H (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 18 October 2018 |
| Neutral Citation | [2018] EWFC 61 |
| Court | Family Court |
| Docket Number | Case number omitted |
| Date | 18 October 2018 |
[2018] EWFC 61
IN THE FAMILY COURT
Sitting at Newcastle
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby (SITTING AS A JUDGE OF THE HIGH COURT)
Case number omitted
Ms Lindsay Webster (instructed by the local authority) for the applicant local authority
Mr Dorian Day (instructed by Wollen Michelmore) for the mother
Mr Andrew Comaish (instructed by Edwards Hayes) for the father
Ms Charlotte Hall (of Hadaway & Hadaway Solicitors LLP) for the children's guardian
Hearing date: 12 July 2018
Judgment Approved
This judgment was delivered in open court
Sir James Munby (sitting as a Judge of the High Court):
In this care case, which came before me at Newcastle on 12 July 2018 pursuant to an order made by His Honour Judge Simon Wood on 19 June 2018, the mother's position statement, prepared on her behalf by Mr Dorian Day, began with these arresting words: “These proceedings are entering Week 109.”
What has been going on? Are there lessons to be learned?
Before proceeding further, it will be convenient to set out the relevant chronology. I can be brief. The proceedings relate to a boy, born in January 2014, and his younger sister, born in March 2016. She was discharged a week later. Five weeks later, on 30 April 2016, she was re-admitted to hospital in critical condition, having suffered life threatening injuries. Local authority and police involvement followed almost immediately. The day after his sister had been admitted to hospital, the boy was placed with his maternal grandparents. The following day the father was charged and remanded in custody; he was released on bail 18 days later. A week later, on 27 May 2016, the local authority began care proceedings in relation to both children. Two months later the girl was released from hospital and placed in foster care. On 22 November 2016, following a fact finding hearing lasting some days, Judge Wood gave judgment: he found that the injuries had been inflicted by the father in circumstances where there was no culpability of the part of the mother. Thereafter the ‘welfare’ stage of the care proceedings was delayed because of the ongoing criminal proceedings against both the father and the mother.
Notwithstanding Judge Wood's exoneration of the mother, the police and the CPS maintained their decision to prosecute her as well as the father. The trial in the Crown Court which had originally been listed for March 2017 was put back to 16 October 2017. On 27 October 2017 the jury was directed by the judge to enter a not guilty verdict against the mother. On 31 October 2017 the jury reached a verdict of not guilty in relation to the father.
The effect of the protracted criminal proceedings was not merely that the best part of a year had been lost since Judge Wood's fact finding judgment. There were three other consequences:
i) First, the mother's bail conditions seriously hindered the necessary process of assessing the mother's capacity to look after both children, one of whom, unhappily, has significant ongoing disabilities and extremely complex needs. I am told that, despite this, applications to vary her bail conditions were opposed by the prosecution and refused by the Crown Court.
ii) Secondly, the mother lost her accommodation.
iii) Thirdly, the entire process subjected both the mother and the wider family to very considerable stress.
It is unsurprising that Mr Day, on her behalf, goes on in his position statement to say that the delay has exasperated the mother, the social work team, the children's guardian and at times the court, and has also contributed to family tensions.
In terms of moving the care proceedings on, by the beginning of 2018 the emphasis was on finding suitable accommodation for the mother and the two children. Because of the need to find accommodation, in an area where accommodation is in short supply, that would meet, or could be adapted to meet, her daughter's special needs and, moreover, sufficiently close to the mother's support network and to the hospital responsible for her daughter's ongoing medical care, the search was never going to be easy. One property which had been identified turned out not to be suitable. Despite much endeavour on the part of the local authority, it was not until the last week in May 2018 that what turned out to be a suitable property was found. It was in that state of play that Judge Wood, who had earlier voiced his concerns at a directions hearing on 23 April 2018, at a further hearing on 19 June 2018 made the order to which I have already referred.
