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APPEAL NO: B4/2012/0430
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EXETER COUNTY COURT (CASE NO: EX11C00033)
(DECISION OF HHJ TYZACK QC)
IN THE MATTER OF THE CHILDREN ACT 1989
AND OF THE CHILD:
T K (DOB 20/1/2000)
SKELETON ARGUMENT ON BEHALF OF THE RESPONDENT CHILD (ACTING THROUGH HIS CHILDREN’S GUARDIAN)
FOR APPEAL HEARING ON 24TH OCTOBER 2012
Introduction
1. The desire of this court to ensure that important decisions about children, particularly those in public law proceedings, are taken by means of a fair and proper process is well-established (see, by way of recent example, the judgment of McFarlane LJ in Re P (Children).1
2. It is perfectly plain from the reasoned judgment provided when giving permission to appeal that this court is concerned about the fairness and propriety of the process that has led to various orders being made within these proceedings, culminating ultimately in T being made subject to supervision and special guardianship orders.
3. Mindful:
(a) of the court, to whom the overriding duty is owed, having thus
1 [2012] EWCA Civ 401.
2 Re K [2012] EWCA Civ 1169.
2
expressed its concern about the process undertaken in this case;
(b) of the Appellants representing themselves; and
(c) of the manifest importance to T of having significant decisions about his welfare and future being taken by a process that is demonstrably fair and proper;
the approach of those acting on his behalf within this appeal has been in the first instance to conduct a retrospective and objective analysis of the process involved in this case to establish whether or not the essential requirements of fairness and propriety have been met in these proceedings.
4. It follows that the aim here is not to seek to justify any particular submission made at any given time on behalf of a Guardian who was understandably very concerned about the welfare of a vulnerable child, but to provide a fresh appraisal of the fairness and propriety of the process that was actually undertaken.
5. That analysis sadly does identify procedural irregularities and errors of law, which, it is submitted, are sufficient to dispose of this appeal by means of it being upheld, and to warrant the case being remitted to be heard by a different tribunal.
6. In particular it is submitted:
(1) that the Learned Judge exceeded his powers by his repeated making of directions under Children Act 1989, s 37 and associated interim care orders, which amounted to his seeking to place impermissible pressure upon the local authority: (a) to initiate care proceedings, and (b) to use
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its parental responsibility for the child in a way that accorded with his own views; and
(2) that his judgment of 10th December 2010 was defective and inadequate.
7. Adopting the same approach as that taken by McFarlane LJ in Re P above, in light of the stance above this Skeleton Argument does not address in any detail the merits of the case, which would properly be matters for the lower court, if remitted. Nor does it seek to reproduce the evidence and extensive chronology which have been fully set out by the skeleton arguments of others.
Section 37 directions and interim care orders – the legal context
8. It is plain from the court’s judgment when giving permission that it is concerned about the Learned Judge’s use of the section 37 process here, being particularly concerned about whether at key points the Learned Judge was right in the circumstances to make a direction under Children Act 1989, s 37 (a “section 37 direction”), and to make also the interim care order that can be granted when the court gives that direction (pursuant to Children Act 1989, s 38(1)(b)).
9. Inevitably, therefore, this appeal has to consider by way of starting-point the issue of the proper function and use of a section 37 direction, and of the interim care order that can be granted at the same time as the court gives that direction.
10. In particular, it raises the following questions:
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(1) What is the proper function and purpose of a section 37 direction?
(2) Is it appropriate for the court to make repeat, consecutive section 37 directions, coupled with repeat, consecutive interim care orders? In particular, is it right, as Leicestershire County Council contends, that the court has “an unfettered discretion” to make further section 37 directions, provided that the criteria for their making are, in the court’s view, met?3
(3) What is the delineation of role between local authority and court when the court directs a section 37 investigation, receives the result of that investigation and is appraised of the local authority’s intentions for the child? Is a course of the kind adopted by the Learned Judge here justified because, as Leicestershire asserts, “to find that the Judge was bound to accept the view of the local authority would be to leave the court powerless to protect the welfare of the child”.4
(4) When a court makes a section 37 direction (with or without an interim care order), to what extent must it set out the reasons for doing so?
The proper function and purpose of the section 37 direction
11. Children Act 1989, s 31 provides that an application for a care or supervision order can only be made by a local authority or by an authorised person.5 For present purposes, the “authorised person” provision can be disregarded.6
3 See the Leics CC skeleton argument, at para [30].
4 See the Leics CC skeleton argument, at para [43].
5 An authorised person is the NSPCC (which does not use this power) and any of its officers, and any other person or body authorised by the Secretary of State (no person or body has been so authorised): CA 1989, s 31(9).
6 See footnote 5 above.
5
12. As a matter of basic statutory construction, CA 1989 s 37 therefore falls to be considered against the background of Parliament having entrusted to the local authority and not the court the decision as to whether or not to initiate care or supervision proceedings.
13. In material part, CA 1989 s 37 provides as follows:
(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.
(2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should –
(a) apply for a care order or for a supervision order with respect to the child;
(b) provide services or assistance for the child or his family; or
(c) take any other action with respect to the child.
(3) Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of –
(a) their reasons for so deciding;
(b) any service or assistance which they have provided, or intend to provide, for the child and his family; and
(c) any other action which they have taken, or propose to take, with respect to the child.
(4) The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.
. . .
(6) If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child –
(a) they shall consider whether it would be appropriate to review the case at a later date; and
(b) if they decide that it would be, they shall determine the date on which that review is to begin.’
14. That the decision to initiate care proceedings following a section 37 investigation is for the local authority alone is plain from the face of the
6
section, particularly at s 37(2)(a) (local authority to “consider”), s 37(3) (local authority to “decide”) and s 37(6) (local authority to “review”).
15. The Family Court Practice 2012 correctly, it is suggested, describes the scope of CA 1989 s 37 as follows:7
“This section empowers the court, of its own initiative, to direct the local authority to look into the circumstances of a child with a view to the possibility of taking action with respect to the child and to report to the court about what, if any, action it intends to take, including the matters referred to in s 37(4)-(6).”
16. The Best Practice Guidance on s 37(1) directions8 in material part indicates as follows, with the first sentence of point (3) specifically highlighted in this context:
(1) A direction under s 37(1) is appropriate where the court desires an investigation because “it appears to the court that it may be appropriate for a care order or supervision order to be made” (s 37(1)).
(2) A direction under s 37(1) is not lawful unless it appears to the court that a care or supervision order may be appropriate….
(3) The purpose of a s 37(1) direction is to enable the court to cause the local authority to assess whether a care or supervision order is needed. It is not to obtain a general welfare report. However, the making of a s 37(1) direction will also cause the local authority to consider whether and which child welfare support services should be provided by the local authority, or other action taken, as well as or instead of a care or supervision order: s 37(2), and note the details of
7 At p 587.
8 Issued by the Children Act Advisory Committee in its 1992/3Annual Report, and set out in the Family Court Practice, at pp 587-588.
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the duty of the local authority to report to the court under s 37(3).
Repeat section 37 directions and interim care orders?
17. In Re CE (Section 37 Direction)9 Wall J (as he then was) considered the interrelation between CA 1989 s 37 and s 41(6)(b) for the purposes of determining whether the proceedings cease to be specified should the local authority decide not to initiate care or supervision proceedings, following a section 37 investigation, and so inform the court.
