisdiction to strike out the mother's appeal, or purported appeal, for want of compliance both with the relevant rules and with his direction dated 6 April 2010. Inconveniently the rules which govern an appeal against the making of a care order differ from those which govern an appeal against the making of a placement order. The former are the Family Proceedings Rules 1991, SI 1991/1247, and the latter are the Family Procedure (Adoption) Rules 2005, SI 2005/2795. The effect of Rule 8.2A(1) and (2) of the Rules of 1991 is to require an appellant to file and serve a notice in writing of the appeal which sets out the grounds of it. There is no express provision in the Rules of 1991 for the striking out of an appeal. But Rule 1.3 thereof provides that the County Court Rules 1981 shall continue to apply, with the necessary modifications, to family proceedings in a county court; Rule 5 of Order 37 of the Rules of 1981 is thus engaged and, by paragraph (1) thereof, a failure to comply with any requirement of the rules empowers the court to set aside the proceedings, which includes appellate proceedings, wholly or in part. The relevant provision in the Rules of 2005 is more specific: for Rule 179 provides, by paragraph (1), that the appeal court may strike out the whole or part of an appeal notice but, by paragraph (2), that it will exercise its powers under (1) only where there is a compelling reason for doing so. Therefore on 21 April 2010 the judge had a discretion to do what he did, provided that, in the case of the appeal against the placement order and, for practical purposes also in the case of the appeal against the care order, there was a compelling reason for doing so.

16. In deciding to strike out the appeal, did the judge exceed the boundaries of his discretion or otherwise fall into legal error?

17. I will try to put the mother's case as strongly as a competent advocate could put it. These were appeals which in principle the mother had a right to bring. She did not need an extension of time for so doing. The importance of the appeals, for her and for M, could hardly be more profound. On 6 April 2010 the judge had afforded to her precisely ten working days within which "to file and serve a properly drawn notice of appeal". How was she to do so if funding was not to be available for the provision of legal assistance to her in that regard? Furthermore the direction had been for her to "[comply] with all the necessary procedural requirements" by the same date. What were those procedural requirements? The recital to the directions dated 6 April was to the effect that the judge had explained them to her. But the order, as sealed, had failed to identify them. Would any lawyer understand from the face of the direction the requirements to which the judge was referring and, all the more so, would the mother understand what she was required to do even in the light of such explanation as had orally been given to her by the judge? The judge's decision to strike out was (so the advocate might protest) so harsh and oppressive as to demand reversal in this court.

18. But the rules require compliance. The mother's hand-written document, in which she complained, in a wholly unparticularised way, that valuable evidence on her behalf had not been adduced before the magistrates and that she had been "misrepresented in a huge way" was, of course, a platform wholly inadequate for the mounting of her appeal; wholly inadequate for the preparation of a response by the other parties; and wholly inadequate as a foundation for the judge's determination. On 6 April the judge had afforded to the mother an opportunity, albeit limited, to rectify the default. She had not done so or even tried to do so. And, most importantly, the judge was not confronted with a plea on her part that, given limited further time, she could yet achieve what he had directed her to achieve. As he sat in court on 21 April, there was no reason for him to consider that there was any measurable chance that, within a reasonable time-frame, reasonably particularised grounds of appeal might be filed. I suppose that nevertheless some judges in his position might, perhaps in the form of an "unless order," have afforded to the mother yet a further opportunity to regularise her appeal; but in my view the more conventional exercise of discretion in such circumstances was that favoured by the judge.

19. Moreover in the background was the urgency of achieving finality of the proceedings for M. Her welfare was not the paramount consideration in the judge's determination whether to strike out the appeal; but it remained a potent consideration.

20. I therefore consider that there was a compelling reason to strike out the appeal; that the judge acted within his discretion; and that this appeal should be dismissed.

21. It follows that I have reached my conclusion without the need to refer to the ostensible merits of the mother's appeal. But, by way of postscript, it would be helpful for me briefly to address them and thus the background which led to the orders made by the magistrates.

