Re M (Assessment: Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall |
| Judgment Date | 28 January 2009 |
| Neutral Citation | [2009] EWCA Civ 315 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2008/2599 |
| Date | 28 January 2009 |
[2009] EWCA Civ 315
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(HER HONOUR JUDGE HUGHES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe and
Lord Justice Wall
Case No: B4/2008/2599
Ms Monroe (instructed by Gillian Radford & Co) appeared on behalf of the Appellant.
Ms Ford (instructed by Hodge Jones & Allen) appeared on behalf of the Respondent.
Lord Justice Thorpe:
On 10 October 2008 HHJ Hughes QC refused applications for the instruction of Dr Shaw to make a general assessment and report in an issue joined between the appellant, Tara M, and the local authority, Kensington and Chelsea, and Tara's child, Shanika, represented in the public law proceedings by her guardian. The judge also refused the application for the papers to be referred to Crown Lodge to assess whether this was a case suitable for residential assessment.
Now, a point of great importance is that Tara is an extremely damaged mother. She is still herself a minor and she is, as it were, a client of the local authority as a minor who has been in care for the majority of her life. She is represented by the Official Solicitor because she is not only a minor but a minor lacking capacity to instruct solicitors and a legal team in these care proceedings.
The judge's refusal of these applications would have, and was seen to have, devastating consequences, because there were already on the file the reports of a failed residential assessment at Beacon Lodge and a very stark report from a consultant psychologist, Dr Bichard, to the effect that Tara had really zero chance of providing adequate parenting for Shanika without two years of intensive psychotherapy, an uncertain process for the outcome of which, obviously, Shanika could not wait.
So it is perhaps not surprising that on 30 October an Appellant's Notice was filed with this court, and it is unfortunate that the papers were not referred to the single Lord Justice until 1 December, which was the date on which the trial judge was due to sit again to progress the care application. It was Ward LJ who on 1 December directed an oral hearing on notice with appeal to follow, and he did note that it was desirable for the hearing to take place as soon as possible. It seems to me that it is regrettable that it is only today on 28 January that we consider the oral submissions of Ms Monroe, for the appellant, and Ms Ford, for the local authority.
The Guardian ad Litem, Shanika's guardian, is not represented by counsel for the excellent reasons that the guardian adopts the submission of the local authority and is concerned to avoid waste of public money. She has very helpfully submitted a short position statement in which she expresses those considerations.
The rival submissions have been very skilfully put by Ms Monroe and Ms Ford, and I have great sympathy for the forensic position adopted by the local authority. They—quite understandably—think that they have done everything possible for Tara. They have engaged Dr Bichard, a psychologist in whom they have confidence. They have secured the mother's admission to Beacon Lodge, and she herself is responsible for the failure of that residential assessment. The local authority feel that enough is enough, and that the inevitable must take its course. I also recognise that the judge's acceptance of those submissions is at first blush clearly within her discretionary ambit, particularly given that the local authority's submissions have the full support of the Guardian ad Litem. I also recognise the realism of the language with which the judge explains her conclusion.
However, in the end what most impresses me is that this is an unusual situation in that the mother is not just herself a minor (after all, that sadly is commonplace), but she is also incapable of conducting this vital piece of litigation. She has not the capacity and is therefore dependent upon the services of the Official Solicitor. The Official Solicitor, having all the responsibilities that he has for the mother, in the context of this litigation, requires a medical assessment by a specialist, namely a child and adolescent psychiatrist, who will have the particular expertise to assess the mother in the context of her relationship with her second-born child, and will be able to advise the court not just as to the mother's disability, but also on how it impacts upon her potential to provide adequate parenting for Shanika.
The judge decided against the instruction of Dr Shaw, simply saying that she did not think it necessary, when Dr Bichard's report and recommendation was not only available but was very clear. The judge's essential reasoning was that because Dr Bichard was of the view that at the present time Tara cannot parent a child, there was no justification for instructing a consultant psychiatrist. It seems to me that that reasoning is deficient in that it does not sufficiently recognise Tara's incapacity and dependence on the Official Solicitor. If the Official Solicitor, with the responsibility that he holds in the litigation, requires that assessment, it seems to me that a judge should be slow to refuse it. That refusal is all the more extreme if its immediately foreseeable consequence is to deprive the incapacitated litigant of any prospect of averting the care and placement orders sought by the local authority.
The judge was also reliant upon a very pragmatic point, with which I have considerable sympathy, that there had to be some proportionate judgment between the benefit likely to be derived from the instruction of Dr Shaw and the cost of instructing him. There was before the judge information to the effect that Dr Shaw's report was going to cost £6,902, on the basis that his charging rate was £203 an hour and that he would spend 34 hours on compiling a report, 18 of which would be consumed by writing up his notes...
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