18. If his construction of CA 1989 s 37 is correct, then repeat interim care orders made under the umbrella of a section 37 investigation, are not permissible. Per Wall J at pp 42-43:
“In my judgment, where an order has been made under s 37(1) and the proceedings have become ‘specified proceedings’ by virtue of s 41(6)(b) the proceedings cease to be ‘specified proceedings’ if the local authority, as a result of its investigation, decides not to apply for a care order or a supervision order and so informs the court. My reasons for reaching this conclusion are as follows:
(1) Section 41(6) is in the continuous present. This means that the criteria contained in it must subsist whenever the court ‘is considering whether to make an interim care order’.
(2) Interim care orders can only be made under s 38(1) where proceedings ‘on an application for a care order or supervision order’ are adjourned or where the court gives a direction under s 37(1). The structure of s 37 requires a report to be made within a specified timescale. When the report is received, the court’s powers to make interim care orders continue to be governed by s 38.
(3) The use of the present tense ‘gives’ in s 38(1)(b) as opposed to the perfect tense ‘has given’ means, in my judgment, that whilst an interim care order can be made without an application by a local authority on the occasion when the court gives its s 37 direction, any subsequent application for an interim care order (or for the renewal of the interim care order made on the occasion when the direction under s 37 is given) must be made ‘on an application for a care order or supervision order’ by a local authority or authorised person (see s 31(1)).
9 [1995] 1 FLR 26.
8
(4) Accordingly, if there is no such application, the court as I read the statute has no jurisdiction to make an interim order (or renew an order made when the direction under s 37(1) was given) and therefore cannot any longer be considering making such an order.
(5) Since in these circumstances none of the other criteria in s 41(6) applies, the proceedings can no longer be described as ‘specified’.
I have to say that I do not regard this interpretation of the statute as satisfactory, since it gives rise to the risk of precisely the same difficulties as were encountered in Nottinghamshire County Council v P [1994] Fam 18, [1993] 2 FLR 134 and graphically set out in the judgment of the Court of Appeal at pp 43 and 148 respectively:
‘The court is deeply concerned at the absence of any power to direct this authority to take steps to protect the children. In the former wardship jurisdiction it might well have been able to do so. The operation of the Children Act 1989 is entirely dependent upon the full co-operation of all those involved. This includes the courts, local authorities, social workers, and all who have to deal with children. Unfortunately, as appears from this case, if a local authority doggedly resists taking the steps which are appropriate to the case of children at risk of suffering significant harm it appears that the court is powerless. The authority may perhaps lay itself open to an application for judicial review but in a case such as this the question arises, at whose instance? The position is one which it is to be hoped will not recur . . .’
I am, however, driven to the conclusion that any other interpretation of the statute is untenable.”
19. It is implicit in that statutory analysis that Wall J works on the assumption of the court only being able to give one single section 37 direction, a construction that would be consistent with the focus of the section on there being “an investigation” for the purposes so specified, with CA 1989 s 37(6) providing for the local authority, if not applying, “to consider whether it would be appropriate to review the case at a later date”.
20. The inability to make repeat interim care orders under the section 37 umbrella would also be consistent with the lack of statutory requirement
9
upon the local authority to prepare a care plan for the court’s consideration (discussed below).
Roles of local authority and court
21. The role of the local authority, when the court makes a section 37 direction, is plain from the face of the statute. It is:
principally to investigate, assess and decide whether or not to initiate care or supervision proceedings;
secondarily (if not applying) to inform the court of the reasons why not, and of the services and assistance provided and to be provided for the child and the family and the action taken or to be taken in respect of the child (presumably to assist the court in its private law considerations).
22. So far as the role of the court is concerned, it falls to be considered:
(a) in relation to the carrying out of the section 37 investigation, and
(b) in relation to any interim care order made at the same time.
23. In the former context, the case-law is very clear.
24. Per Wall J (as he then was) in Re M (Intractable Contact Dispute: Interim Care Order)10, at para [123]:
“[The court] cannot require the local authority to take proceedings. The limit of [the court’s power] is to direct the authority to undertake an investigation of the children’s circumstances.”
25. He continues, at para [131]:
10 [2003] EWHC 1024 (Fam), [2003] 2 FLR 636.
10
“I have already made it clear that I do not have any power to compel the local authority to institute proceedings, nor would I seek in any way to interfere with the professional exercise of the local authority’s investigative functions under s 37. The responsibilities of the local authority if it decides not to institute proceedings are set out in s 37(3). What I think I can properly say to the local authority — and it is manifest from this judgment — is that I am dealing with two children who are suffering what I think is avoidable significant harm, and for whom the criteria laid down in s 31 of the Children Act 1989 are met. I therefore very much hope that the outcome of the local authority’s investigation will be a plan for the children which will alleviate their difficulties.”
26. In similar vein, Thorpe LJ expresses the following view in Re M (Official Solicitor’s Role):11
“If a judge wishes to bring in the local authority under s 37 then it is, in my opinion, unnecessary and indeed undesirable that the judge should seek to fetter the local authority in the execution of its statutory function.”
27. The reliance in this context of Leicestershire County Council12 upon the decision in Lambeth LBC v TK and KK13 is plainly misplaced. That decision provides authority for the proposition that the determination of whether the criteria exist to found the power to make a section 37 direction lies with the court and not the local authority. That cannot be conflated with the very different issue of whether the court is entitled to exercise a supervisory or interventionist jurisdiction over the local authority investigation that the court has properly directed.
28. If, notwithstanding the construction of CA 1989 s 37 provided by Wall J in Re CE (referred to at para [18] above), it is permissible for the court to
11 Re M (Official Solicitor’s Role) [1998] 2 FLR 815 at 818.
12 See the Leics CC skeleton argument, at para [31] et seq.
13 [2008] EWCA Civ 103, 1 FLR 1229.
11
make repeat interim care orders alongside successive section 37 directions, the question then arises as to whether there is any obligation upon the local authority to prepare a care plan to be considered at the hearing at which a further interim care order may be made, and any role for the court to consider (and possibly reject) any such plan prepared.
29. The answer to the first part of that question is plainly not. The obligation upon a local authority to prepare a care plan within care proceedings, which it must keep under review while its application is pending14 is confined only to the circumstances “where an application is made on which a care order might be made with respect to a child” (see CA 1989 s 31A(1)) (ie care or supervision proceedings). There is no provision within the Children Act 1989 nor within the Family Procedure Rules that requires the local authority to prepare such a care plan whilst it is carrying out a section 37 investigation or as part of its provision of information to the court pursuant to CA 1989 s 37(3).
30. The answer to the second part of the question flows from the first. Assuming that it is possible to make a renewed interim care order, there is no power entrusted to the court by statute or by the Rules that enables the court at a hearing at which such interim care order might be renewed to reject the way that a local authority proposes to exercise its parental responsibility under any such interim care order (other than by the making of private law orders). Nor can any such power or role for the court be deduced from the case-law dealing with the circumstances in which a court can legitimately ask a local authority to “think again”, for
14 See CA 1989 s 31A(2).
12
that case-law is confined to care proceedings and arises out of their “quasiadversarial” nature.15
31. It will be noted that the propositions set out in the three foregoing paragraphs are fully consistent with the approach in the case-law, summarised above, to the court’s role in relation to the section 37 investigation itself.
