S (Children: Party Status)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Nicola Davies,Lord Justice Moylan |
| Judgment Date | 22 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1717 |
| Docket Number | Case No: CA-2022-002115 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1717
Lord Justice Moylan
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case No: CA-2022-002115
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LINCOLN
Recorder William Evans
LN22C50054
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Compton (instructed by Sills & Betteridge LLP) for Mr B
Kyle Squire (instructed by Lincolnshire County Council) for the Respondent Local Authority
Davina Krishnan (instructed by Watsons Solicitors) for the Respondent Mother
Meryl Hughes (instructed by Bridge McFarland Solicitors) for the Respondent Children by their Children's Guardian
Hearing date: 20 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 22 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The issue in this appeal is whether the refusal of an application by the Appellant, Mr B, to become a party to care proceedings was wrong. After argument on 20 December 2022, we informed the parties that the appeal would be allowed: these are my reasons for joining in that decision.
Joining a party to care proceedings
The Family Procedure Rules 2010 12.3 and 12.4 provide that the court may at any time direct that a person be made a party to care proceedings and may give consequential directions about the management of the proceedings. There is no guidance in the rules or in the Children Act 1989 as to how this power should be exercised, beyond the fact that the overriding objective applies, as it does to any case management decision.
The most useful judicial guidance on the topic is Re B (A Child) [2012] EWCA Civ 737. Black LJ confirmed that the court should consider the factors contained in section 10(9) of the Children Act:
“(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to—
(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with the child;
(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by a local authority—
(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents.”
Black LJ noted that this provision highlights certain relevant factors but that it is not a test, still less an exhaustive one. The court has a broad discretion to conduct the case in the most appropriate way given the issues involved and the evidence available. It is for the judge to weigh the various factors and decide what the proper order is in the individual case, with this court being slow to interfere with decisions of this kind. One factor that she identified (para. 37) is the purpose that party status would serve:
“It is logical that a judge determining an application to become a party to proceedings should have an eye to what may follow joinder. To illustrate this with an obvious example, there would be no point in joining someone as a party if they would then inevitably be refused leave to bring an application in relation to the child and would have no other legitimate role in the proceedings.”
This might be described as the court having regard to whether the aspiring party has an arguable case to make for some significant remedy. However, the ‘arguable case’ test is not a substitute for a broad, practical assessment that ensures a fair and efficient determination of the issues in the case.
The background
Mr B, who is in his 40s, met the Respondent mother, who is in her 20s, shortly after she arrived in England in 2014. They cohabited briefly and separated. Soon afterward, the mother became pregnant with C, a boy who is now aged 5. Mr B is not C's father. Mr B and the mother then began to live together again. He supported her during the pregnancy and was present at C's birth. They all lived in Mr B's home until 2020, when the mother obtained her own tenancy. Throughout this time Mr B was involved in C's care and a close bond developed between them. More recently, C has been diagnosed with ASD, which places particular demands on his carers.
In September 2021, the mother gave birth to D, who is C's half-brother. In early April 2022 her mental health deteriorated and she and the children moved in with Mr B. On 8 April 2022, she was detained under section 3 of the Mental Health Act 1983. Before being taken to hospital with D she asked for C to be cared for by Mr B. On 22 April 2022, D was placed in foster care. The mother remained in hospital until August.
Mr B was then formally assessed by the local authority as a “connected person” under regulation 24 of the Care Planning Regulations 2010, which led to a positive assessment on 20 April 2022.
The local authority issued care proceedings in respect of the children and on 22 April 2022 an interim care order was made on the basis of an interim care plan that C remained with Mr B. A direction was made for Mr B to be assessed as a special guardian.
The two local authority reports described the strength of the relationship between C and Mr B.
Reg. 24 assessment (22 April 2022):
“Mr B has known C all his life. They share a close bond and a warm affectionate relationship as reported by different professionals.”
“Mr B understands C's additional needs and adjusts his parenting of him accordingly.”
“Mr B has been a significant source of support to C and his family over the years.”
Special guardianship assessment (15 August 2022):
“C presented as content in Mr B's care and a positive relationship was observed. If C was unable to return to his mother's care I expect he would wish to remain in Mr B's care as this was familiar and predictable.”
“Mr B has been observed to communicate well with C, offering lots of warmth and support to engage with workers during home visits. Mr B describes that he has been the only father figure to C for the duration of his life thus far, identifying himself as C's ‘psychological’ father…”
“Mr B also has a sound understanding of C's additional and challenging needs, which he reports can include outbursts of anger, struggling to verbalise and comply with rules and boundaries.”
Despite these reports, C was taken into foster care on 4 August 2022 after a hearing of which Mr B was given no notice. The local authority considered that it had obtained further information during the special guardianship assessment that justified asking the court to amend C's interim care plan so that he was placed in foster care, separately from D. The information consisted of an account from Mr B's ex-wife, a single allegation of assault made by the mother on 22 June 2022, information about Mr B's criminal history from the PNC relating to 1996 and 2013/14, and information from his GP about his past mental health relating to 1997 and 2015. The social worker also opined that there was possible evidence of coercive and controlling behaviour by Mr B towards the mother. A statement, dated 1 August 2022 and redacted (apparently to protect the ex-wife), was placed before a Circuit Judge, who approved the change in the care plan. No provision was included in the order for Mr B to be heard, or even served. He was told that C would be removed into foster care from school. His contact was set at 90 minutes a month: the reports that we have seen are consistent with the positive accounts contained in the assessments.
We are not concerned with an appeal from the order of 4 August 2022, but it forms a significant moment in the sequence of events that led to the order that is under appeal and it is relevant to my assessment. We have seen nothing to show that A's safety and welfare required his immediate removal without Mr B being told that it was proposed, without him being given any explanation, and without the court giving him an opportunity to be heard before or after the event. To this day he has never been served with the statement that led to the removal. I need not consider whether or not he was entitled to the specific protection of advance notice under the protocol contained in Re DE [2014] EWFC 6; [2015] 1 FLR 1001, as endorsed by this court in Re S [2018] EWCA Civ 2512. It is simply a question of whether the process was fair.
At all events, on 15 August 2022, the local authority filed its special guardianship report and gave a heavily redacted version of it to Mr B. On 18 August 2022, he made an application to be joined as a party to the care proceedings.
The decision under appeal
Mr B's application was considered at a CVP hearing before Recorder Evans on 30 September 2022 at which Mr B and the parties were represented. The recorder dismissed the application. His order included this recital:
“Giving judgment, the court refused Mr B's application, identifying evidence that would inevitably cause any application made by him for leave to bring a Section 8 order to fail and therefore confirming that there was no role for him to play in proceedings.”
In his clear and compact judgment, the recorder introduced the application and summarised the parties' submissions. His reasoning appears in the following passage:
“11. In the alternative, it is suggested, on Mr B's behalf, he could be made an intervenor for a specific purpose, that being to challenge the special guardianship assessment. The local authority does not seek any findings to be made against Mr B. The situation here is he was assessed. He was considered on a viability assessment as a potentially appropriate carer. He was assessed as a potential special guardian, and that assessment is negative.
12. In those circumstances, it...
To continue reading
Request your trial