A MCC v The London Borough of Wandsworth (1st Respondent) A J (2nd Respondent) C J and J J (Minors) (Through Their Children's Guardian) (3rd and 4th Respondents)
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Hallett LJ,Sir James Munby |
| Judgment Date | 23 May 2017 |
| Neutral Citation | [2017] EWCA Civ 398 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2017 |
| Docket Number | Case No: B4/2016/2306 |
[2017] EWCA Civ 398
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HIS HONOUR JUDGE TOLSON QC
ZC15FC00620
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby
Lady Justice Hallett DBE
and
Lady Justice Macur DBE
Case No: B4/2016/2306
and
and
Ms J Bazley QC and Mr M Hellens (instructed by David Tagg & Co) for the Appellant
Mr A Bagchi QC and Ms G Kelly (instructed by the Local Authority) for the 1 st Respondent
Ms S Morgan QC and Ms L Sprinz (instructed by Creighton & Partners) for the 2 nd Respondent
Ms D Fottrell QC and Ms S Segal (instructed by Noel Arnold of Coram Children's Legal Centre) for the Intervener
Hearing dates: 15 February 2017
This is the mother's appeal against final care orders made by His Honour Judge Tolson QC in respect of three of her sons, J, A and C aged 16, 14 and 12 respectively, at an adjourned Issues Resolution Hearing ("IRH") on 16 May 2016. A, who instructs his own solicitor, was given permission to appeal also, albeit that his grounds of appeal add little to the substantive issue. That issue is whether the judge was wrong in the procedure he adopted to make the substantive orders at the IRH.
We allowed the appeal on 15 February 2017, with reasons to follow, directing in the meantime that the case be listed for directions within 7 days before Sir James Munby, President, recognising the urgency in listing the case for re-hearing, not least because of the precarious and significant emotional welfare issues affecting at least one of the boys. These are my reasons for allowing the appeal.
District Judge Arbuthnot made interim care orders in respect of the three children on 6 November 2015. On 24 November 2015, she made directions which approved the joint instruction by the parties of the Anna Freud Centre to undertake a multidisciplinary assessment of the family which was to include a full psychiatric assessment of the mother; the order recording that "the issues in the case are so complex that a multi-disciplinary assessment by the Anna Freud Centre is essential to the determination of the case". The report was to be filed and served by 15 March 2016. The IRH was listed on 4 April 2016. Final hearing was later set for 6–8 April 2016.
After the directions hearing, the mother demonstrated a disinclination to engage with the assessment. On 11 March 2016, she dismissed her solicitor. Her final evidence was due by 29 March 2016 and the Children's Guardian's position statement thereafter on 4 April 2016.
The matter was listed for directions on 22 March 2016, the Court having been informed that the mother was not legally represented and now wished to engage with the assessment. The mother appeared and was provided with names of family solicitors. The IRH on 4 April 2016 remained listed before District Judge Arbuthnot.
Thereafter the Children's Guardian obtained provisional dates (13 April 2016 and 5 May 2016) for the mother to attend the Anna Freud Centre if the Court permitted the resumption of the assessment. An advocates' meeting took place on 31 March 2016 in which the mother participated in person. Agreement was reached that the Court would be invited to approve the Anna Freud Centre recommence the assessment of the mother.
The hearing of 4 April 2016, was heard by His Honour Judge Tolson Q.C. The mother appeared in person and sought an adjournment for the purposes of legal representation. The children's solicitor wished to consider the position in respect of separate representation for J and/or A. Consequently, the judge vacated the final hearing dates of 6–8 April 2016 but retained 7 April as an adjourned IRH.
At the hearing on 7 April 2016, the Judge required the mother to give evidence, as the parties understood, to evaluate the viability of the mother engaging with the Anna Freud Centre assessment. Her solicitor had been on record for three days. At the same hearing the Children's solicitor indicated that A was competent and instructing him directly and, accordingly, the Children's Guardian was unrepresented.
After completion of the mother's evidence on 7 April 2016 it became clear that the Judge was considering making final orders. All parties opposed this and the Judge adjourned for written submissions.
