M W Hertfordshire County Council v A and v (by their Children's Guardian) Mr & Mrs J
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Lord Justice Kitchin,The Chancellor |
| Judgment Date | 04 April 2014 |
| Neutral Citation | [2014] EWCA Civ 405 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/0064 B4/2014/0247 |
| Date | 04 April 2014 |
[2014] EWCA Civ 405
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
HIS HONOUR JUDGE SEROTA QC
WD12C01021
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
(SIR TERRANCE ETHERTON)
Lord Justice Kitchin
and
Lady Justice Macur DBE
Case No: B4/2014/0064 B4/2014/0247
and
and
Ms A AHMED (instructed by Imran Khan & Partners) for the Appellant
Ms C BUDDEN (instructed by Hertfordshire County Council) for the Appellant
Ms H MARKHAM (instructed by Messrs Fahri Jacob Solicitors) for the Respondents
Mr Z SAMUEL (instructed by Premier Solicitors) for the Respondents
Hearing dates: 11 March 2014
Hertfordshire County Council ("the local authority") and MW ("the father") appeal against the order of HHJ Serota QC made on 6 January 2013 whereby A and V, now aged nearly 10 and just 7 respectively were placed in the care of their maternal uncle and aunt, Mr and Mrs J subject to a special guardianship order. The grounds of appeal are identical in substance and amount to the same criticisms of the judgment below. The children's guardian supported the appeal, albeit that she did not ally herself to all of the grounds drafted. The local authority and father's appeals were heard together. Mr and Mrs J were represented by counsel and opposed the appeal.
Mr and Mrs J are Polish nationals and residents. MW, A and V are Polish nationals, as was the children's mother now deceased. The children were raised bilingually. The mother, father and children had resided together in the United Kingdom since 2007/2008. Latterly, the father was estranged from the mother. He has subsequently been convicted of her murder and was sentenced to life imprisonment with a minimum term of 17 years on 24 April, 2013. The effect of HHJ Serota's order implicitly envisages the children's return to and future residence in Poland.
The father seeks to maintain a relationship with his children and has expressed a desire to have direct contact with them. This is not realistically or reasonably achievable in the short term, if at all, but obviously will be rendered extremely unlikely in the event of the children's removal from the jurisdiction.
The local authority seeks to maintain the children with their present long term foster carers who have recently and tentatively indicated a wish to be considered as their special guardians. The children's guardian agrees with the local authority's care plan. The local authority do not support the children having direct contact with the father at this time, neither does the children's guardian.
Mr Elliott, counsel for the father in the court below, and draftsman of the grounds of appeal on his behalf, was unable to represent him at appeal due to unfortunate personal difficulties. Ms Ahmed, who appeared at late notice as substitute made application for an adjournment. It was refused with reasons to follow as now appear.
The children's mother was murdered in her home on 28 May, 2012. The children were present in the house. It is not known whether they witnessed the event itself but, clearly from what they have subsequently revealed, they had observed their mother's fatal injuries. It is entirely probable that they would have heard the voices and noises associated with the fatal assault. In the circumstances as can be deduced post event, it is unlikely that incidents of domestic violence were alien to them. V, both before and after the event has, over periods of time, been electively mute.
They were placed with their present foster parents on 28 May 2012 and have remained in placement throughout. Interim care orders remained in force from the outset. They have received exceptionally good care and have flourished. They have formed a close relationship with their entire foster family.
Upon notification of the mother's death the maternal family immediately indicated a wish to care for the girls. Initially they were considered favourably by the local authority and were encouraged in their aims. Mr and Mrs J visited the girls in England. Weekly Skype contact was arranged between the children, Mr and Mrs J and the maternal grandmother. A special guardianship assessment report filed in February 2013 recommended that a special guardianship order be made in favour of Mr and Mrs J. At this time the children were indicating a wish to be with their maternal family in Poland.
