Family Court Key Decision Review: Part 1

Sun, 29 Mar 2015

In the first of a new series of quarterly round ups, Kathryn Taylor reviews some of the key decisions of the family court since December 2014, with a particular emphasis on Local Authority failings.

With the spotlight firmly fixed upon Local Authority procedure and decision making since Re B-S, and the continuing requirement for cases to be concluded as close to the 26-week deadline as possible, a series of recent cases expose considerable criticism of Local Authority practises.

In Re A (A Child) [2015] EWFC 11 Munby P dismissed a Local Authority's application for care and placement orders, and was highly critical of the Local Authority. In his important judgment, he gives practitioners "an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case."

Munby P takes the opportunity in Re A to remind practitioners of three fundamental principles which in his view are increasingly overlooked. 

Firstly, with regard to fact finding and proof, he notes two important practical and procedural points. The first, is that "it is for the Local Authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. Findings of fact must be based on evidence and not on suspicion or speculation (Re A (A Child) (No 2) [2011] EWCA Civ 12). If the Local Authority's case is challenged on some factual point it must adduce proper evidence to establish what it seeks to prove."

Munby proceeds to warn complacent Local Authorities that evidence in case records, social work chronologies and the like tend to be second and third hand hearsay, and local Authorities may find themselves "in great difficulties if a parent not merely puts the matter in issue but goes into the witness box to deny it."

In addressing the second important practical point, he is critical of what he sees as a growing practice of an incorrect formulation of threshold documents which rely on "allegations" rather than the facts. "The schedule of findings in the present case contains, as we shall see, allegations in relation to the Father that "he appears to have" lied or colluded, that various people have "stated" or "reported" things, and that "there is an allegation." With all respect to counsel, this form of allegation...is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion."

Secondly, Munby P reminds us of the need to establish the link between facts relied upon in a threshold document and the conclusion that the child has suffered, or is at risk of suffering, significant harm. Specifically, "the local authority's evidence must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts."

Thirdly, the President cites from the judgment of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, in which he warns against the temptation of social engineering. Further, he expressly approves the judgment of HHJ Jack in North East Lincolnshire Council v G and L [2014] EWCC B77 (Fam) who states:

"The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had a domestic spat and every child whose parents on occasion had drunk too much then the court system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."

The extent of the Court's 'zero-tolerance' for non-compliance and delay was made ever clearer by The Honourable Mr Justice Keehan in Northamptonshire County Council v AS and Ors [2015] EWHC 199 with the approval of a payment by the Local Authority to family members of £17,000 after admitting breaching  Article 6 and Article 8 Convention rights.

The child, DS, whose mother was a Latvian national, was accommodated at 15 days old under s.20 Children Act 1989. Whilst questions were later raised as to the validity of that consent being given without a Latvian interpreter, the real concerns existed regarding the delay caused by the Local Authority. A decision to issue care proceedings was taken 4 months after the child's accommodation, and not issued for a further 5 months. Thereafter some eight different social workers were allocated to the child's case, assessments including international assessment of the child's family were delayed, and directions for the preparation and filing of crucial evidence including an SGO support plan, were simply not complied with.

Mr Justice Keehan gave considerable directions for the Local Authority to answer to its "further failures and inadequacies in planning for DS and in complying with court orders." In particular, in response to the explanations given by the Local Authority, the judge stated "it is extremely unfortunate that after so many egregious errors made by this Local Authority in respect of this child, it continued to act in the same vein right up until the closing stages of these proceedings. I do not consider the explanation put forward by the service manager to be at all adequate. She attempted to defend the indefensible."

In particular the judge took the opportunity to remind practitioners of the duty incumbent upon them to comply with court orders.

"The court is entitled to expect - and from now on family courts will demand - strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

Let me spell it out. An order that something is to be done by 4pm on Friday is an order to do that thing by 4pm on Friday, not by 4.21pm on Friday let alone by 3.01pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work......Non compliance with an order is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority."