Reasons for 37 directions and associated interim care orders
32. There is a plain obligation upon the court to provide “clear reasons” for making a section 37 direction (per Wall J in Re M above, at para [13]).
33. Whilst the stated rationale for that obligation is so that the local authority knows fully why a section 37 direction has been made, given: (a) the significant step that the making of a section 37 direction entails, and (b) the potential ramifications of such, then the parties (and especially the parents) themselves also ought to know and be able to understand fully those reasons.
34. And that obligation must bite with even greater force when the court goes on also to make an interim care order – an order for which, by definition, the local authority will not have asked, but which enables it to override the parental responsibility of the parents and to remove the child from parental care.
15 See Wall LJ (as he then was) in Re S and W (Care Proceedings) [2007] EWCA Civ 232, [2007] 2 FLR 275, at para [35].
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35. In this context, it must be borne in mind that the making of the section 37 direction and the making of an interim care order alongside it are separate questions, with the court having a discretion to make the latter when it makes the former.
Summary of legal approach
36. Drawing together the legal principles set out above, it is submitted that the actions, decisions and judgments of the Learned Judge fall to be considered within the following legal context:
(1) The fundamental purpose of the section 37 direction is for the court to get the local authority, as part of its statutory duties, to investigate the circumstances of the child concerned, with a view to the local authority considering and deciding whether or not to initiate public law proceedings in respect of that child.
(2) The decision whether or not to initiate proceedings is for the local authority alone. The court has no power to compel the local authority to institute proceedings. Nor should the court interfere with the professional exercise of the local authority’s investigative functions under CA s 37.
(3) The court is however responsible for determining whether the criteria justifying the making of the section 37 direction in the first instance are met.
(4) Whenever it makes a section 37 direction, and, especially when it also at the same time makes an interim care order, the court should clearly spell out its reasons for doing so.
(5) Either the court has no power to make repeat, consecutive section 37 directions, with repeat, consecutive interim care orders at the same
14
time; or, if it does, then, to ensure that the court does not encroach impermissibly upon territory that is the local authority’s own, such power has to be exercised cautiously and sparingly, and the reasons for the court’s use of such power must be clearly and fully set out.
The period from 10th December 2010 to initiation of care proceedings
37. In light of the above, the following submissions are made in respect of the period between 10th December 2010, when the court made its first section 37 direction, and the date (some time after 4th March 2011 – the application is undated) when the local authority initiated care proceedings
Judgment and order of 10th December 2010
38. First, in relation to the judgment and order of 10th December 2010, the following submissions are advanced:
(1) Having received in evidence the significant concerns of Dr Freedman and of the Children’s Guardian, the court did have sufficient evidence upon which it could properly reach the view that “it may be appropriate for a care or supervision order to be made” with respect to Tunde (to justify the making of a section 37 direction).
(2) Having received in evidence the significant concerns of Dr Freedman and of the Children’s Guardian, the court did have sufficient evidence upon which it could properly be satisfied that there were reasonable grounds for believing that the CA 1989 s 31(2) threshold criteria were met, and that the child’s welfare warranted an interim care order being made (ie that the criteria to justify the making of an interim care order under CA s 38(1)(b) were met).
15
(3) In forming that view and reaching that conclusion, both of which by statute were matters for itself, the court was not per se bound by any previous view expressed by the local authority.
(4) However, and especially where as here there had been prior local authority involvement, and where that local authority had previously expressed the view that public law proceedings were not warranted and by corollary that it did not need nor seek an interim care order in respect of the child, then it was incumbent upon the court to set out fully and clearly why nevertheless the court was making a section 37 direction and why additionally it was making an interim care order also. That the Learned Judge did not do in his judgment of 10th December 2010,16 which is manifestly inadequate in such regard.
(5) Taking an overview of that judgment (in which at times the Learned Judge seems to confuse T and T) and of the preamble to the order of 10th December 2010:
(a) The Learned Judge appears not to realise that the first question for the court is whether to make a section 37 direction, not whether to make an interim care order. The former is the gateway to the latter, and yet the Learned Judge, both in his judgment and in his order, addresses the issue of the making of the interim care order first.
(b) It is possibly because of that back-to-front approach that, whilst the Learned Judge does provide some albeit very brief reasons for the making of the interim care order, he does not (beyond, stating that a section 37 report is required “indicating whether or not any public law order is required”) actually explain with sufficient detail
16 To be found in the Appellants’ bundle at Section B, pp 1-3.
16
or clarity why the court takes the view that a care or supervision order may be appropriate in respect of this child, and why the court is exercising its discretion in the circumstances of the case to make a section 37 direction.
(6) Leicestershire County Council properly makes the point that, if the judgment of 10th December 2010 failed for lack of reasons, then the Appellants should have sought further reasons and/or clarification of the court’s decision. It would appear, however, that they did approach the Learned Judge precisely for such.17
(7) Accordingly, and even reading into the judgment of 10th December 2010 the matters contained within the preamble to the order of the same date, it is hard to resist the conclusion that the Learned Judge’s judgment was, in the circumstances, inadequate and deficient.
Order of 31st January 2011
39. Leicestershire County Council having produced its 16 page section 37 report18 for that hearing, the next substantive order to consider is that made by the Learned Judge at the hearing on 31st January 2011.19
40. There is not an approved judgment of that date (just counsel’s note),20 but the order does contain a relatively lengthy preamble, consistent with the content of that note, which records the following:
17 See the letters sent by the Appellants to the Learned Judge in the Appellants’ bundle at Section B, pp 75-77.
18 See the Leics CC bundle at C105-120. At para 52, Ms Sutton records that “it is the view of Leicestershire County Council that the threshold criteria for a care order with a plan for removal of T to foster care are not met in this case” (C119).
19 To be found in the Torbay BC bundle at Section B, pp 6-7.
20 Appended to the father’s skeleton argument for this appeal.
17
“Leicestershire County Council not being represented at Court but having indicated to the Court through Ms Bond of Torbay Council that they are willing to file [an] addendum s 37 report but did not wish the Court to make an interim care order in respect of Te”;
“the court indicating its sympathy with [representations] made on behalf of the first and second Respondents that the present s 37 Report does not deal adequately and fails to deal with a number of important matters namely (i) the risk of T suffering emotional harm if he returns to the care of Mrs Baggaley (ii) the assessment of T with his family in Devon (iii) the potential further home move of T and the effect [on] him and his education”;
“the court indicating its concern that a move of T from Foster care should [though perhaps “would” is intended] be a precipitive [sic] and premature move and the Court urging Leicestershire County Council Director of Social Services to think very carefully before putting into motion any plans to return T to the care of Mrs Baggaley before the legitimate concerns of Mr Ingham, an experienced Guardian had been concerned. It would be the gravest concern if T returned to Mr and Mrs Baggaley and a further assessment indicated it was a premature move. The Court further indicating that if it had the power it would direct it did not happen.”
