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England and Wales Court of Appeal (Civil Division) Decisions >>
S, Re (Children: Party Status) [2022] EWCA Civ 1717 (22 December 2022)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1717.html
Cite as:
[2023] 1 FLR 872,
[2023] 1 FCR 430,
[2022] EWCA Civ 1717
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IN THE COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LINCOLN
Recorder William Evans
LN22C50054
|
|
Royal Courts of Justice
Strand, London, WC2A 2LL |
|
|
22 December 2022 |
B e f o r e :
LORD JUSTICE MOYLAN
LORD JUSTICE PETER JACKSON
and
LADY JUSTICE NICOLA DAVIES
____________________
____________________
Helen Compton (instructed by
Sills
& Betteridge LLP) for Mr B
Kyle
Squire
(instructed by Lincolnshire County Council) for
the Respondent Local Authority
Davina Krishnan (instructed by Watsons
Solicitors)
for the Respondent Mother
Meryl Hughes (instructed by Bridge McFarland
Solicitors)
for the Respondent
Children
by their
Children's
Guardian
Hearing date : 20 December
2022
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
This judgment was handed down remotely at 10.30am on 22 December
2022
by circulation to the
parties
or their representatives by e-mail and by release to the National Archives.
.............................
Lord Justice Peter Jackson:
- The issue in this appeal is whether the refusal of an application by the Appellant, Mr B, to become a
party
to care proceedings was wrong. After argument on 20 December
2022,
we informed the
parties
that the appeal would be allowed: these are my reasons for joining in that decision.
Joining a
party
to care proceedings
- The Family Procedure Rules 2010 12.3 and 12.4 provide that the court may at any time direct that a person be made a
party
to care proceedings and may give consequential directions about the management of the proceedings. There is no guidance in the rules or in the
Children
Act 1989 as to how this power
should
be exercised, beyond the fact that the overriding objective applies, as it does to any case management decision.
- The most useful judicial guidance on the topic is Re B (A Child) [2012]
EWCA
Civ
737. Black LJ confirmed that the court
should
consider the factors contained in
section
10(9) of the
Children
Act:
"(9) Where the person applying for leave to make an application for a
section
8 order is not the child concerned, the court
shall,
in deciding whether or not to grant leave, have
particular
regard to—
(a) the nature of the proposed application for the
section
8 order;
(b) the applicant'
s
connection with the child;
(c) any risk there might be of that proposed application disrupting the child'
s
life to
such
an extent that he would be harmed by it; and
(d) where the child is being looked after by a local authority—
(i) the authority'
s
plans for the child'
s
future; and
(ii) the wishes and feelings of the child'
s
parents."
Black LJ noted that this provision highlights certain relevant factors but that it is not a test,
still
less an exhaustive one. The court has a broad discretion to conduct the case in the most appropriate way given the issues involved and the evidence available. It is for the judge to weigh the various factors and decide what the proper order is in the individual case, with this court being
slow
to interfere with decisions of this kind. One factor that
she
identified (para. 37) is the purpose that
party
status
would
serve:
"It is logical that a judge determining an application to become a
party
to proceedings
should
have an eye to what may follow joinder. To illustrate this with an obvious example, there would be no point in joining
someone
as a
party
if they would then inevitably be refused leave to bring an application in relation to the child and would have no other legitimate role in the proceedings."
This might be described as the court having regard to whether the aspiring
party
has an arguable case to make for
some
significant
remedy. However, the 'arguable case' test is not a
substitute
for a broad, practical assessment that ensures a fair and efficient determination of the issues in the case.
The background
- Mr B, who is in his 40s, met the Respondent mother, who is in her 20s,
shortly
after
she
arrived in England in 2014. They cohabited briefly and
separated.
Soon
afterward, the mother became pregnant with C, a boy who is now aged 5. Mr B is not C'
s
father. Mr B and the mother then began to live together again. He
supported
her during the pregnancy and was present at C'
s
birth. They all lived in Mr B'
s
home until 2020, when the mother obtained her own tenancy. Throughout this time Mr B was involved in C'
s
care and a close bond developed between them. More recently, C has been diagnosed with ASD, which places
particular
demands on his carers.
