Z v A Local Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker |
| Judgment Date | 17 February 2022 |
| Neutral Citation | [2022] EWCA Civ 169 |
| Docket Number | Case No: CA-2021-000079 |
| Court | Court of Appeal (Civil Division) |
L (Fact-Finding Hearing: Fairness)
[2022] EWCA Civ 169
Lord Justice Baker
and
Lord Justice Snowden
Case No: CA-2021-000079
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT PORTSMOUTH
Recorder Leong
PO21C00010
Royal Courts of Justice
Strand, London, WC2A 2LL
David Sharp (instructed by Churchers LLP) for the Appellant
Gemma Bower (instructed by Local Authority Solicitor) for the First Respondent
Nigel Cholerton (instructed by Biscoes) for the Second Respondent
Helen Khan (instructed by Child Law Patnership) for the Third Respondent
Hearing date: 8 December 2021
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Thursday 17 February 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Lord Justice Baker (giving the judgment of the Court):
This is the judgment of the Court to which we have both contributed.
The principal issue arising on this appeal in care proceedings concerning a little girl, L, is whether the process by which the recorder reached the conclusion that the threshold criteria under s.31 of the Children Act 1989 were satisfied was fair. The appellant, Z, who is L's father, contends that certain of the findings made by the recorder, which went further than those sought by the local authority, were made after a hearing in which he did not have a fair opportunity to meet those allegations.
Background
L's mother has three children who we shall call J (a boy aged 6), K (another boy aged 4) and L (aged 2). The three children have different fathers, who we shall call respectively X, Y and Z. The local authority's children's services department has been involved with the family since April 2017 after an altercation between Y and Z, following which Z was convicted of assault. Thereafter there were allegations about cannabis misuse, anti-social behaviour and domestic abuse in the relationship between the mother and Z. The local authority became concerned that Z was exerting coercive control over the mother. Although the case was closed in 2019, it was re-opened in May 2020 following a referral by the housing department after an incident in which Z was said to have shown aggression during a telephone conversation with a housing officer. Other incidents followed, culminating in a further referral in September 2020 after J spoke to nursery staff about having witnessed Z assault a family friend and break a mirror. The local authority initiated pre-proceedings processes under the Public Law Outline and, in October 2020, J and K went to live with their respective fathers, X and Y, who each then started private law proceedings seeking child arrangements orders under s.8 of the Children Act. Within the proceedings relating to J, a prohibited steps order was made preventing the mother allowing any contact between J and Z save for contact supervised by the local authority.
An initial assessment of the mother and Z recommended that L be placed under an interim care order whilst remaining at home. On 5 January 2021, the local authority therefore started these care proceedings in respect of L. The initial schedule of facts on which the local authority asserted that the threshold for an interim order was crossed included the following allegations:
“(1) The relationship between the mother and Z has featured heated arguments and Z subjecting the mother to verbal abuse and controlling behaviour. L has been present on some of the occasions when this has occurred and was at risk of suffering emotional harm.
(2) Z has on at least one occasion removed L from her mother's care which has disrupted her routines and presented a risk of emotional harm.
(3) The mother has not always engaged in services that were designed to support her. This has made it more difficult for professionals to reduce any risks to the children.
(4) The mother has not been able to maintain separation from Z despite the allegations of domestic violence she makes against him.”
At the first hearing on 27 January 2021, the court was satisfied that the interim threshold under s.38 was satisfied. L was made subject to an interim supervision order whilst remaining in the care of her parents. The proceedings were consolidated with the private law proceedings in respect of J and K who remained in the care of their respective fathers.
In the course of the proceedings, a parenting assessment of the mother and Z was completed. The conclusions were broadly positive. Z was observed to have a good attachment with all three children and his relationship with the mother was described as loving. The assessor added, however,
“I worry around how the mother's low self-esteem and confidence will continue to impact on the dynamics of her relationship with Z, and how this may result in further referrals of domestic abuse concerns within [sic] the future without significant work. It is a grey area in respect of the information shared by the mother regarding her relationship with Z with Police and Children's Services and how this is now disputed.”
On 9 June 2021, the local authority filed its final evidence and care plan under which it proposed that L should stay in the care of her mother and Z with no order under s.31 but subject to a child protection plan.
On 16 June 2021, the local authority filed a revised threshold document, entitled “Schedule of facts the local authority allege in relation to threshold”, in the following terms:
“The date of applying the threshold criteria is 5 January 2021 being the date of the initiation of protective measures.
At that date, the child was suffering or likely to suffer significant harm, such harm being attributable to the care given or likely to be given to him if an order were not made.
The local authority has not made an application for care or supervision orders in relation to J or K and as such the court does not need to consider the application of threshold to them.
The local authority care plan in relation to L does not provide for any public law order so there is no requirement for the court to find that the threshold criteria are met. The local authority is proposing that J and K are looked after by their respective fathers and the facts in this document are sought by the local authority.
It is submitted that the threshold criteria are met for the following reasons:
The relationship between the mother and Z has featured arguments and there have been several occasions when the couple have separated and then reconciled. The children have been present during some of the arguments and were at risk of suffering emotional harm. The facts supporting this are as follows
(a) The mother and Z argue and this is sometimes in front of the children.
(b) Z has called the mother derogatory names including a ‘rat’ during arguments.
(c) On 5 May 2020 police attended the family home after a housing officer reported that Z had telephoned the housing department requesting emergency housing as he had split up with his partner. The housing officer was concerned that Z was shouting at her and a female who was present. The mother confirmed to police that the relationship was over and Z had become frustrated while on the phone to housing.
(d) On 5 May 2020 the housing department provided bed and breakfast accommodation to Z and L for several nights before he returned to live with the mother.
(e) On 27 August 2020 the mother told police that she had been arguing with Z about his use of her money for gambling and stated that during an argument he had demanded her phone and when she refused to give it to him he pushed her and took the phone in any event before using [it]. She also informed the police that she had separated from Z on 16 August 2021 [sic].
(f) On 4 September 2020 the mother presented as tearful and informed the social worker that she had returned to the family home with the children after previously wanting to leave as she felt scared of the repercussions from Z if she did not return to him.
The mother has not always engaged with services that were designed to support her. This has made it more difficult for professionals to reduce any risks to the children ….
Z used cannabis regularly …. This added tension in the relationship as the mother told professionals that his unwillingness to assist with the children had contributed to her not being available to work ….”
Two further case management hearings were held dealing with a number of issues, including drug testing of samples provided by Z and police disclosure of information relating to incidents of alleged domestic abuse. At the first case management hearing on 7 July 2021, orders were made for the parents to file and serve their responses to the local authority's threshold document prior to the commencement of the final hearing which was listed to start on 20 September 2021 and to last for three days. An order was also made for the attendance of various witnesses, and for there to be a meeting of advocates ahead of the final hearing to deal with the witnesses required for the final hearing and to complete a witnesses timetable.
At the second case management hearing on 25 August 2021 the local authority was given permission to file and serve a final amended threshold document by 1 September 2021 and for the parents to respond to that document by 10 September. It is unclear whether a meeting of advocates to resolve the issue of witnesses needed for the final hearing had taken place, but no further provision was made in the order for any other witnesses to attend than those who had been required in the earlier order.
The local authority did not file its final amended threshold document by 1 September. Nonetheless, on 10 September 2021, Z filed...
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