G (Children: Fair Hearing)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Mr Justice Moor |
| Judgment Date | 07 February 2019 |
| Neutral Citation | [2019] EWCA Civ 126 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2019 |
| Docket Number | Case No: B4/2019/0217 |
[2019] EWCA Civ 126
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT SHEFFIELD
Her Honour Judge Carr QC
SE19C000145
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
and
Mr Justice Moor
Case No: B4/2019/0217
Helen Compton (instructed by Sills & Betteridge LLP) for the Appellant Mother
Caroline Ford (instructed by Doncaster Metropolitan Borough Council) for the Respondent Local Authority
Ruth Richards (instructed by Malcolm C Foy & Co) for the Respondent Father (written submissions only)
Sarah Peart (Howells LLP) for the Respondent Children (written submissions only)
Hearing date: 7 February 2019
Approved Judgment
Introduction
This is an appeal by a mother from interim care orders made in respect of two young children on 24 January 2019, for which I granted permission on 30 January. The mother states that she was subject to improper judicial pressure at the hearing that led to the orders being made without opposition on her part.
The parents separated in 2017, with the children remaining with their mother. In 2018, the family came to the attention of the police and the local authority as a result of incidents in which both parents accused the other of assaults. The local authority assessed and took no further action.
The events that led to the proceedings arose from a dispute that erupted between the parents and their respective families after the father, for whatever reason, did not return the older child, M aged 4, to the mother at the end of a week's holiday abroad. The mother and others went to the father's home on 21 January at around 10 p.m., causing a fracas and taking M away. The police were called, the mother and other members of her family were arrested, and both children were taken into police protection at 3.45 a.m. and placed in foster care, where they remain. The police protection order was to remain in effect until 24 January.
On 22 January, the local authority held a strategy meeting. On 23 January, both parents consented to the children's accommodation under s.20, but later that day the mother withdrew her consent and on 24 January care proceedings were urgently issued and listed for an immediate interim hearing. The interim threshold statement referred to the incident on 21 January, the children having been taken into police protection, the reports of past violence between the parents, the father's lack of cooperation with previous assessments, alleged violence between the mother and her present partner, and a school referral to social services arising from M's poor attendance. The papers consisted of a statement from the social worker, who had no previous knowledge of the family, and the police protection authorisation record, which described the events of 21 January. There was inevitably no written evidence from the parents.
The hearing
The hearing was listed before Her Honour Judge Carr QC with a marking of ‘not before noon’. The mother had her first meeting with her counsel (C, year of call 2016) at court, accompanied by her solicitor.
The hearing began sometime after 14.00 and lasted for twelve minutes, excluding a break in the middle. It began with introductions by Ms Ford, counsel for the local authority, and continued in this way:
Ms F: Your Honour, these – this is an urgent interim care order application.
JUDGE: Yes, well I think I – I called it on at 20 to 1 when it was apparent that the parents were attending.
Ms F: Yes.
JUDGE: I stood it down till 2. At that stage, I confirmed I'd read the papers. I took the file with me and I've looked at it again.
Ms F: Right, so your Honour is aware of the up-to-date position. The children are placed together.
JUDGE: Ah, well I'm relieved about that.
Ms F: Yes, and that remains the local authority's plan if the court endorses the making of the interim care order. [The father] supports the local authority's application, [the mother] does not and she seeks to contest it. Perhaps if I could pass you to Mr [C].
JUDGE: Yes. Mr [C], what evidence do you what to hear?
Mr C: Certainly the – the social worker as a – is a starting-point, depending if the application is to be heard today or on a – on a different day.
JUDGE: Oh, it's got to be heard today. As you know, the PPO runs out.
Mr C: Well —-
JUDGE: —- and if it is heard today I shall certainly make findings that your client will be stuck with.
Mr C: Well, my instructions are to contest the —-
JUDGE: Well, quite, but does she realise the impact, that if she chooses to go ahead with this I shall be forced to make findings?
Mr C: Well, I can – I can make sure that's explained —-
JUDGE: Well, yes, you've had an hour and 15 minutes.
Mr C: —- again.
JUDGE: In fact, you've had an hour and a half. It's very important at the beginning and commencement of proceedings, that – where this application is bound to be supported by the Guardian – yes —-
Ms PEART: Your Honour, it is, yes.
