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P (Children) [2012] EWCA Civ 401

Appeal by parents against care and placement orders on the grounds of procedural unfairness. Appeal allowed.

The child subject to the appeal was A, born in April 2008. Lengthy care proceedings commenced in 2009. HHJ Pearl at the Principal Registry concluded at a 'determinative hearing' in June 2011 that A was not to be placed in his parents' care.

The court then directed an independent social work (ISW) report in respect of A's paternal aunt and uncle (Mr and Mrs B), who put themselves forward as possible carers for A. The ISW concluded that Mr and Mrs B could provide good care for A, but, because of the potential for upset caused by the dynamics within the wider family, she would not recommend a special guardianship order unless Mr and Mrs B could locate themselves in a distant part of the country, thereby avoiding the prospect of chance meetings with the parents or grandparents.

Mr and Mrs B subsequently had a meeting with the social worker, but were not shown the ISW report itself. It was their understanding that the matter was black and white and, as they were unable to move house until March 2013 due to the terms of an Individual Voluntary Agreement, they wrote to the local authority in October 2011 'withdrawing' their application to be A's carers. However in November 2011 they wrote another letter to the local authority expressing frustration at being ruled out and offering alternative means of avoiding contact with the wider family. On 25 November a senior social worker telephoned Mrs B and "informed her that he was in the process of discussing the letter with his legal department to form a response." No response was in fact provided by the local authority.

The matter came back before HHJ Pearl on 1 December 2011. Mr and Mrs B had been telephoned the day before the hearing by the local authority and encouraged to attend, but were not present as they had work commitments. Counsel for A's parents applied for an adjournment to clarify Mr and Mrs B's position. HHJ Pearl stated that "Time really has run on in this particular procedure and it must be the situation today that [A] can wait no longer for a final care order" and commented upon Mr and Mrs B's non-attendance and the fact that they had never intervened in proceedings. He went on to make care and placement orders.

The Court of Appeal (McFarlane LJ giving the lead judgment) allowed the parents' appeal on the basis that the procedure adopted by HHJ Pearl had been unfair in two respects. Firstly, it had never been spelt out to Mr and Mrs B, at a timely stage in the build up to the hearing, the need for them to engage with the court process, to attend, to make an application or to write in to indicate their position and they had not in fact been sent the ISW's report (paragraphs 19 and 20). Secondly HHJ Pearl had not addressed the adjournment application expressly in his judgment (paragraph 21). The Court of Appeal further directed that a fresh hearing be conducted by a different judge on the grounds that HHJ Pearl had commented in his judgment that he had "absolutely no doubt" that a placement order had been necessary.

McFarlane LJ stressed that his decision was not based on a "technical" ground but because the importance of the decision in the context of the child's life meant that it was "necessary for the process to be undertaken fairly and properly" (paragraph 22).

Summary by Thomas Dudley,  barrister, 1 Garden Court Family Law Chambers


Neutral Citation Number: [2012] EWCA Civ 401
Case No: B4/2012/0086


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 7th March 2012


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In the matter of P (Children)  

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(DAR Transcript of WordWave International Limited
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Mr Nicholas Baker (instructed by TG Baynes) appeared on behalf of the Appellant
The Respondent did not appear and was not represented

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(As Approved)
Crown Copyright ©

Lord Justice McFarlane:
1. This is an appeal that arises in the course of very long-running care proceedings in relation to a number of children, but the single child, who is the focus of the court's concern today, is A, and he was born on 21 April 2008 and so now fast approaching his fourth birthday.

2. His parents, Mr and Mrs P, also had, at the time the proceedings commenced, the care of four other older half siblings of A's, and indeed there are a further five grown-up offspring within the general family.

3. Proceedings were commenced in 2009 when A was about a year old.  There were, we understand, a range of concerns about how the five children were being cared for in the home of Mr and Mrs P, but so far as young A is concerned we have been told that there was evidence of a significant degree of failure to thrive.  He was admitted to hospital for a time and then thereafter placed with foster parents.  I stress that that was as long ago as 2009 when he was but a year old; some two if not three years have now gone by since those events. 

