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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M-F (Children) [2014] EWCA Civ 991 (15 July 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/991.html Cite as: [2014] EWCA Civ 991, [2015] 1 WLR 909, [2015] WLR 909, [2014] WLR(D) 326 |
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COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL
FROM
THE
FAMILY
COURT
SITTING AT BRIGHTON
Her Honour Judge Probyn
![]() ![]() Strand, London, ![]() ![]() |
||
B e f
o r e :
FAMILY
DIVISION
LORD JUSTICE KITCHIN
and
LORD JUSTICE UNDERHILL
____________________
In the Matter of M-![]() ![]() ![]() |
____________________
Cook
QC and Ms Katie Phillips (instructed by local authority solicitor)
for
the local authority
Mr Jonathan C
L Bennett (instructed by
Fitzhugh
Gates)
for
the mother
Ms Anna McKenna (instructed by Lawson Lewis Blakers) for
the
child
M
Hearing date
: 16 June 2014
____________________
Sir James Munby, President of the Family
Division
:
"on the basis of the proposal advocated on behalf of M by hisChildren's
guardian to allow
for
two initial assessment sessions to assess the mother's
capacity
to engage in
work,
such assessment to be
carried
out by the
C
Unit, the
Court
being of the view that this evidence is necessary to
conclude
the
case
and to
do
justice to all the parties and their
competing
positions."
In relation to V, the case
was
listed
for
final
determination
on 12 March 2014.
"M needs adecision.
But it must be the right
decision.
[The mother] has embarked on a programme of
work
![]()
which
![]()
was
recommended by the
Court's
expert and is supported by the local authority.
What
![]()
was
the point in starting that
work
if the rug is to be pulled
from
under her at this stage given the significant
consequences
![]()
for
M? It is
disproportionate.
The Guardian says there is a gap in the evidence. The missing information
can
be provided
with
a relatively short time-
frame.
It is purposeful
delay."
"Sodespite
the imperative
demand
of section 32(1)(a)(ii), there
can
be exceptions. But before going
further
it is vital to recall the equally imperative language of sections 32(5) and 32(7). An extension beyond 26
weeks
is to be permitted only if it is "necessary to enable the
court
to resolve the proceedings justly". This is precisely the same language as appears in section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act, so it must mean the same. Specifically, the learning in Re TG and in In re H-L must, in my judgment, apply as much to section 32(5) of the 1989 Act as it
does
to section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act. Moreover, extensions are "not to be granted routinely" and require "specific justification.""
I emphasised the point (para 34):
"I repeat, because the point is so important, that in nocase
![]()
can
an extension beyond 26
weeks
be authorised unless it is "necessary" to enable the
court
to resolve the proceedings "justly". Only the imperative
demands
of justice –
fair
process – or of the
child's
![]()
welfare
![]()
will
suffice."
"Therewill,
as it seems to me, be three
different
![]()
forensic
![]()
contexts
in
which
an extension of the 26
week
time limit in accordance
with
section 32(5) may be "necessary":
i) Thefirst
is
where
the
case
![]()
can
be identified
from
the outset, or at least very early on, as one
which
it may not be possible to resolve justly
within
26
weeks.
Experience
will
no
doubt
identify the kind of
cases
that may
fall
![]()
within
this
category.
![]()
Four
examples
which
readily spring to mind (no
doubt
others
will
emerge) are (a) very heavy
cases
involving the most
complex
medical evidence
where
a separate
fact
![]()
finding
hearing is
directed
… (b)
FDAC
type
cases
(see
further
below), (
c)
![]()
cases
![]()
with
an international element
where
investigations or assessments have to be
carried
out abroad and (
d)
![]()
cases
![]()
where
the parent's
disabilities
require recourse to special assessments or measures …
ii) The second iswhere,
![]()
despite
appropriately robust and vigorous judicial
case
management, something unexpectedly emerges to
change
the nature of the proceedings too late in the
day
to enable the
case
to be
concluded
justly
within
26
weeks.
Examples
which
![]()
come
to mind are (a)
cases
proceeding on allegations of neglect or emotional harm
where
allegations of sexual abuse subsequently surface, (b)
cases
![]()
which
are unexpectedly '
derailed'
because of the
death,
serious illness or imprisonment of the proposed
carer,
and (
c)
![]()
cases
![]()
where
a realistic alternative
family
![]()
carer
emerges late in the
day.
![]()
iii) The third iswhere
litigation
failure
on the part of one or more of the parties makes it impossible to
complete
the
case
justly
within
26
weeks
…"
"Viewedfrom
a judicial perspective a vital
component
of the
FDAC
approach has to be a robust and realistic appraisal at the outset of
what
is possible
within
the
child's
timescale and an equally robust and realistic ongoing appraisal throughout of
whether
![]()
what
is needed is indeed being achieved (or not)
within
the
child's
timescale. These appraisals must be evidence based,
with
a solid
foundation,
not
driven
by sentiment or a hope that 'something may turn up'. Typically three questions
will
have to be addressed.
