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IN THE
COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH
COURT
FAMILY
DIVISION
(HIS HONOUR JUDGE TURNER QC)
|
|
Royal Courts of Justice Strand London, WC2A 2LL |
|
|
21 January 2014 |
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE McFARLANE
LORD JUSTICE VOS
____________________
____________________
(DAR Transcript of
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____________________
Mr Frank Feehan QC and Miss Francesca
Conn
(instructed by Moss &
Coleman)
appeared on behalf of the Appellant Father
Ms Ruth
Cabeza
(instructed by Moss Beachley Mullem and
Coleman)
appeared on behalf of the Appellant Mother
Ms Angela Burstow (instructed by the Local Authority) appeared on behalf of the
relevant
Local Authority
Ms Kelly Webb (instructed by Miles & Partners) appeared on behalf of the
Children's
Guardian
____________________
HTML VERSION OF JUDGMENT
____________________
Crown
Copyright
&
copy;
- LORD JUSTICE McFARLANE: This is a
case
in which the father of a young girl, born on 16 August 2012 and therefore now still aged only 17 months seeks permission to appeal. The first initial of her first name is A. The mother also, late in the day, has issued an application for permission to appeal. Both have been listed for
consideration
of the permission application with the appeal to follow if granted.
- In the event, there is
consensus
among all the parties, including the local authority, that the two appeals should be given permission and should be allowed, with the
result
that the
case
should be
remitted
for a first instance
rehearing.
It is, therefore, not necessary for me in the
course
of this judgment to
rehearse
all of the detail that sits behind the
circumstances
that I have just described. It is, however, I think,
common
ground between the parties in the
case
that it would be useful for this
court
to identify the particular difficulties that have arisen in this
case
and offer at least some guidance as to how those matters might be dealt with in similar
cases
in the future.
- The difficulties to which I
refer
arise separately from the individual abilities and disabilities of these two parents. The mother is a young woman of 22 years of age who is of Turkish
Cypriot
origin. She is said to have a low level of
cognitive
functioning and she also has a degree of speech and hearing impediment, although she
can
hear and speak in English without the need of an interpreter. The father, a 35-year-old man who originates from the Angolan Portuguese
community
but
came
to this
country
from Portugal when he was seven, is profoundly deaf. He
communicates
by using British Sign Language.
- A was born to this
couple,
and immediately the
caring
professionals, particularly at the hospital, identified deficits in the
couple's
ability to provide ordinary day-to-day
care
for A. On 22 August 2012 when A was only six days old, by social workers
communicating
as best they were able to do, the parents ostensibly gave
consent
under section 20 of the
Children
Act 1989 for A to be accommodated by the local authority in foster
care.
- It is of note that no professional interpreter was present at the meeting at which both these parents gave their
consent
under section 20, and the local authority used the only available
resource,
namely the mother, who herself, as I have indicated, has learning disabilities, to
communicate
to the father just what was involved in giving
consent
under section 20. Be that as it may, A was accommodated under that arrangement for about two weeks before the parents withdrew their
consent.
That withdrawal triggered the local authority applying to the
court
for a
care
order. An interim
care
order was granted on 7 September and A has been looked after away from her parents'
care
since then for much of that time in local authority foster
care.
- The proceedings were undertaken in the Principal
Registry
of the Family Division, and in their latter and more important stages they were
conducted
by His Honour Judge Turner QC. At an issues
resolution
hearing on 18 April 2013, amongst other steps that were accomplished, a document was drawn up
recording
concessions
by each of the two parents as to the threshold
criteria
under
CA
1989, s 31 in the
case.
Complaint
is made on behalf of the father that that
concession
was achieved under pressure from the
court
for something to be put down in writing acknowledging that the section 31 threshold was established in this
case;
limited time was given for that process over the lunch adjournment, and the father was not assisted sufficiently by the timescale and the level of interpretation available to understand the process and give any informed
consent
to the schedule that was drawn up.