4. There was a lengthy fact-finding process undertaken by HHJ Pearl, sitting in the Principal Registry of the Family Division in June 2010.  As a result of the facts then found, it was decided that the children should be the subject of an extensive multi-disciplinary assessment undertaken by the team at Great Ormond Street hospital.  That process took something around 12 months to set up and accomplish and there was a determinative hearing to map out the long-term plan for the children, again conducted by HHJ Pearl, in June 2011.  The upshot of that process was that the four older children were to go back home with Mr and Mrs P but subject to an intensive course of therapy and support under interim supervision orders, and their case is to be reviewed later this spring by HHJ Pearl.  In relation to A the learned judge determined that he should not be part of that family group and that it was not in his interests to return to the care of his parents.  The plan for him therefore was to be placed elsewhere in the family, if that were possible, or to move to some long-term alternative placement and, given his age, the preference for alternative placement was likely to be adoption.

5. By that time A's maternal aunt, Mrs B, and her husband had indicated that they would be willing to provide a home for him.  A viability assessment was conducted by a social worker, Julie Gray, and her report, dated 15 May 2011, albeit obviously at a fairly superficial level because of its purpose was positive, concludes in these terms:

"My overall impression of [Mr and Mrs B] and their family is very positive – they have shown a good commitment to beginning the process, they have thought seriously with insight into what they would be taking on, they appear honest and open, and have a successful record in raising their own children."

6. A full assessment was therefore commissioned by an independent social worker, Janet Walker, and she produced a very detailed report on 10 December 2011.  Again, that report which is achieved after some four or five meetings with each of the parents, and meeting each of Mr and Mrs B and meeting others in the family, is very positive about the care that that couple could offer A.  The concern that Janet Walker expresses relates to the potential for other members of the natural family, in particular the maternal grandmother, who of course is Mrs B's mother, and the mother herself, Mrs P, together with other members of the family, to undermine the placement of A with Mr and Mrs B in a way which would not allow that placement to meet his needs.  So Janet Walker's conclusion was that, were that not a factor, she would recommend Mr and Mrs B as long term carers for A and recommend that they be the subject of a special guardianship order.  However, because of the potential for upset caused by the dynamics within the wider family, she recommended that, unless Mr and Mrs B could move house and locate themselves in a distant part of the country, thereby putting the prospect of daily or chance meetings with the family out of the reckoning, she would not recommend a special guardianship order.

7. Mr and Mrs B had a meeting with the social work team after Janet Walker's report was prepared.  The report was not copied and given to them; the social workers say that they explained and read parts of the report to them and the bottom line, which was that they would not be considered unless they were able to move house, was explained to them.  Unfortunately, because of their own financial circumstances, Mr and Mrs B are currently the subject of an Individual Voluntary Arrangement (an IVA) which requires them to remain in their current home until the end of March 2013.  After that it is assumed they would be free to sell and move and they have indicated that that would be their plan if they are charged with the care of A.  

8. Mr and Mrs B understood that the matter was in black and white terms, and if they could not move, which they had discovered through discussion with the IVA agency was not a prospect, they could not put themselves forward as A's carers, and they therefore wrote to the local authority in October formally "withdrawing" their application to be A's carers. 

9. Matters moved on in the sense that the parents' solicitors were in touch with Mr and Mrs B and, as a result of that communication, Mr and Mrs B wrote again to the social workers on 14 November.  It is a letter which this court has seen and it expresses disappointment and frustration at being ruled out on the basis of the housing situation and putting forward other options to protect A from unwanted communication with the natural family that fell short of actually moving house. 

10. Before HHJ Pearl who dealt with the matter when it came back to court on 1 December, there was limited information, which came only from the legal team representing Mr and Mrs P.  This court now has the benefit, having given leave for further evidence to be filed, of a statement from Mrs B explaining these matters and also a statement from the social worker, Dennis Howard, who has the conduct of the case.  It is plain from both of those two documents that at some stage, probably the 25 November, a senior social worker telephoned Mrs B in response to her letter of 14 November and, to quote from Mr Howard's statement:

"informed her that he was in the process of discussing the letter with his legal department to form a response."

Mrs B in the course of her statement says that she took away from that conversation that the local authority were still considering them as potential carers for A and that, to use the phrase she says was used, Mr and Mrs B were "still in the loop".

