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.