The child was successfully placed with the maternal grandparents in Latvia in December 2014 (13 months after the instigation of proceedings and 23 months after the initial s.20 consent was given). Prior to the final hearing the children's guardian had formally notified the local authority of its intention to issue proceedings in respect of the multiple breaches of DS's Article 6 and Article 8 rights. The Mother also issued proceedings on the same basis. The Local Authority admitted liability for both claims and agreed to pay damages to the child, the mother and the maternal grandmother, totalling £17,000.

The judge concluded "the catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an other child but they are appalling in respect of a 15 day old baby... Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority. The use of the provisions of s.20 to accommodate was, in my judgment, seriously abused by the local authority in this case."

The question of costs was considered by the Supreme Court in Re S (A Child) [2015] UKSC.  The general principle was last considered by the same court in Re T (Care Proceedings: Costs) [2012] UKSC 36 in which it was confirmed that in general local authorities should not be ordered to pay costs in care proceedings.

In Re S the Court of Appeal, in the immediate aftermath of Re B-S, overturned the first instance decision to grant a care and placement order in respect of a child, Amelia, holding that the judge at first instance had been wrong to make the care and placement orders without further assessment of the child in the father's care. The CA further ordered that the Local Authority should pay the Father's privately funded costs of appeal assessed in the sum of £13,787. The CA held that Re T was not applicable to appeals, and that a parent should not be deterred from challenging such an important decision because of the costs involved, since non-means tested legal aid does not extend to appeals.

The Local Authority appealed to the Supreme Court on the discreet issue of the costs order; the substantive decision was not in issue. The Supreme Court held unanimously that the appeal should succeed since none of the exemptions to the general approach to awards of costs in children's cases applies, and set aside the costs order made by the Court of Appeal.

Two important costs provisions are invoked in the reasoning behind the Supreme Court's decision, given by Lady Hale. Firstly, in Re T, the general practice of not awarding costs against a party (including a local authority) in children's proceedings in the absence of reprehensible or unreasonable behaviour was upheld.  Secondly, the general rule that in civil proceedings the unsuccessful party will be ordered to pay the costs of the unsuccessful party does not apply to first instance or appellate proceedings in children cases (FPR rule 28.2(1) disapplies CPR rule 44.2(2)). The only winner should be the child and no one should be deterred from playing their part in helping the court to determine that. However, CPR 44.2(4)&(5) do apply to children's proceedings both at first instance and on appeal. This rule requires the court to have regard to "all the circumstances including" (inter alia) conduct of the parties, success on part of case, admissible offers to settle.

Distinctions can be drawn from both of these provisions in understanding the significant costs order made against a local authority in Re T.  Lady Hale considered that whilst in that case, the costs were those of interveners, who wished to clear their names, as opposed to parents of a child who sought the child's return, as in Re S, this did not of itself present a "valid distinction" since "it does not follow that from that that if the local authority lose, they are unreasonable in seeking to protect the child. That will depend upon the particular circumstances of the case."

"Nor is it a valid distinction that this was an appeal and not a first instance trial. The fact that it is an appeal rather than a trial may be relevant to whether or not a party has behaved reasonably in relation to the litigation."

In Re S, Lady Hale reminds us that parents are always entitled to resist a claim for removal or their child and that a local authority's behaviour in bringing the case or seeking to protect a child is not unreasonable per se.  In Re S there is no suggestion that the local authority behaved in any way reprehensibly to give rise to a suggestion that the grounds for a costs order might arise. Furthermore, the local authority was entitled and indeed would have been expected to resist the Father's initial appeal.

Accordingly, the decision of the Supreme Court was that none of the exceptions to the general approach in children's cases was applicable, and the costs order made in the Court of Appeal was set aside.

Please click here to view Kathryn Taylor's profile.

Please click here for further information about the Family Group at No5 Chambers.

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