11. Whatever the factual circumstances it seems plain to me that Mr and Mrs B were given to understand that there was some process of further consideration of what she had said in her letter and that there would be, to quote from Mr Howard's document a "response".  None came.  The next and final stage in the process prior to the hearing was that in the middle of the afternoon on 30 November -- so that is the day before the hearing -- Mr and Mrs P's legal team telephoned Mrs B and encouraged them to attend court the next day.  Mr and Mrs B were unable to do that because of their work commitments.

12. Thus the day dawned for the hearing which is now the subject of the current appeal, the day being 1 December.  On that occasion Mr Nicholas Baker, counsel who represents Mr and Mrs P effectively and indeed in terms applied to adjourn the case so that the court could clarify the position of Mr and Mrs B  to see if they were intent on putting themselves forward as carers for A.  Alternatively Mr Baker anticipated that the court would conduct a balancing exercise hearing evidence to determine where A's best interests might lie.  The judge, having heard submissions from all the parties -- the local authority and the guardian being firmly against any adjournment and firmly in favour of the court making final orders -- gave a short judgment.  He concluded that time was a very significant factor in the case; the case had been before the court for a very substantial period of time and, to quote from the judge's judgment:

"Time really has run on in this particular procedure and it must be the situation today that [A] can wait no longer for a final care order."

13. He therefore made a final care order endorsing the local authority's plan for adoption.  He went on to consider in more detail the application to make A the subject of a placement for adoption order.  He referred to the conclusions in Janet Walker's report and then dealt with the fact that Mr and Mrs B were not in court, and he did so in these terms:

"Mr and Mrs B are not in Court today. They haven't intervened in these proceedings. I have read some correspondence from [Mrs B to a solicitor]. I have also read a short email from the solicitor dated 30 November to Mr Baker, who is acting as counsel for [Mr and Mrs P]."

14. The judge then read that email.  He went on in his judgment:

"I understand from Mr Baker that we have heard nothing more from [Mrs B].  She is not in court and neither is [Mr B] and I have to say that in those circumstances although I hear what Mr Baker has said I have no application in front of me, I have no written statement, I have no document at all from Mr and Mrs [B] to enable me to weigh in the balance what their situation is, what they are offering in the context of [A's] future and I must bear in mind the timescales in this case and the timeframe really is important."

15. He then referred to the process of adoption on the one hand and then, going back to Mr and Mrs B's situation, said this:

"On the other hand there are uncertainties, unknowns and no intervention by [Mr and Mrs B] to enable me to weigh their proposals against what the LA is saying.  I have absolutely no doubt whatsoever that the welfare of [A] demands a placement order which would enable him to be adopted and enable him to spend his minority in the security of an adoptive family."

He therefore made the placement for adoption order.

16. Mr Baker on behalf of the parents, Mr and Mrs P, whose consent to adoption the judge had dispensed with on the basis that A's welfare required that, seeks to appeal that determination.  He seeks for this court in allowing the appeal to set aside the care order and the placement for adoption order and direct that the matter be redetermined.

17. We have heard during the course of submissions, and indeed seen from the paperwork that we have read, quite a deal about the merits of the case. Inevitably, those are uppermost in the parties' minds and will need to be uppermost in any court's mind that has to determine A's future welfare needs.  I stress that anything I say, however, arises from my focus, which is entirely different; it is on the question of whether or not there was a fair process here that allowed the court to come to its determination.  Thus any view I take as to the appeal itself, and indeed the outcome of the appeal, in no way indicates any view I have as to whether or not Mr and Mrs B should be the carers of A or whether A should be the subject of a  placement for adoption order.  I cannot have a view about that; I have very little information about that, and those are entirely matters for the lower court. 

18. On the question of procedural fairness, however, I am concerned that the process adopted at the court on 1 December fell short of what was sufficient, not only to meet the interests of Mr and Mrs B, who of course were not parties to the process but were interested in it, but above all the need for A's welfare to be determined by a process which accorded to the requirements of a fair trial.  This was a watershed decision in A's life; it would be hard to underestimate the importance of it or the impact of it upon his future.  It was therefore necessary for a procedurally sound approach to be applied.

