Re M-F (Children) (Care Proceedings: Extension of Time Limit)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lord Justice Kitchin,Lord Justice Underhill |
| Judgment Date | 15 July 2014 |
| Neutral Citation | [2014] EWCA Civ 991 |
| Docket Number | Case No: B4/2014/1460 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2014 |
[2014] EWCA Civ 991
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
SITTING AT BRIGHTON
Her Honour Judge Probyn
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lord Justice Kitchin
and
Lord Justice Underhill
Case No: B4/2014/1460
Ms Tina Cook QC and Ms Katie Phillips (instructed by local authority solicitor) for the local authority
Mr Jonathan C L Bennett (instructed by Fitzhugh Gates) for the mother
Ms Anna McKenna (instructed by Lawson Lewis Blakers) for the child M
Hearing date: 16 June 2014
Sir James Munby, President of the Family Division:
This is an application for permission to appeal, with appeal to follow if permission is granted, listed in accordance with an order made by Ryder LJ on 14 May 2014, from a judgment and order of Her Honour Judge Probyn dated 28 April 2014. The judge was sitting in the Family Court at Brighton hearing care proceedings in relation to two children, a girl, V, born in March 1998 and her brother, M, born in October 2003.
The proceedings have had a distressingly chequered history, exemplified by the facts that although commenced as long ago as 28 March 2013 they have still not concluded some 67 weeks later and, of even more concern, that the order which is challenged before us was an order adjourning the fourth final hearing. It might be thought that something has gone badly wrong. The question for us, however, is whether, as the local authority submits, Judge Probyn was wrong to adjourn the most recent final hearing.
In fairness to all concerned, it needs to be acknowledged that these care proceedings began on 28 March 2013 before the implementation (in Brighton in August 2013) of the pilot revised PLO. Initially they followed an appropriate path. The adjourned CMC took place before a District Judge on 21 June 2013. A fact finding hearing, with a time estimate of 5 days, was fixed for the first available date after 9 September 2013. A social work assessment of the mother by the local authority was directed. No other expert evidence was sought or directed. The IRH took place before the DFJ on 9 September 2013.
The first hearing commenced before Judge Probyn on 16 September 2013 and lasted for six days, concluding on 27 September 2013. The judge heard evidence from a number of witnesses and made findings against the mother of significant physical harm to V and emotional harm to both children. During the hearing the judge had indicated that a psychological assessment of the children and their attachment to the mother and wider family was necessary in order to evaluate the competing outcomes for the children. In the event, Judge Probyn directed that a consultant clinical psychologist, Gail Miller, report by 8 November 2013 on the potential impact on the children of the local authority's care plans, given the children's expressed wishes and in light of the court's findings, and on the risks posed to the children by a return home to the mother.
Ms Miller's report was dated 8 November 2013. It needs, of course, to be read in full but for present purposes I can be selective. Ms Miller recorded the mother as being quite unable to accept the court's findings – she would "never" admit to having assaulted V because it simply was not true. She expressed the opinion that the mother has "very limited" capacity for change at all and "certainly" not within the timescales for V. Nor, she said, would the mother be able to make change within a timescale that would enable M to return home. Ms Miller said that she did not see any current benefit in family work for the mother, M and V, and added that she did not believe the mother to be "receptive to interventions regarding her parenting." Her conclusion was that the children should not return to their mother's care as she would not be able to care for them safely.
The guardian's stance in her first report dated 6 May 2013 had been that V and M should remain in foster care pending a fact finding hearing. The recommendations in her report dated 2 September 2013 had been contingent on the outcome of that hearing. Having read Ms Miller's report, the guardian's recommendation in her report dated 6 December 2013 was supportive of the local authority's care plan – care orders and long-term fostering – though advising re-consideration of the timing of the proposed reduction in, and the inclusion of further details as to, indirect contact.