As I have said, the hearing before me which Judge Wood had directed was fixed for 12 July 2018. By the week commencing 2 July 2018 there was reason to believe that the property which had been identified in May would be both suitable (subject to certain work being done) and available for the mother and her children. On 10 July 2018, two days before the hearing, the mother was given the keys to the property.
In these circumstances, the primary purpose of the hearing before me had fallen away. Indeed, the parties were agreed that no directions were needed in relation to the accommodation issue. I directed that the final hearing of the care proceedings be listed before Judge Wood on 13 August 2018. My order recited that the local authority “wishes to do everything possible to support [the mother] in moving into her new home.” It was common ground that various works required to be done to the property, including the installation of a lift. My order went on to record the local authority's indication that the installation of the lift would take approximately four months, and my “hope … that the lift … could be installed by the next hearing.”
I made an order that the local authority was to serve, by 17 July 2018, “an action plan in a tabular format setting out explicitly the timeline for works to be carried out in order to allow the plan of rehabilitation to commence at mother's new property.” The action plan, dated 17 July 2018 and displaying an appropriate sense of urgency, spelt out with commendable precision, in tabular form under the headings “Objective/Task”, “Responsibility (name and job role)”, “Start Date” and “Completion Date”, a comprehensive list of all the works required to be done to the property, including but not limited to the installation of the lift, and of the furniture (some specialist) and equipment to be provided for the mother and the children.
To bring that part of the story to its conclusion, on 14 August 2018, Judge Wood made a supervision order, as proposed by the local authority and supported by both parents, thereby bringing the care proceedings finally to an end in week 116.
In a position statement and more particularly in a detailed and carefully argued skeleton argument circulated to the other advocates on the morning of an advocates' meeting on 9 July 2018, Mr Day raised a wider issue. Although by then it seemed that the accommodation issue was well on the way to being resolved, Mr Day indicated that he wished to retain the hearing before me for a rather different purpose, namely to “look at the wider ramifications of delay in proceedings in the family court” and, specifically, to address two questions:
i) What can the family court do to avoid delay which is engendered by concurrent criminal proceedings?
ii) What can the family court do when the delay to proceedings is engendered by the acts and omissions of other government departments or agencies?
Referring to the present case, he asserted that “Progress to permit a child to come home to a mother has been paralysed by the unnecessary and disproportionate delay and approach in the criminal proceedings”, compounded by the fact that there has been “very slow progress by the relevant housing authority to find a property for the mother that is suitable for [her daughter].” The delay here, he says, has thus been caused by factors external to the care proceedings.
In relation to his first question, Mr Day acknowledged the principle as stated by Lord Donaldson of Lymington MR in In re R (A Minor) (Wardship: Criminal Proceedings) [1991] Fam 56, 66:
“In the context of the conduct of criminal proceedings in court, the definition and enforcement of these duties have been entrusted by law exclusively to the court in which the proceedings are being conducted and it is not for the wardship court, whatever the theoretical scope of its jurisdiction, to use that jurisdiction to interfere with the performance by the criminal courts of their lawful duties. If it were thought that the criminal courts had insufficient discretion to enable them to balance the public interest in the welfare of child witnesses, whether or not wards of court, against the public interest in the achievement of justice between the state and the accused, the remedy lies not in the exercise of the wardship jurisdiction, which could only assist wards, but in the conferment of new and wider discretions upon the criminal courts.”
In the light of this and other authorities (most recently, my decision in Re A Ward of Court [2017] EWHC 1022 (Fam), [2017] 2 FLR 1515), he acknowledged that it is “constitutionally improper” for the wardship court to exercise its inherent jurisdiction so as to interfere with or undermine the criminal process or the criminal court. So, it would not, he said, be open to the family court to encroach on the activities of either the police or the criminal court in relation to the relaxation of bail conditions.
However, he contended that there would be no impropriety in requiring the officer in the case to attend the family court by way of witness summons “to answer to and explain the need for [bail] conditions in the light of the clear findings of the family court.” He added: “Subject to procedural safeguards, it should...
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