First,
is there some solid, evidence based, reason to believe that the parent is
committed
to making the necessary
changes?
If so, secondly, is there some solid, evidence based, reason to believe that the parent
will
be able to maintain that
commitment?
If so, thirdly, is there some solid, evidence based, reason to believe that the parent
will
be able to make the necessary
changes
![]()
within
the
child's
timescale?"
"The local authority opposes the application to adjourn. There are twofeatures
to their opposition. One, they say that, substantively, it is the
wrong
outcome
for
M but also, on a preliminary basis, they argue that I should not
decide
the application until I have heard the evidence …
Mwill
be told about the
care
plan and the local authority accept that he
will
need help to understand it. M absconded
from
his placement last
week
and
went
home to his mother. The local authority sought a recovery order last Thursday and mother
did
not oppose that order being made, and M returned to
foster
![]()
care.
The local authority point to this as evidence of howdisruptive
the litigation is
for
him and the need to bring proceedings to an end. They argue it is unfair to
determine
the application
without
my hearing the evidence. They rely on the psychologist, Ms. Gail Miller's
concern,
that
what
is seen in relation to the mother is something
called
"
disguised
![]()
compliance",
ie superficial
compliance,
rather than any meaningful engagement
with
the issues.
They point to thefact
that the mother's statement,
filed
today, seems to resile
from
the progress she is making, or she is
described
as making, by the [
C
Unit] programme
workers."
"Ultimately it is ofcourse
a matter
for
me to assess
whether
the adjournment proposed by the
children's
guardian is realistic, or
whether
it is simply postponing the
final
![]()
decision
![]()
without
any real justification. I rely on the recent authority of Re S, the judgment of the president, Sir James Munby: Re S (A
Child)
[2014] EWCC B44 (
Fam).
![]()
Whether,
it is necessary to adjourn
for
the purpose identified by the guardian and the impact upon M's
welfare.
The President identified three questions".
"In my judgment the significantfactors
are as
follows:
M is ten and a half years of age. He is an articulate
child
and has
consistently
expressed a very
clear
![]()
wish
to return home.
Further
![]()
delay,
in proceedings
which
have taken over a year to resolve, is inimical to his
welfare
and I accept he needs a
decision
as soon as possible, and as soon as it
can
be
done,
in a
fair
and proportionate
fashion.
M loves his mother and there is no issue that she loves herchildren.
V is at home on the basis of an agreed
care
plan and M
finds
it unfair that his sister is able to be at home and he
cannot.
M
will
suffer emotional harm if he
cannot
return home and that must be balanced against the risk of
continued
emotional harm, and potential physical harm identified in my judgment in September of 2013.
M is a black African Portuguese boy and the local authority'scare
plan is that he be placed on a long term basis
with
a
white
![]()
foster
![]()
carer,
![]()
who
![]()
does
not, as I understand it, speak Portuguese. M has absconded
from
the
foster
placement twice and there is a real risk that he may
well
![]()
do
so again.
The guardian isconcerned
about
what
sense M
will
be able to make of the
care
plan, particularly given his
desire
to return home.
Mother has engaged positivelywith
the [
C
Unit] programme to
date
and she is said to have
co-operated
![]()
fully
and
demonstrated
being open to
developing
a therapeutic relationship.
While
the assessment of the mother is positive they are unable to indicate at this stage
whether
the risk
can
be managed so that M
can
safely return home.
The guardian isclear
in her analysis that it is realistic to expect that
within
six
weeks
of the
work
![]()
commencing
![]()
with
the … programme – and I remind myself that there have already been two sessions – there should be some indication of the mother's
capacity
to
change.
The …
work
is important and necessary evidence in terms of the mother's
capacity
to safely parent M.
In my judgment the three questions identified by the President are answered in the affirmative. I accept the submission thatcross-examination
at this stage may be
counter-productive
and that, if it is right that the …
work
is a necessary piece of the jigsaw, there is no real purpose to hearing the evidence at this stage. I remind myself of Mrs Justice Pauffley's observation in Re NL, that: "Justice must never be sacrificed upon the altar of speed." I accept of
course
that that
can
hardly be said to be the
case
here, but in these
circumstances
I
do
![]()
find
![]()
delay
is purposeful. This is a
finely
balanced
decision
but I accept I
cannot
properly evaluate the
competing
![]()
factors
and M's overall
welfare
![]()
without
the evidence, or the
further
evidence
from
the … In the
circumstances,
albeit
delay
is inimical to M's
welfare,
this is, in my judgment, a potentially vital piece of the jigsaw.
I see no purpose inchallenging
the mother at this stage, particularly given that I am going to re-list this matter
within
a short period of time. Of
course,
my
decision
is informed not only by M and his mother's Article 8 rights, but also by the principle of
fairness
and access to justice, and the ability of the mother to
fairly
argue her
case
in the absence of this evidence. Equally,
for
the matters to be properly and
fairly
explored in the absence of this evidence."
