HB v PB
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cobb |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] EWHC 1956 (Fam) |
| Docket Number | Case No: CR12P00609 |
| Court | Family Division |
| Date | 09 July 2013 |
and
and
[2013] EWHC 1956 (Fam)
The Honourable Mr Justice Cobb
Case No: CR12P00609
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Jarmain (instructed by Atkins Hope) for the Father (PB)
Annmarie Harris (instructed by Amphlett Lissimore) for the Mother (MB)
Michael Bailey (instructed by Irvine Thanvi Natas, Solicitors) for the child by his guardian
Mark Calway (instructed by the Local Authority Solicitor) for the London Borough of Croydon
This judgment is being handed down in private on 9 th July 2013 It consists of 17 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
The issue
At the conclusion of a four day fact-finding hearing in private law Children Act 1989 proceedings, I have been invited to make a costs order against a non-party; that non-party is a Local Authority, the London Borough of Croydon, which had been directed by the Court to prepare a report in the proceedings pursuant to section 37 of the Children Act 1989.
The application is made by the father, privately instructing his legal team; the claim arises as a result of a wasted earlier listed fact-finding/final hearing. The mother (publicly funded) has chosen not to make a similar application.
Although the sum claimed is relatively modest by the standards of some High Court family litigation (£10,311), the point of principle engaged is important.
Background
I outline for these purposes only such background information as is relevant to the determination of this issue of costs. My review of the full history of this case thus far has been rehearsed in a separate judgment.
OB was born on the 31 st July 2007 and is therefore nearly 6 years old. He is the only child born to the relationship of the mother (hereafter "the mother"), and the father ("the father"); the mother has two other children: one older, one younger. The parents met in 2006 and cohabited for a period of time; they finally separated in or about February 2012 when the father moved out of the mother's home. In March 2012, the father did not return OB to the mother after an agreed contact visit; this perhaps inevitably provoked court process. The mother made a 'without notice' application on 20 March 2012 before DJ Parker at the Croydon County Court and obtained a specific issue order to secure OB's return. She further sought a section 8 residence order.
The father cross-applied for section 8 orders, and on the return date of the mother's 'without notice' application, he was directed by the court to set out the essence of his case, in summary, in writing. In doing so, he raised a number of serious allegations about the behaviours of the mother which, he said, were relevant to the determination of the issues of residence and contact. I summarise the principal contentions (the list of specific findings was much longer) as follows:
i) Over a number of years, the mother had falsely led the father (and the paternal family) to believe that she was suffering from cancer of the womb, vagina and brain, and had tumours behind her eye and neck, and that (by early 2012) she only had a number of months to live;
ii) From early in OB's life, the mother had falsely led the father (and the paternal family) to believe that OB was suffering from a number of serious medical conditions, including untreatable stomach and bowel problems which may require removal of his bowel and the application of a colostomy pouch;
iii) From early in OB's life, the mother had falsely led the father and the paternal family to believe that OB was lactose intolerant and allergic to over 4,000 foods; she asserted that doctors had advised that OB should not eat solid food;
iv) That the mother had led the father and the paternal grandmother and the paternal aunt to believe that OB may ultimately require a feeding tube and that the paternal grandmother had been informed that OB may die from his medical conditions.
These serious allegations sometimes carry the generic description of 'fabricated illness'. At the fact-finding hearing, I made clear that I did not consider it appropriate to use a label to describe the alleged behaviours of the mother; however (as will become apparent) the use of the term is relevant to the instant application insofar as it is used within the applicable guidance for social workers undertaking assessments, namely the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced (supplementary to Working Together to Safeguard Children (2006)). That guidance was issued by the Department for Children Schools and Families ["DCSF"] in 2008 under Section 7 of the Local Authority Social Services Act 1970; accordingly, local authorities are expected to comply with that guidance in carrying out their social services functions, unless local circumstances indicate exceptional reasons that justify a variation. The guidance was also issued under Section 16 of the Children Act 2004 which requires Children's Services Authorities and each of their Board partners, in exercising their functions in relation to LSCBs, to have regard to it.
Unsurprisingly, in light of the allegations made by the father (summarised at §6 above), when the matter came before the court for a further hearing on 3 April 2012, District Judge Parker made an order under section 37 directing a report from the London Borough of Croydon. Such an order is made where a court considers that " it may be appropriate for a care or supervision order to be made with respect to" a child.
The report was due to have been filed by 4pm on 29 May 2012 (i.e. within the statutory 8-week timeframe: per section 37(4) CA 1989).
The Local Authority allocated responsibility for the report to a social worker, Mrs O. The report was apparently signed by her on 10 June 2012, and filed on 2 July 2012, five weeks after the directed date.
The parents' cross-applications were listed for pre-hearing review on 8 November 2012; at that hearing the Local Authority was directed to file and serve a letter/updating report setting out details of their further assessment of the mother. This report was to be filed on 22 November 2012. This report was completed and filed on time.
The hearing of the parents' cross-applications, listed as a final hearing with a time estimate of 3 days, began on 10 December 2012. It was acknowledged by the parties that in the event that the court were to make positive findings on the father's allegations at this hearing, the applications would need to be adjourned for further consideration on welfare.
At that hearing, Mrs O attended (with her Team Leader Margaret Gordon) and gave oral evidence. I have a note of that evidence, which Mr. Calway (on behalf of the Local Authority) acknowledges to be a 'fair summary'. It is apparent from the questions and answers (some of which are set out in §27–28 below) that in preparing her section 37 report, Mrs O had not considered the DCSF Guidance referred to above, the existence of the " Incredibly Caring Programme" (Bools & o'rs [2007], recommended in the DCSF Guidance at §6.52/6.60) used to train social workers in dealing with cases of fabricated illness, nor the guidance in Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045.
Following the conclusion of (and having heard) that evidence, the Team Leader Ms Gordon indicated that the local authority wished to reconsider its position overnight. The matter was therefore adjourned on the basis that Mrs O and Ms Gordon would attend court at 9.30am the following morning.
In fact the social workers attended court late giving no opportunity for discussions with the parents' advocates, and Mrs. Gordon was called straight into the witness box; she gave short evidence. Again, I have the notes of the evidence, and Mr. Calway again acknowledges the fairness of the summary (see §29 below). Following that evidence, the parties entered into discussions which led the Local Authority to indicate a wish to hold a legal planning meeting urgently to consider the case. The parties agreed that the hearing could not proceed, let alone conclude effectively, and given the complications and the difficulties of listing the case quickly in Croydon, the case was transferred to the High Court for urgent directions on 14 December. The position of the Local Authority was recorded in the face of order, thus:
i) that it would hold a legal planning meeting and take a decision as to whether or not to issue proceedings before the hearing on 14 December 2012, and
ii) it would attend and be represented at the hearing on 14 December 2012 to explain why it should not pay the costs of the hearing on 10–11 December 2012.
The trial judge, DJ Mills, further directed the Local Authority to file and serve a short report for the directions hearing, outlining the reasons for the decisions reached at the forthcoming planning meeting. That report (dated and filed on 13 December) reads as follows (reproduced in its entirety):
" 1. The Local Authority require more time for the evidence in these proceedings to be fully analysed and for further investigations with other professionals from...
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