P-S (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Sir Ernest Ryder |
| Judgment Date | 18 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1407 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2017/1062 |
| Date | 18 June 2018 |
[2018] EWCA Civ 1407
Sir James Munby, PRESIDENT OF THE FAMILY DIVISION
Sir Ernest Ryder, SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Sales
Case No: B4/2017/1062
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
His Honour Judge Tolson QC
ZC16C00002
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Deirdre Fottrell QC & Miss Laura Briggs (instructed by Ms Hannah Perry of TV Edwards LLP) for the Appellant Children's Guardian
Miss Barbara Connolly QC & Miss Amanda Bancroft (instructed by The London Borough of Camden Legal Department) for the Local Authority
Mother appeared in person
Ms Nancy Ballard (Solicitor Advocate) for Mr S
Mr David Bedingfield (instructed by Gordon Reed of Sternberg Reed Solicitors) for the Paternal Grandparents of S
Ms Hannah Gummershall (instructed by Claire Maye of Motley and Hope Solicitors) for the Paternal Grandparents of P
Mr Sam Momtaz QC & Miss Sharon Segal (instructed by Elizabeth Cape-Cowens of Blackfords LLP) for the Association of Lawyers for Children (Intervener)
Hearing date: 7 March 2018
Judgment Approved
Sir Ernest Ryder, Senior President:
Introduction:
On 28 March 2017 His Honour Judge Tolson QC granted care orders to the London Borough of Camden in respect of two young boys who I shall refer to as P and S. P is aged 5 and S is aged 2. They have different fathers. Their mother lives with the father of S and is separated from the father of P. The effect of the orders is that the children are living with their respective paternal grandparents.
The children's mother and the father of S would like the children to return to their care, but that is not the issue in the proceedings in this court. There are also contact issues in respect of the mother and the father of S which will need to be decided. The father of P is happy with the care arrangements that involve his son being cared for by his parents, within which he has a role to play.
At the conclusion of the hearing of this appeal, and because the court had heard extensive argument, it was decided to reserve the contact issues and remit them to the President of the Family Division, sitting alone. The court had been made aware that because of the outstanding issues on the merits and in the absence of legal representation, the children's mother wanted an adjournment. The court deferred that application until the end of the hearing in order to ensure that it safeguarded the children's interests by taking the most appropriate and expeditious course which has the consequence that the mother's wish to make representations about the welfare issues that remain is preserved and she may be able to obtain legal or pro bono assistance for the adjourned hearing.
The issue in this appeal is whether the judge was wrong in the circumstances that occurred to decline to make special guardianship orders [SGOs] to the paternal grandparents. The appellant before this court is the children's guardian, Mr. Jeff Boyd. The appeal is supported by the local authority. The paternal grandparents had never been made parties to the proceedings in the Family Court but during case management in this court they were joined and have taken an active part in the appeal supporting the guardian. The father of P wrote a letter to the court in support of his parents. The paternal grandparents of S concede that at the time of the final hearing in March 2017 their position was not that an immediate SGO should have been made but that an adjournment was necessary to facilitate the transfer of S to their care within which S would have been protected by an interim care order.
The father of S was represented and the children's mother appeared in person. They opposed the appeal on the basis that they did not want any step to be taken which prejudiced the mother's intended application, supported by the father of S, to discharge the care orders so as to have the care of the children returned to them.
The Association of Lawyers for Children applied for and were granted leave to intervene to assist the court in relation to the issues of law and principle. The court has been greatly assisted by the written materials and oral submissions of all parties.
Background:
The background circumstances can be taken quite shortly given that the issues in the appeal were issues of law and principle. The care proceedings began in January 2016 and were heard in the Family Drug and Alcohol Court (FDAC) in London. Unfortunately, the mother and the father of S relapsed and by the time of the final hearing had withdrawn from the FDAC process (i.e. from the process of rehabilitation in that court which is managed by a judge and monitored by a specialist team). The mother continued to argue that she could care for the children but the judge concluded that she was not a ‘viable option’ or ‘realistic option’ as a carer. There is no appeal against that conclusion or the findings of fact that support it which easily satisfy the threshold in section 31 of the Children Act 1989.
During the proceedings P was living with the maternal grandmother and S was living with a paternal aunt and her partner under interim care orders. By the time of the final hearing S's carers were not in a position to continue to care for him. The maternal grandmother withdrew her application to care for P on the first day of the final hearing.
One of the reasons why the care proceedings were not completed within 26 weeks was that S's aunt and her partner had initially been assessed and approved as S's long term carers. When they changed their minds in November 2016 as a consequence of the alleged conduct of S's parents, the local authority had to consider a new care plan for S and that led to the adjournment of what had been intended to be a final hearing on 28 November 2016.
Both sets of paternal grandparents were assessed by the local authority as potential special guardians in accordance with section 14A(8) of the 1989 Act. Both reports led to recommendations that the children be made the subject of SGOs to their respective paternal grandparents. P's father agreed with the process and the recommendation for P. The local authority filed care plans based upon the recommendations. The children's guardian supported the recommendations for placement under SGOs but raised some issues with the plans for contact and support, which were narrowed as the hearing progressed. The recommendations were opposed by the children's mother and the father of S. There is no issue that the assessment reports were completed in accordance with the regulatory scheme and there was no challenge to their content during the hearing.
Neither the local authority nor the grandparents made an application for special guardianship with the consequence that the court was invited to make SGOs of its own motion. The grandparents were not represented before the court and had not been joined, although they were physically present and called into court by the judge for a part of one of the days of the hearing. The grandparents had no opportunity to have any legal advice about what was happening in the Family Court, something that has now been remedied as a consequence of this court's directions for their joinder. They were surprised when the judge made full care orders.
The court has been told in additional evidence that both boys are doing well in the care of their grandparents. P's father agrees. The local authority and the children's guardian with the consent of P's father continue to submit that SGOs are appropriate. Subject to appropriate funding and the answers to questions they had properly raised before the appeal was heard, the grandparents support the making of SGOs. They confirmed within the appeal that their questions had been answered to their satisfaction. The local authority was able to demonstrate to the court that it had come to agreements with the grandparents for appropriate special guardianship support plans comprising weekly financial assistance, support for contact and other long term support that the children will need for a period of three years.
The appeal:
There are three strands to the errors that all represented parties before this court identify in the family court's decision: a) the lack of any adequate reasoning for making care orders rather than interim care orders or special guardianship orders, b) the reliance of the judge on informal guidance that was neither approved guidance nor peer reviewed research capable of being scrutinised or challenged by the parties and c) procedural unfairness. I shall take each in turn. The court is mindful of the fact that each of the represented parties before it (except S's father) have taken the same position in respect of each issue and accordingly the court has tested with the interveners each of the propositions in respect of which they would otherwise have reached a consensus.
The propositions about which there is a large measure of agreement are as follows:
a. The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;
b. The judge's characterisation of the care orders that were made as ‘short term care orders’ was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;
c. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;
d. The judge was wrong not to make provision for...
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