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Rebecca Delaney
Rebecca Delaney
Director & Partner
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Case management of children proceedings
Date:4 FEB 2015
Third slide
David Burrows
Solicitor Advocate

Judicial caution on final case management hearing orders

As Oscar Wilde famously did not say: ‘To lose one appeal may be regarded as a misfortune; to lose two looks like carelessness’. In this instance, as http://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you/ reminds us, this is the third appeal from His Honour Judge Dodd in children proceedings, in the space of only a few months (including two on successive days at the end of January 2015), where the Court of Appeal have been sternly disapproving of his child law efforts.

To be fair to the judge in this case, Re S-W (Children) [2015] EWCA Civ 27, [2015] 1 FLR (forthcoming) raises real questions about the inquisitorial powers of children judges and the family courts and the extent of their administrative law role in care proceedings; and about the near impenetrable veneer of practice directions with which the family court administration has overlaid – or sought to underpin – Children Act 1989 (CA 1989) procedural provisions and Family Procedure Rules 2010 (FPR 2010).

Background facts

In S-W Liverpool City Council applied for care orders in respect of three children ES aged 14, LW (11) and AW (10). In December 2012 the children were removed from their mother's care and accommodated by agreement under CA 1989, s 20. The concerns of the local authority centred on the general neglect of the children, against a background of alcohol and drug use and the mother’s inability to break free from a violent relationship. LW and AW were placed with their paternal grandmother and ES with his maternal grandmother. ES and AW continue to live with their respective grandparents and it seemed likely to continue to do so.

The unfortunate LW – the real focus of the litigation – had had 14 different placements since November 2012. He was then in local authority foster care but very much wished to be allowed to live with his mother. A local authority assessment of the mother completed in July 2014 was pessimistic. It ruled out rehabilitation of all the boys to their mother. Even so, the local authority tried to find some way to rehabilitate the mother and LW.

Once care proceedings were issued, the revised Public Law Outline (PLO), Part 12 Family Proceedings Rules 2010 (FPR Part 12: PD12A), was to have taken over the process with a Guardian appointed. King LJ explained at this point:

'[9]… There is no expectation, either in FPR 2010, or in practice, that the Guardian will have seen either the children or any of the parties prior to preparing her report for the CMH; indeed it would be wholly unrealistic to do so as, byFPR Rule 12; PD12A, the CMH is required to be listed between Day 12 and 18 starting from the date of issue of the care proceedings.'
Prior to the case management hearing before the judge there had been, said King LJ:

'[11] … an Advocates meeting was held as is required by the PLO: (PD12A: Stage 2). Discussions were held at the meeting and agreement reached as to the future progress of the case, details of which were noted down by [counsel for the local authority] with a view to them being put into the form of an order following further discussions … [Thus] the advocates and Guardian were in agreement, subject to the judge's approval, as to both directions and a timetable.'

CMH care order

Judge Dodds was not in agreement. In terms – some most unattractive (eg paras [19] and [20]), as reported – he said he had decided that care orders would be made. It is said by King LJ (disparaging of the ‘fearless’ Liverpool bar):

'[21] All the parties crumbled under the judge's caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews).'
King LJ considered some important issues in relation to ‘care plans’ (subsidiary to this article). In the main procedural thrust of her judgement she explained how she sees ‘effective case management’ working under the PLO (as set out in PD12A); how CMH’s are intended to operate (again entirely by reference to the practice direction: PD12A para 2.6); and she concluded her assessment on the PLO as follows:

'[29] Every care judge will be conscious that, whilst it is in a child's best interests for their future to be determined without delay, it is equally in their best interests that the management of the case which determines their future should be fair and Article 6 compliant. The danger lies when, as unfortunately happened here, vigorous and robust case management tips over into an unfair summary disposal of a case.'
So when might a final order be made at a case management appointment? King LJ cites a contact case in which the Court of Appeal explained when a court might make an order without a full hearing (Re B (Minors) (Contact) 2 FLR 1). King LJ helpfully sets out the Re B factors at [39]; and she narrows it by her own further examples of where a final hearing first case management appointment would be unlikely.

‘Robustness cannot trump fairness’

Lewison LJ was plainly unimpressed by HJJ Dodd’s concern for justice; and for his not ensuring that it was done, and seen to be done. Of case management decisions he said:

'[47] In both civil and family cases the Court of Appeal has said on more than one occasion that it will uphold robust but fair case management decisions by first instance judges: Cherney v Deripaska [2012] EWCA Civ 1235 at [17], [30]; Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, at paras [35], [36]. Both adjectives are important. Robustness cannot trump fairness.'
Sir James Munby P also was concerned as to justice being done, especially if ‘inappropriately accelerated’.

Article continues below...