41. The order itself:
(1) makes a further interim care order; and
(2) directs Leicestershire County Council to prepare an addendum report pursuant to CA 1989 s 37 “to address so far as they are able the following matters:
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(i) assessment of the relationship between Te and To and that part of the assessment will include the use of staying contact between the children in Torquay;
(ii) paragraphs 2, 3, 5, 8 and 10 contained in the Guardian’s solicitor’s email to Mandy McCroy dated 13th December 2010;21
(iii) an assessment of Mr and Mrs Baggaley’s method of problem solving, their attitude to authority figures and ability to work with others whom they may not agree with and the impact upon Te of the same.”
42. In relation to that order and the Learned Judge’s justification for it, the submissions are these:
(1) If Wall J is right in his statutory analysis of CA 1989 s 37, then the court did not have the power to renew the existing interim care order absent the initiation of care proceedings.
(2) If, contrary to that statutory analysis, the Learned Judge did have that power, then, and especially in circumstances where the local authority did not want a further interim care order, it was incumbent upon him to explain clearly and fully why he was exercising his power to renew the interim care order. That he did not sufficiently do.
(3) The question of whether the Learned Judge’s decision and decision-making (as embodied by the order and its preamble) amount to an impermissible interference: (a) with the professional exercise of the local authority’s investigative functions under CA s 37, and (b) with
21 The order of 10th December 2010 had provided that “the solicitors for the Guardian will send a list of specific matters they wish the Local Authority to deal with in their [section 37] report”. That list, emailed on 13th December 2010, is to be found in the Leics CC bundle at B121.
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the exercise of its parental responsibility under an interim care order essentially turn: (i) on whether a relatively generous interpretation is made of the statute and of the case-law set out above; and (ii) on whether the Learned Judge’s actions were because fundamentally he rejected the Leicestershire view that public law proceedings were not warranted and disagreed with its intention to return Te to his mother’s care, or because he genuinely felt that the section 37 investigation was lacking. For his part, the Children’s Guardian did feel that there were clear gaps in the investigation, which he understood had only meaningfully begun in early January 2011, and, acting as then advised, he supported the decision to direct an addendum report. It is recognised, however that the Learned Judge’s later reference to Ms Sutton’s report having been “comprehensive and thorough” inevitably raises the possibility of the former interpretation of the Learned Judge’s actions being more accurate.22
(4) If, notwithstanding the above, the Learned Judge did have the power to make a further section 37 direction (because the section 37 report was insufficient and/or inadequate), and to make a further interim care order as well, then the Learned Judge was entitled, on the totality of the evidence available to him, and in the exercise of his broad discretion, to make a further section 37 direction and to renew the interim care order. That said, and as observed already in relation to the renewal of the interim care order, it was incumbent upon him in these circumstances to explain the taking of that course rather more clearly and fully than he did.
22 See the judgment of 12th April 2011, to be found in the Appellants’ bundle at Section A, p 183.
20
Order of 4th March 2011
43. Leicestershire County Council having produced its 30 page addendum section 37 report,23 the next substantive order to consider is that made by the Learned Judge on 4th March 2011.24 This was at a hearing at which the Children’s Guardian could not be present; and, as the arrival of the addendum report post-dated his absence on leave, he had not been able to read it so as to provide instructions to his representative.25
44. Again there is not an approved judgment of this date (just an attendance note of the hearing26 and one of the judgment27) but the order does contain a preamble in the following terms:
“AND UPON the Court indicating its dissatisfaction with the addendum s 37 report of Ms Sutton dated 2nd March 2011 and in particular the report having raised additional concerns then failing to address them. The Court is not satisfied Te would be safe in the care of Mr and Mrs Baggaley.”
45. Upon that preamble, the Learned Judge renews the interim care order, grants permission to the parties and the Guardian to file and serve a position statement setting out their concerns about the s 37 report by 18th March 2011, and directs Leicestershire County Council to prepare a
23 See the Leics CC bundle at C121-151. At para 13.5.1, Ms Sutton concludes that “although the concerns within this case are well documented, and not to be ignored or minimised, the assessment of Leicestershire County Council is that T should not remain in foster care and that the instigation of Care Proceedings in respect of this 11 year old child would not be appropriate, necessary or proportionate intervention based upon our assessment to date” (C149-150). The report records that Leics CC is of “the opinion that Te should return to his mother’s care” under the auspices of a 12 month family assistance order to Leics CC (C150).
24 To be found in the Torbay BC bundle at Section B, p 9.
25 This much is clear from the note of the hearing (see footnote 26).
26 Prepared by counsel then appearing for Leics CC, to be found in the Appellants’ bundle at Section A, pp 208-210. As appears from it, the representative for the Guardian “did not have instructions from the Guardian to challenge the report as he had not as yet read it”.
27 Appended to the father’s skeleton argument for this appeal.
21
further addendum s 37 report “addressing the concerns expressed by the father, the Guardian and the Court” by 25th March 2011”.
46. The preamble and order are consistent with the following, said to be part of the judgment (as noted by counsel for the father):
“I am satisfied that it would not be right to act on what Rachael Sutton has said and I am not minded to discharge the ICO. I require the Local Authority to address the concerns of the father and the Children’s Guardian and the Court on reading the statement.”
47. In relation to that order and the Learned Judge’s justification for it, the submissions are these:
(1) Whilst the order of 31st January 2011 might be capable of being rescued on a relatively generous interpretation of the statute and the case-law, the decision and decision-making on 4th March 2011 are a different matter. It is hard to resist the conclusion that the Learned Judge’s actions in this regard constituted an impermissible interference: (a) with the professional exercise of the local authority’s investigative functions under CA s 37, and (b) with the exercise of its parental responsibility under an interim care order. It is similarly hard to avoid the conclusion that this was a judge in private law proceedings effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in the Children Act 1989, that separates the local authority from the court. It is of course entirely proper for a court, when making a section 37 direction in the first instance, to express an opinion as to the possible appropriateness of public law orders – the section demands as much – but here the Learned Judge appears to go considerably beyond that in the way in which he seeks to influence and shape the decisions of the local
22
authority.28
(2) If Wall J is right in his statutory analysis of CA 1989 s 37, then the court did not have the power anyway to renew the existing interim care order absent the initiation of care proceedings.
(3) If the Learned Judge did have the power to make a further section 37 direction, and to make a further interim care order as well, then, and especially given the local authority’s consistent and reasoned stance, it was incumbent upon him to explain clearly and fully why he was exercising those powers. On any basis, that he did not adequately do.
The Learned Judge’s repeated use of section 37 directions and ICOs
48. Taking an overview of the actions and decisions of the Learned Judge more closely analysed above, the plain facts are that, by reason of the orders that he made, the local authority section 37 investigation was made to run for 3½ months, and the local authority itself was made to carry in private law proceedings (in which it is not and cannot be a party) successive interim care orders, which it did not want and did not seek, for a similar period of time.
49. Even allowing for the most generous interpretation of the statute, it is hard to imagine that this is what Parliament had in mind when enacting CA 1989 ss 37 and 38(1)(b). The Leicestershire submission that the court has an “unfettered discretion” to make further section 37 directions cannot be accepted, for it would be irreconcilable with the careful structure of the Children Act 1989. Its attempt to align the section 7
28 Again reference should be had to the Learned Judge’s subsequent reference to both of Ms Sutton’s reports having been “comprehensive and thorough” (see the judgment of 12th April 2011, to be found in the Appellants’ bundle at Section A, p 183).
