RE v North Yorkshire County Council and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden,Lord Justice Lewison,Lord Justice Moore-Bick |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1169 |
| Docket Number | Case No: B4/2015/1308 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 November 2015 |
[2015] EWCA Civ 1169
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT AND FAMILY COURT
HER HONOUR JUDGE FINNERTY
YO14000308
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVSION
Lord Justice Lewison
and
Mr Justice Hayden
Case No: B4/2015/1308
Ms. J. Bazley QC & Ms. L. Harland (instructed by Watson Woodhouse Solicitors) for the Appellant
Mr. A Taylor (instructed by North Yorkshire County Council) for the 1 st Respondent
Ms. Jennie Smith (instructed by Langley Solicitors) for the 2 nd Respondent
Mr. James Hargan (instructed by Crombie Wilkinson) for the 3 rd Respondent
Hearing date : 14 th October 2015
This is an appeal arising from orders made by HHJ Finnerty sitting in the Family Court at York on the 2 nd September 2014. Though the case had been listed for an Issues Resolution Hearing (IRH) during the course of Pubic Law Care Proceedings, the Judge felt able to proceed to make Final Orders in respect of a range of welfare issues, resulting in the following orders and declaration:
i) A Care Order in favour of the Local Authority, North Yorkshire County Council;
ii) Permission to the Local Authority, to refuse contact between the child (A) and his father (F) pursuant to section 34(4) of the Children Act 1989;
iii) Leave to the Local Authority to apply for a declaration removing responsibility to consult F in relation to A;
iv) A declaration that the Local Authority should be absolved from the statutory responsibility of consulting F in relation to A's care and their obligation to involve him in the Looked After Children (LAC) consultation process;
v) A non-molestation order (granted until further order) prohibiting F from:
a) Contacting M, A or the maternal great grandmother (MGGM) either directly or indirectly or through any third party except through lawyers or through the Local Authority for the purpose of the letterbox contact;
b) Attending within 100 metres of any address where he knows M and A or MGGM are living;
c) Should F meet M in any public or private area he is ordered to leave immediately to a distance of at least 100m away.
A power of arrest was attached to the non-molestation order.
The Grounds of Appeal have been drafted in very general terms (even as amended) but the thematic basis, which embraces each of the orders set out above, is identified in Ground 1 of the Appellant's Amended Grounds of Appeal:
"The Judge was wrong to have made final orders at interim hearing which:
1. Prevent a child from maintaining personal relations with a parent; and
2. Prevent a child having a future determined by which both parents have played a part."
It is argued that at the IRH the Judge was not in a position to conduct the 'holistic analysis' of the available options that was required in order properly to do justice either to the interests of the child or the father. In particular, at Ground 3, which is really an amplification of the same point, it was contended:
1. Before reaching the determination that it was necessary and proportionate to the identified risks, that 'nothing else would do' the Judge needed to be sure that all the evidence was before the Court. The Judge was wrong to have proceeded to make Final Orders at an interim hearing;
i. Without the court bundle;
ii. Without the father having had notice that the IRH might be dealt with as a final hearing;
iii. Without the father having been produced from prison
iv. Without having heard any evidence or allowed father the opportunity to properly challenge the evidence of the Social Worker and Children's Guardian;
v. Without some form of contact being tested, the father, having made requests for contact, photographs and for the Social Worker to visit him, had the father having never met A or received any update in respect of his developments except the redacted Care Plans when the child was nearly 5 months old.
vi. Where despite a large number of concessions and acceptances by Father, enough for a court to consider the Threshold Criteria for making s.31 orders was crossed, the Threshold Criteria annexed to the order had only been agreed by the Mother and not by Father,
vii. Without having proper evidence before the court as to the impact upon the child of having no contact with the paternal family.
Further, the Declaratory Relief granted by the Judge is attacked on the separate ground that the Judge lacked a jurisdictional basis to grant such relief and accordingly exceeded the ambit of her lawful powers. No party now seeks to uphold these declarations recognising and conceding their lack of jurisdictional foundation. The Appellant however goes further and contends that 'even had there been jurisdiction, it would have been wrong to make the orders'. Furthermore, it is asserted 'the declarations were in breach of the F's Article 6 rights and were unlawful.'
On 22.05.15 Ryder LJ, on considering the written application for permission to appeal, granted the Appellant permission out of time on the basis that:
"His (F's) instructions were clear — he did not agree to the effective termination of all contact nor the declaration that was made that purportedly restricted his rights in law as a parent. It is seriously arguable that those orders should not have been made without the father having an effective opportunity to challenge the same. The orders are not adequately reasoned in the judgment. In any event, I am not clear what power the judge exercised to make the declaration."
Summary Background
Given the ambit of this appeal it is unnecessary for me to burden this judgment with an extensive account of the background history. It is important however to identify some of the salient facts.
