N (Children: Interim Order / Stay)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice David Richards,Lord Justice Peter Jackson |
| Judgment Date | 12 August 2020 |
| Neutral Citation | [2020] EWCA Civ 1070 |
| Docket Number | Case No: B4/2020/0705 |
| Date | 12 August 2020 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1070
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT COVENTRY
Her Honour Judge Watson
CV19C01519
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Hickinbottom
and
Lord Justice Peter Jackson
Case No: B4/2020/0705
Jonathan Sampson QC and Adelle Eveleigh-Winstone (instructed by Kundert Solicitors LLP) for the Appellant Mother
Aidan Vine QC and Sanjay Patel (instructed by Coventry City Council) for the Respondent Local Authority
Gemma Bowes (instructed by Hammons Solicitors) for the Respondent Father
Abigail Turner (instructed by Jackson West Solicitors) for the Respondent Children by their Children's Guardian
Hearing date: 29 July 2020
Approved Judgment
On 6 May 2020, the Family Court approved the removal of three children from their mother and their placement in local authority foster care under pre-existing interim care orders. The removal was opposed by the parents and it was not supported by the Children's Guardian. At the end of the hearing, which took place by video conference, the judge was asked by counsel for the mother to grant a short stay to allow for an urgent application to be made to this court. This was refused and the children were taken into foster care that evening.
At the end of the appeal hearing we informed the parties that the appeal would be allowed so that the children, who have not had face to face contact with their mother for three months during the current health restrictions, would return to her care on the following day. My reasons for agreeing with that decision appear below. At the end I restate the practice in relation to the granting of short term stays.
The background
The parents come from Afghanistan. The mother speaks no English. The father works as a taxi driver. There are three children: two boys aged 12 and 5, and S, a girl aged 7. S has global learning difficulties. The family came to the attention of the local authority in November 2019, when the older boy came to school with a mark on his face, saying that he had been slapped by his father. He also spoke of being hit on other occasions, including with a cloth belt. A neighbour reported that the mother had visited her for help in March 2018 after being assaulted by the father.
The children were taken into police protection on 8 November 2019 and placed together in foster care, where they remained for a week. An application for interim care orders was made. The local authority plan was for the children to stay in foster care pending assessments, but at a hearing before a Circuit Judge on 15 November 2019, it agreed that the children should be returned to their mother on the basis of a working agreement. The parents accepted that the interim threshold under s. 38 Children Act 1989 was crossed, and an order was made under s. 38A of the Act excluding the father from the home.
A further hearing took place before a District Judge on 18 December, when the local authority sought the removal of the children on the basis that S had told her teacher that she had been shopping for shoes with her father. The father produced a receipt for the shoes, showing that they had been bought while S was at school. The removal application was not pursued.
On 20 February 2020, the local authority made a without notice application requiring the surrender of the family passports on the basis that S had told her teacher that the family was going abroad on holiday and that it was secret. The parents, who denied any such plan, surrendered their passports and a hearing on notice took place on 28 February.
On that occasion, when the matter came before Her Honour Judge Watson, the local authority again sought the removal of the children. It relied on a number of features, including: S telling an assessor that she sees her daddy every day and that she had hurt her leg in his taxi, her comments about the holiday, and a report from a neighbour that the father was at the family home on 18 February. The application, opposed by the Guardian on the basis that the evidence was insufficiently clear to justify removal, was withdrawn, again with judicial endorsement. The importance of compliance with the orders were emphasised to the parents.
The local authority's further application
The local authority applied again for the children's removal at a hearing on 27 April 2020. Its care plan provided for indirect contact only due to the lockdown, and thereafter supervised contact with the mother twice a week. The evidence relied upon this time was: the social worker having seen a pair of adult sandals in the garden of the family home and S asking what time her father was coming over; the mother saying through an interpreter during an assessment that the father had removed a games console from the oldest child as he was using it too much; S saying during a social work visit on 20 April that she had been to the park on Sunday and daddy took them in his taxi.
The hearing, which was again before HHJ Watson, sitting as a Deputy High Court Judge, could not take place that day for lack of time and of an appropriate interpreter. It was adjourned to a one-day remote hearing on 6 May 2020. The parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses. However, when adjourning the matter, the judge directed that the only witness to give evidence would be the social worker. The parents were directed to file sworn statements which the judge stated that she would take “at face value.” She also made clear that she would need to have “robust” evidence from the social worker. She also noted that the Guardian, who was unable to attend the adjourned hearing, did not support the removal of the children on the basis of the evidence filed. We were told that the impression left on the parties was that the local authority's evidence was going to be scrutinised to see whether it was capable of sustaining its revised care plan.
The parents filed detailed statements in which they denied every alleged breach of the working agreement or the exclusion order. For example, the mother said that she had “much more problems to think about than a holiday”. She agreed that she had spoken to the father about the eldest child using his computer too much and that the father had told her to remove it, which she did: he did not remove it himself. Likewise, she did take the children to the park, but with another adult, and not with the father. Whenever S sees a taxi she thinks it is her father driving it.
At the hearing on 6 May 2020, the social worker gave evidence for 3 1/2 hours, not limited to the three latest allegations, but ranging over alleged breaches going back to December 2019. The mother's advocate was at something of a disadvantage in that the remote hearing was being interpreted to the mother by an interpreter connected via the judge's laptop and there was no ready means of taking instructions during the hearing. During the course of the evidence, the solicitor for the father applied for him to be allowed to give evidence, at least in relation to the games console. The judge refused, confirming that she had read the father's statement and understood that he disputed what the social worker said. During closing submissions, the request was repeated for the parents to be allowed to give evidence if the judge was considering removal of the children.
After submissions, the judge adjourned for a short period and then delivered her decision. The hearing ended at 5.40 pm. Counsel for the mother sought permission to appeal and a stay; both were refused. The children were taken from their home sometime later that evening.
The main proceedings are currently listed for a substantial fact finding hearing on 23 September 2020.
The judge's decision
The judge set the scene, noting that the safety of the children was dependent on the exclusion order and the written agreement. She set out at some length the local authority's case and remarked that the ability to monitor during the stressful period of lockdown was limited. She reminded herself that the court was only entitled to make an order for removal where it was both necessary and proportionate and that there was no more drastic step than to take children from their mother and place them with strangers. She continued:
“10. Both [parents] deny the exclusion order has been breached. It is submitted that the children have not been in the unsupervised care of their father, nor have the children seen their father in the family home. It is said on behalf of the parents, supported by the Guardian, that the social worker has brought the case to court on two earlier occasions and the local authority has not pursued removal of the children notwithstanding having concerns that there had been breaches of the safety agreement and that the evidence supporting removal on this occasion, the third occasion the matter comes to court, is insufficient to pass the test of necessity and proportionality that I have referred to.
11. I do not agree with that analysis of the current situation. I look at a pattern of behaviour which begins with the events leading to the first attendance at court and brings us right through to the three specific concerns that have been raised in March/April of this year. It is that pattern of behaviour which builds up a body of circumstantial evidence which individually could be ignored, but together demonstrates a concerning persistent...
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AK v A London Borough Council
...described as a fundamental cornerstone of Article 6. Mr Day cited the decision of this Court in Re N (Children) (Interim Order/Stay) [2020] EWCA Civ 1070 and in particular the judgment of Peter Jackson LJ at paragraph 31: “It is understandable that the judge did not feel able to deal with t......