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Re M (A Child) [2015] EWFC 71

Judgment by Munby P on the entitlement to legal aid funding of a parent who is seeking a review of findings of fact in public law children proceedings.

In July 2012 the child M, then aged 6 months, suffered a fractured arm. A subsequent fact-finding hearing placed both the mother and father in the pool of possible perpetrators with the other failing to protect the child. M was placed under a special guardianship order and a supervision order with a relative.

In July 2014 the mother applied to discharge these orders. The reality of her application was that she stated, due to the failure to identify her needs as a vulnerable adult, the original fact-finding had been in breach of her Article 6 rights and should be re-opened. The trial judge allowed this application. The Legal Aid Agency refused the mother legal aid funding for these proceedings saying that such funding was not available for applications to discharge a supervision order/ SGO.

The mother applied for either Her Majesty's Courts and Tribunal Service or the local authority to pay for legal costs.

The President did not rule on those applications (it was accepted HMCTS can no longer meet such costs). He stated that the mother's application had now re-opened the threshold and welfare stages of the original care proceedings and that the court would proceed on the basis that it was those proceedings that were before it. The mother was entitled to legal aid for those proceedings. He made da eclaration to that effect and 'trusted' that the LAA would swiftly grant the necessary funding.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers

Neutral Citation Number: [2015] EWFC 71
Case No: BH14C00470

Sitting at the Royal Courts of Justice

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4 August 2015

Before :

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In the Matter of M (A Child)
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John Tughan QC and Rebecca Foulkes (acting pro bono instructed by Goodman Ray) for the applicant (M's mother)
Mr Daniel Nother (instructed by the local authority) for the respondent local authority
Miss Hayley Griffiths (instructed by Mustoe Shorter) for M's children's guardian

Hearing date: 27 July 2015
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Judgment This judgment was handed down in open court
Sir James Munby, President of the Family Division :

1. Once again I am faced with the plight of a vulnerable mother unable to pay the cost of family proceedings in which it is essential that she is enabled to participate properly if her, and her child M's, Article 6 and Article 8 rights are not to be breached.

2. The relevant facts can be very shortly stated.

3. M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted "by either the mother or the father, the other parent failing to protect M" but that "it is not possible to determine which of the two parents was responsible." The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother's relatives.

4. On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking "discharge of Supervision Order and Special Guardianship Order." That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that:

i) New evidence demonstrated the full extent of the mother's disability, rendering her a vulnerable adult.

ii) The fact finding hearing was conducted without this vital information.

iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.

5. The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9. He expressed his conclusion in this way:

"Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother's reliability as a witness were central to the finding as to her possible role as a perpetrator of M's injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

I therefore give the mother leave to re-open the fact find."

Judge Bond added that his decision "does not include any indication of the ultimate result of a re-hearing."

6. Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.

7. As Mr John Tughan QC, representing the mother, puts it, whatever the nature of the application she made on 11 July 2014, the effect of that application has been to re-open the section 31 proceedings. And, as he correctly points out, given the basis on which Judge Bond has decided to proceed, the new trial will necessarily involve a fresh and complete re-hearing of the local authority's case on 'threshold', in relation to which, in accordance with Re ZZ and others [2014] EWFC 9, the burden of proof will be on the local authority. Mr Daniel Nother, on behalf of the local authority, does not demur.

8. Miss Hayley Griffiths says much the same, articulating the point from the guardian's perspective. M, she says, has been separated from her parents and placed with alternative carers as a result of section 31 findings that cannot stand and require reconsideration. M's welfare will not be served until the section 31 findings made against her parents are properly re-litigated with appropriate special measures in place.

9. The matter is coming back before Judge Bond on 11 August 2015 for a ground rules hearing to consider what special measures should be taken to assist the mother and also to determine the format and content of the review.

10. The mother's application for legal aid was refused by the Legal Aid Agency in an email dated 23 July 2015. The reason given was that the application was for the discharge of a special guardianship order, which falls under section 14D of the Children Act 1989, and was therefore not a "special Children Act 1989 case" within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104. Sub-paragraph (b) includes within the definition of a "special Children Act 1989 case", proceedings for a care or supervision order under section 31 "to the extent that the individual to whom the civil legal services may be provided is the child who is or would be the subject of the order [or] that child's parent." Legal aid in a "special Children Act 1989 case" is neither means nor merits tested.

11. It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a "special Children Act 1989 case" in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.

12. There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543, is to preclude the making of any order against Her Majesty's Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child) [2014] EWFC 39, para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.

13. I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.

14. I make the following order:

"Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond

It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a "special Children Act 1989 case" within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104."