A. was born 8 th April 2014 and was the subject of care proceedings issued by North Yorkshire County Council (LA) on 9 th April 2014. At a hearing on 10 th April 2014, i.e. when two days old, A was made subject to an Interim Care Order and was placed with his mother in Local Authority Foster Care. The mother was 16 years old when A was born, the father 21 years old. Their relationship has been characterised by a disturbing pattern of domestic violence perpetrated by the father on the mother. A pre-birth assessment concluded that M was extremely vulnerable, F declined to engage with the assessment.
On 28.01.14 F was convicted of two assaults upon M, both had been committed during M's pregnancy (28 th October 2013 and 8 th November 2013). He was sentenced to a 2-year Community Order and 2-year Supervision Order. On 29 th January 2014 a further Community Order and curfew were added to this sentence following a yet further assault on M.
In February 2014 both M and her unborn baby were made the subject of child protection plans under the category of 'at risk of physical harm'.
On 4 th April 2014, whilst heavily pregnant, M was subjected to a very serious assault and falsely imprisoned by F. She attended hospital with bruising and scratching to her face and pain both in her stomach and back. She discharged herself from the hospital, against medical advice.
Four days later, A was born. F attended the hospital and was described by nursing staff as behaving in an aggressive manner. He was asked to leave by hospital staff and was not permitted to return to the hospital building while M was present.
M and A were discharged to a foster placement together and, in order to protect them, an Exclusion Order was applied for and obtained, preventing F from entering the area where they were living. The Local Authority were permitted to refuse contact between A and F and on 25 th April 2014 were directed to carry out an assessment of the risk said to be posed by F in the contact situation.
A risk assessment was completed by the social worker, Mr Nick Murray (dated 13.05.15). Mr Murray sets out the escalating level of concern arising from the reports of F's aggression. In summary:
i) Aggression to M, her family and nursing staff at the hospital immediately following A's birth;
ii) Shouting and aggression directed to the Independent Reviewing Officer at the Review Child Protection Case Conference on 22.04.14, and aggression to reception staff upon being told to leave the building;
iii) What is reported as extreme aggression by F to his Probation Officer, contributing to the Probation Service's conclusion that F was a 'high risk' and their view that the extant Community Order was unworkable — reported to the social worker on 25.04.14;
iv) Behaviour at the premises of his previous solicitors, reported to the Court, as a result of which they applied to come off the court record.
Mr Murray carried out an interview with F following which he concluded that the risks of direct contact between F and A were too high even on a supervised basis.
On 26 th April 2014 F was arrested in relation to the incident of 4 th April 20He appeared before magistrates on 28.04.14 and was remanded in custody.
On 17 th June 2014 F pleaded guilty at the Crown Court to an offence of false imprisonment and received a custodial sentence of 4 years. The Court concluded that it was necessary to protect M, A and MGGM from F and imposed a Restraining Order of indefinite duration. The sentencing judge is reported as having described F as a 'dangerous young man'.
During the course of the social work assessment F acknowledged a history of illicit drug abuse which he appeared to identify as exacerbating his difficulties in...
To continue reading
Request your trial
-
Bury Metropolitan Borough Council v ML & Anor
...EWHC 2452 (Fam), [2017] 4 WLR 193, [2018] 1 FLR 784. O (a child) (care proceedings: issues resolution hearing), Re, Practice Note[2015] EWCA Civ 1169, [2016] 1 WLR X (care: notice of proceedings), Re[1996] 3 FCR 91, [1996] 1 FLR 186. X v Y (children), Re[2018] EWHC 451 (Fam), [2018] 2 FLR 9......
-
SV (a minor) and PV and A health and Social Care Trust and The Department of Finance
...more than able to protect her interests, and indeed has been doing so.” [50] In Re O (A Childcare Proceedings Issues Resolution hearing) [2016] 1 WLR 512 the Court of Appeal discussed the fact that declarations as made in Re C could only be made under the inherent jurisdiction. The Court of......
-
SV (A MINOR), FV (A MINOR), GV (A MINOR) and PV and A Health and Social Care Trust and The Department of Finance and A Health and Social Care Trust and PV and SV, FV & GV (Minors) acting by the Official Solicitor as Guardian Ad Litem
...in relation to the child’s well-being and progress. [104] Counsel for the father placed reliance on the decision of Hayden J in Re O [2015] EWCA Civ 1169 when he stated: “Even a parent who has behaved egregiously may nonetheless have some important contribution to make in the future. The re......
-
A Local Authority v X
...the Children Act 1989 was describedby Hayden J in In re O (A Child) (Care Proceedings: Issues Resolution Hearing) [2015] EWCA Civ1169; [2016] 1 WLR 512 at para 27 as follows:“The objective of the process here is to ensure not only that there is proper planningbut the plan for the child cont......
-
Essential Daily Guidance for Proceedings Concerning Children
...harm in the particular case’, Re H and R (Child Sexual Abuse: Standard of Proof) . 22 19 RE v North Yorkshire County Council and Ors [2015] EWCA Civ 1169. 20 Re C (Care: Consultation with Parents Not in Child’s Best Interests) [2005] EWHC 3390 (Fam), [2006] 2 FLR 787. 21 Re A (Father: Knowl......