- The final hearing was undertaken over the
course
of I think five days or more before Judge Turner in early June. He delivered himself of a full and
reasoned
judgment on 3 June. At the
conclusion
of the judgment, he made the watershed
conclusion
that it was not in A's best interests to be brought up by either of her parents, either in
combination
or individually, and, there being no other family
resource
available, the only
course
open for her future
care
was for her to move through the
care
system and on towards adoption. He therefore made a full
care
order, dispensed with the parents'
consent
to adoption and made a placement for adoption order. It is against those orders that the two parents now seek to appeal.
- Within the
court
process, steps had been taken to provide the
court
with expert opinion upon the impact of the father's profound deafness, both on his ability to
care
for A and work in partnership with the professionals who might give him advice, but also on his ability to
communicate
what he wanted to say and involve himself in the proceedings. In particular, a psychologist who was herself deaf was instructed, Dr O'Rourke, and a deaf social worker professional. Both of those in the
course
of detailed
reports
expressed profound
concern
as to the provision of interpretation support to the father in the lead-up to the proceedings and the early stages of the proceedings.
- By the time the
case
came
on for its final pre-trial hearing before Judge Turner on 2 May, a need for a further parenting assessment of both parents had been identified. The local authority offered what might be
called
an ordinary parenting assessment undertaken by a social worker from the local authority team, assisted by a sign language interpreter for the father, and because no other
resource
was available and because the final hearing had been fixed to start effectively four weeks later, the
court
sanctioned that process. Significant
criticism
was voiced by Dr O'Rourke in particular, and also the independent social worker, of this local authority parenting assessment,
conducted
(as they advised it had been) without any adequate provision to accommodate the father's disability and therefore
communicate
in any meaningful way his
response
to the assessment process.
- The threshold
criteria,
as the judge indicated in the
course
of his
contribution
to the evidence in the
case,
was passed on a modest basis. In the end, the two factual matters against the father that were
recorded
there did not form part of the judge's
reasons
for deciding that the father in particular
could
not provide a
caring
role for A in the future. The judge's
conclusions
about the father were based primarily upon his lack of insight into the incapacity that the mother presented because of her disability to be an effective
carer
for A, and the father's seeming lack of
commitment
at times to prioritise A's needs over his known, not to "step up", as the phrase was used, to intervene to take over the
care
of A at times, and the father's decision to
reduce
the number of
contact
sessions that he attended with A when he wished to prioritise his desire to obtain employment.
- It should be said, as part of the list of the attributes of these parents, that in addition to the disabilities that I have mentioned, the father particularly is noted to be a man of significant intelligence to degree level and who, as a matter of intelligence, is not at all at any disadvantage in these proceedings. It is also the
case
that all of the professionals that I have seen
recorded
on paper, and particularly the judge, speak of the parents in positive terms in terms of their gentle and appropriate presentation to the
court.
This was not a
case
where all the issues pointed one way.
- The appeal mounted by the father was issued some six weeks after the judge's decision, yet here we are, some seven months after the judge gave his judgment, hearing the appeal which in the event has been
resolved
by
consent.
This period of some 30 weeks to determine an appeal at a time when
cases
at first instance now must, unless there are exceptional
reasons,
be undertaken from start to finish within 26 weeks, is untenable. It is not necessary or helpful for me to descend into detail in describing quite how it is that we are where we are in the timetable. Part of the
reason
for the delay was delay in extending public funding for the father to mount his appeal. Part of the
reason
is that I
refused
permission to appeal on paper. That permission decision was
revisited
by Ryder LJ in October and he granted permission to appeal.
- In doing so, Ryder LJ focussed on the particular element of the father's profound deafness, and, with his experience of other
cases,
Ryder LJ
considered
that the father's application to the judge, which had been
refused
at the final hearing, for permission to instruct a further expert, a Dr
Cornes,
should have been granted. Ryder LJ at that interlocutory permission to appeal hearing, whilst not granting permission to appeal, nevertheless gave permission for Dr
Cornes
to provide a
report.
