W (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Black,Lord Justice Briggs |
| Judgment Date | 24 April 2015 |
| Neutral Citation | [2015] EWCA Civ 403 |
| Date | 24 April 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/3191 |
[2015] EWCA Civ 403
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT sitting at Coventry
Her Honour Judge Watson
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice Briggs
Case No: B4/2014/3191
Ms Janet Bazley QC and Mr Matthew Maynard (instructed by Brendan Fleming Solicitors) for the appellant father
Ms Elizabeth McGrath QC (instructed by Coventry City Council) for the respondent local authority
The mother appeared in person assisted by her McKenzie friend, Mrs Julie Haines
Hearing date: 18 March 2015
Sir James Munby, President of the Family Division:
This is an appeal, pursuant to permission given on 21 January 2015 by Ryder LJ, from an order made by Her Honour Judge Watson on 29 September 2014. The judge was sitting in the Family Court at Coventry, hearing public law proceedings in relation to two of the W children. The W family originates from francophone West Africa.
For present purposes the story begins on 12 December 2012, when His Honour Judge Cleary delivered a fact-finding judgment in the course of care proceedings relating to the five W children: in order of seniority, Ja, D, Jr, B and M. The judge made findings against both parents, the most serious being of physical injuries and assaults and of chronic, and on occasions deliberately abusive, neglect. On 31 January 2013, by which time the parents had separated, the same judge made care orders in relation to all five children. For the eldest three the plans he approved were for long-term foster care, for the youngest two, B and M, he approved plans for adoption and made placement orders. Applications by the father and mother for revocation of the care and placement orders in relation to B and M were dismissed on 17 February 2014.
Another child, Je, was born in September 2013. Care proceedings followed. A paternal aunt who lives in Belgium (I shall refer to her as Aunt A) put herself forward as a carer for Je. A viability assessment was prepared. The copy in the bundle before us was neither signed nor dated. We were told that it was dated 10 April 2014 and had been prepared by a social worker who I shall refer to as SWH and approved by her team manager who I shall refer to as TMA.
I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):
"PD27A para 4.2 states that:
"All statements, affidavits, care plans, experts' reports and other reports included in the bundle must be copies of originals which have been signed and dated."
This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11."
I continued (para 23):
"This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions".
I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.
On 16 May 2014, B's and M's separate foster placements became in each case adoptive placements. The same day, adoption applications, funded by the local authority, were filed in relation to B and M. On 23 May 2014, Judge Cleary gave directions in each case. The parents' final contact with B and M took place on 7 June 2014.
The IRH in relation to Je took place before Judge Cleary on 13 June 2014. A connected persons report dealing amongst other matters with Aunt A was handed in. It was incomplete and inconclusive: the author concluded that until certain matters had been further explored "I am unable to give a firm recommendation." Like the previous viability assessment it was neither signed nor dated. We were told that it had been compiled by a social worker who I shall refer to as SWM. The final connected persons report followed on 1 August 2014. Again it was compiled by SWM. This time she made a clear recommendation: "I do not recommend [Aunt A] to be considered as a long term carer for Je."
In the meantime, on 22 July 2014, notice had been given of the hearing of the adoption application in relation to B fixed for 21 August 2014. A similar notice of the hearing of the adoption application in relation to M fixed for 9 September 2014 was given on 14 August 2014.
Both parents attended the hearing on 21 August 2014, making clear that they wished to oppose the making of adoption orders in relation to both B and M and, in the case of the father, that he sought contact with them. They handed in a letter from Aunt A dated 21 August 2014 confirming that "I agree and wish to care for" B and M. The mother had set out her position in a statement dated 18 August 2014. Directions were given in relation to B by the District Judge. Since the form of order made on that occasion was subject to criticism before us, I need to set out the key parts verbatim:
"UPON both parents attending unrepresented today and submitting their evidence in opposition to the making of an adoption order
THE COURT ORDERS THAT
…
2 The birth parent adoption hearing is relisted on the first open date after 19 September 2014 … that date now being MONDAY 29 September 2013 at 10.30am.
…
3 Respondent Father having indicated that he has issued an application for contact to the child that application is to be listed at the same time as the adoption hearing …"
On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.
First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker "had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium". He commented, "It was, as the caseworker conceded, a fiasco." He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.
Secondly, Judge Cleary ruled out both parents as carers for Je:
"I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate."
That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):
" Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out."
So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.
On 6 September 2014 the father made a statement setting out his opposition to M's adoption. The mother's statement to like effect followed on 9 September 2014. The same day, M's case came before Judge Watson. Both parents attended the hearing. Judge Watson made an order which so far as material for present purposes was in the following terms:
"… Upon the Court being informed that the parents application for leave to oppose to the adoption Order in respect of B and also father's application for contact with both children is being heard on the 29 th September 2014 …
THE COURT ORDERS THAT
1 The birth parent adoption hearing shall be relisted on the 29 th September 2014 and heard alongside the hearing in respect of B …"
On 10 September 2014 the father made a further witness statement setting out the change of circumstances he relied upon for the purpose of his application under section 47 of the Adoption and Children Act 2002. He said "I wish also to put forward my sister [Aunt A] who lives in Belgium as potential carer of B and M." On 12 September 2014 another social worker, SWSM, made a statement. The local authority's position statement is dated the same day. These documents are important because they contain the only material Judge Watson had at the hearing on 29 September 2014 showing what Judge Cleary had decided on 1 September 2014 (the transcript of his judgment which we have was not available to Judge Watson). In essence all these documents had to say on this point was that both parents had been ruled out as potential carers for Je under a North Yorkshire ruling. On 24 September 2014 the father made a further statement in response to the statement by SWSM. In it he expressly drew attention to Aunt A's willingness to care for B and M as being a change in circumstances.
The matter, that is the cases in relation to both B and M, came on for hearing before Judge Watson on 29 September 2014. At the end of the hearing, Judge Watson gave a judgment to which I must return...
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