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Re: T-S (Children) [2019] EWCA Civ 742

An appeal concerning the approach of a court to a potential impasse with a local authority on an important element of the care plan. In the instant case, an impasse had not been reached. The appeal was allowed, though none of the local authority’s grounds were accepted.

Background

HHJ Harris-Jenkins heard a fourteen-day final hearing of care proceedings concerning three children, aged 8, 4 and 21 months old. The appeal focused solely upon the welfare determination of the middle child, J, who by the time of the appeal was 5 years old. There was a substantial dispute on the professional evidence as to J's care plan. The local authority plan was for him to be placed in long-term foster care with his older sibling. The guardian and ISW advised that J's welfare required adoption, if possible with his younger half-sibling.

HHJ Harris-Jenkins found the allocated social worker's assessment of J's attachment to be both superficial and fatally flawed. The judge's welfare analysis was not the subject of the appeal. He concluded that J's welfare was best met by adoption. He indicated that if a placement application was made, he would make the order and dispense with the parents' consent. At the conclusion of his judgment on 20 November 2018, he extended the ICO and invited the local authority to reconsider the care plan for J.

The ADM, who had given evidence at the final hearing and had relied on the social worker's assessment, filed a written statement and remained of the view that adoption was not in J's best interest.

The matter came before HHJ Harris-Jenkins on 14 December 2018. That hearing did not proceed, as may have been expected, with the judge reconsidering J's welfare in light of the ADM's statement and either accepting the local authority's position and making a final order or once again adjourning with an invitation to the local authority to reconsider its plan further. At the start of the hearing, the local authority sought permission to appeal the November decision. The judge granted permission on the basis that the case had reached an impasse and an appeal was the only way of breaking the deadlock. Though permission was for the November hearing, the Court of Appeal heard submissions in respect of both hearings.

Discussion

McFarlane P gives the judgment. The legal context is set out comprehensively [28]. The restatement of the case law is a helpful distillation of the issues [35-46].

McFarlane P observes that the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child is well established. In so far as there has been movement, it has been to emphasise the role of the court during proceedings. McFarlane P endorsed the approach taken by Peter Jackson LJ in Re: T [2018] EWCA Civ 650: when "the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority" [48]. The key authority is Re S and W [2007] EWCA Civ 232 [49]. At the end of the process of mutual respect, cooperation and re-consideration, a court may have to evaluate a local authority's position solely in terms of a public law challenge. Before that stage is reached, the court and local authority must each use their best endeavours to achieve sufficient common ground in relation to the care plan and final orders.

Decision

There was no basis upon which permission to appeal the November determination could have been granted. The position reached at the conclusion of the November hearing in inviting the local authority to reconsider its plan was a "textbook" example in keeping with the authorities [52].

The Court of Appeal concluded that the judge was in error in conducting the December hearing as he did. It was premature to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in light of the ADM's statement. The local authority's application for permission to appeal was pre-emptive and the December hearing should have run its course.

The local authority relied upon five grounds [23], none of which were accepted by the Court of Appeal [47]. The local authority had contended within its grounds that the ADM's reconsidered decision could not be challenged on public law grounds. This is not specifically determined by the Court, which found that an impasse had not been reached. However, McFarlane P observes that the ADM, arguably, failed to engage with the substance of HHJ Harris-Jenkins' analysis. He endorsed the approach of Peter Jackson LJ in Re: T that the court can expect from a local authority "a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court's assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court's assessments."

The father, who had advanced additional grounds, was successful on the ground that the judge had pre-determined the potential placement order application, particularly the question of whether consent should be dispensed with. While the option of adoption had been on the agenda at the November hearing, no formal application had been made, the father had not expressed a view and submissions had not expressly addressed issues of consent or the formal making of a placement order. While the judge was not open to criticism in respect of his welfare analysis, in view of the premature determination of dispensing with parental consent, the matter was remitted to be reheard by a different judge.

Summary by Victoria Roberts, barrister, Coram Chambers.

Click here to read the full judgment of Re: T-S (Children) [2019] EWCA Civ 742 on BAILII