I, and I think my Lords, are very grateful to Dr
Cornes
for undertaking that task within a tight timetable and producing a
comprehensive
report
which has
changed
the
climate
of the
case.
The local authority now see what is said about the father in the light of advice from an expert who, whilst not deaf himself, has had a lifetime of experience in matters of
communication
between deaf people, the fact that that expert identifies substantial detriments in the process undertaken by the local authority and by the
court
has led to the state of agreement that exists between the parties
resulting
in the
consensus
that the appeal should be allowed.
- In the mother's
case
there is also
consensus,
but on a different basis. The perspective that
required
prominence in evaluating her
case
and her
response
to the proceedings, namely her learning disability
compounded
with her hearing disability, had not been adequately provided for before the
County
Court,
and that therefore there is, as with the father, a need to
revisit
the mother's potential with a targeted and suitable expert assessment. There is agreement, as I understand it, that two named individuals
recommended
by Dr
Cornes
should be instructed to undertake work with both of the parents.
- So the outcome of the appeal, again by agreement, is that the
case
will be
remitted
for a
complete
rehearing
before a different judge. Enquiries are to be made as to what level of judge is most likely to be available to take the
case
on in a prompt timescale, because the only thing that is absolutely
clear
in this
case
is that young A has waited for the professionals, the adults and the judges to decide where her future should be and she has waited for that decision since August 2012.
- I need say no more than what I have said to determine the appeal, but I will accede to the
request
made, I think by all
counsel,
to offer some guidance as to some lessons that might be learnt from this
case.
What I will say now is not at all intended to be
comprehensive
guidance, because my Lords and I have not engaged in the nitty-gritty of this
case,
and I would not profess to have extensive experience of these
cases
from other proceedings in other
contexts,
but it does seem to me that some guidance is helpful.
- In preparing what I might offer by way of guidance I am assisted to a large extent by the judgment given by Baker J in Wiltshire
Council
v N and Ors [2013] EWHC 3502 (Fam), handed down on 1 July 2013. That
case
concerned
an individual with very significant learning disabilities, but what Baker J says from paragraph 74 onwards to the end of that judgment
can
be adapted to the
circumstances
of this
case.
- Before descending into detail, I would make this observation. It is
crucial
for professionals and those involved in the
court
system, in particular judges, to understand one profound difference between the ordinary need in
cases
where parties to the proceedings may speak a different language for there to be "translation", and the need for a different
character
of professional intervention in these
cases.
This need is not solely or even largely one of "translation" as would be the
case
in the straightforward translation of one verbal language to another; the exercise is one of "interpretation" rather than translation.
Communication
between a profoundly deaf individual and professionals for the purpose of assessment and
court
proceedings involves a sophisticated, and to a degree bespoke, understanding of both the process of such
communication
and the level and
character
of the deaf person's
comprehension
of the issues which those in the hearing population simply take as
commonplace.
For a profoundly deaf person, the "
commonplace"
may not be
readily
understood or accessible simply because of their inability to be exposed to ordinary
communication
in the
course
of their everyday life. What is
required
is expert and insightful analysis and support from a suitably qualified professional, and the advice this
court
has in the
reports
we have, a suitably qualified professional who is themselves deaf, at the very earliest stage.
- Descending to some detail, it is no doubt the general understanding of those in the general population that sign language is simply sign language. But it has been made
clear
to us in the papers before this
court
that there are differences between British Sign Language, which is, as I understand it, an ordinary form of
communication,
and English Supported Sign Language, which is a different and far more structured, in grammatical terms, process. Different people from the population who have a hearing disability will use one or both or neither; they may have their own individual way of
communication.
- A second matter which has become plain to me, which was not something that I had understood previously, is the opportunity to use what is
called
Deaf
Relay
Interpretation. That is not to describe the ordinary
course
of events where the onerous task of interpreting these matters in
court
proceedings is taken on by a team of two or three professionals who take it in turns to pass the baton, as it were, of interpretation in 20-minute periods one from the other. Deaf
Relay
Interpretation is an entirely different process. A
relay
interpreter is a deaf person who acts as an "intermediary" between the qualified sign language interpreter and the deaf person. The purpose is for the Deaf
Relay
Interpreter to provide a specialist service and approach the
communication
with the deaf person from a deaf perspective, breaking down issues and providing, what one
report
we have
read
refers
to as, "
cultural
brokerage".