- In
September
2021, the mother gave birth to D, who is C'
s
half-brother. In early April
2022
her mental health deteriorated and
she
and the
children
moved in with Mr B. On 8 April
2022,
she
was detained under
section
3 of the Mental Health Act 1983. Before being taken to hospital with D
she
asked for C to be cared for by Mr B. On 22 April
2022,
D was placed in foster care. The mother remained in hospital until August.
- Mr B was then formally assessed by the local authority as a "connected person" under regulation 24 of the Care Planning Regulations 2010, which led to a positive assessment on 20 April
2022.
- The local authority issued care proceedings in respect of the
children
and on 22 April
2022
an interim care order was made on the basis of an interim care plan that C remained with Mr B. A direction was made for Mr B to be assessed as a
special
guardian.
- The two local authority reports described the
strength
of the relationship between C and Mr B.
Reg. 24 assessment (22 April
2022):
"Mr B has known C all his life. They
share
a close bond and a warm affectionate relationship as reported by different professionals."
"Mr B understands C'
s
additional needs and adjusts his parenting of him accordingly."
"Mr B has been a
significant
source
of
support
to C and his family over the years."
Special
guardianship assessment (15 August
2022):
"C presented as content in Mr B'
s
care and a positive relationship was observed. If C was unable to return to his mother'
s
care I expect he would wish to remain in Mr B'
s
care as this was familiar and predictable."
"Mr B has been observed to communicate well with C, offering lots of warmth and
support
to engage with workers during home visits. Mr B describes that he has been the only father figure to C for the duration of his life thus far, identifying himself as C'
s
'psychological' father…"
"Mr B also has a
sound
understanding of C'
s
additional and challenging needs, which he reports can include outbursts of anger,
struggling
to verbalise and comply with rules and boundaries."
- Despite these reports, C was taken into foster care on 4 August
2022
after a hearing of which Mr B was given no notice. The local authority considered that it had obtained further information during the
special
guardianship assessment that justified asking the court to amend C'
s
interim care plan
so
that he was placed in foster care,
separately
from D. The information consisted of an account from Mr B'
s
ex-wife, a
single
allegation of assault made by the mother on 22 June
2022,
information about Mr B'
s
criminal history from the PNC relating to 1996 and 2013/14, and information from his GP about his past mental health relating to 1997 and 2015. The
social
worker also opined that there was possible evidence of coercive and controlling behaviour by Mr B towards the mother. A
statement,
dated 1 August
2022
and redacted (apparently to protect the ex-wife), was placed before a Circuit Judge, who approved the change in the care plan. No provision was included in the order for Mr B to be heard, or even
served.
He was told that C would be removed into foster care from
school.
His contact was
set
at 90 minutes a month: the reports that we have
seen
are consistent with the positive accounts contained in the assessments.
- We are not concerned with an appeal from the order of 4 August
2022,
but it forms a
significant
moment in the
sequence
of events that led to the order that is under appeal and it is relevant to my assessment. We have
seen
nothing to
show
that A'
s
safety
and welfare required his immediate removal without Mr B being told that it was proposed, without him being given any explanation, and without the court giving him an opportunity to be heard before or after the event. To this day he has never been
served
with the
statement
that led to the removal. I need not consider whether or not he was entitled to the
specific
protection of advance notice under the protocol contained in Re DE [2014] EWFC 6; [2015] 1 FLR 1001, as endorsed by this court in Re
S
[2018]
EWCA
Civ
2512. It is
simply
a question of whether the process was fair.
- At all events, on 15 August
2022,
the local authority filed its
special
guardianship report and gave a heavily redacted version of it to Mr B. On 18 August
2022,
he made an application to be joined as a
party
to the care proceedings.
The decision under appeal
- Mr B'
s
application was considered at a CVP hearing before Recorder Evans on 30
September
2022
at which Mr B and the
parties
were represented. The recorder dismissed the application. His order included this recital:
"Giving judgment, the court refused Mr B'
s
application, identifying evidence that would inevitably cause any application made by him for leave to bring a
Section
8 order to fail and therefore confirming that there was no role for him to play in proceedings."
- In his clear and compact judgment, the recorder introduced the application and
summarised
the
parties'
submissions.
His reasoning appears in the following passage:
"11. In the alternative, it is
suggested,
on Mr B'
s
behalf, he could be made an intervenor for a
specific
purpose, that being to challenge the
special
guardianship assessment. The local authority does not
seek
any findings to be made against Mr B. The
situation
here is he was assessed. He was considered on a viability assessment as a potentially appropriate carer. He was assessed as a potential
special
guardian, and that assessment is negative.
