Re P-S (Children) (Care Proceedings: Evidence)
| Jurisdiction | England & Wales |
| Judge | The Rt Hon. Sir Alan Ward:,Lord Justice Pitchford:,Lord Justice Elias: |
| Judgment Date | 21 March 2013 |
| Neutral Citation | [2013] EWCA Civ 223 |
| Docket Number | Case No: B4/2011/3243 and B4/2011/3244 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2013 |
[2013] EWCA Civ 223
Lord Justice Elias
Lord Justice Pitchford
and
Sir Alan Ward
Case No: B4/2011/3243 and B4/2011/3244
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
HER HONOUR JUDGE ISABEL PARRY
SA10C01648
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Blake (instructed by T. Lewellyn Jones) for the Appellant
Miss Ruth Henke QC and Miss Clare Williams (instructed by Carmarthenshire County Council) for the 1st Respondent
Mr Edmund Cofie (instructed by John Itsagwede & Co) for the 2nd Respondent
Mr Matthew Rees (instructed by Cameron Jones Hussell & Howe) for the 4th Respondent
Hearing date: 12th November 2012
The appellant, M, was barely 15 years old when, having earlier been joined as a party to the care proceedings brought by the Local Authority against his Mother for care orders in respect of himself and his younger half-brother, he applied through solicitors and counsel separately representing him for leave to attend court to give evidence in support his case to return to the care of his Mother because "he does not feel that the strength of his feelings [are] being sufficiently understood and wishes an opportunity to attend before the learned judge to express himself in person in his own words so that his case is fully advanced." On 21st November 2011 Her Honour Judge Parry sitting in the Swansea County Court dismissed that application. On 24th November 2011 she ordered that both boys be placed in care. M appeals against both orders with permission granted by Thorpe LJ.
Mr David Blake, counsel appearing on his behalf, both here and below, submits that "this case raises a novel point of principle as to whether a young person who has been afforded full independent party status should be heard orally as any other party would "fairly" expect to be and a general point of interest as to what is the right test for whether a child should be heard on questions of wishes, feelings and indeed future intentions when they are competent to express them." He goes further and submits that "M does have a 'right' to give evidence or there is at least a presumption in favour." In the appeal against the care order "the general point … is essentially should the elements of the welfare checklist be weighted with a rebuttable presumption in favour of wishes and feelings being complied with, where the young person is fast approaching majority?"
The background
M was born on 31st August 1996 in Romania of Romanian parents. The detail of his early life is obscure. He and his Mother eventually settled in the Republic of Ireland and he has since been granted Irish citizenship. Little is known about his father who has played no part in the proceedings at all. When in Eire Mother met Mr S, a Nigerian citizen whose immigration status in Eire is a little uncertain. A was born of this relationship on 8th July 2011. He too is an Irish citizen.
The Mother and her sons came to Wales in September 2009 in order, she said, to pursue a course of further education. Perhaps the family had already come to the attention of the Irish Social Services. The family was soon drawn to the attention of the Welsh Local Authority Social Services which did not please the Mother. On 28th May 2010, while the children were in school, the Mother attempted to leave Wales for Eire without having made proper arrangements for the care of the children. She was arrested and charged with neglect though eventually acquitted. The children were received into care and placed with foster parents. An application for a care order was issued on 24th June 2010 and a guardian duly appointed to both M and A. Contact broke down because the Mother refused to agree to the requirement of the Local Authority that she would not discuss the case with the children. She last saw them at the end of July 2010. Some days after that last contact M absconded and may have had unofficial contact with his Mother. He absconded again on 1st December 2010 and on that occasion was found in the Mother's company after the police forced entry into the Mother's home the following day. His initial placement with A broke down and he was moved to new foster parents where he appears to have settled well.
In July 2011 M met his guardian and her solicitor and made it clear he wanted separate representation and on 26th July 2011 the judge so ordered and appointed a solicitor to represent him. He has had the benefit of solicitor and counsel ever since. On 31st July a position statement settled by his solicitor set out his wishes and feelings in which he said, "I do not wish to remain where I am and I strongly desire to return home." He stated that he no longer wished to attend the final hearing or to give evidence as he had earlier but he did wish to meet with the judge to convey to her how he felt about matters. The Mother, on the other hand, pursued her application for both M and A to give oral evidence but that application was dismissed.
The final hearing commenced on 1st August 2011 with M represented by counsel who had every opportunity to cross-examine all witnesses on his behalf. At the conclusion of the court day on 2nd August 2011 HHJ Parry saw M in her room in the presence of his solicitor and the guardian. As the judge was to explain in her judgment of 21st November 2011:
"6. … I did not use it [meeting M] as an opportunity to ascertain what his wishes and feelings were because those wishes and feelings were already perfectly obvious from formal reports that the Court had received from the Guardian and the fact that he now wished to have separate representation.
7. I explained to him what the task of the Court is in trying to achieve a welfare outcome for children that reflects their wishes and feelings. I explained also that the Court has to look at the whole picture, all the evidence that is available about the child and about the people who are looking after him and who want to look after him. It was not appropriate for me to discuss any issues evidentially with him, such as the reasons why he does not see his mother and the reasons why he apparently absconded to her care in early December 2010.
8. I assessed M to be reasonably subdued during our meeting. …
9. M only became animated when talking about matters that are far removed from the heavy emotional baggage which must constitute his day-to-day life and his feelings about his brother and mother.
10. I endeavoured in our meeting to follow the guidelines that are given to judges in terms of meeting children so they have a full understanding of the process and how they are involved in it."
The hearing could not be concluded after 2 1/2 days and was adjourned to 26th August to hear the guardian and for closing submissions to be made. On 26th August A's father attended court and in view of his albeit belated interest the matter was further adjourned to November.
On 16th November 2011 M made his application for permission to attend to give evidence by video link "so that the strength of my feelings can be made clear to everyone". He explained that he would be "extremely distressed if told that I was to be forced to remain in foster care and I would struggle greatly to accept this outcome." He also said that "I have had thoughts of running away as sometimes I have felt that people are not taking me seriously. These have occurred quite often, including quite recently, but in the last few weeks I have been a little more optimistic and hope that the court will grant my wishes. I would feel devastated if I were told I could not return." That application was heard on 21st November 2011, the Local Authority and guardian indicating that they did not wish to cross-examine M on the content of his statement, Mother indicated that the only question she would be seeking to ask him through her counsel would be about the likelihood of him voting with his feet and running away from the foster placement should a care order be made.
The judge dismissed the application as I have set out and continued to hear the care proceedings in which A's father offered himself as a carer for the children either jointly with Mother with whom he said he had been reconciled or in the further alternative by himself. The Mother seemed willing to care for the children jointly with the father but of course without the need for any Local Authority intervention. The Local Authority was successful in its application.
The judgment on M's giving evidence
The judge observed that the two authorities to which she had been referred, namely Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 and A City Council v T, J and K [2011] EWHC 1082 (Fam), [2011] 2 FLR 803, dealt with radically different situations from the one with which the court was faced, the former concerning the giving of evidence to substantiate a complaint for the purpose of establishing the threshold and the latter dealing with an application for secure accommodation.
She made these findings:
"12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …
13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence."
She...
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