W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Tomlinson |
| Judgment Date | 01 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1051 |
| Docket Number | Case No: B4/2016/2037 & 2056 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 2016 |
[2016] EWCA Civ 1051
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HER HONOUR JUDGE WILLIAMS
ZC16C00110
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black and
Lord Justice Tomlinson
Case No: B4/2016/2037 & 2056
Ms Alev Giz (instructed by Philcox Gray Solicitors) for the Appellant
Mr Nicholas O'Brien (instructed by the local authority) for the Respondent
Ms Gill Honeyman (instructed by Covent Garden Family Law) for the Children's Guardian
The father in person
The Mother did not attend and was not represented
Hearing dates: 6 th October 2016
This appeal is brought by FW, a 16 year old girl, in respect of orders made by HHJ Williams in April and May 2016. The central issue in the appeal is whether the judge should have permitted FW to part company with her children's guardian and instruct her own solicitor in public law proceedings, namely an application for a recovery order brought by the local authority which holds a care order in relation to FW and FW's own application for the discharge of the care order.
At the conclusion of the appeal hearing, having formed the view that FW should indeed have been allowed to instruct her own solicitor, we told the parties of our decision to allow the appeal for reasons which would be provided in writing. The purpose of this judgment is to set out my reasons.
I should deal immediately with the formalities with regard to FW's participation in the appeal. She is the appellant, acting through a solicitor instructed by her independently of her children's guardian. The Civil Procedure Rules 1998 govern the appeal proceedings and FW is a child for the purposes of Part 21 of the Civil Procedure Rules 1998. By virtue of Rule 21.2(2), a child must have a litigation friend to conduct proceedings on his or her behalf unless the court makes an order under Rule 21.2(3) permitting the child to conduct the proceedings without. FW has no litigation friend and no application for an order under Rule 21.2(3) was made at any stage of the appeal process. The position therefore needs to be regularised. Given the view we have taken as to FW's understanding in relation to the proceedings at first instance, in my view it would be proper to permit FW to conduct the appeal without a litigation friend. I would therefore make an order to that effect.
Background
In 2014, FW and her siblings were the subject of care proceedings brought by the local authority for the area in which they were living ("the local authority"). FW was separately represented for much of those proceedings. This arose because the solicitor appointed by the children's guardian in the care proceedings (Ms Gaff) considered that FW wanted to give instructions that conflicted with the guardian's and was able, having regard to her understanding, to give such instructions on her own behalf. On 24 September 2014, Judge Gargan provided for FW to be separately represented in the proceedings and FW instructed her own solicitor, Ms Donn, both for the purposes of the fact finding hearing which culminated in a judgment of Judge Williams dated 10 November 2014, and for the purposes of the welfare hearing in relation to which Judge Williams gave a judgment dated 26 March 2015. Ms Donn instructed Ms Giz of counsel to represent FW at that time and Ms Giz has also represented her in the appeal.
The findings made by Judge Williams in her judgment of November 2014 included that there had been physical and emotional abuse of the children, including the imposition of demeaning and humiliating punishments upon certain of them, and that they were controlled by their father. Upon this basis, the judge found that the threshold in section 31(2) of the Children Act 1989 was satisfied, imposing interim care orders pending the welfare hearing at which decisions would be made about the children's long term future.
Judge Williams recognised in her November judgment that at that stage FW did not accept what she, the judge, had found to have happened and that she wanted to go home. That remained the position right up to the welfare hearing and has continued to be the case since then.
In preparation for the welfare hearing in March 2015, a report dated 14 November 2014 was produced by the department of child and adolescent mental health at Great Ormond Street Hospital. This drew upon the department's assessment, which included meeting the parents and the children and observing their contact together. Great Ormond Street recommended a placement for FW in long term foster care. The "Executive Summary" of their report contained the following passage which is material to the appeal:
"The children have been brought up in an environment where there has been an expectation that they will remain subservient to their parents and their parents' wishes at all times. Due to this the older children have been unable to develop their own sense of autonomy and self-belief."