12. In those circumstances, it would be very unusual, it
seems
to me, for the potential
special
guardian to be either made a
party
or an intervenor. The potential
special
guardian has the right, obviously, to contest what is
said
about him and file a
statement.
That can be done without being a
party,
without being an intervenor, and even without an order.
13. In the circumstances, it
seems
to me that there is no really good reason put forward for Mr B to be made a
party
to these proceedings, which does give rise to at least the possibility that there is an ulterior motive in doing
so.
The decision as to whether a person
should
be joined as a
party
to care proceedings, it is acknowledged, is governed by
section
10(9) of the
Children
Act, which deals with when a person applies for leave to make an application for a
section
8 order.
14. But it is common ground, there being no
such
application for leave before me or made in these proceedings, that the matters referred to in
section
10(9) apply to my consideration of this matter, and it
says
I
should
have
particular
regard to the nature of the proposed application for the
section
8 order, which, as I
say,
is not made; the connection with the child of the applicant; risk there might be of the proposed application disrupting the child'
s
life to
such
an extent that they would be harmed; and where the child is being looked after by a local authority, the authority'
s
plans for the child for the future; and the wishes and feelings of the child'
s
parents.
15. As to the last of those, the only parent involved at the moment is the mother who opposes the application. The authority'
s
plans are that Mr B
should
not, at least presently, be considered as a potential carer, and, as far as there is a connection with the child, his connection with C was put as
second
best to an actual parent.
16. I am also, on behalf of the local authority, referred to the case of Re B (paternal grandmother joinder as
party)
[2012]
EWCA
Civ
737 and Black LJ'
s
judgment therein, which makes it clear that there is a broad discretion to conduct care proceedings according to the issues and evidence, and I must ensure there is a fair determination of the claims of the
parties
and issues in the case, including family members' assessments, and although Mr B is not a family member I take that to include
someone
in Mr B'
s
position.
17. But, in
particular,
she
said
that one factor that I
should
take into account is whether the person
seeking
party
status
has an arguable position to advance in the proceedings and the local authority draw my attention to a
particular
passage in paragraph 37 when
she
said:
"It is logical that a judge determining an application to become a
party
to proceedings
should
have an eye to what may follow during them. To illustrate this with an obvious example, there would be no point in joining
someone
as a
party
if they would then inevitably be refused leave to bring an application in relation to the child and would have no other legitimate role in the proceedings."
18. As I have
said,
it is not necessary for Mr B to be a
party
or an intervenor for him to file a
statement
challenging the
special
guardianship assessment. He can do that
so
that
such
information as he wishes to put forward is before the court and with the local authority. There is no other legitimate role in these proceedings put forward by Mr B justifying his application. Considering the
special
guardianship assessment, and the evidence that is before me, I
share
the local authority and the guardian'
s
concerns about the concerns it raises, and it does
seem
to me to be evidence which would inevitably cause any application for leave by Mr B to make a
section
8 application to be refused.
19. In those circumstances, there is no role for him to play in these proceedings and his application to be joined as a
party
must be dismissed. I do acknowledge he has a right, as I have
said,
to challenge the
special
guardianship assessment and the appropriate way to do that would be either to apply for an independent assessment or to file a
statement
or both, but he can take those
steps
without any order, and it does not
seem
to me to be appropriate for me to make any
such
order."
The appeal
- Mr B
sought
permission to appeal, which I granted on 2 December
2022.
- For Mr B, Ms Compton, who did not appear below, made concise and effective
submissions.
She
made clear that Mr B has no intention of competing with the mother but wants to put his case before the Family Court in case
she
is unable to resume care of C. In that event, he would
seek
to be C'
s
carer, either as his
special
guardian or under a lives-with order; in any case, he would
seek
more contact. He was happy for his involvement in the proceedings to be limited
so
that he did not
see
the personal documents relating to the mother or
participate
in matters that did not concern him.
- The first ground of appeal is that the recorder failed to properly consider and assess the factors in
s.
10(9)
Children
Act 1989 and failed to assess whether Mr B had an arguable case. Ms Compton acknowledged that the recorder had correctly directed himself as to the legal assessment he had to make, but
she
argued that he had not
sufficiently
attended to the essential feature of Mr B'
s
importance to C. A decision that he had no role to play in the proceedings was perverse, and the
supposition
that he had an ulterior motive was unsustainable. Mr B'
s
case was not merely arguable but
strong.