23
report with the section 37 investigation is similarly misconceived.
50. Again, taking an overview of the period in question, it seems impossible to resist the conclusion that the Learned Judge exceeded his powers. Perhaps the most charitable interpretation is that he forgot that he was still presiding over a private law case, for he acted as a judge in public law proceedings, aiming to get the local authority to bend to his will.
The care proceedings
51. In terms of the impact of the hearing on 4th March 2011, it can only be described as pivotal. As Leicestershire County Council’s position statement for the hearing on 6th October 2011 retrospectively records, “the hearing of 4 March 2011 turned out to be a very difficult date on which the carefully forged working relationship between LCC and Mr and Mrs Baggaley broke down”.29 In its case summary for the hearing on 12th April 2011,30 Leicestershire County Council:
relates that “until the hearing on 4th March 2011 LCC believed that they were able to work co-operatively with the Baggaleys and supported Te’s wish to return to their care” (para 2);
describes this as “a carefully thought out position, which took into account the entirely normal presentation and development of the Baggaleys’ own children …; Te’s strong wish to remain with his mother; Te’s development in the Baggaleys’ care; and the Baggaleys’ co-operation with LCC” (para 3);
asserts that “against that background there were insufficient grounds
29 See the Leics CC Position Statement at para 2.12 (Appellants’ bundle at Section A, p 39).
30 See the Leics CC bundle at A22.
24
for LCC to seek to separate Te from the Baggaleys” (para 3);
now states that “in the light of the Baggaleys’ lack of co-operation [withdrawn on 4th March 2011], LCC now support T being placed with the Burtons (maternal grandparents) with whom To is already residing” (para 7).
52. Given those matters, given too that the care proceedings were presided over by the same judge whose impermissible actions had caused or contributed to their initiation, the issue of whether the care proceedings can be viewed as demonstrably fair cannot be divorced from what went before.
53. Were it otherwise, the Guardian’s submissions would be these:
A. On the totality of the evidence that he had, and in the exercise of his broad discretion, the Learned Judge cannot be said to be plainly wrong to have made an interim care order on 12th April 2011. In the circumstances, however, he can be properly criticised for not having set out more fully the basis upon which he found the CA 1989 s 38(2) criteria met.
B. Balancing the rights of the parties, the Learned Judge was entitled to proceed with the final hearing on 13th January 2012.
C. On the totality of the evidence that he had, and in the exercise of his broad discretion, the Learned Judge cannot be said to be plainly wrong to have found the CA 1989 s 31 threshold criteria satisfied, and to have made supervision and special guardianship orders in respect of T.
25
Conclusion
54. In considering issues of fairness and propriety, the court has to look at the proceedings as a whole (see Re V (Care: Pre-Birth Actions)31).
55. Adopting that approach here, by reason of the matters set out above, and notwithstanding the many ill-considered actions of the Appellants themselves, it is hard to resist the objective conclusion that the essential requirements of fairness and propriety have not been sufficiently met in these proceedings.
56. On that basis, the appeal ought to be upheld, the final orders under appeal set aside, and the care proceedings in respect of T remitted for case management (to include consideration of the involvement of NYAS) and hearing by a different tribunal as a matter of urgency.
57. That conclusion is reached with obvious regret, not least because it extends already lengthy and difficult litigation for T, which of itself may have profound implications for his welfare.
58. Nor should it mislead. It does not mean that the Guardian resiles from the assessments that he made and from the conclusions that he reached, which at all times resulted from his objective analysis of the facts as they appeared to him and were dictated by his appraisal of what was in the best interests of the child. His motivation throughout has been to promote Te’s welfare and to secure for him an environment in which his needs would be met and in which he would be protected so far as
31 [2004] EWCA Civ 1575, [2005] 1 FLR 627.
26
possible from harm. He is very clear that T living with the Appellants is not compatible with his short and long term welfare.
59. Nor does it alter the self-evident reality that the Appellants, in part through their decision mostly to do without legal representation, have on far too many occasions been ill-served by their own actions, which have caused immense difficulties for the courts and the professionals involved, as well as for Tehimself.
60. But it is to recognise that important decisions about children, particularly those in public law proceedings, must be taken by means of a demonstrably fair and proper process.
61. Finally, apology is made for the lateness of this Skeleton Argument. Authority from the Legal Services Commission for representation on this appeal was not received, despite pressing, until Friday, 19th October 2012, and counsel, who has no prior involvement in this case, did not receive all the bundles now in his possession until late on that Friday. The skeleton argument has been prepared as quickly as circumstances have allowed.
22nd October 2012 Piers Pressdee QC
29 Bedford Row, (counsel for the child,
London, WC1. by his Children’s Guardian)
27
APPEAL NO: B4/2012/0430
IN THE COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL FROM
THE EXETER COUNTY COURT
(CASE NO: EX11C00033)
(DECISION OF HHJ TYZACK QC)
IN THE MATTER OF
THE CHILDREN ACT 1989
AND OF THE CHILD:
TUNDE KAZEEM (DOB 20/1/2000)
_________________________________
SKELETON ARGUMENT
ON BEHALF OF THE RESPONDENT CHILD (ACTING BY HIS CHILDREN’S GUARDIAN)
FOR APPEAL HEARING
ON 24TH OCTOBER 2012
Tozers
10 St Paul’s Road,
Newton Abbot,
Devon,
TQ12 4PR.
DX 59102 Newton Abbot
Ref: MW
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EXETER COUNTY COURT (CASE NO: EX11C00033)
(DECISION OF HHJ TYZACK QC)
IN THE MATTER OF THE CHILDREN ACT 1989
AND OF THE CHILD:
T K (DOB 20/1/2000)
SKELETON ARGUMENT ON BEHALF OF THE RESPONDENT CHILD (ACTING THROUGH HIS CHILDREN’S GUARDIAN)
FOR APPEAL HEARING ON 24TH OCTOBER 2012
Introduction
1. The desire of this court to ensure that important decisions about children, particularly those in public law proceedings, are taken by means of a fair and proper process is well-established (see, by way of recent example, the judgment of McFarlane LJ in Re P (Children).1
2. It is perfectly plain from the reasoned judgment provided when giving permission to appeal that this court is concerned about the fairness and propriety of the process that has led to various orders being made within these proceedings, culminating ultimately in T being made subject to supervision and special guardianship orders.
3. Mindful:
(a) of the court, to whom the overriding duty is owed, having thus
1 [2012] EWCA Civ 401.
2 Re K [2012] EWCA Civ 1169.
2
expressed its concern about the process undertaken in this case;
(b) of the Appellants representing themselves; and
(c) of the manifest importance to T of having significant decisions about his welfare and future being taken by a process that is demonstrably fair and proper;
the approach of those acting on his behalf within this appeal has been in the first instance to conduct a retrospective and objective analysis of the process involved in this case to establish whether or not the essential requirements of fairness and propriety have been met in these proceedings.
4. It follows that the aim here is not to seek to justify any particular submission made at any given time on behalf of a Guardian who was understandably very concerned about the welfare of a vulnerable child, but to provide a fresh appraisal of the fairness and propriety of the process that was actually undertaken.