The position changed, at first subtly at a "professional's meeting" in March 2013 and then unmistakably by August 2013 when final care plans were drawn. A new social worker, allocated after the completion of the special guardianship assessment report, visited Mr and Mrs J in July 2013 to clarify "grey areas" identified in the report. She reported adversely as to their ability to support the children consistently and emotionally in their bereavement, their motivation to care for them and the impact upon their own family life. She questioned the stability of their relationship and posited the risk of disruption to the children's placement in the event of marital breakdown.
The case came on for a "welfare" hearing before HHJ Serota QC on 14 November 2013. By then the children were reported to have expressed the clear wish to remain living with their foster parents in the United Kingdom. Evidence took three days. The proceedings were interpreted. Mr and Mrs J were not legally represented. The decision was announced on the 20 November and written reasons given on 5 December 2013. The proceedings were adjourned until 6 January 2014 in order for the Local Authority to file a detailed special guardianship support plan.
The appeal was listed on 11 March 2014 with a one day time estimate. If stood out it could not be re-listed until at least May 2014.
The father was not produced from custody for the appeal. Whilst the father's grounds of appeal mirror those of the local authority, he too was granted permission to appeal and, Ms Ahmed argues on his behalf, has the right to have the appeal argued by his own counsel of long standing. Mr and Mrs J travelled to England to attend the appeal hearing with counsel, Mr Samuel, having taken leave from their employment to do so. They are of limited means and instruct him on a privately funded basis. For these reasons and the fact of delay they oppose the application. Ms Budden and Ms Markham on behalf of the local authority and children's guardian respectively oppose the application on the grounds of delay.
It follows from the matters referred to in paragraphs 6 to 10 inclusive above that there has been an inordinate delay for these children. Their vulnerability is the greater because of the traumatic death of their primary care giver, their consequent upheaval – physical and emotional and the uncertainty of outcome. Their welfare demands an early resolution of their future care arrangements and trumps the father's notional right of representation by counsel of his choice as it would the maternal uncle and aunt's personal inconvenience if they were to seek to rely upon it. The father's application for an adjournment was refused.
Ms Ahmed was given time. On behalf of the father, she has adopted the arguments of the local authority and children's guardian as appropriate and made additional submissions. I think it unlikely that anything more could have been said in support of the father's appeal which she advanced with all due care and skill. Her written submissions on transitional arrangements have been especially helpful.
There is nothing else of the factual circumstances that led these children to be placed in the interim care of the local authority that needs to be recorded here. The devastating consequences for the children of the murder of their mother by their father hardly required a professional opinion to iterate the need for stability, emotional succour in their grief and compassionate physical care. That this had been achieved in the crucial period immediately following their mother's death was explicitly endorsed by the judge who rightly, in my view, commended and paid tribute to the foster carers. It is hardly surprising in the circumstances that the children articulate a wish to remain living with them.
The assessments conducted by the local authority of the girls' wider maternal and paternal family are irrelevant for the purpose of the appeal. The reality of the situation at the time of the hearing before HHJ Serota QC in November 2013 was that the only viable family placement was with Mr and Mrs J. Other relatives, maternal and paternal, had been dismissed from consideration at an earlier stage. Mr and Mrs J were nevertheless supported in their quest to care for the girls by those other relatives. The stark difference in stance of the local authority in the interim period is related above. Miss Markham acknowledges that the children's guardian's expressed views and opinion were dependent upon "the integrity" of the social worker, Ms P.
The hearing before HHJ Serota QC was complicated, not least by the absence of legal representation on behalf of Mr and Mrs J, non English speaking intervenors – albeit not actually afforded party status. There was an extant application for a care order with a view to long term fostering in England outside the family and remote geographically from their biological family with no party to the proceedings opposing the same. Mr and Mrs J were deemed to have made an application for a special guardianship order given their earlier treatment by the local authority. The concept of "special guardianship may not be readily appreciated abroad. It had the potential to, and did give rise to complex legal and factual...
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