Re B (A Child) (Evaluation: Appellate Court's Function)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lady Justice Black,The Chancellor of the High Court |
| Judgment Date | 09 May 2014 |
| Neutral Citation | [2014] EWCA Civ 565 |
| Docket Number | Case No: B4/2013/2629 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2014 |
[2014] EWCA Civ 565
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Birmingham County Court
Her Honour Judge Clarke
UN12C00038
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
Lady Justice Black
and
Lord Justice Ryder
Case No: B4/2013/2629
In the Matter of B (A Child)
and
and
Jeremy Weston QC with Tracy Lakin (instructed by Supreme Law Solicitors) for the Father
Alistair MacDonald QC with Yolanda Pemberton (instructed by Staffordshire County Council Legal Services) for the Local Authority
Martine Kushner (instructed by The Smith Partnership) for the Child by his Children's Guardian
Hearing dates: 11 December 2013
The question to be decided
This appeal is concerned with the review of a first court's decision when a first appeal is pursued in family proceedings and where the first court's reasoning is wrong and that reasoning includes or should have included a proportionality evaluation. This is a second appeal brought with the permission of the single judge under the Civil Procedure Rules 1998 [CPR] rule 52.13(a), that is on the basis that the appeal raises an important point of principle or practice. The issues to be decided have been skilfully argued by counsel to whom the court is very grateful. At the conclusion of the hearing before this court we allowed the appeal and remitted the care and adoption proceedings to be determined afresh in the County Court.
The background
The facts that are relevant to the appeal are as follows. The child concerned, who I shall call 'B', is now 23 months old. His mother and father are parties to public law children (care) proceedings under the Children Act 1989 [CA 1989] begun by a local authority, Staffordshire County Council, on 4 April 2012. B has a 5 year old step-sister who has a different father and who was made the subject of a care order in May 2013. She lives with her paternal grandmother and step-grandfather who take no part in this appeal. B's mother gave birth again on or about 21 November 2013.
Within the care proceedings, B's parents conceded that the jurisdictional threshold described in section 31 CA 1989 was satisfied. Regrettably, the Family Proceedings Court [FPC] that heard the proceedings did not set out in their Reasons the basis upon which they held that the threshold was satisfied, but the parties have helpfully identified the parents' concessions of fact to be:
i) the domestic violence in their relationship;
ii) the exposure of B to the risk of sexual abuse from the paternal grandfather who has a number of convictions for sexual abuse of children including B's father; and
iii) the parents' (lack of) co-operation with the local authority.
The parents were positively assessed by an independent assessment organisation. Rehabilitation of B to his parents' care was recommended and a plan to that effect was implemented on 28 January 2013. In February 2013 the local authority became aware that B's father had stayed overnight at the paternal grandparents' home bringing into question his understanding of the need to protect B from his own father and the co-operation of the parents with the local authority, albeit that there was no question that B had accompanied his father during the visit or had otherwise been exposed to any risk. Underlying that short account is a history of disputed matters to which this judgment need not refer. The local authority changed its care plan within the care proceedings from rehabilitation to adoption and made an application for a placement order under the Adoption and Children Act 2002 [ACA 2002]. For the avoidance of doubt, I stress that the paternal grandfather who presents the risk described above is not one of the adults related to or involved with the care of B's sister.
The proceedings under the 1989 and 2002 Acts were heard concurrently by magistrates in the South Staffordshire FPC sitting at Burton-upon-Trent who made care and placement orders on 13 June 2013. I note with concern that yet again the identity of the magistrates sitting in the FPC has been omitted from the face of the order so that the decision is said to be made by 'Justices of the Peace'. I know of no basis in law for the identity of members of a court to be omitted in that way. The parents appealed the care and placement orders to the Birmingham County Court where they were heard on 14 August 2013 by Her Honour Judge Clarke. The appeal was dismissed. The appeal is renewed to this court by B's father on the basis I have described.
The grounds of appeal
It is common ground that the FPC's Reasons did not involve a sufficient analysis of the evidence that they had heard and read and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation that is, an evaluation of the interference with the article 8 ECHR [Convention] right to respect for family and private life that the local authority's care plan and the court's orders would involve. As I shall describe, in fairness to the magistrates, the evidence before the court did not contain the material that would have been necessary to conduct that analysis and evaluation. Furthermore, as the magistrates' Reasons betrayed, the FPC adopted a 'linear approach' to decision making thereby excluding the parents as carers without any comparison of them with the other realistic options for B's long term future care.
It is not necessary for this court to adjudicate upon the appellant's complaints about the FPC's decision, although as anyone with experience of family appeals will readily appreciate, it is usually necessary to consider the detail of the first court's findings and value judgments in order to understand how it was said on appeal that the first court's determination was wrong and, on a second appeal, whether the appeal court was likewise right or wrong. It is common ground in this appeal that Judge Clarke held and was entitled to hold that, among other errors, the FPC were wrong in law in the following respects:
i) they adopted a linear approach to their decision making;
ii) they failed to carry out a welfare analysis of the realistic options for B's long term care; and
iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.
In this case and having regard to the first court's Reasons, which this court has had the opportunity to consider, I can take these conclusions as read. Furthermore, it is not suggested that the magistrates' failings led to their analysis and evaluation being other than wrong within the meaning of Lord Neuberger's formulation at [93 (v) to (vii)] and [94] of In the Matter of B (A Child) [2013] UKSC 13 [ Re B]. On that basis alone, it was open to Judge Clarke to have considered allowing the appeal and if she had set aside the orders, to have directed the applications be re-heard. She did not do that, but instead undertook her own welfare analysis and proportionality evaluation. Although that analysis is itself criticised for a lack of reasoning and detail in the necessary comparative exercise, the judge felt able to come to the same conclusion as the FPC and dismissed the appeal.
Mr Weston QC on behalf of B's father, initially submitted that the judge had no power to substitute her own analysis and evaluation for that of the FPC without first allowing the appeal and setting aside their orders. That submission developed into a much more nuanced analysis of the powers under the Rules which I shall describe. He submits that, having concluded that the FPC had erred in law, she should have allowed the appeal and directed a re-hearing. It is common ground that such a re-hearing could have been before herself but the essential difference would have been that she would have re-heard the evidence in its totality (at least so far as the welfare of B was concerned). Given the stringent and demanding nature of the scrutiny involved in the court's welfare analysis and proportionality evaluation, it is also submitted on father's behalf that an appeal hearing where no re-hearing of evidence is undertaken is not an appropriate forum for a fresh determination of the same.
Mr Weston identifies what he submits is the error of approach in the procedure adopted by the judge by reference to two paragraphs of her judgment at [50] and [75] as follows:
"50. In the light of those authorities, it seems to me that my task in this appeal is, firstly, to consider whether the Justices carried out an appropriate and sufficient Convention-compliant balancing exercise in respect of the welfare outcome for [B] and the proportionality of the orders sought; if they did, to decide on review whether the conclusion they reached was wrong. If I conclude that the Justices did not carry out the appropriate balancing exercise, then it seems to me, on the basis of what was said in Re G, that I must, if I consider that I can properly do so, revisit that issue in order to determine whether the decision reached was wrong."
"75. In light of the Justices' omission, in my judgment, to carry out an appropriate and Convention-compliant balancing exercise by failing to take into account the potential harm to [B] throughout his life of becoming an adopted person, in my judgment it would be appropriate for me to revisit that exercise in the holistic manner recommended by Lord Justice McFarlane. It seems to me that...
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