5. That analysis sadly does identify procedural irregularities and errors of law, which, it is submitted, are sufficient to dispose of this appeal by means of it being upheld, and to warrant the case being remitted to be heard by a different tribunal.
6. In particular it is submitted:
(1) that the Learned Judge exceeded his powers by his repeated making of directions under Children Act 1989, s 37 and associated interim care orders, which amounted to his seeking to place impermissible pressure upon the local authority: (a) to initiate care proceedings, and (b) to use
3
its parental responsibility for the child in a way that accorded with his own views; and
(2) that his judgment of 10th December 2010 was defective and inadequate.
7. Adopting the same approach as that taken by McFarlane LJ in Re P above, in light of the stance above this Skeleton Argument does not address in any detail the merits of the case, which would properly be matters for the lower court, if remitted. Nor does it seek to reproduce the evidence and extensive chronology which have been fully set out by the skeleton arguments of others.
Section 37 directions and interim care orders – the legal context
8. It is plain from the court’s judgment when giving permission that it is concerned about the Learned Judge’s use of the section 37 process here, being particularly concerned about whether at key points the Learned Judge was right in the circumstances to make a direction under Children Act 1989, s 37 (a “section 37 direction”), and to make also the interim care order that can be granted when the court gives that direction (pursuant to Children Act 1989, s 38(1)(b)).
9. Inevitably, therefore, this appeal has to consider by way of starting-point the issue of the proper function and use of a section 37 direction, and of the interim care order that can be granted at the same time as the court gives that direction.
10. In particular, it raises the following questions:
4
(1) What is the proper function and purpose of a section 37 direction?
(2) Is it appropriate for the court to make repeat, consecutive section 37 directions, coupled with repeat, consecutive interim care orders? In particular, is it right, as Leicestershire County Council contends, that the court has “an unfettered discretion” to make further section 37 directions, provided that the criteria for their making are, in the court’s view, met?3
(3) What is the delineation of role between local authority and court when the court directs a section 37 investigation, receives the result of that investigation and is appraised of the local authority’s intentions for the child? Is a course of the kind adopted by the Learned Judge here justified because, as Leicestershire asserts, “to find that the Judge was bound to accept the view of the local authority would be to leave the court powerless to protect the welfare of the child”.4
(4) When a court makes a section 37 direction (with or without an interim care order), to what extent must it set out the reasons for doing so?
The proper function and purpose of the section 37 direction
11. Children Act 1989, s 31 provides that an application for a care or supervision order can only be made by a local authority or by an authorised person.5 For present purposes, the “authorised person” provision can be disregarded.6
3 See the Leics CC skeleton argument, at para [30].
4 See the Leics CC skeleton argument, at para [43].
5 An authorised person is the NSPCC (which does not use this power) and any of its officers, and any other person or body authorised by the Secretary of State (no person or body has been so authorised): CA 1989, s 31(9).
6 See footnote 5 above.
5
12. As a matter of basic statutory construction, CA 1989 s 37 therefore falls to be considered against the background of Parliament having entrusted to the local authority and not the court the decision as to whether or not to initiate care or supervision proceedings.
13. In material part, CA 1989 s 37 provides as follows:
(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.
(2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should –
(a) apply for a care order or for a supervision order with respect to the child;
(b) provide services or assistance for the child or his family; or
(c) take any other action with respect to the child.
(3) Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of –
(a) their reasons for so deciding;
(b) any service or assistance which they have provided, or intend to provide, for the child and his family; and
(c) any other action which they have taken, or propose to take, with respect to the child.
(4) The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.
. . .
(6) If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child –
(a) they shall consider whether it would be appropriate to review the case at a later date; and
(b) if they decide that it would be, they shall determine the date on which that review is to begin.’
14. That the decision to initiate care proceedings following a section 37 investigation is for the local authority alone is plain from the face of the
6
section, particularly at s 37(2)(a) (local authority to “consider”), s 37(3) (local authority to “decide”) and s 37(6) (local authority to “review”).
15. The Family Court Practice 2012 correctly, it is suggested, describes the scope of CA 1989 s 37 as follows:7
“This section empowers the court, of its own initiative, to direct the local authority to look into the circumstances of a child with a view to the possibility of taking action with respect to the child and to report to the court about what, if any, action it intends to take, including the matters referred to in s 37(4)-(6).”
16. The Best Practice Guidance on s 37(1) directions8 in material part indicates as follows, with the first sentence of point (3) specifically highlighted in this context:
(1) A direction under s 37(1) is appropriate where the court desires an investigation because “it appears to the court that it may be appropriate for a care order or supervision order to be made” (s 37(1)).
(2) A direction under s 37(1) is not lawful unless it appears to the court that a care or supervision order may be appropriate….
(3) The purpose of a s 37(1) direction is to enable the court to cause the local authority to assess whether a care or supervision order is needed. It is not to obtain a general welfare report. However, the making of a s 37(1) direction will also cause the local authority to consider whether and which child welfare support services should be provided by the local authority, or other action taken, as well as or instead of a care or supervision order: s 37(2), and note the details of
7 At p 587.
8 Issued by the Children Act Advisory Committee in its 1992/3Annual Report, and set out in the Family Court Practice, at pp 587-588.
7
the duty of the local authority to report to the court under s 37(3).
Repeat section 37 directions and interim care orders?
17. In Re CE (Section 37 Direction)9 Wall J (as he then was) considered the interrelation between CA 1989 s 37 and s 41(6)(b) for the purposes of determining whether the proceedings cease to be specified should the local authority decide not to initiate care or supervision proceedings, following a section 37 investigation, and so inform the court.
18. If his construction of CA 1989 s 37 is correct, then repeat interim care orders made under the umbrella of a section 37 investigation, are not permissible. Per Wall J at pp 42-43:
“In my judgment, where an order has been made under s 37(1) and the proceedings have become ‘specified proceedings’ by virtue of s 41(6)(b) the proceedings cease to be ‘specified proceedings’ if the local authority, as a result of its investigation, decides not to apply for a care order or a supervision order and so informs the court. My reasons for reaching this conclusion are as follows:
(1) Section 41(6) is in the continuous present. This means that the criteria contained in it must subsist whenever the court ‘is considering whether to make an interim care order’.
(2) Interim care orders can only be made under s 38(1) where proceedings ‘on an application for a care order or supervision order’ are adjourned or where the court gives a direction under s 37(1). The structure of s 37 requires a report to be made within a specified timescale. When the report is received, the court’s powers to make interim care orders continue to be governed by s 38.
(3) The use of the present tense ‘gives’ in s 38(1)(b) as opposed to the perfect tense ‘has given’ means, in my judgment, that whilst an interim care order can be made without an application by a local authority on the occasion when the court gives its s 37 direction, any subsequent application for an interim care order (or for the renewal of the interim care order made on the occasion when the direction under s 37 is given) must be made ‘on an application for a care order or supervision order’ by a local authority or authorised person (see s 31(1)).
9 [1995] 1 FLR 26.
8
(4) Accordingly, if there is no such application, the court as I read the statute has no jurisdiction to make an interim order (or renew an order made when the direction under s 37(1) was given) and therefore cannot any longer be considering making such an order.
(5) Since in these circumstances none of the other criteria in s 41(6) applies, the proceedings can no longer be described as ‘specified’.
