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Re X: withdrawal of care order application

Date:3 NOV 2016
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Solicitor Advocate

Permission to appeal out of time against a care order

Re X (A Child) (No 3) [2016] EWHC 2755 (Fam), Sir James Munby P (2 November 2016) is an important case for at least three procedural reasons, quite apart from its unusual facts. First the facts, then a review of the procedural points.

A child, X, had been made the subject of a care and placement order in 2013 in respect of metaphyseal fractures said to have caused by one or both parents, which both of them denied. They applied to join in adoption proceedings, when issued; but were refused. An adoption order was made. There were no appeals by the parents against any of these orders. They were tried in the Crown Court, and the case against them dismissed on a direction by the trial judge. The Crown had abandoned its case after the hearing of the expert evidence.

The parents applied for permission to appeal out of time against the care order, which appeal – agreed by the local authority – was allowed by the Court of Appeal. Further evidence was now available and, said the Court of Appeal, the appropriate route was to apply what was in the inherent jurisdiction of the court. This was explained by Sir James Munby P:

'[4] … The order made by the Court of Appeal identified the inherent jurisdiction as the most appropriate legal mechanism and directed that the matter was to be listed in the first instance before me. The local authority’s application under the inherent jurisdiction was issued on 22 April 2016 seeking "a re-hearing of the fact finding from the care proceedings" ...'

A re-hearing date was fixed for 17 October 2016 with all parties, including child and adopters, represented; and all but one with leading counsel. The parents applied a week before the fixture to withdraw. This was opposed by all other parties. Were the parents to be entitled to withdraw and leave the judge’s original findings, as reviewed by the Crown Court, in place?

Bearing in mind the overriding objective in FPR 2010, r 1.1, the President set himself two questions (at para [25]):

  • Is there ‘solid advantage’ in the proposed rehearing going ahead as planned; and
  • Could he be reasonably confident that it would be a fair process ‘capable of delivering the truth’?
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Public interest and child’s welfare

He answered the first question by stating that, as he saw it, it was clearly in X’s interests and in the public interest that there be a rehearing, if this could be dealt with in accordance with the second question. So could a process be provided which would achieve fairness, especially in the absence of the parents?

It had already been agreed that, if need be, the parents – even unrepresented – could be compelled to give evidence (para [11]; and see Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] EWHC 372 (Fam), [2006] 2 FLR 690, Holman J). Even if they were not required to give evidence (though there was already a variety of written evidence from them), nor were they present to challenge the present medical evidence – and more had been put forward since the Crown Court hearing – that evidence could be challenged as need be by counsel for the guardian ad litem (para [31]) without the guardian’s neutrality being compromised.

The significant features of this case relate to the procedure for review and rehearing; the approach of the court to self-incrimination privilege; and the view taken by the court as to a party withdrawing from a children application (though the last two were dealt with by agreement as to the law, not with any issue being taken on which the judge would be required to debate competing submissions).

  1. Application for rehearing – In the High Court application can only be made for rehearing – ie to set aside an existing order (other than in financial relief proceedings: FPR 2010, r 9.9A) – by an appeal (Senior Courts Act 1981, s 17) as was done here. The court – it seems – dealt with it by means of some form of inherent jurisdiction. It is not clear that the Court of Appeal has inherent powers, but only those of the court below (CPR 1998, r 52.10(1)). Be that as it may, the court plainly has power to order ‘a new trial or hearing’ (CPR 1998, r 52.10(2)(c)). All of this must be seen against the back-ground of another exceptional adoption case (W (A Child) [2016] EWCA Civ 793) where a child’s grand-parents (who might be able to provide a viable placement and who were discovered after the adoption order was made.
  2. Self-incrimination privilege – In the vexed area of Children Act 1989 s 98(2) (and see Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, [1997] 2 WLR 322, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, CA) and self-incrimination privilege it was said that s 98(2) ‘did not apply’; though, as the President pointed out, the privilege could only be claimed once the witness – the parents in this case – had been sworn to give evidence (Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, Munby J).
  3. Withdrawal of children proceedings applications – That the court has a discretion as to whether a children application should be withdrawn (and see Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134, Bracewell J) was taken as read. And so it must be under FPR 2010 r 29.4(2).

Fairness and the welfare of the child

Fairness and the welfare of X are at the centre of this case, as, indeed, was certainty for the child and the adoptive parents for the longer term. The President was at pains to secure these factors. It occurs to me only (as one in a poor position to judge the point, it might well be said): having in mind the need for proportionality (FPR 2010, r 1.1(2)(b)) and the quantity of written evidence, would it not have been possible to deal with this case on paper only. Advocates could have been asked to make further submissions (in writing, perhaps?) if the judge needed more to establish that the original care, placement and adoption orders had been correctly made. An appreciable amount of court time and legal aid expenditure could thereby be saved; and justice would be done for the child and the parties given the amount of written evidence already before the court.

You can follow David Burrows on Twitter: @dbfamilylaw

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.
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