Re D (A Child) (Non-Availability of Legal Aid)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWFC 39 |
| Docket Number | Case No: SN14C00004 |
| Court | Family Court |
| Date | 31 October 2014 |
[2014] EWFC 39
IN THE FAMILY COURT
AT SWINDON
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: SN14C00004
Ms Deirdre Fottrell and Ms Marlene Cayoun (instructed by Withy King) for the father (a protected party acting by the Official Solicitor as his litigation friend)
Ms Sarah Morgan QC and Ms Lucy Sprinz (instructed by Goodman Ray) for the mother
Ms Hayley Griffiths (instructed by the local authority) for Swindon Borough Council
Mr Kambiz Moradifar (instructed by Stone King LLP) for the child D
Hearing date: 8 October 2014
Sir James Munby, President of the Family Division:
The underlying issue in this case can be stated in a single sentence. Should a little boy, D, live with his parents, or, if they cannot adequately look after him, with other members of his wider family, or should he, as the local authority, Swindon Borough Council, argues, be adopted outside the family.
The issue could hardly be of more profound significance for both D and his parents. For the child, an adoption order, as I recently had occasion to remark ( Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), para 54) "has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences." For the parents it means the permanent loss of their child. Whatever the ultimate decision, D and his parents will have to live with the consequences for the remainder of their lives, in D's case, given his age, potentially into the 22 nd century.
That, however, is not the issue currently before me. What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority's application without proper representation.
The facts
Before going any further I should set out such of the facts as are relevant to the issue currently before me. Previous judgments have been given by Baker J on 23 May 2014 ( A Father v SBC and ors [2014] EWFC 6) and by Her Honour Judge Marshall on 9 June 2014 ( Re D (A Child) [2014] EWFC B77). Both can be found on the BAILII website.
For the background I can do no better than to quote from Baker J's judgment (paras 2–6):
"2 D was born on 11th December 2011 and is therefore now aged 2 1/2. His mother was assessed in 2012 as being on the borderline of a mild learning disability. His father was found to have a more significant cognitive impairment, with an IQ of around 50. In the earlier proceedings described below, a psychological assessment concluded that he lacked capacity to conduct litigation. He has, however, managed to function successfully in his adult life, with some assistance from local authority adult social services. He has worked in the same job for over 12 years and has been contributed towards the financial support of the family.
3 When D was born, the local authority started care proceedings under s.31 of the Children Act 1989. After he was discharged from hospital, D and his parents underwent a 16-week residential placement in a local authority foster placement which was completed successfully. Afterwards, the family moved into a new home with a package of support from the local authority and other agencies. They have extended family on both sides to whom they are close, and a network of friends. They attend a local church. In the summer of 2012, the parents were married.
4 At the final hearing of the care proceedings, the local authority's care plan, dated [28 September 2012] recorded that D had been in his parents' care since birth and was settled, happy and developing. It recommended that D remain in their care under a full care order. That order would be subject to review after a year when it was thought it might be appropriate to move to a supervision order. The plan specified the level of professional support to be provided for the family. It further provided that, if the placement broke down, D would move initially to a foster placement. The local authority would then carry out a viability assessment of his maternal grandparents to see if they were able to look after him, although an assessment carried during the care proceedings had concluded that they were not.
5 The care plan was endorsed by the children's guardian. In her final report, she indicated that, while she supported what she described as the local authority's "courageous attempts" to try to enable D to be looked after his parents, she was "not yet entirely confident that they will be able to provide D with the safe, emotionally attentive care that he will need on a long term basis." She identified "a number of risk factors in D's care circumstances which can be monitored but not removed or effectively counteracted by the considerable support and monitoring resources that have been and are continuing to be provided." She thought that, as D becomes more mobile, these risk factors would be more difficult to manage.
6 On 7th November 2012, District Judge Cronin made a care order on the basis of the local authority's care plan. The order included an undertaking by the local authority not to remove D from the care of his parents without giving 7 days notice in advance, unless an emergency situation should arise."
I should add that the part of the care plan referred to by Baker J in para 4, went on to say that "if … the outcome of the … assessment is that [the maternal grandparents] are still not viable carers for D, then the local authority will seek permanence for D through adoption."
So far as material for present purposes, subsequent events can be stated quite shortly. On 31 March 2014 the local authority gave the parents notice that they intended to remove D on 25 April 2014. The father consulted the solicitor, Rebecca Stevens of Messrs Withy King, who had acted for him in the care proceedings. Having applied unsuccessfully for public funding, Ms Stevens agreed to represent him pro bono. She has done so ever since. On 11 April 2014 Ms Stevens filed an application on behalf of the father seeking the discharge of the care order in accordance with section 39 of the Children Act 1989. On 22 April 2014 the local authority filed an application for a recovery order pursuant to section 50 of the 1989 Act. Both applications came before District Judge Goddard on 24 April 2014. During the hearing an oral application was made for an injunction to restrain the local authority removing D. The District Judge refused the application for an injunction and made the recovery order. D was removed from his parents the following day, 25 April 2014.
On 29 April 2014 Ms Stevens filed a notice of appeal on behalf of the father. It had been settled by Ms Deirdre Fottrell, also acting pro bono, as she has ever since. The appeal came on before Baker J on 16 May 2014. For the reasons set out in his judgment, he remitted the application for an injunction for hearing by Judge Marshall, but declined to direct D's return to his parents in the interim. The hearing before Judge Marshall took place on 29–30 May 2014. For the reasons subsequently set out in her judgment, she declined to order D's return to his parents. On 17 July 2014 the Court of Appeal (Black LJ) refused the father's application for permission to appeal Judge Marshall's order.
A further case management hearing took place before Judge Marshall on 29 July 2014. The order made on that occasion recited that "This is a case where permanent placement outside the family must be considered as a possible outcome." In addition to making arrangements for interim contact, Judge Marshall directed that the local authority's application for a placement order in accordance with section 22 of the Adoption and Children Act 2002 was to be issued by 28 October 2014. She fixed the issues resolution hearing for 5 December 2014. She directed that expert evidence be obtained from an independent social worker, Helen Randall, in a report to be provided by 30 September 2014. On 23 September 2014 Judge Marshall directed that the matter was to be listed before me in London on 8 October 2014.
Ms Randall reported on 26 September 2014. Her report is unfavourable to the parents. Ms Randall said that she was unable to recommend that D be cared for by his parents, that there were no suitable family or friends able or willing to care for him and that her recommendation was that D be adopted.
The matter came on for hearing before me in London on 8 October 2014. The father was represented by Ms Deirdre Fottrell and Ms Marlene Cayoun, instructed by Rebecca Stevens of Withy King. As a protected party the father acted by the Official Solicitor as his litigation friend. The mother was represented by Ms Sarah Morgan QC and Ms Lucy Sprinz, instructed by Goodman Ray. Swindon Borough Council was represented by Ms Hayley Griffiths. D was represented by Mr Kambiz Moradifar. Ms Griffiths and Mr Moradifar were, I assume, being appropriately remunerated – D has legal aid. The others, in circumstances I must describe in more detail below, were all acting pro bono. At the end of the hearing I reserved judgment.
On 28 October 2014, the local authority filed a placement order application under section 22 of the 2002 Act.
The present state of the proceedings
The present position can therefore be summarised as follows. The proceedings under section 31 of the 1989 Act came to an end on 7 November 2012 when District Judge Cronin made a care order. The proceedings under section 50 of the 1989 Act came to an end on 24 April 2014 when District Judge Goddard made a recovery order. The injunction proceedings came to an end on...
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