I have to say that I do not regard this interpretation of the statute as satisfactory, since it gives rise to the risk of precisely the same difficulties as were encountered in Nottinghamshire County Council v P [1994] Fam 18, [1993] 2 FLR 134 and graphically set out in the judgment of the Court of Appeal at pp 43 and 148 respectively:
‘The court is deeply concerned at the absence of any power to direct this authority to take steps to protect the children. In the former wardship jurisdiction it might well have been able to do so. The operation of the Children Act 1989 is entirely dependent upon the full co-operation of all those involved. This includes the courts, local authorities, social workers, and all who have to deal with children. Unfortunately, as appears from this case, if a local authority doggedly resists taking the steps which are appropriate to the case of children at risk of suffering significant harm it appears that the court is powerless. The authority may perhaps lay itself open to an application for judicial review but in a case such as this the question arises, at whose instance? The position is one which it is to be hoped will not recur . . .’
I am, however, driven to the conclusion that any other interpretation of the statute is untenable.”
19. It is implicit in that statutory analysis that Wall J works on the assumption of the court only being able to give one single section 37 direction, a construction that would be consistent with the focus of the section on there being “an investigation” for the purposes so specified, with CA 1989 s 37(6) providing for the local authority, if not applying, “to consider whether it would be appropriate to review the case at a later date”.
20. The inability to make repeat interim care orders under the section 37 umbrella would also be consistent with the lack of statutory requirement
9
upon the local authority to prepare a care plan for the court’s consideration (discussed below).
Roles of local authority and court
21. The role of the local authority, when the court makes a section 37 direction, is plain from the face of the statute. It is:
principally to investigate, assess and decide whether or not to initiate care or supervision proceedings;
secondarily (if not applying) to inform the court of the reasons why not, and of the services and assistance provided and to be provided for the child and the family and the action taken or to be taken in respect of the child (presumably to assist the court in its private law considerations).
22. So far as the role of the court is concerned, it falls to be considered:
(a) in relation to the carrying out of the section 37 investigation, and
(b) in relation to any interim care order made at the same time.
23. In the former context, the case-law is very clear.
24. Per Wall J (as he then was) in Re M (Intractable Contact Dispute: Interim Care Order)10, at para [123]:
“[The court] cannot require the local authority to take proceedings. The limit of [the court’s power] is to direct the authority to undertake an investigation of the children’s circumstances.”
25. He continues, at para [131]:
10 [2003] EWHC 1024 (Fam), [2003] 2 FLR 636.
10
“I have already made it clear that I do not have any power to compel the local authority to institute proceedings, nor would I seek in any way to interfere with the professional exercise of the local authority’s investigative functions under s 37. The responsibilities of the local authority if it decides not to institute proceedings are set out in s 37(3). What I think I can properly say to the local authority — and it is manifest from this judgment — is that I am dealing with two children who are suffering what I think is avoidable significant harm, and for whom the criteria laid down in s 31 of the Children Act 1989 are met. I therefore very much hope that the outcome of the local authority’s investigation will be a plan for the children which will alleviate their difficulties.”
26. In similar vein, Thorpe LJ expresses the following view in Re M (Official Solicitor’s Role):11
“If a judge wishes to bring in the local authority under s 37 then it is, in my opinion, unnecessary and indeed undesirable that the judge should seek to fetter the local authority in the execution of its statutory function.”
27. The reliance in this context of Leicestershire County Council12 upon the decision in Lambeth LBC v TK and KK13 is plainly misplaced. That decision provides authority for the proposition that the determination of whether the criteria exist to found the power to make a section 37 direction lies with the court and not the local authority. That cannot be conflated with the very different issue of whether the court is entitled to exercise a supervisory or interventionist jurisdiction over the local authority investigation that the court has properly directed.
28. If, notwithstanding the construction of CA 1989 s 37 provided by Wall J in Re CE (referred to at para [18] above), it is permissible for the court to
11 Re M (Official Solicitor’s Role) [1998] 2 FLR 815 at 818.
12 See the Leics CC skeleton argument, at para [31] et seq.
13 [2008] EWCA Civ 103, 1 FLR 1229.
11
make repeat interim care orders alongside successive section 37 directions, the question then arises as to whether there is any obligation upon the local authority to prepare a care plan to be considered at the hearing at which a further interim care order may be made, and any role for the court to consider (and possibly reject) any such plan prepared.
29. The answer to the first part of that question is plainly not. The obligation upon a local authority to prepare a care plan within care proceedings, which it must keep under review while its application is pending14 is confined only to the circumstances “where an application is made on which a care order might be made with respect to a child” (see CA 1989 s 31A(1)) (ie care or supervision proceedings). There is no provision within the Children Act 1989 nor within the Family Procedure Rules that requires the local authority to prepare such a care plan whilst it is carrying out a section 37 investigation or as part of its provision of information to the court pursuant to CA 1989 s 37(3).
30. The answer to the second part of the question flows from the first. Assuming that it is possible to make a renewed interim care order, there is no power entrusted to the court by statute or by the Rules that enables the court at a hearing at which such interim care order might be renewed to reject the way that a local authority proposes to exercise its parental responsibility under any such interim care order (other than by the making of private law orders). Nor can any such power or role for the court be deduced from the case-law dealing with the circumstances in which a court can legitimately ask a local authority to “think again”, for
14 See CA 1989 s 31A(2).
12
that case-law is confined to care proceedings and arises out of their “quasiadversarial” nature.15
31. It will be noted that the propositions set out in the three foregoing paragraphs are fully consistent with the approach in the case-law, summarised above, to the court’s role in relation to the section 37 investigation itself.
Reasons for 37 directions and associated interim care orders
32. There is a plain obligation upon the court to provide “clear reasons” for making a section 37 direction (per Wall J in Re M above, at para [13]).
33. Whilst the stated rationale for that obligation is so that the local authority knows fully why a section 37 direction has been made, given: (a) the significant step that the making of a section 37 direction entails, and (b) the potential ramifications of such, then the parties (and especially the parents) themselves also ought to know and be able to understand fully those reasons.
34. And that obligation must bite with even greater force when the court goes on also to make an interim care order – an order for which, by definition, the local authority will not have asked, but which enables it to override the parental responsibility of the parents and to remove the child from parental care.
15 See Wall LJ (as he then was) in Re S and W (Care Proceedings) [2007] EWCA Civ 232, [2007] 2 FLR 275, at para [35].
13
35. In this context, it must be borne in mind that the making of the section 37 direction and the making of an interim care order alongside it are separate questions, with the court having a discretion to make the latter when it makes the former.
Summary of legal approach
36. Drawing together the legal principles set out above, it is submitted that the actions, decisions and judgments of the Learned Judge fall to be considered within the following legal context:
(1) The fundamental purpose of the section 37 direction is for the court to get the local authority, as part of its statutory duties, to investigate the circumstances of the child concerned, with a view to the local authority considering and deciding whether or not to initiate public law proceedings in respect of that child.
(2) The decision whether or not to initiate proceedings is for the local authority alone. The court has no power to compel the local authority to institute proceedings. Nor should the court interfere with the professional exercise of the local authority’s investigative functions under CA s 37.
(3) The court is however responsible for determining whether the criteria justifying the making of the section 37 direction in the first instance are met.