All written submissions argued against the making of final orders at the adjourned hearing on 18 April 2016. However, the judge indicated that he would be making final care orders in respect of J and C and he only required submissions in relation to A. The judge ruled out the Mother as a carer for A in a judgment which did not refer to threshold and said he would give a full judgment on 16 th May 2016. By the time of the hearing on 16 th May 2016, A had been removed from his foster placement with his brother to a residential unit and the Judge made final orders.
In his judgment delivered on 16 May 2016, HHJ Tolson QC considered that "Although not separately represented…the Guardian has had the benefit of the children's solicitor (by then representing A) asking the questions he wanted asked. He has at no point identified any likely different outcome following the assessment which he originally proposed. The Guardian does not now oppose the making of the care orders." [18] However, and significantly, the Children's Guardian had not filed a final analysis as defined by Practice Direction 12A at 7.1 and, since he did not give evidence before HHJ Tolson QC, had not been able to supply in oral outline his analysis of the key issues in the case.
The judge recognised the "unusual feature of this case is that there has been no fully contested final hearing" but proceeded to final orders "in the absence of consent from all parties". He did so since he considered that the "proposed assessment… was not necessary…because whilst it might have shed light upon the mother's mental health, it could not have resulted in a significantly different outcome to the case" and the boys welfare demanded swift decisions to be taken by the local authority.
He referred to Re N (a child) [2012] EWCA (Civ) 1563 in which McFarlane LJ had expressly countenanced in an "appropriate case", a final order being made at an IRH, and that in Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136, King LJ had compared a case management hearing in which, as the name suggests management of the case gets it ready for disposal, to an IRH when all the evidence should have been filed, in which case "the rules specifically require consideration to be given as to whether the IRH 'can be used as a final hearing'".
HHJ Tolson QC justified the procedure he adopted since he had "heard from the mother" and "given her the opportunity to set out anything in writing which she wishes". He quoted extensively from the statements of the social worker and available Anna Freud Centre report which he described as a "substantial body of other written evidence … All evidence…points in one direction." [17] He indicated that during the hearing on the 4 April, he had "made it clear that [he] was very doubtful that (1) the assessment or (2) a final hearing would serve any useful purpose…it appeared to [him] to be contrary to the interests of the children… [he] said to the mother that [he] would need to hear evidence from her in order to establish that she had a reasonable case to present on both questions." [31]. On the 7 April, "[he] needed to explore with [the mother] the realities of the case in terms of final outcomes. On paper the case appeared very weak, but [he] felt it was right that she should have a proper opportunity to demonstrate to the contrary". [32] On 18 th April "all the mother had to do was to show [him] some plausible alternative outcome to the case for [him] to have provided for a fully contested hearing".
The single judge gave the mother and A permission to appeal. Subsequently, the President as leading judge in this constitution, granted the Association of Lawyers for Children leave to intervene on procedural issues concerning the making of final orders at an IRH. The Children's Guardian filed a position statement "aware that it is being said that there were irregularities in procedure" and that he "would have preferred to have had the opportunity to provide the court with a written report at the time" but was able to "confirm [his] recommendation orally". Wishing to maintain the final orders to avoid further disruption to the boys, he considered that since his position was "aligned with the position of the Local Authority" he did not seek to be represented at the appeal. However, the local authority did not oppose the appeal albeit that it maintains that care orders are the only realistic outcomes in the case.
In this appeal, Ms Bazley QC and Mr Hellens appeared on behalf of the mother; Miss Morgan QC and Miss Sprinz appeared on behalf of A; Miss Fottrell QC and Miss Segal appeared on behalf of the Association of Lawyers for Children; and, Mr McIlwain appeared on behalf of the local authority. They have submitted comprehensive and helpful skeleton arguments.
Rightly, no party seeks to argue against the necessity for robust case management in these times of insufficient judicial resource and the pressure of ever increasing numbers of public and private law applications launched in the family court. There can be no doubt that the Public Law...
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London Borough of Wandsworth v AMcC and Others
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