Re S-W (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Lewison,Sir James Munby |
| Judgment Date | 30 January 2015 |
| Neutral Citation | [2015] EWCA Civ 27 |
| Docket Number | Case No: B4/2014/2970 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 2015 |
[2015] EWCA Civ 27
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Liverpool County Court
His Honour Judge Dodds
LV14C01877
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby
President of the Family Division, Court of Appeal
Lord Justice Lewison
and
Lady Justice King
Case No: B4/2014/2970
James Holmes (instructed by Jackson and Canter Solicitors) for the Appellant
Clive Baker (instructed by Liverpool City Council) for the 1st Respondent
Carl Gorton (instructed by MSB Solicitors) for the 2nd Respondent
Kate Burnell (instructed by Paul Crowley & Co Solicitors) for the 3rd Respondent
Hearing date: 11th December 2014
This is an appeal from final care orders made at the Family Court, sitting at Liverpool on the 7 August 2014, in respect of the three children of the appellant mother; ES born on the 27 July 2000 (14); LW born on the 9 October 2003 (11); and AW born on the 17 July 2004 (10).
On the 18 July 2014, Liverpool City Council made an application for a care order in respect of all three children. At the first hearing, known as a Case Management Hearing (CMH), held on 7 August 2014, (less than three weeks after the application was made), the judge made final care orders in respect of each child. The mother sought permission to appeal the orders by an appellant's notice dated the 8 September 2014; her Grounds of Appeal being directed at the summary disposal of the case at such an early stage of the proceedings.
Permission to appeal was granted by Lord Justice McFarlane on the 30 October 2014. In granting permission, McFarlane LJ identified an issue of wider application saying:
"In any event, there is a compelling reason sufficient to justify this case being considered by the Court of Appeal. The judge's approach could not have been more robust. He sought to justify such an approach on the basis that recent family justice reforms and case law. There is a need for the Court of Appeal to consider whether such a robust summary approach is justified and/or required by the recent extensive changes to procedure and case law and, if so, how the basic requirements of a fair trial and judicial analysis are to be accommodated in such a process".
Neither Liverpool City Council nor the children's guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool.
Background
The brief facts are as follows: The family have been known to Liverpool Children's Services since 2006 although it was not until November or December 2012, that the children were removed from their mother's care and accommodated under a s20 Children Act 1989 (CA 1989) agreement. The concerns of the local authority centred on the general neglect of the children, against a backdrop of alcohol and drug use, together with the mother's inability to break free from a violent relationship.
LW and AW were placed with their paternal grandmother and ES with his maternal grandmother. ES and AW continue to live with their respective grandparents and it seems likely that that will continue to be the case. LW and AW have the same father, LW Snr, who has been represented in the proceedings but who is presently remanded in custody in relation to criminal proceedings. ES's father is not in contact with his son and had not been served with notice of the care proceedings by the date of the CMH.
Unhappily, LW has fared less well than his brothers since he left his mother's care in about November 2012. He has had 14 different placements, including two since the making of the care orders in early August 2014. LW is academically capable and has been described as 'over achieving' in school. LW is currently in local authority foster care but very much wishes to be allowed to live with his mother.
Despite the longstanding concerns about the family, the local authority did not issue care proceedings until 18 July 2014. In February 2014 the mother had been told that there was the potential for LW to return to her care. During a pre-proceedings meeting which took place on the 19 March 2014, it was decided that the mother would be assessed as a potential carer for all the children, a decision which led to a parenting assessment being filed on the 4 July 2014. That assessment was not positive and ruled out rehabilitation of all the boys to their mother. Notwithstanding that conclusion, in light of LW's continued instability, distress and fervent desire to go home, active consideration continued to be given to some sort of placement which would allow LW to be with his mother.
Upon the issuing of the care proceedings a Guardian, Ms Deborah Cotterell, was appointed. As is required under the terms of the revised Public Law Outline (PLO), Part 12 Family Proceedings Rules 2010 (FPR Part 12: PD12A), the Guardian familiarised herself with the evidence then available and filed an Initial Evaluation for use at the CMH hearing. There is no expectation, either in the FPR 2010, or in practice, that the Guardian will have seen either the children or any of the parties prior to preparing her report for the CMH; indeed it would be wholly unrealistic to do so as, by FPR Rule 12; PD12A, the CMH is required to be listed between Day 12 and 18 starting from the date of issue of the care proceedings.
The initial evaluation of Ms Cotterell, the Guardian, brought to the attention of the court three significant matters:
i) She had not seen any of the children, each of whom was expressing a desire to live with their mother and ES was already 14 years old;
ii) She set out her grave concern for the welfare of LW and the need for the local authority to explore all available options for him, whether within the family or, potentially, with a foster carer experienced in providing therapeutic support. Her concern to ensure that the local authority conducted a proper assessment of placement options for LW was heightened by the fact that the local authority had, at one stage, placed him with his father, a man with convictions for supplying Class A drugs. When LW subsequently made complaints of ill treatment at the hands of his father, the local authority, following some investigation, sent him back to live with his father against his wishes. The placement broke down again in circumstances which have resulted in the father being charged with assault on LW;
iii) She recorded that she wished to have the opportunity to read the social work records, and wanted to see a wide range of documents, ranging from school reports to viability assessments of kinship carers.
Prior to the listed CMH, an Advocates meeting was held as is required by the PLO: (PD12A: Stage 2). Discussions were held at the meeting and agreement reached as to the future progress of the case, details of which were noted down by Mr Baker, Counsel instructed on behalf of the local authority, with a view to them being put into the form of an order following further discussions which it was anticipated would be held at court immediately prior to the hearing.
When they arrived for the hearing both the Advocates and Guardian were in agreement, subject to the judge's approval, as to both directions and a timetable along the following lines:
i) The local authority would pay for a drugs hair strand test on the mother. This was a matter of considerable importance …….because
ii) the local authority were to convene a Family Group conference in order to see if a way could be found for LW to return, in whole or part, to the care of his mother. It was hoped that if that could safely be achieved, it might act as a break on the disruptive behaviour which was leading to the constant breakdown in his placements. The local authority note of the meeting says "is it just about good enough with mum, may be able to go back." The timetable was to provide for an addendum to the parenting assessment already filed by the local authority;
iii) Efforts were to be made to trace the father of ES who had not been served;
iv) Neither of the grandmothers wished to be considered as foster carers and therefore Special Guardianship assessments were to be carried out by the local authority with a view to securing the future of those two children by the making of Special Guardianship Orders;
v) It was agreed that a slimmed down number of documents from that listed by the Guardian in her report would be disclosed, but that only one or two of those documents would be placed in the bundle. This would allow the Guardian to carry out a full review of the case whilst ensuring compliance with Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court) (the Bundles Direction) para 5.1 which limits the court bundle to 350 pages of A4 text; (see also Re W (Children)(Strict Compliance with Court Orders) [2014] EWFC 22);
vi) The matter would be listed for an early Issues Resolution Hearing (IRH) with a view to the case being concluded substantially within 26 weeks.
The Hearing
On the morning of the hearing the court had, in addition to the Guardian's analysis and the parenting assessment, a report from the social worker. The mother had filed a statement setting out the changes she said that she had made in her life, her desire to have the children rehabilitated to her care, emphasising her considerable concern for LW and her wish for him to live with her.
The Guardian was not at court having sustained an injury of some sort, but was available on...
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