JUDGE: I should ask, but it's bound to be supported by the Guardian. If I go ahead and make findings — which inevitably I will, because something happened at the house on the 21st of January – she is stuck with those, and it could impact on how the police look at it and everything. Potentially, the situation is – is very risky for her and I – I say that so that no-one's left in any doubt that if I hear the evidence, which I'm more than willing to do – my list is empty for this afternoon — I shall make findings and she'll be stuck with them.
Mr C: Well, in light of that indication, your Honour, I will probably have a further word.
JUDGE: Well, you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father, she undoubtedly retrieved, late at night, her daughter. It may well be that [he] kept the child when he shouldn't have done. but I don't know about that yet. It may be something I have to make a finding about – that – what caused her to act in this manner, but this is a case where, inevitably, I'm going to make findings, and it doesn't take rocket science to realise that if you grab a child in the – late at night when that child should have been in bed asleep — that that is significant harm. I don't think there's any question about it.
Mr C: Well, your Honour, mother's position would be that it was a – a choice between two difficult decisions that evening —-
JUDGE: Oh, nonsense.
Mr C: —- and that she had to take steps to safeguard the welfare of her daughter.
JUDGE: No, that's not the way that you go around it, Mr [C], If that is the preposterous proposition you're putting to me, it'll fall on deaf ears.
Ms F: Can I just say, your Honour, for the avoidance of doubt, [the social worker] only became involved in this – in this case, I think it was yesterday or the day before, so she's not going to be able to give evidence as to the facts of what happened on that night.
JUDGE: I'm just very concerned with this mother.
Ms F: It's the documents of — the PPO is really the essential document, and that shows that actually mother had made the complaint to the police the day before, so why it took her then almost 36 hours to decide to do what she did —-
JUDGE: Yes.
Ms F: —- is one of the questions that I would be putting.
JUDGE: Yes. Mr [C], I'm doing this to try and assist your client, not for any other reason, so it's up to her.
Mr C: Well, I do ask your Honour for the matter to be stood down so that I can take proper instructions rather than rushing the mother into a — into a decision on that.
JUDGE: Yes. Well, I must say, father's taken the only decision, in my view, that he should take, particularly now I know the girls are placed together. I would have had quite a lot to say if they weren't and it would have impacted on my decision, but father's taken the only standpoint – obviously I'm not making any findings against him because he's accepted the inevitable.
It's quarter-past now. I'm very willing to hear this but I want your client to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens. This is not the sort of situation that it seems to me, Mr [C], should be permitted to happen without some consequences.
MR [C]: Yes, your Honour.
JUDGE: Right, it's quarter-past now, I'll give you – no later than 25 past.
MR [C]: Thank you.
The court then adjourned for 13 minutes. When it reconvened, the transcript continues as follows:
JUDGE: Now, Mr [C], what's happened?
Mr C: I'm grateful for the time, your Honour. Having spoken to [the mother] about the – the potential implications of today further, [she] is going to consent to the interim care order —-
JUDGE: Well, I think she's very wise.
Mr C: —- today.
JUDGE CARR: I think she's very wise indeed. I don't like separating children from their parents, no – no judge does, but this has got to be looked at and see what on earth is happening.
Mr C: Yes, your Honour.
JUDGE: In that case I shall simply adopt the threshold as drafted, unless anybody wants amendments or what have you. It seems to me to reflect the situation.
Further discussions then took place about case management and contact. The care plan provided for each parent to have contact twice a week for 90 minutes.
The order records that neither parent actively opposed the making of the interim care orders. It provides for the parents to file statements and for the Guardian to file a position statement. A further case management hearing was listed before the judge on 8 February.
The appeal
No sooner had the hearing finished than the mother and her family became distressed at what had occurred, and on 29 January this appeal was lodged.
There are eleven wide-ranging grounds of appeal, but it seems to me that the nub of...
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Care and Supervision Proceedings
...in ways which are proportionate to the nature of the case. It is also worth noting the recent case of Re G (Children: Fair Hearing ) [2019] EWCA Civ 126, which emphasises the care that the court needs to take in ensuring that a party is not deprived of a meaningful opportunity to oppose the......