A Local Authority v DG and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keehan: |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] EWHC 63 (Fam) |
| Docket Number | Case No: UC13C00129 |
| Court | Family Division |
| Date | 24 January 2014 |
[2014] EWHC 63 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keehan
Case No: UC13C00129
Barbara Mills (instructed by A local authority) for the Applicant
Sarah Branson (instructed by Harter Aitken) for the First Respondent in the family proceedings
Mr Easteal (instructed by Kaim Todner Solicitors) for the First Respondent in the criminal proceedings
Cyrus Larizadeh (instructed by Burke Niazi Solicitors) for the Second Respondent
Sylvia Allen (instructed by TV Edwards LLP) for the Third Respondent
Hearing dates: 15 January 2014
Introduction
On 31 July 2013 LK died. She had been stabbed to death. She had a young child, HL, who was born on 28.09.10 and is 3 years of age. These care proceedings concern her future welfare. On that day her father, DG, was arrested in relation to the death of the mother: he was subsequently charged with her murder and remanded in custody. The Crown assert that HL was present when her mother was killed.
The father is to stand trial for the murder of the mother at the Central Criminal Court. The trial is fixed to commence on 22 April 2014.
On 15 August 2013 the local authority issued care proceedings in respect of HL. She has since been the subject of interim care orders and lives with foster carers.
The findings of fact sought by the local authority in satisfaction of the threshold criteria of s.31(2) of the Children Act 1989 reflect the case presented by the Crown, namely that the father killed the mother and that he had been violent to her on numerous occasions over the past three years.
Case management directions have been given on a number of occasions over the last four months. This judgment is being given (a) to highlight the wholesale failure of the parties to these proceedings to comply with those directions and (b) to deal with an important aspect of the interplay between public law care proceedings and concurrent linked criminal proceedings.
Compliance with Case Management Directions
In Re W (A Child) [2013] EWCA Civ 1177, Munby P. observed, at paragraphs 50–54:
" It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: seeRe S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: seeRe W (A Child) [2013] EWCA Civ 1227, para 74. The law is clear. As Romer LJ said inHadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by thePrivy Council in Isaacs v Robertson [1985] AC 97, 101:
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."
For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect — and from now on family courts will demand — strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence. … A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work.…. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority."
I, respectfully, agree.
On 23 September 2013 HHJ Wallwork, sitting as a High Court Judge, made a number of directions but in particular the following case management directions:
a. the solicitor for the children's guardian was to file and serve an expert report by Dr. Jones by 4pm on 13.11.13;
b. the father was to file and serve a response to threshold "dealing expressly with each pleaded fact" by 4pm on 28.10.13;
c. the father was to file and serve a report on his mental health by 4pm on 11.10.13;
d. the local authority was to file and serve divers assessments on family members by 4pm on 06.11.13;
e. the local authority was to file and serve its final evidence and a care plan by 4pm on 27.11.13.
There was the usual recital at the end of this order, in the standard form of Case Management Order no. 3, namely:
" COMPLIANCE WITH DIRECTIONS
All parties must immediately inform the Court/Court Officer if any party or person fails to comply with any part of this order".
The parties did not comply with those directions. No party made an application to extend the time for compliance with those directions before the expiration of the dates set out in the order. No party notified the court of the non-compliance with those case management directions nor sought an urgent directions hearing.
On 21 November 2013 the matter came before Cobb J. when, at the request of the parties and by consent, he made the following directions:
a. the time for filing and serving the report of Dr. Jones was extended to 29.11.13;
b. the time for the father to file and serve his response to threshold was extended to 28.11.13;
c. the time for the father to file and serve a mental health report was extended to 28.11.13; and
d. the time for the local authority to file and serve the family assessments of IK and of KFK & LW was extended to 27.11.13 and in respect of AQR and SA it was extended to 29.11.13.
The parties invited the court to discharge the direction for the local authority to file and serve its final evidence and a care plan by 27.11.13. Cobb J. declined to do so. The local authority did not comply with that direction.
It is to be noted that the extension of time sought was, at most, no more than 8 days after that hearing. Subsequent to that order AQR withdrew from the assessment process.
Save that the local authority filed the assessment of SA on 27.11.13 and filed the assessment of IK out of time on 29.11.13, the parties did not comply with those directions. No party made an application to extend the time for compliance with those directions before the expiration of the dates set out in the order. No party notified the court of the non-compliance with those case management directions nor sought an urgent directions hearing.
The matter came before Mostyn J. on 5 December. For reasons which are not clear the solicitors for the father and for the children's guardian did not receive notice of the hearing and so did not attend. The matter was adjourned to 16 December when the matter came before me.
On 16 December I directed the solicitors for the local authority, the father and the children's guardian to explain the serial failures to comply with the orders. I received letters from each of the solicitors: they offered various explanations — some good and some indifferent. What was a cause of real concern to me, however, was the omission of any explanation as to why an application had not been made to extend the time for compliance before the expiration of the date in the order or any explanation of the failure to notify the court of non-compliance by that party and/or by the other parties.
As the President observed in Re W (above) "the deeply rooted culture of the family courts" of failing to comply with court orders and case management directions will no longer be tolerated.
I gave the parties further extensions of time to comply with the previous case management directions referred to above. Save for the father's response to threshold, which I deal with below, those directions, insofar as the time for compliance has passed, have been obeyed.
Concurrent Public Law and Criminal Proceedings
In October 2013 a Protocol and Good Practice Model was issued by the President of the Family Division, the Senior Presiding Judge and the Director of Public Prosecutions. It came into force on 1 January 2014. It provides comprehensive guidance on the procedures to be followed when there are linked care proceedings and criminal proceedings especially in relation to applications for disclosure between the two sets of proceedings.
In this matter directions were made for the police to disclose documents relating to the criminal case against the father to the local authority. To date, the police have not sought disclosure of any statements or documents filed and served in these proceedings.
A party to care proceedings is not excused from giving evidence on the ground of self-incrimination. By s.98 of the Children Act 1989:
(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from —
(a) giving evidence on any matter; or
(b) answering any question put to him in the course of his giving evidence,
on the ground that doing so might incriminate him or his spouse of an offence.
(2) A statement or admission made in such proceedings shall not be admissible...
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