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J v A South Wales Local Authority [2020] EWHC 2362

This is an appeal on behalf of J against the decision of HHJ Howells to permit the local authority to withdraw three admissions of liability it made to J in civil proceedings in which breach of duty was alleged on account of the local authority’s alleged failure to remove him from the care of his mother and her foster parents and place him for adoption in the first months of his life.

Brief Facts
J, born on 28 August 2000, commenced proceedings by his litigation friend against the local authority alleging breach of duty for failure of the local authority to remove him from the care of his mother and his mother's foster parents in the first months of his life and place him for adoption.

The local authority's defence admitted breach of duty in not ensuring he was removed from the care of his birth mother in the first month of life in place for adoption. In it's defence the local authority, having made those admissions, found it not necessary nor proportionate to plead specifically to the other matters set out in a further 46 paragraphs of J's particulars of claim. It did however admit paragraphs 52 to 54 of the particulars of claim confirming that had it not acted in breach of duty it should have allocated social worker prior to J's birth, and that social workers should have undertaken a full assessment of the mother's needs and made plans based on that assessment. The local authority accepted that had it done so, it is likely that J would've been removed from his mother and the foster parents of the mother and placed for adoption.

In its defence, at paragraph 55 to 57, the local authority made plain that it has a duty to act in J's best interests given that he is in their care pursuant to a care order. The local authority did not believe it was in J's best interests to have an examination of his claim at that stage, as it may have an adverse effect upon his welfare. The importance of this paragraph is because of the conflict of interest that it clearly articulates: on the one hand the local authority was the defendant to a claim brought by J and therefore entitled to resist the claim, and on the other hand it was the entity having care of J under a care order with an obligation to act in his best interests.

The proceedings were stayed by successive orders of the court from March 2013 to J's 18th birthday. The appeal court accepted that these delays were imposed for J's benefit and for the reasons articulated in the local authority's defence, noting that there can have been no other proper reason for putting off the final resolution of the dispute.

The appeal court addressed the decision of CN and GC v Poole BC ('CN'), which went to the Supreme Court and was made at about the time J turned 18 when the local authority ceased to be his carer. The effect of that decision is that when the Court of Appeal in 2017 handed down its decision it held that the local authority did not owe a common law duty of care to the child when exercising statutory child protection powers and duties.

First instance
At a hearing on 4 October 2019 HHJ Howells permitted to the local authority to withdraw its admissions made in the letters and defence and permitted an amended defence. The judge directed herself to the Overriding Objective and CPR 14 and PD 14, which she addressed one by one. Her considerations are articulated at paragraph 21 of the appeal judgment. The admissions that had been made were made with the express purpose to react to a change in the law caused by the decision in CN. However, the amendments went beyond beyond that putting a significant change in the ambit of the factual dispute between the parties.

Grounds of Appeal
J appealed on three bases:

(1) The Judge failed properly to consider and apply the overriding objective and/or to consider the interests of the administration of justice as required by CPR PD 14 paragraph 7.2(g).

(2) The Judge failed properly to consider the prejudice that would be caused to J by allowing the admission to be withdrawn as required by CPR PD 14 paragraph 7.2(c).

(3) The Judge failed properly to consider the stage in the proceedings at which the application to withdraw was made as required by CPR PD 14 paragraph 7.2(e).

Decision
The Appeal Court made three preliminary points before addressing the grounds of appeal in turn and in reverse order:

(1) The appeal is in relation to a discretionary case management decision which an appellate court should be slow to interfere with;

(2) The judge directed herself entirely correctly on the law that informed her discretion; and

(3) The judgment at least reference and, on the face of it, took into account all of the points articulated by J in opposition of the application to withdraw the admission.

In relation to Ground 1 the Appeal Court found that the judge entirely failed to consider the importance of the other factors going to the interests of the administration of justice. Although the judge made abstract reference to the important of finality and the interest of the parties not to have matters reopened at late stages, the judge failed to consider the importance of this factor in the context of this case. Four points are stated in support of this conclusion - see paragraphs 30(4)(a)-(d) of the judgment.

In relation to Ground 2, whilst finding that parts of the lower court's conclusion were not open to challenge, the Appeal Court found that the judge's conclusion that 'any direct evidence here of any specifics whereby the passage of time has directly affected the evidential cogency of [J's] case if they need to investigate the matter afresh' was not sustainable. Whilst the material before the judge did not show any specific evidence of prejudice, the court should have asked herself why that was the case. The judge failed to appreciate that she was in no position to assess the prejudice to J of the admissions being withdrawn because the very withdrawal of those admissions transformed the ambit of the factual dispute between J and the local authority. Whilst appreciating that the judge might have said that the change wrought by the decision of the Supreme Court in CN rendered any factual inquiry by J redundant. The Judge was clearly of the view that, as the law now stands, no relevant duty was owed by the Local Authority to J, and it may be that this absence of a duty could not be made good by any investigation of the facts. However, the Judge did not approach the balancing exercise which informed her discretion in this way. Instead, she considered that she was able to conclude that there would be no prejudice to J because the facts could, if necessary, be investigated even at this late date.

The appeal was allowed and the order set aside. Permission to withdraw the admissions and amend the defence were refused. Judgment was entered with damages to be assessed against the local authority and in favour of J.

Summary by Emily Ward, Barrister and Deputy Head of Family at Broadway House

Read the full judgment of J v A South Wales Local Authority [2020] EWHC 2362 on BAILII