K and L (Children: Fairness of Hearing)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Andrews,Lord Justice Holroyde |
| Judgment Date | 20 June 2023 |
| Neutral Citation | [2023] EWCA Civ 686 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000520 |
[2023] EWCA Civ 686
Lord Justice Holroyde
Lord Justice Baker
and
Lady Justice Andrews
Case No: CA-2023-000520
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT CENTRAL LONDON
HH Judge Hughes KC
ZC21C00447
Royal Courts of Justice
Strand, London, WC2A 2LL
Kemi Ojutiku (instructed by Obaseki Solicitors) for the Appellant
Andrew Collings (instructed by Local Authority Legal Unit) for the First Respondent
John Schmitt (instructed by Osbornes Law) for the Second Respondent
Lucy Cheetham (instructed by Lawrence and Co) for the Third Respondent
Hearing date: 11 May 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 20 June 2023.
This is an appeal by a mother against care orders made in respect of her children, K (a girl, now aged 13) and L (a boy, aged 10).
At the conclusion of the hearing, we informed the parties that the appeal would be allowed for reasons to be given in a judgment at a later date. These are my reasons for agreeing with that decision.
Background
The family has been known to the London local authority children's services department throughout the children's lives because of a range of problems, including domestic violence between the children's parents, violent incidents between the parents and other adults, drug and alcohol misuse by the parents, difficult behaviour exhibited by the children, and very low school attendance. On three occasions, in 2016, 2018 and 2020, the children were placed under Child Protection Plans. The parents separated, with the children remaining with the mother, but incidents of domestic abuse continued, some in the presence of the children. By the Spring term of 2021, L's school attendance had declined still further to 15%. In June 2021, a report from Dr Nicholas Banks, a clinical psychologist, concluded that the mother was not emotionally attuned to the children due to her own unmet psychological needs and that they were likely to suffer significant emotional neglect if they remained in her care. The local authority decided to start care proceedings and instigated the pre-proceedings protocol.
In September 2021, L started at a new school in a different area of London. On 3 September, the local authority filed an application under s.31 of the Children Act 1989. At the first hearing before the magistrates, interim supervision orders were made in respect of both children who remained living at home under a written agreement. Directions were given for further hair strand testing of the parents, a further report from Dr Banks, and viability assessments of various members of the extended family to establish whether they could care for the children. Shortly afterwards it became known that the mother was pregnant. An initial child protection conference in respect of the unborn baby was postponed because the mother refused to provide contact details for the putative father.
In his supplemental report, filed in March 2022, Dr Banks continued to express concerns about the children's future care if they remained with their mother. He reported that L was functioning at least two to three years below his age expectation and that he was showing characteristics of ADHD for which he should be assessed. He described the relationship between the children as emotionally positive and recommended that they should not be separated. A parenting assessment of the mother recorded that the children's basic care needs were met, that the mother's level of engagement with professionals had improved, that she was attending all antenatal appointments, and that domestic abuse was no longer a feature in her relationships. The assessment concluded, however, that the children should not remain in her care because they would “continue to receive maladaptive parenting” which would “impact negatively on all aspects of their development”. Meanwhile, a viability assessment of the paternal grandmother recommended that the children be placed in her care if the court concluded that they should not remain with either of their parents.
On 27 April 2022, the mother gave birth to a baby boy. No proceedings have been taken in respect of the baby who remains living with the mother.
Following a change of social worker, the local authority filed what was intended to be its final evidence with care plans proposing that the children remain at home with the mother under supervision orders. In June 2022, the guardian filed her final analysis supporting this plan. The father, however, continued to oppose it and instead contended that the children should be placed with the paternal grandmother. Over the course of the summer, the local authority continued to receive reports about L's disruptive behaviour. On one occasion he was found alone and unconscious and taken to hospital after being trapped in a lift.
On 9 September 2022, a further case management hearing took place before HHJ Harris. By this stage, the guardian was on maternity leave. The court order recited that her replacement endorsed the recommendation supporting the care plans. The father continued to oppose the children remaining with the mother and the case was therefore listed for a final hearing starting 6 March 2023 (eighteen months after the start of the proceedings). The order required the local authority to submit a timed witness template allowing for judicial reading and “with a court sitting day of five hours (11 – 4)”. Over the next few months there were continuing difficulties about the father's contact and renewed concerns about the mother's capacity to manage the children's behaviour. K was said to be associating with older disruptive teenagers who the mother had allowed to visit the home. There was evidence that L was coming into contact with drugs. On the other hand, his school attendance was significantly higher. The new guardian visited the children who told her that they wished to remain at home. A professionals meeting took place at which Dr Banks confirmed his view that the children would continue to be at risk in their mother's care.
At a pre-trial review before HHJ Sapnara on 15 February 2023, the judge gave further directions for the final hearing, including that (1) the local authority should file an updated care plan adding “an alternative plan to set out the details of a placement in foster care should the court not approve the primary plan for placement with mother”, (2) an advocates meeting should be convened on 23 February 2023, (3) the guardian should file and serve her final analysis and recommendations by 3 March 2023, (4) (varying the order of 9 September) the final hearing days “shall start at 10am with parties present at 9am”, and (5) the agreed threshold document and the finalised witness template “to be lodged with this order”.
The final threshold document (that is to say, the document setting out the basis agreed between the parties on which the threshold criteria for making care or supervision orders under s.31 of the Children Act 1989 were satisfied) was filed in accordance with the order. In summary, it stated that the children had experienced significant domestic violence throughout their lives; that the parents' relationship continued to be acrimonious despite no longer living together; that the children had additional emotional needs and behavioural difficulties believed to result from the parental conflict; that despite extensive professional involvement, the mother did not engage effectively with children's services; that the children suffered from poor school attendance; that there were ongoing concerns that their basic needs were not being consistently met; that hair strand tests showed that the parents were continuing to take drugs and/or drink excessively; and that Dr Banks' assessment had concluded that the children were likely to continue to suffer emotional neglect in their mother's care.
In the event, the advocates meeting did not take place until Thursday 2 March. It was attended by counsel for all parties, including Ms Charlotte Brazier, who had been recently instructed to represent the mother and had not at that point met her client. In accordance with the order of 9 September 2022, the original witness template had provided for judicial reading time on the first morning of the hearing, and Ms Brazier had arranged to have a conference with the mother at that time. It was only at the advocates meeting that counsel realised that the template filed with the court did not reflect Judge Sapnara's direction about the timetable for the hearing. They arranged to file an amended template. At the time of the advocates meeting, the parties had not received the guardian's report. It was served on the parties the following morning, the last working day before the hearing. In the report, the guardian indicated that, contrary to her earlier position in which she had confirmed her predecessor's endorsement of the local authority's plan, she now wished to hear the evidence before making final recommendations.
Thus, at the start of the final hearing, the position of the parties was as follows. The local authority and the mother were proposing that the children remain at home under supervision orders. The father was proposing that the children be removed from the mother and placed initially in foster care with a view to being moved to the paternal grandmother in due course. The guardian was reserving her position until the conclusion of the evidence.
The hearing continued over four days. The conduct of the hearing lies at the heart of this appeal and it will be necessary to describe what happened in some detail later in this judgment. In...
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