Inadequate foundations

Re A (A Child) [2015] EWFC 11 is an important judgment from the president of the Family Division, which public law practitioners should be aware of (see also page 27).

The first anniversary of the Children and Families Act 2014 (CFA 2014) is approaching, and not long after it received royal assent the time limit provisions for part 4 proceedings came into
force. The 26-week time limit within which care proceedings must be concluded (unless an extension is granted) continues to provoke disquiet from some quarters.

Naturally, a local authority (LA) seeking to
obtain a care order must ensure that the evidence it presents and relies on is of the highest quality. Those representing respondent parents and the solicitor for the child must digest and critique the LA’s evidence at the outset, because if they wish to ask the court to direct any further or independent assessments of the child or parents, they must make an application to instruct an expert pursuant to part 25 of the Family Procedure Rules 2010 before the case management hearing.

Advancing with evidence

In Re A, Sir James Munby dismissed the LA’s application for a care order and placement order, returning the child (C) to the care of the father.
In doing so, his judgment dealt with several
points which care lawyers should be reminded of. He described these as fundamental principles which are often overlooked:

• The LA must adduce proper evidence to establish what it seeks to prove. Munby P stated that ‘findings of fact must be based on evidence… and not on suspicion or speculation’. Where the LA is relying on hearsay evidence from case records, the president advised that ‘a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it’;
• Seasoned care lawyers will be all too familiar with the suggestion, frequently deployed by LAs, that the parent does not acknowledge or have insight into the LA’s concerns about something or another. Munby P stated: ‘If the “thing” is put in issue, the local authority must both prove the “thing” and establish that it has the significance attributed to it by the local authority’;
• Schedules of proposed fi ndings or threshold statements of LAs should not state that a person‘appears to have’ done something or similar allegations. Munby P said that if the LA says something happened, then that should be stated robustly – if indeed there is evidence to support what the LA is seeking to prove. To not analyse the case and put it accordingly leads ‘to the unwelcome realisation that a seemingly impressive case is, in truth, a tottering edifice built on inadequate foundations’;
• The LA must link the facts it seeks to prove to the statutory threshold criteria. This is especially important where the LA is seeking to establish that the child is at risk of suffering emotional harm, as the linkage may be less obvious with this category of harm than with, for example, physical harm; and
• The president mentions another crucial point from previous judgments regarding diverse standards of parenting and that the state could not ‘spare children all the consequences of defective parenting’.

Munby P found the social work evidence given during the pre-proceedings phases wanting, with the LA dismissive of what the father had to say; very little analysis, let alone rigorous analysis, of the facts; and a willingness to simply believe the worst of the father. He also found that section 20 of the Children Act 1989 was abused in this case to cover a delay in the LA initiating proceedings.

Doing directions

There has been a spate of recent cases regarding parties not complying with directions of the court and the impact that such failures have on justice, the cases, and ultimately the children subject to proceedings. The need for compliance has taken
on heightened emphasis since the CFA 2014,
and, in relation to public law proceedings, the introduction of the statutory time limit of 26 weeks to complete care and supervision order cases.

The potential consequences for solicitors are considerable. Mr Justice Keehan’s consideration of such a failure on the part of the mother’s solicitors in HU v SU [2015] EWFC 18 makes for salutary reading. In this case, the mother’s solicitors did not comply with directions, and also failed to make an application to vary the directions or seek an extension of time.

Some of the following may appear obvious,
but practitioners should be reminded of certain points, given the seriousness of the punishment meted out to the mother’s solicitors in this case – a wasted costs order:

• It is necessary not just to diarise the time and date by which the direction should be complied with, but also to diarise well in advance a time to ‘start to think’ about that direction;
• It is important to diarise not only directions which apply to you but also the directions relating to the other parties. If another party has not complied with a direction, then you may need to consider reporting that non-compliance to the court. Reporting another party’s non-compliance may feel uncomfortable in family proceedings but in care cases it is required by the Public Law Outline;
• If another party’s non-compliance with a direction is going to have a ‘knock-on’ effect on a direction relating to you, then you should consider seeking an extension of time as soon as possible. The increasingly unforgiving family court is unlikely to have sympathy with the explanation that another party was late in doing something and as a result so were you;
• The timetable set by the court is not moveable simply by agreement of the parties. Any changes must be sanctioned by the court. It is usually attractive to present a proposal to the court which is agreed by all, but it is only the court which can approve such amendment proposals. If agreement with other parties cannot be reached, or not in a timely way, make your application to extend time in any event and copy such correspondence to the other parties; and
• Make any application to extend the deadline as early as possible, ideally so that a response from the court can be obtained before the original deadline expires. If that is not possible, the application should be marked ‘urgent’ and lodged before the original deadline expires.
• Do not just inform the court that you cannot comply with the deadline: the application should request a new deadline and should propose a time or date. Also, some thought should be given to the impact of your application upon any other ‘follow on’ directions which apply to other parties.

Attempting the alternatives

In R (A Child) [2014] EWCA Civ 1664, the father appealed against the decision that there should
be no order as to contact and that a previous order allowing for indirect contact should be discharged. The child (C) was 12. There were previous proceedings between the parents in relation to C, but then a period where the father did not actively seek contact. An order for indirect contact was made, but C did not engage.

The mother informed the court that C was hostile to contact. As a result, the court directed Cafcass to provide a wishes and feelings report, as the father suggested that these were the mother’s feelings rather than C’s. The Cafcass officer believed that C’s wishes were her own, uninfluenced by the mother: the report recommended no contact because of the detrimental effect it would have on C given her strong feelings.

The Court of Appeal reminded itself of the principles which apply: the child’s welfare is paramount; the court has stressed in a series of cases the importance of contact between a child and parent as a fundamental element of family life; contact is almost always in the child’s interests and should only be terminated in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative.

In C’s case, there had been no real investigation
of what steps could have been realistically taken to encourage or promote direct contact. The court also made reference to the fact that the risk posed to C
of the initiation of contact would be relatively short term. Lord Justice Clarke said: ‘If contact could have been made to work but is never tried, the long-term harm of her having lost all contact with her father may be irremediable.’

For practitioners representing a parent seeking contact, especially in such cases as this where the child is of an age and understanding sufficient to express persuasive wishes and feelings which are not the result of coaching, putting forward the right evidence is crucial. Where a welfare report does not recommend contact, the parent will need to advance proposals to show the judge that there are other things yet to be tried to encourage contact. SJ

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