The
safeguarding
issues were either disputed or of insufficient
significance
to lead to a different conclusion.
- The
second
ground of appeal is that the determination was unfair in that it gave Mr B no opportunity to challenge the reasons behind C'
s
removal or to put his case at any
stage.
Under this ground, it is also to be noted that in reaching this conclusion, the recorder had the advantage, which we do not
share,
of
seeing
the unredacted
special
guardianship report and, no doubt also the
statement
of the
social
worker that was before the court on 4 August. In para. 18, he refers to them as "evidence which would inevitably cause any application for leave by Mr B to make a
section
8 application to be refused". He did not engage with the fact that Mr B only had the redacted report, and there is no indication that his decision rested to any
significant
extent on the redacted material: had it done, he would have had to make that clear. On behalf of the local authority, Mr
Squire
accepted that what we have
seen
contains the essential information underpinning the recorder'
s
decision, and we proceed on that basis.
- The third ground of appeal is that the recorder was wrong to exclude Mr B when there was no basis in evidence for doing
so.
The only evidence was that filed by the local authority, Mr B not having had the opportunity to file a
statement
himself. In the circumstances, there was no
sound
basis for ruling him out,
still
less to have
suggested
that he might have an "ulterior motive" for wanting to
participate
in the proceedings.
- The last ground of appeal contends that the recorder placed too much weight on alternative options that were available to Mr B to put his case. There was no consideration of how he could file a
statement,
seek
another assessment or challenge the local authority'
s
assessment without being a
party.
Apart from the problem of a lack of
standing,
Ms Compton confirmed that Mr B would not be eligible for continued legal aid if the current order
stood.
- The respondents raised a number of arguments in opposition to the appeal:
(1) They were united in
submitting
that the recorder had been entitled to find that Mr B had no arguable case and that this was a discretionary decision that
should
not lightly be interfered with.
(2) Mr
Squire
submitted
that the
starting
point was to consider what Mr B wanted from the proceedings. He is
seeking
to be a
special
guardian but he had made the wrong application. Instead of asking for
party
status,
he
should
have applied for a
special
guardianship order. If he wanted contact he could make an application under
section
34. He would need leave, but if he obtained it he would be able to
participate
in the proceedings to an appropriate extent.
(3) For the mother, Ms Krishnan
stated
that her client is a vulnerable individual and that allowing Mr B to become a
party
would cause disruption to the proceedings and "open up a can of worms". In the
same
vein Ms Hughes, for the Guardian, urged that joining Mr B would increase the complexity of the proceedings and lengthen the final hearing.
(4) Ms Hughes observed that if the hearing in August
2022
had been approached differently, matters might not have reached the
stage
where Mr B needed to apply for
party
status.
However, it would be going too far to make him a
party
now. He
should
wait until the question of the mother'
s
ability to regain care of C had been decided and at that
stage
it might be appropriate for his claim to be considered.
(5) Nonetheless, Ms Krishnan and Ms Hughes noted that orders commonly contained a direction permitting anyone dissatisfied with a
special
guardianship assessment to attend a hearing to
seek
to challenge it, though none of the three orders
so
far made in these proceedings contains
such
a provision. They therefore proposed a "pragmatic approach" whereby Mr B would be (without becoming a
party)
(a) permitted to file a
statement
setting
out his challenge to the
special
guardianship assessment and making any contact proposals, (b) invited to attend the final hearing, and (c) allowed to give evidence and cross-examine the assessor.
- I would add that the issue of delay featured heavily in the respondents' written arguments (though it was not an issue before the recorder). However, that fell away by the time of the appeal hearing. We were told that the IRH, previously fixed for 3 January 2023, was to be deferred as there is agreement that work will be carried out with the mother for eight weeks to
support
her ability to care for the
children.
That will be followed by further assessment. Accordingly, and for good reason, the IRH will not take place for a number of months.
Determination
- In approaching the application made by Mr B, the court needed to consider the broad contours of these care proceedings. The best outcome, by unanimous consent, would be for the mother to be able to recover the care of both
children.
