F v Kent County Council
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Year | 1993 |
| Date | 1993 |
| Court | Family Division |
CAZALET, J
Care proceedings – procedure – advocates' submissions – court refusing to allow advocate for respondent to make any submissions at conclusion of evidence – fundamental error – decision and order fatally flawed and set aside.
Care proceedings – interim hearing – full evidence not adduced – value of submissions of parties.
Procedure – advocates' submissions – exceptional circumstances in which court need not hear an advocate.
The child, a girl now aged 14, had been a child of the family of the mother and father. The parents were divorced. The mother remarried and the child became a member of the family of the mother and the step-father from 1989. In May 1990 the child alleged that she had been sexually abused by the father and the father was convicted of indecently assaulting the child. As the father was no longer a member of the household and had no contact with the child, the local authority decided that no further action was necessary. In November 1991 the child alleged that she had been sexually abused by the step-father. The child was referred to a consultant psychiatrist and, when seen by her, the child retracted the allegation. The mother arranged for the child to see a psychotherapist. The local authority decided not to commence care proceedings at that stage. Over the period from January to August 1992 the child saw the psychotherapist at regular fortnightly sessions. In March 1992 the child reiterated to the psychotherapist her allegation of sexual abuse by the step-father but in April she retracted the allegation. On 10 August 1992, the child wrote a letter to a senior social worker renewing her allegations and stating that she had been put under pressure at home not to pursue her allegations. On 13, 18 and 19 August 1992 the child went to the social services office and told social workers that she had been sexually abused by the step-father, that she wished to live away from home, and that she had felt suicidal. As a result, on 19 August 1992 the local authority applied for, and were granted, an emergency protection order and commenced care proceedings. At a hearing on 28 August 1992, the local authority sought an interim care order on the grounds of the child's distressed condition and allegations. The mother opposed the application, giving evidence that the child had falsified the allegations. It was clear from the evidence that
there was a considerable difference between the mother and local authority as to a number of material issues. At the conclusion of the evidence, counsel for the mother sought to address the court both on fact and on law. The court refused to allow her to make any submissions and made an interim care order.
The mother appealed.
Held – allowing the appeal: (1) Under r 14 of the Magistrates' Courts Rules 1981 the mother, as respondent (or defendant) to the application, was entitled to address the court at the conclusion of the evidence. The right to address the court could be exercised, on her behalf, by the respondent's advocate. Rule 14 of the 1981 Rules was subject to the Family Proceedings Courts (Children Act 1989) Rules 1991. By r 21(2) of the 1991 Rules the court could give directions as to the order of speeches and evidence. The court's discretion to give such directions had to be exercised judicially. The circumstances in which the court would be justified in refusing to hear an advocate for a party would be extremely rare. Such circumstances might exist where an order was agreed or where the court was minded to find in favour of the party represented by the advocate seeking to address the court. Only in exceptional circumstances should a court decline to hear an advocate. The present case was not such an exceptional case and the magistrates were in error in not permitting counsel for the mother to address them. This was an error of such seriousness that it went to the root of their decision and order. As a result, the decision and order of the magistrates were fatally flawed and must be set aside. However, having regard to the facts and circumstances, it was not appropriate to remit the case for rehearing and the court would exercise its powers under s 94 of the Children Act 1989 and make an interim care order.
(2) At an interim hearing there will almost invariably be disputed facts which the court will not be in a position to resolve. The court is empowered by s 38(2) of the 1989 Act to make an interim care order only if there were reasonable grounds for believing that the circumstances existed in respect of the child as were set out in s 31(2) of the Act. The court must look at the evidence put before it and decide whether it was potentially credible evidence, and whether it gave the court reasonable grounds for believing that the threshold criteria in s 31(2) existed. In interim proceedings, submissions on behalf of the parties could be of particular assistance to the court as inevitably the court would not have heard the full evidence and would not be in a position to make findings of fact on undisputed issues. In the present case, although the magistrates did not deal specifically with the actual provisions of the threshold criteria in the way they formulated their reasons, it was apparent on the face of the reasons which they gave that they did purport to consider those threshold criteria.
Statutory provisions referred to:Children Act 1989, ss 1, 31, 38 and 94.
Family Proceedings Courts (Children Act 1989) Rules 1991, r 21(2).
Magistrates' Courts Rules 1992, rr 3 and 14.
RSC Ord 55 r 7(2).
Cases referred to:Croydon London Borough v A and Another[1992] 1 FCR 522; [1992] 3 WLR 267.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
AppealAppeal from West Malling family proceedings court.
On 19 August 1992 an emergency protection order was made in respect of a child. On 28 August 1992 the local authority applied for an interim care order. At the hearing the court heard the evidence of the local authority and the mother, but refused to allow counsel for the mother to make submissions at the conclusion of the evidence. The court made an interim care order for eight weeks.
In their written findings and reasons the magistrates stated: "Facts found: [the child] does not wish to return home at present; [the mother] accepts that [the child] is disturbed and needs help; allegations of sexual abuse made sustained and not retracted on this occasion; [the child] claims to have attempted to taking her own life; note [the child] went to social services of own accord; contact arrangements at [the mother's] own address appeared generally acceptable. Reasons for decision: 1. The independent assessment and psychiatric reports are best carried out away from the home environment, however caring this may be. 2. [The mother] stated in cross-examination that [the child] needs to go somewhere where she can get special help. 3. We feel that [the child] may risk suffering significant harm if she returns home at this time."
The mother appealed against the order. The notice of appeal stated the grounds of appeal in para (4) as follows: (i) the justices' clerk refused to allow the appellant mother's counsel to make submissions as to the law or as to the facts to the magistrates; (ii) the magistrates failed to take into account the child's welfare; (iii) the magistrates failed to take into account or have regard to the matters set out in s 1(3) of the Children Act 1989; (iv) the magistrates failed to have regard to the criteria set out in s 31(2)(b) of the Children Act namely that the significant harm or likelihood of harm is attributable to the care given to the child, or likely to be given to [her] if the order were not made, not being what it would be reasonable to expect a parent to give [her]; (v) the magistrates failed to take into account or take sufficient account of the following evidence, (a) that the child had made allegations on two occasions in the past and had subsequently retracted the allegations, (b) that the child had made allegations in the past which could not possibly be true namely that she had been raped at the age of 8 by an 8 year old boy, (c) that the child's psychotherapist was of the view in June 1992 that the professionals involved might never ascertain the truth or otherwise of the child's allegations, (d) that the mother was anxious to obtain psychiatric and therapeutic help for the child and that in the past the mother had actively sought out and obtained medical and psychiatric help for the child and had co-operated with the relevant professionals; (vi) the magistrates failed to take into account or to take sufficient account of the fact that the mother was willing to give the following undertakings, (a) not to leave the child on her own with [the step-father], (b) not to put pressure on the child to retract her allegations or to talk about the proceeding with the child; (vii) the magistrates were plainly...
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