Children update

Reforms to the operation of care and supervision proceedings are firmly in place. To an extent, practitioners benefited from a ‘head start’ as the new test for permission to instruct expert evidence and the 26-week time limit were introduced early through changes to the FPR 2010 and, in respect of the latter, the revised public law outline (PLO).

Most of the family justice provisions of the Children and Families Act 2014 (CFA 2014) came
into force on 22 April. Collectively, these bring
about the most significant legislative reform to family proceedings for decades. The CFA 2014
does not contain provisions about compliance
with court orders but the clear messages from
the reported family cases of late are that strict compliance with orders is necessary and deviation cannot be tolerated.

Plainly a key driver, at least in respect of care and supervision proceedings, is that if the 26-week time limit is to be met, there can be no room for departure from court-imposed deadlines, for fear that delay will creep into what is already a constricted time limit.

In Re W (Children) [2014] EWFC 22, Munby P,
sitting in the family court in Bristol gave a stern judgment lamenting non-compliance. He draws
on other recent judgments where similar issues arose. For practitioners, the important points are:

• Any order of the court, whether interlocutory or of a case management nature “must be obeyed and complied with to the letter and on time”. These are not preferences, requests or indications: they are orders.
• Perhaps, with reference to a time when the family court was less exacting about non-compliance, Munby explains that the court will expect and demand strict compliance with all orders. He goes on to say that usually there will be a consequence for non-compliance.
• Where a person cannot comply with an order, they should apply for an extension of time for compliance before the deadline. Excuses quoting pressure of other work are not acceptable.
• Parties cannot between themselves agree alterations to any timescales or deadlines set by the family court. There is no provision in the FPR 2010 for this, unlike the CPR which does make provision for some alternations to be agreed without reference to the courts.
• Munby endorsed what Theis J said in Re A (A Child) [2014] EWHC 604 (Fam): “No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures.”
• The court’s powers to deal with non-compliance will be punitive. In practical terms, the court needs to achieve a remedy to the failure. Invariably, this will mean granting an extension of time to the defaulting party to do whatever it was previously directed. It seems, however, that this will not alone satisfy the court, which will wish to admonish the defaulter. In London Borough of Bexley v V & Ors [2014] EWHC 2187 (Fam), Keehan J ordered the local authority (LA) to pay the costs of the hearing, which had been fixed to examine the non-compliance. He also ordered the LA to pay for a transcript of his judgment, ensuring that the names of all parties were anonymised save for the LA, who he said would be named. Perhaps this is the start of a name-and-shame culture.
• It is important to note the domino effect of non-compliance, particularly in care proceedings where there are usually four or more parties. If the LA does not file something it should have, there is likely to be a direct impact on the ability of each other party to meet deadlines of the orders to which they are subject.
• Practitioners will be familiar with the standard form of works that feature on template orders (CMO and CAP orders), which require all parties to inform the court of non-compliance. Munby explains further that this is an “obligation on every party, spelt out (as in this case) in the standard form of case management order, to inform the court ‘immediately’ in the event of any non-compliance. That obligation is imposed for good reason, though too often, as in the present case, it also is not complied with.” In a recent but as yet unreported case, the child’s solicitor was rebuked for not informing the court as soon as possible that the LA had not complied with a direction.

The culture of compliance must be imbedded in the minds of all parties and practitioners. If any direction cannot be complied with, it is necessary to notify the court immediately and request an extension of time. It is sensible to analyse the impact of the proposed extension on other parties and seek their agreement to any adjustments, but it is crucial to inform the court immediately and not to assume that agreements made between the parties will be endorsed by the court. Compliance with reporting non-compliance is every person's responsibility.

Almost in care

In Re W (Children) [2014] EWCA Civ 1065, the mother (M) signed a written agreement drafted by the LA agreeing that the children (C) should remain with the paternal grandmother (PGM) while the LA undertook assessments. No such assessments were undertaken but M applied for a residence order (under CFA 2014 ‘a child arrangements orders’ setting out where a child is to live).

M said that she had overcome her difficulties and was able to resume care of C. The LA provided a report to the court that did not support M, although in evidence it agreed that there had been no incidents of concern and accepted that it had not but should have assessed M.

The Recorder refused M’s request for adjournment so the LA could provide a section 7 report, which would include assessment of M’s parenting capability. The judge’s reasons relied primarily on the delay that this would cause disposal of the proceedings.

Permission to appeal was granted by Ryder LJ and the appeal was heard by the Court of Appeal (Munby with Black and Tomlinson LJJ). The court noted the significant issues which the appeal grounds revealed. Those may well be visited another day but the court only proceeded on one question: whether the judge’s refusal to grant an adjournment to obtain a section 7 report from the LA deprived M of the evidence that might demonstrate her parenting capability.

The court found that the Recorder had “denied herself vital evidence to fill what on her own findings were serious gaps in her knowledge of the mother and of the mother’s ability to care for the children. This was... an essential piece of information... if the Recorder was properly to do her duty in accordance with section 1(3)(f) of the Children Act 1989... she placed far too much weight on a view as to the consequences of delay which was not borne out by the evidence.”

This approach “ended up being unfair to the mother and went far in the direction of effectively reversing the forensic burden”. The appeal
was allowed on this basis but Munby went
on to express misgivings about the way the LA approached its intervention into the family and
how it then continued to conduct itself. The written agreement was said not to be a legal agreement
but that it could be relied on in court as evidence
if needed.

Whatever its status, Munby said it was treated by the LA as enabling it (the LA) to control M and C but without the need to instigate care proceedings and not to have the duties of ‘looking after’ C had it accommodated them under section 20 Children’s Act 1989.

Worryingly, the LA had not accommodated
the children under section 20 with M’s agreement, yet the written agreement could be perceived to have compelled M to agree to allow C to live with PGM because otherwise the LA would start care proceedings.

The LA then did not do what was agreed in relation to assessments, yet when M expressed that she wished for C to return, the LA did nothing to assist, relying on the idea that the arrangement was a private one between M and PGM.

Despite that, the LA still ascribed decision-making powers to itself and exercised in relation to M’s contact. C. Tomlinson LJ said: “I cannot believe that section 20 was enacted in order to permit a local authority to assume control over the lives of the mother and her children in this way.”

Planned and purposeful

It seems that everyone is trying to find their feet when it comes to the statutory time limit of 26-week for care proceedings. In Re M-F (Children) EWCA Civ 991, Munby again gave the Court of Appeal’s leading judgment. The criticism was that the LA said the first instance judge should not have adjourned the proceedings, which were already in train for over a year. From the judgment, the important practice points to
note are:

• Whether or not to hear oral evidence to determine whether an adjournment should be granted is the kind of decision that the Court of Appeal will be slow to interfere with.
• Any application for an adjournment “requires the anxious scrutiny and rigorous approach which Judge Probyn rightly adopted. But we need to guard against applications for adjournments turning into mini trials.”
• Here, the issue was whether the court needed more information given the indication that there was some change in the mother. The judge found that this “necessitated further probing and evaluation if she was to be able to come to a just and fair decision”.
• Any extension must be carefully and appropriately time-limited.
• The phrase ‘planned and purposeful delay’ has “outlived its usefulness” and “has had its day and is now better left unused.” Any extension must be ‘necessary’ as that is the test in section 32(5) CA 1989. One may wish to explain that the proposal (which requires the grant of an extension) is planned and purposeful but that alone is not a sufficient condition for granting an extension. SJ

Noel Arnold is director of legal practice at the Coram Children's Legal Centre