"What
I meant by that [the reference to Re NL]
was
that the proceedings have taken some time to resolve but there are exceptional
circumstances
of this
case
as I set out. Not least of all M's age, understanding and
cultural
identity and
continued
separation
from
his
family
![]()
who
he
desperately
![]()
wants
to be back
with
and in the
face
of a
final
![]()
care
plan
for
long term separation in a placement
which,
![]()
with
the best
will
in the
world,
![]()
cannot
meet his
cultural
needs save to ensure support
for
his Portuguese inheritance through language lessons and
wider
![]()
cultural
assistance and his social identity."
She continued:
"Having heard the application on submissions in thefirst
instance, on the basis of the
factors
I identified, the
case
![]()
could
not be resolved justly in the absence of
further
information of the mother's progress
with
the
work
![]()
with
[the
C
Unit] and her
capacity
to
care
![]()
for
M.
In thosecircumstances
I
did
not accept … the LA submissions that hearing evidence
would
be of assistance and [some
words
seem to be missing]
would
be likely to
cause
the mother stress and anxiety and
would
in effect potentially
compound
the unfairness pointed to by the
Children's
Guardian on the mother's behalf, as she
would
be giving evidence in
what
is no
doubt
a
challenging
process of
doing
this
work
and
without
the advantage of being able to rely on and indeed refer to any up-to-
date
information as to her progress … having
decided
the need
for
additional evidence, I
consider
that an extension of time is necessary to justly resolve the
case.
It is implicit in my judgment that this is the
case
but it is right to raise that and I
do
![]()
find
that the additional evidence is necessary to resolve the application."
i) Thefirst
![]()
complaint
(ground 1) is that Judge Probyn
was
![]()
wrong
to
direct
an adjournment
without
![]()
first
hearing the evidence in the
case.
It is said that she
was
![]()
wrong
to accept (a) that the report
from
the
C
Unit
was
a vital piece of evidence, (b) that the mother
was
![]()
committed
to
change
that
could
be achieved in M's timescale and (
c)
the guardian's submission that
cross-examination
of the mother might undermine her therapeutic
work.
![]()
ii) The second
complaint
is that Judge Probyn
was
![]()
wrong
to adjourn the
case,
already in its 57th
week
and particularly
when
it had been adjourned three times already, (a) having regard (ground 2) to the harm that M
would
suffer by
further
![]()
delay
and his need
for
a
final
![]()
decision,
(b) having
failed
(ground 3) to answer
correctly
the three questions posed in Re S, (
c)
thus
failing
(ground 4) to
comply
![]()
with
the mandatory 26
week
time limit and
wrongly
![]()
finding
that an extension
was
necessary
which
![]()
would
inevitably take the
case
beyond the next eight
weeks,
thus breaching PD12A, and (
d)
in
circumstances
![]()
where
(ground 5) the
further
![]()
delay
![]()
was
not purposeful and
would
in any event be inadequate to
demonstrate
the necessary
changes
in the mother.
iii) The third
complaint
(ground 6) is that Judge Probyn
was
![]()
wrong
to adjourn the
case
to achieve a purpose, namely
further
assessment of the mother,
which
![]()
was
already provided
for
in the local authority's proposed
care
plan. To
continue
the proceedings in these
circumstances
![]()
was
to exercise an inappropriate supervisory role over the proper
functions
of the local authority in the exercise of its responsibilities and
duties
under the implementation of its
final
![]()
care
plan.
"6.4 If thecourt
agrees an extension is necessary, an initial extension to the time limit may be granted
for
up to eight
weeks
(or less if
directed)
in order to resolve the
case
justly (see section 32(8) of the 1989 Act). If more time is necessary, in order to resolve the proceedings justly, a
further
extension of up to eight
weeks
may be agreed by the
court.
There is no limit on the number of extensions that may be granted in a particular
case.
6.5 If thecourt
![]()
considers
that the timetable
for
the proceedings
will
require an extension beyond the next eight
week
period in order to resolve the proceedings justly, the
Case
Management Order should –
(1) state the reason(s)why
it is necessary to have a
further
extension;
(2)fix
the
date
of the next effective hearing (
which
might be in a period shorter than a
further
eight
weeks);
and
(3) indicatewhether
it is appropriate
for
the next application
for
an extension of the timetable to be
considered
on paper."
"It iscrucial
to note that the
family
![]()
court
![]()
will
be
faced
on many occasions
with
asserted markedly
changed
![]()
circumstances,
often poorly evidenced and very late in the
day,
necessarily exceeding the
child's
'timetable' in terms of
welfare
![]()
considerations.
In such
cases
there
can
be little prospect of
delaying
a
decision,
mostly inevitable in the light of the previous history of the
case.
However, there are
cases
![]()
where
![]()
delay
is 'purposeful'. Each
case
must be judged on its own
facts."
Lord Justice Kitchin :
Lord Justice Underhill :