However, at the time of the recorder'
s
decision, there was no certainty about that. If it could not happen, the local authority would be likely to
seek
a placement order for D, but that option will not be available to C. The only alternative to foster care for him would be a placement with Mr B. In any event, the issue of contact was likely to arise. Against that backdrop, there are in my view two difficulties with the order under appeal.
- The first is that the recorder could not legitimately determine on the basis of the available information that any application made by Mr B would inevitably fail and that there was therefore no role for him to play in proceedings. The court'
s
task at that point was (to borrow a turn of phrase from Re W [2016]
EWCA
Civ
793 at para. 70) to decide whether his case was broadly 'a runner', not whether it was 'a winner'.
- In making that judgment, the
salient
features that
should
have led the court to grant the application were these:
(1) The importance for C of his relationship with Mr B,
particularly
in the light of his
special
needs.
(2) The lack of any
similarly
important adult relationship, apart from with his mother.
(3) The relatively moderate gravity of the unproven allegations made against Mr B.
(4) The requirements of natural justice in the peculiar circumstances of C'
s
removal from his approved interim carer.
(5) The benefit to the court in having all realistic options before it for C'
s
sake.
(6) The inability of Mr B to
participate
effectively without
party
status
in circumstances where all
parties
had dismissed his case.
(7) The need to avoid delay.
Seen
with the assistance of
s.
10(9), the recorder
should
have identified (a) that the nature of the proposed intervention was appropriate to the circumstances, whether or not it would ultimately be
successful,
(b) that the applicant had an unusually
strong
connection with the child for
someone
who is not a relative, and (c) that there was no
significant
risk of intervention harming the child. It is undoubtedly the case that Mr B is "
second
best to an actual parent" but that did not make his case unworthy of consideration. As to (d), the local authority'
s
plan had abruptly changed and its presentation could in certain respects be considered tendentious, while the mother had, at least ostensibly, also changed her position towards Mr B after years of reliance on him. Had the recorder considered these matters
squarely,
he would in my view have been bound to conclude that Mr B had an arguable case
sufficient
to
satisfy
the test for joinder.
- The
second
difficulty is that the options identified by the recorder do not
seem
consistent with his
substantive
decision. Having found that Mr B had no legitimate role to play in the proceedings, the recorder
stated
at paras. 18-19 that he had a right to challenge the assessment and that he could apply to file a
statement
or to obtain an independent assessment or both. However, he did not explain how that could happen or why his main conclusion would not inevitably be fatal to any
such
attempt. Further, if this was a meaningful right, the court
should
have addressed it there and then and given any necessary directions.
- It follows that I reject the respondents' various arguments. The argument that Mr B might have filed a different application leads nowhere, as he would immediately have come up against the
same
objections. The fact that an intervention would add complexity to C'
s
proceedings is unconvincing and any added complexity would in any case be no more than a reflection of his life
story.
The final hearing will only be lengthened by Mr B'
s
participation
if the court considers it
should.
The idea that there
should
be
sequential
rather than parallel planning is calculated to build in delay. The "pragmatic approach" is in reality
party
status
in all but name.
- For these reasons, we made an order in these terms:
1. The appeal is allowed.
2. The Appellant is joined as
party
to the care proceedings with case number LN22C50054 as the Fifth Respondent.
3. The matter
shall
be listed for a case management hearing (currently expected to be 3 January 2023) as directed by the Designated Family Judge for Lincoln.
4. Any Part 25 applications
shall
be made by 10:00 on 3 January 2023.
5. The matters to be considered at the case management hearing directed above
shall
include:
i. The extent of disclosure to the Fifth Respondent;
ii. The necessity for any continuing redactions;
iii. Case management in relation to any further assessment or assessments that may be necessary;
iv. The extent to which the Fifth Respondent
should
attend future hearings.
- In conclusion, I would add that the outcome of this appeal is
particular
to its facts. As the recorder observed, it will be unusual for a potential
special
guardian to become a
party
to proceedings. The features that justify it here are that the Appellant is a non-relative who has been a constant presence in the child'
s
life and was an approved carer from whom the child was removed without apparent due process. In addition, he does not benefit from the duties placed on a local authority under
s.
22C of the
Children
Act in relation to the placement of
children in care. This combination of features makes the case an unusual one and justifies our unusual order.
Lady Justice Nicola Davies:
- I agree.
Lord Justice Moylan:
- I also agree.
__________________
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