22. There were indeed some positive features about the mother's aspiration one day to care for M, who, following birth in hospital, had at once been removed, with the authority of the court, into short-term foster care. The mother's love for her was never in doubt; and, during the frequent periods of her contact with M which the local authority had arranged, the mother showed herself not only affectionate towards the baby but sensitive to her needs. That the mother was committed to seeking to achieve the care of M, and that she genuinely considered that, given time, she could prove her capacity to do so, were propositions never in doubt. Nevertheless the mother has had the misfortune to have been dragged down into grave addictions, namely to heroin, cocaine and alcohol, which have no doubt been the precipitant for her commission of, and conviction for, numerous offences. Her use of illicit drugs during her pregnancy had been such that, within days of the birth, M herself was suffering withdrawal symptoms as a result of the cessation of her absorption of drugs within the uterus. The magistrates were satisfied that, for several months prior to the hearing, the mother had, to her great credit, not been taking cocaine and had been taking prescribed methadone by way of substitution for heroin. But her alcohol problem still remained unaddressed; and it was in order to establish not only a longer period of abstinence from cocaine and heroin but also ostensible control of her alcohol problem that counsel on her behalf had urged before the magistrates not, or not yet, to make the final orders, in particular the placement order. In their written reasons the magistrates, with considerable sensitivity towards the mother, had sought to explain why, in their view, which was also that of the Children's Guardian, the necessary timescales referable to M did not permit the investment of further delay out of which, so they considered, any satisfactory outcome would have been highly questionable.

23. When she granted the mother permission to bring this appeal, Lady Justice Black also granted her permission to adduce fresh evidence before this court, namely a statement by an officer of Concateno TrichoTech dated 9 April 2010. The officer stated that an analysis of a sample of the mother's hair, collected from her on 26 March 2010, yielded no evidence that she had taken either heroin or cocaine between mid-December 2009 and mid-March 2010. At the hearing before us the mother sought to adduce in evidence a statement by another officer of the same company dated 4 October 2010. Although we indicated to her that we were prepared to assume that her ostensible abstinence from heroin and cocaine had continued, she pressed us to read it; and in the end we did so. The mother had admitted to us that, until very recently, she had continued, on prescription, to take methadone; so it was not surprising to read that a sample of her hair collected on 17 September 2010 had yielded evidence that she had taken methadone between mid-June and mid-September 2010. What was more surprising was to read that it had also yielded evidence that she had taken cannabis, cocaine and morphine between mid-June and mid-July 2010. The officer reported that the source of the morphine might have been heroin; but the mother vehemently denied to us that she had taken heroin and we proceeded on that basis. By contrast the mother admitted having taken the cocaine at a hen-party and said that she bitterly regretted it.

24. Even if, however, I put to one side not only the disappointing nature of the fresh evidence which the mother pressed us to receive but also her demonstration at the end of the hearing of a complete absence of adult self-control, I ask this question: what could have been the other evidence which, if adduced before the circuit judge, could have dislodged the magistrates' conclusion that M, who had been in short-term foster care throughout her life and who, at her age, was fast bonding with foster parents from whom she would at some stage need to be removed, could not reasonably tolerate the investment of the many further months, or probably the years, for which the mother was pleading? Had the judge heard the mother's appeal on a substantive basis and even had he, unusually, permitted her to adduce further evidence notwithstanding it had been available to her, including to her legal team, at the time of the hearing before the magistrates, I cannot think that there was any measurable chance of the appeal's success. Equally, were this court to have concluded that the judge erred in his discretion in striking out the appeal, the mother's victory would indeed have been hollow in that any such hearing of the appeal as we might then have directed to take place would have been, in my view, bound to end in dismissal; in cruel disappointment for the mother; and, even worse, in an expenditure of further time highly prejudicial to the welfare of M.

Lord Justice Rimer:
25. I agree.