- The family
courts
are now more familiar in
recent
times with the
concept
of "an intermediary" being involved in
cases
where an individual may have learning disabilities. What is described here by Deaf
Relay
Interpretation seems to me very much the same form of intervention. In her
report,
Dr O'Rourke stresses the value of this process and I propose to quote briefly from three passages in her
report.
She says this:
"In my view, any work undertaken with [the father] is unlikely to succeed unless Deaf professionals are involved. To
clarify
this; the provision of interpreters alone is not sufficient."
Then later:
"The use of a Deaf
Relay
Interpreter for formal
court
proceedings is
recommended.
This is an individual who works with the interpreter but
can
adapt the
communication
more flexibly to meet the needs of the Deaf person."
- Later, in her second shorter
report,
Dr O'Rourke adds this:
"Interpretation is not merely a matter of word-for-sign equivalence;
cultural
brokerage is
required
which is far more effective if the hearing professional has some knowledge and experience of the Deaf
community."
- Having explained those particular matters, which, it seems to me if there is a
case
involving an individual who has these unfortunate disabilities must be
considered
in every
case,
and looking at the guidance that Baker J offered from paragraph 74 onwards, I would adapt that guidance in these terms:
(1) 24. First of all, it is the duty of those who are acting for a parent who has a hearing disability to identify that as a feature of the
case
at the earliest opportunity.
(2) 25. Both those acting for such a party and the local authority should make the issue known to the
court
at the time that the proceedings are issued. Baker J says this:
"The new PLO envisages that in those
circumstances
the
court
should give directions for special measures at the
case
management hearing to take place by day 12 of the proceedings."
That should apply in this
case
just as it does to the
cases
which are the target of Baker J's guidance.
(3) 26. It should, in my view on the basis of the information this
court
has, be a matter of
course
for the provision of expert advice on the impact of the deaf person's disability in the particular
circumstances
of the
case
to be fully addressed at the
case
management hearing. An application for expert involvement for the purpose, if nothing else to advise the
court
and the professionals how they should approach the individual, should be the subject of a properly
constituted
application for leave to instruct the expert under Part 25 of the Family Procedure Rules 2010. Baker J says this, and I endorse his words in our present
context:
"In addition, the legal
representatives
should normally by the date of the
case
management hearing identify an agency to assist their
client
to give evidence through an intermediary or otherwise if the
court
concludes
that such measures are
required."
I adopt those with necessary
change
of language to
refer
to Deaf
Relay
Interpreter.
(4) 27. The issue of funding needs to be
- grappled with at the earliest stage before the
case
management hearing and during the
case
management hearing. The difficulties in funding the sort of intervention that I have described to assist a deaf person, which are even more
complicated
than those facing someone who has a language imbalance with the language of the
court
or who has learning disabilities. The provision of assistance for a deaf person will
come
from three publicly funded sources: first of all the Legal Aid Agency will be
responsible
for funding interpretation to assist the taking of instructions and other legally-based occasions that
require
interpretation. But, they do not
cover
the provision of interpreters in the
court;
that is the role of the
Court
Service, HMCTS. Thirdly, the local authority are likely to be
responsible
for providing the appropriate interpreter during meetings between social workers and a parent and in the
course
of any assessment work that is undertaken. All three of those bodies need to be appraised of the particular needs of the particular party at the earliest opportunity, partly as a matter of good practice but also partly because the
cost
of the sort of intervention that I have described is likely to be higher than simply providing someone to translate the language of one party to another, and so approval for funding at the higher level is likely to be
required,
certainly
by the Legal Aid Agency and the
Court
Service. The sooner the application is made and more generally, the more
readily
those agencies understand that these
cases
are different from simply providing a translator and they may need a higher level of funding to be approved, the better. Going back to Baker J's guidance, he stresses that the importance of addressing the funding issues at the earliest opportunity
cannot
be underestimated.