Expressing her conclusions in her welfare judgment of March 2015, Judge Williams said (§28):
"This large family has because of the parents' views about the outside world been isolated to a significant extent and therefore the children in particular appear to be emotionally dependent on one another, as well as their parents and, especially in FW's case, extremely loyal to her parents and the family and she made this clear to me when I met her earlier today."
The judge considered that the children's physical and emotional safety could not be met if their father remained a primary carer for them and she could not be satisfied that the mother's recent separation from him would endure (she was correct to be doubtful as it did not last). The proceedings therefore concluded in relation to FW with the making of a care order on 26 March 2015.
FW had been prone to run away from her foster home prior to the March 2015 hearing and she did not stay with her foster carers after it either. She again absconded and this time took up residence in her grandmother's house from May 2015, having unsupervised contact with her parents. In due course, the parents moved in to live with the grandmother as well. The local authority applied on 12 February 2016 for a recovery order under section 50 of the Children Act 1989 with the objective of having FW returned to foster care.
The procedural history from this time is not as clear as it might be but what follows is, I hope, a description of the main features of it. At around the time of the local authority's recovery order application, FW took matters into her own hands by attempting to apply for the discharge of the care orders in relation to herself and one of her brothers. The papers include an unissued application to this end, dated 9 February 2016. Some information as to what occurred at about this time is available from the statement of Ms Donn dated 19 May 2016. This statement post-dates the decisions under appeal and a proper formal application should have been made for permission to introduce it in the appeal. For that reason, Mr O'Brien for the local authority opposed its use in the appeal. However, we considered that its contents shed important light on matters and that it was appropriate to permit it to be introduced, notwithstanding the regrettable failure to observe formalities. In it, Ms Donn said that FW attended at her office on 4 March 2016 and instructed her to apply for the discharge of the care order for her because she (FW) had tried to apply for this as a litigant in person but had been told that she had completed the wrong form. Before Ms Donn was able to proceed with this, it transpired that the court had, in fact, accepted FW's discharge application as valid. It can be seen from the order that Judge Williams made at a directions hearing on 16 March 2016, for instance, that it was accepted that FW had applied, on 15 February 2016, for the discharge of the care order and that directions were given in relation to that application.
The local authority's application for a recovery order had resulted in the appointment of a children's guardian for FW prior to the directions hearing on 16 March 2016. This was Ms Reed, who had also been the guardian in the care proceedings. Ms Reed instructed Ms Gaff as FW's solicitor. By 16 March 2016, however, it was apparent that FW wished to be represented separately by Ms Donn, who had written to the court to this effect, indicating that she considered that FW was still competent to instruct her and asking that she should be appointed as FW's solicitor. The guardian and Ms Gaff did not agree that FW was in a position to instruct Ms Donn. In view of the conflict of opinion, the judge made an order on 16 March 2016 permitting Ms Gaff to instruct Dr Butler, a child and adolescent psychiatrist, to report on FW's "competence/capacity to independently instruct a solicitor and conduct the proceedings separately from the children's guardian". She listed the application for a recovery order and the discharge application for 1 April 2016, when the question of separate representation was to be determined.
Unfortunately, neither Ms Donn nor Ms Giz were able to attend on 1 April. In the light of the email sent by Ms Donn to the court on 15 March 2016, from which it was apparent that Ms Giz was not available on 1 April, it was a pity that the matter was listed on that day, although I can see that it might have been thought that the urgency was such that it was not possible to await a date when Ms Giz would be able to attend. Because the legal aid certificate for the child had been granted in favour of Ms Gaff, legal aid could not be granted to enable Ms Donn to instruct counsel on public funds and she was unable to find anyone else to take over the matter on a pro bono basis. There was therefore no one to argue FW's case for...
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