19. In my view the approach taken by the court fell short in two respects.  First of all, whilst the learned judge was factually entirely correct to list the negatives which related to the absence of Mr and Mrs B either before the court in person or before the court on paper making applications or seeking to intervene,  in order to place substantial weight on that absence in my view it was incumbent upon either the court or the local authority or the children's solicitor to have spelt out to Mr and Mrs B, at a timely stage in the build up to that hearing, the need for them to engage with the court process, to attend, to make an application, to write in or whatever that engagement might be, to indicate their position.  Nobody, it seems to me, from the side of the authorities had sought to do that.   It would have been entirely possible and indeed commonplace for the court at one of the earlier hearings to do what this court has done for the purpose of the appeal hearing today, which is to invite Mr and Mrs B to attend the next hearing of the case so that the judge could see eye to eye, as it were, with them and understand their position.  There were no doubt a  range of ways in which they could have been formally invited to join in, but that did not take place.  Further, in the light of the telephone conversation on 25 November to which I have made reference, Mr and Mrs B were, it seems to me, entitled to take the view that their case or their plea to have A placed in their care was still the subject of debate and consideration by the local authority.  The local authority never responded to them, as the social worker had indicated would be the case.  By the time they were told by the solicitors on the eve of the hearing that it was necessary for them to be in court they were unable to comply with that request.

20. So I consider that no proper process, or indeed no process at all, was undertaken to try and engage with Mr and Mrs B.  In addition and in passing but part of that same point, it is regrettable in my view that Mr and Mrs B, who had fully engaged in the work of Janet Walker's assessment, were not furnished with a copy of that document themselves.  For the purposes of this appeal the guardian, through her counsel, shares that concern.

21. The second of my two grounds for taking the view that the process adopted here fell short of what was necessary is that although the learned judge had before him Mr Baker's express application to adjourn the hearing so that Mr and Mrs B could be engaged, and that on the transcript is recorded at both page 7 and page 10, the learned judge does not refer to the application to adjourn in the course of his judgment.  Counsel for the local authority today, Mrs Lewis, submits that of course the judge anxiously balanced the issue as between adjourning or pressing ahead and granting the orders, but unfortunately nowhere does that balance surface in the words used by the learned judge in his judgment.  The issue before the judge on the adjournment was whether, for a comparatively short time, the court should put off making any final determination so that Mr and Mrs B could be brought into the process and a view could be taken as to whether it was justified to have a further hearing in relation to their application or not.  There was a need to balance that fairly short option, albeit with the potential for a hearing no doubt of two days some month or two later against the need to press on, crystallise matters and make final orders there and then, which of course is what the judge did.  In my view, despite having enormous respect, as I do for this extremely experienced judge, on this occasion the balance as between adjournment or pressing on, was not at the forefront of the judge's mind. 

22. I therefore would allow the appeal, and I do so not just on that dry technical ground but with the context of this decision very firmly in mind.  This was a draconian order made in relation to a young boy and it was necessary for the process to be undertaken fairly and properly.

23. The scale of the decision is such that a comparatively short adjournment in order to draw Mr and Mrs B into the process was in my view both necessary and proportionate.

24. I would therefore conclude that the process needs now to be repeated and repeated in a way that is fair and just and a way in which Mr and Mrs B and the family members, and of course all others, can see is fair and just.  I would, for my part in allowing the appeal, direct that the care order be set aside, be replaced by a further interim care order and that the placement for adoption order should be set aside.

25. The final and thorny question to consider is whether the case should go back to HHJ Pearl or to a different judge sitting at the same level in the Principal Registry.  There is much benefit in a judge who has been steeped in the detail of this case over the course of more than two years retaining the decision-making role in relation to A at this final stage.  Many authorities have stressed the need for judicial continuity. That said, I am struck by the very clear and forceful expression of opinion that the judge delivered on 1 December in saying that he had "absolutely no doubt" that A's welfare now demanded a placement order.

26. Looking at the matter as I have to, I conclude that a different judge, other than HHJ Pearl, should now take on the decision making in relation to A and that that process needs to be progressed now very swiftly.  It is apparent that the necessary material is available before the court.  I would therefore direct that the case be remitted for directions urgently to HHJ Altman, as the designated family judge for London, for him to identify a judge to take the case forward and for directions to be made for its swift conclusion.

Lady Justice Smith:
27. I agree both with the reasons given by my Lord and also the outcome that he proposes.

Lord Justice Ward:
28. I also agree.

Order:  Application remitted, appeal allowed.