- Finally, it may be helpful to simply list the occasions in these proceedings at first instance where the guidance that I have described has not been followed and where the parties, particularly the father, have been at a disadvantage, but even more importantly A was at a disadvantage because the judge was at a disadvantage in understanding the issues in the
case
as he may have done if the appropriate interpretation and assessment had been provided. The first is this, and I have mentioned it already: there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the
Children
Act. To
rely
upon the mother who, even if she did not have the unfortunate
cognitive
disability she has, to interpret
complicated
matters such as section 20 of the
Children
Act and the authority being given to the local authority to the father was to put an undue burden on her. Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that
crucial
meeting.
- Secondly, I think it is accepted that at many of the early meetings with the parents, the local authority did not provide any interpreter for the father other than the mother.
- Thirdly, although the
court
had the very
clear
reports
from Dr O'Rourke and the deaf independent social worker, the submission made by Mr Feehan QC, which, without having heard argument about it I accept, is that those materials were not fully understood and were not given sufficient weight and importance. Had those been available at the very beginning of the
case,
as the guidance I have just offered suggests they should have been, the whole shape and structure of the
case
and the level of professional intervention should have been different and should have accorded with the unchallenged advice, in particular of Dr O'Rourke.
- Fourthly, a feature of the
case
which is not uncommon in some
care
proceedings, particularly where there is no single significant assault or event
relied
upon, is that the local authority was not able to be precise about the factual allegations they
relied
upon in proving the threshold
criteria.
That too, as I would understand it, impeded the father's ability to understand what was going on and what he was being
required
to accept or needed to
challenge.
- Fifthly, the Legal Aid Agency, apparently for some significant time,
refused
to allow funding at a level above what would ordinarily be paid to language translators, and it took time to obtain necessary authority for that. Similarly, there were difficulties that I have heard of in this
case
in achieving funding from the
Court
Service.
- Sixthly, from the experience in the present
case,
it would seem that further training, which alerts the judges who undertake these
cases
to the particular need for an intermediary, a Deaf
Relay
Interpreter, is necessary to avoid other judges in the future unwittingly being drawn into a process which later, as this process has been, is found to be a process which has failed to meet the disability needs of the parties and failed to produce an effective evaluation of the parents' potential to look after their
child.
- Finally in terms of the list of particular matters in this
case,
there was an unrealistic timescale afforded to the assessment process. It will be all too easy for
courts
now to be driven by the 26-week deadline by which
care
cases
should be
concluded,
but if there are particular aspects of the
case
that indicate that the timescale for assessment simply
cannot
provide an effective and meaningful process because of the disabilities of one or more of the individuals involved, that would seem to me to be a
reason
for extending the timetable for the
case
by a modest degree, rather than squeezing the assessment in and taking whatever assessment is available within that timescale. The
result
of that option being
chosen
by the
court
in the final directions hearing has been that the appeal now, all these months later, is being allowed by
consent.
- Finally, in drawing these matters together, all that I have said is not simply good practice in order to achieve a more informed and focused
result
for a
child.
The
court
as an organ of the state, the local authority and
CAFCASS
must all function now within the terms of the Equality Act 2010. It is simply not an option to fail to afford the right level of
regard
to an individual who has these unfortunate disabilities.
- Having said all of that, I think it is
common
ground that the appeal of the mother and the father should be allowed; the placement for adoption order should be set aside; the full
care
order should be set aside, but
replaced
with an interim
care
order, which will be
reviewed
by the first instance
court.
Steps will now be taken by the parties to agree basic directions and we will make further enquiries to see what is the optimum level of judge and, if possible, the identity of the judge who is now to take on the task of
reconsidering
this
case.
- LORD JUSTICE VOS: I agree.
- LORD JUSTICE RIMER: I also agree
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