The second hearing had been listed for three days starting on 10 December 2013. Three days earlier, on 7 December 2013, V absconded from her foster placement and refused to return. There was discussion at court on 10 December 2013 about a possible recovery order. Judge Probyn concluded that an adjournment was needed to allow for Ms Miller and the local authority to consider what impact, if any, V's actions had on their opinions and recommendations to the court. She accordingly re-listed the case on 20 December 2013, for review and to consider the local authority's application for a recovery order, and for final hearing for 20 January 2014 (time estimate five days). Directions were given for Ms Miller to file an addendum report by 3 January 2014.
Ms Miller set out some preliminary views in a letter dated 17 December 2013, in which she expressed "serious concerns" about the local authority seeking a recovery order in relation to V though being in "complete agreement" that V "cannot remain at her mother's home." Her addendum report is dated 3 January 2014. She said that there was no change in the level of risk posed by the mother, while recognising the difficulties created by V's behaviour and looming 16 th birthday.
The guardian reported on 20 January 2014. By then the local authority had changed its care plan for V. Although M was to remain in foster care subject to a care order, the plan for V now was for her to remain with her mother, subject to a supervision order. The guardian agreed "on balance" with the local authority's plan for V. The risk to V was, in her view, "manageable", while the alternative had the potential to be "seriously damaging" if there were to be further absconding leading to recovery orders and possible secure accommodation. In relation to M, however, the guardian felt unable to recommend the care plan, inviting the local authority instead to apply for a supervision order.
Asked to comment on the guardian's recommendations, and to indicate whether they made her change her view, Ms Miller responded in a letter dated 21 January 2014. She said that she would not oppose the view that V should remain at home and was "sympathetic" to the guardian's wish to return M home "in a controlled manner whilst further work is undertaken" though having "serious concerns" about the mother's capacity to work genuinely with such a plan. She suggested the need for a plan in place which "clearly stated the specific requirements" from the mother. Perhaps unsurprisingly she concluded with the comment in relation to M that "there are no simple answers" and that the court "faces a complex decision."
The third final hearing commenced on 20 January 2014. Judge Probyn heard from various witnesses, including Ms Miller who gave evidence on 23 January 2014. The previous day, 22 January 2014, Judge Probyn had had a meeting with M. He said he wanted to go home. The transcript of Ms Miller's evidence is not as good as one would wish – there was apparently some problem with the recording equipment – but it is clear enough for present purposes. In relation to M, Ms Miller said that there was potential for emotional harm in both settings and "I genuinely do not have clarity about which route we should go down." Later she said "I feel on the cusp of both views." She agreed that returning M home was "high risk", for reasons which she then elaborated.
On 24 January 2014 Judge Probyn adjourned the hearing until 5 February 2014 for two purposes: for enquiries to be made of the C Unit as to what, if any work, it could undertake with the mother, and for the local authority to set out the differences between the support provided under a supervision order and a care order.
On 5 February 2014 Judge Probyn adjourned the case, for hearing over four days in the week commencing 28 April 2014:
"on the basis of the proposal advocated on behalf of M by his Children's guardian to allow for two initial assessment sessions to assess the mother's capacity to engage in work, such assessment to be carried out by the C Unit, the Court being of the view that this evidence is necessary to conclude the case and to do justice to all the parties and their competing positions."
In relation to V, the case was listed for final determination on 12 March 2014.
On 12 March 2014 the proceedings in relation to V concluded with the making of a 12 month supervision order.
The fourth final hearing began before Judge Probyn on 28 April 2014. The C Unit had reported on 14 March 2014. Its report suggested some signs of change in the mother: acceptance that she had slapped V and that the children had witnessed domestic violence, awareness of the impact of this on them, changes in her relationship with V, and a wish to extend this to her relationship with M, suggesting a "readiness and responsiveness" to intervention. The report recommended "interventions that are both therapeutic and instructive", specifically a programme of sixteen hours of individual 1 1/2 hour weekly sessions "to look at the impact of her anger on the children, better strategies to manage her anger to ensure safety for her...
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