The law: Children Act 1989, s 31 and Family Procedure Rules 2010 Part 4

What application, in law, was being managed by Judge Dodd? It was an application under Children Act 1989, s 31 which empowers a court:

(1) On the application of any local authority [to] make an order – (a) placing the child with respect to whom the application is made in the care of a designated local authority.

To make an order the court must be satisfied that a child is suffering, or is likely to suffer, significant harm; and that such harm is attributable to parental care (or lack of it) (CA 1989, s 31(2)). New provisions have been added to CA 1989 at Part 4: concerning care plans (s 31A, to which I return) and the ‘period within which’ an application is to be disposed of. In making any decision the judge must consider the welfare test aspects of CA 1989, s 1.

FPR 2010, r 4.3 provides (as relevant here; and as does CPR 1998, r 3.3, from which  r 4.3 is derived):

Court's power to make order of its own initiative
(1) Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative. (Part 18 sets out the procedure for making an application.)

(2) … where the court proposes to make an order of its own initiative –

(a) it may give any person likely to be affected by the order an opportunity to make representations; and

(b) where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes – (a) to make an order of its own initiative; and (b) to hold a hearing to decide whether to make the order, it must give each party likely to be affected by the order at least 5 days' notice of the hearing. 

(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

Rule 4.3, as can be seen, provides a judge with three routes to an ‘own initiative’ order: (1) entirely peremptory (r 4.3(4)), that is without hearing, written representations or notice; (2) on notice to the parties (r 4.3(2)) with written representations (ie no hearing); (3) a hearing on notice by the court (r 4.3(3)). None of these aspects of the law – CA 1989 and FPR 2010 – was considered by the Court of Appeal.

Further, the House of Lords has made it clear that, despite what is said by Lewison LJ and Sir James, care proceedings are inquisitorial (I personally disagree – I am with Lord Nicholls in the minority on this point; but there are many dicta of Sir James confirming the inquisitorial point). The law may therefore be summarised as in Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 per Lord Jauncey at 1 FLR 739 (the case turned on whether or not litigation privilege applied in care proceedings: the majority of the House said not):

Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that care proceedings under Part IV of the Act are so far removed from normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child.

A judge’s view

From where the judge sat on that case management day he had three children who had all been looked after by the local authority for two years. He was being asked to affirm an existing state of affairs. Why should he apply the full panoply of the PLO to achieve what the local authority wanted? He had extensive case management powers and an inquisitorial role. Two children were to stay where they were; and the third (aged 11) wanted to return to a mother who had not so far shown herself best able to look after him. Unquestionable the judge’s remark on LW was remarkably ill-chosen.

Had he set out the law as above; set out the decisions he was being asked to take and his right, or duty, to take them; and had he and the Court of Appeal then looked at what would be LW’s and the mother’s rights if the local authority failed to place him back with her when their enquires (all listed in the proposed case management consent order) were dealt with – then would the Court of Appeal have been so quick to intervene? Was the full panoply of four barristers (five if the older boy’s father surfaced) and back up lawyers, with a Guardian fully briefed really necessary? The court had only to decide on residence decision (as between mother and local authority).

The Daily Mail reported the case and included the comment that ‘Judge Dodds took the decision to break up the family forever …; [and that] he refused to listen to crucial facts of the case – dismissing them as “Victorian detail”’. Any family lawyer knows that his decision – save if of adoption, which was not the case here – could not break up the family ‘forever’.

Case management under Family Procedure Rules 2010: split trial for LW

What is of more concern – perhaps the point is a little technical for Daily Mail journalists, but it is important for any lawyers – is that not only did the Court of Appeal not reflect on what were the judges powers under CA 1989 (save concerning the care plan) and FPR 2010; but they dealt with the procedural aspects of the case by reference only to a practice direction. (The net effect of the judge’s decision was to strike out the mother’s application for LW to live with her; and it can be recorded that the Supreme Court is considering judgement in a ‘strike out case’ case under FPR 2010 r 4.4(1) (Vince v Wyatt [2013] EWCA Civ 495, [2014] 1 FLR 246 hearing December 2014).)

Had the judge considered and explained fully what his powers in relation to LW might be, having regard to CA 1989 s 1 and to his powers under FPR 2010, rr 1.4(2), 4.1(3) and 4.3(4) or 4.4(1); had the Court of Appeal reflected that the issue to be tried was capable of being dealt with on a non-adversarial basis (Re L per Lord Jauncey); and had that Court also looked fully at the applicable case management law (ie in FPR 2010 Parts 1 and 4), might the judge have come in for less bombast from the combined barrels of Court of Appeal and Daily Mail?

Had the Judge reflected, he could have split the trial. He could have case managed that narrow issue and eliminated – here he must be congratulated – the ‘Victorian’ detail of production required for the child. He could have timetabled the care/residence issue in relation to LW; and we probably would never have heard of him and his brothers.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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