(4) Whenever it makes a section 37 direction, and, especially when it also at the same time makes an interim care order, the court should clearly spell out its reasons for doing so.
(5) Either the court has no power to make repeat, consecutive section 37 directions, with repeat, consecutive interim care orders at the same
14
time; or, if it does, then, to ensure that the court does not encroach impermissibly upon territory that is the local authority’s own, such power has to be exercised cautiously and sparingly, and the reasons for the court’s use of such power must be clearly and fully set out.
The period from 10th December 2010 to initiation of care proceedings
37. In light of the above, the following submissions are made in respect of the period between 10th December 2010, when the court made its first section 37 direction, and the date (some time after 4th March 2011 – the application is undated) when the local authority initiated care proceedings
Judgment and order of 10th December 2010
38. First, in relation to the judgment and order of 10th December 2010, the following submissions are advanced:
(1) Having received in evidence the significant concerns of Dr Freedman and of the Children’s Guardian, the court did have sufficient evidence upon which it could properly reach the view that “it may be appropriate for a care or supervision order to be made” with respect to Tunde (to justify the making of a section 37 direction).
(2) Having received in evidence the significant concerns of Dr Freedman and of the Children’s Guardian, the court did have sufficient evidence upon which it could properly be satisfied that there were reasonable grounds for believing that the CA 1989 s 31(2) threshold criteria were met, and that the child’s welfare warranted an interim care order being made (ie that the criteria to justify the making of an interim care order under CA s 38(1)(b) were met).
15
(3) In forming that view and reaching that conclusion, both of which by statute were matters for itself, the court was not per se bound by any previous view expressed by the local authority.
(4) However, and especially where as here there had been prior local authority involvement, and where that local authority had previously expressed the view that public law proceedings were not warranted and by corollary that it did not need nor seek an interim care order in respect of the child, then it was incumbent upon the court to set out fully and clearly why nevertheless the court was making a section 37 direction and why additionally it was making an interim care order also. That the Learned Judge did not do in his judgment of 10th December 2010,16 which is manifestly inadequate in such regard.
(5) Taking an overview of that judgment (in which at times the Learned Judge seems to confuse T and T) and of the preamble to the order of 10th December 2010:
(a) The Learned Judge appears not to realise that the first question for the court is whether to make a section 37 direction, not whether to make an interim care order. The former is the gateway to the latter, and yet the Learned Judge, both in his judgment and in his order, addresses the issue of the making of the interim care order first.
(b) It is possibly because of that back-to-front approach that, whilst the Learned Judge does provide some albeit very brief reasons for the making of the interim care order, he does not (beyond, stating that a section 37 report is required “indicating whether or not any public law order is required”) actually explain with sufficient detail
16 To be found in the Appellants’ bundle at Section B, pp 1-3.
16
or clarity why the court takes the view that a care or supervision order may be appropriate in respect of this child, and why the court is exercising its discretion in the circumstances of the case to make a section 37 direction.
(6) Leicestershire County Council properly makes the point that, if the judgment of 10th December 2010 failed for lack of reasons, then the Appellants should have sought further reasons and/or clarification of the court’s decision. It would appear, however, that they did approach the Learned Judge precisely for such.17
(7) Accordingly, and even reading into the judgment of 10th December 2010 the matters contained within the preamble to the order of the same date, it is hard to resist the conclusion that the Learned Judge’s judgment was, in the circumstances, inadequate and deficient.
Order of 31st January 2011
39. Leicestershire County Council having produced its 16 page section 37 report18 for that hearing, the next substantive order to consider is that made by the Learned Judge at the hearing on 31st January 2011.19
40. There is not an approved judgment of that date (just counsel’s note),20 but the order does contain a relatively lengthy preamble, consistent with the content of that note, which records the following:
17 See the letters sent by the Appellants to the Learned Judge in the Appellants’ bundle at Section B, pp 75-77.
18 See the Leics CC bundle at C105-120. At para 52, Ms Sutton records that “it is the view of Leicestershire County Council that the threshold criteria for a care order with a plan for removal of T to foster care are not met in this case” (C119).
19 To be found in the Torbay BC bundle at Section B, pp 6-7.
20 Appended to the father’s skeleton argument for this appeal.
17
“Leicestershire County Council not being represented at Court but having indicated to the Court through Ms Bond of Torbay Council that they are willing to file [an] addendum s 37 report but did not wish the Court to make an interim care order in respect of Te”;
“the court indicating its sympathy with [representations] made on behalf of the first and second Respondents that the present s 37 Report does not deal adequately and fails to deal with a number of important matters namely (i) the risk of T suffering emotional harm if he returns to the care of Mrs Baggaley (ii) the assessment of T with his family in Devon (iii) the potential further home move of T and the effect [on] him and his education”;
“the court indicating its concern that a move of T from Foster care should [though perhaps “would” is intended] be a precipitive [sic] and premature move and the Court urging Leicestershire County Council Director of Social Services to think very carefully before putting into motion any plans to return T to the care of Mrs Baggaley before the legitimate concerns of Mr Ingham, an experienced Guardian had been concerned. It would be the gravest concern if T returned to Mr and Mrs Baggaley and a further assessment indicated it was a premature move. The Court further indicating that if it had the power it would direct it did not happen.”
41. The order itself:
(1) makes a further interim care order; and
(2) directs Leicestershire County Council to prepare an addendum report pursuant to CA 1989 s 37 “to address so far as they are able the following matters:
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(i) assessment of the relationship between Te and To and that part of the assessment will include the use of staying contact between the children in Torquay;
(ii) paragraphs 2, 3, 5, 8 and 10 contained in the Guardian’s solicitor’s email to Mandy McCroy dated 13th December 2010;21
(iii) an assessment of Mr and Mrs Baggaley’s method of problem solving, their attitude to authority figures and ability to work with others whom they may not agree with and the impact upon Te of the same.”
42. In relation to that order and the Learned Judge’s justification for it, the submissions are these:
(1) If Wall J is right in his statutory analysis of CA 1989 s 37, then the court did not have the power to renew the existing interim care order absent the initiation of care proceedings.
(2) If, contrary to that statutory analysis, the Learned Judge did have that power, then, and especially in circumstances where the local authority did not want a further interim care order, it was incumbent upon him to explain clearly and fully why he was exercising his power to renew the interim care order. That he did not sufficiently do.
(3) The question of whether the Learned Judge’s decision and decision-making (as embodied by the order and its preamble) amount to an impermissible interference: (a) with the professional exercise of the local authority’s investigative functions under CA s 37, and (b) with
21 The order of 10th December 2010 had provided that “the solicitors for the Guardian will send a list of specific matters they wish the Local Authority to deal with in their [section 37] report”. That list, emailed on 13th December 2010, is to be found in the Leics CC bundle at B121.
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the exercise of its parental responsibility under an interim care order essentially turn: (i) on whether a relatively generous interpretation is made of the statute and of the case-law set out above; and (ii) on whether the Learned Judge’s actions were because fundamentally he rejected the Leicestershire view that public law proceedings were not warranted and disagreed with its intention to return Te to his mother’s care, or because he genuinely felt that the section 37 investigation was lacking. For his part, the Children’s Guardian did feel that there were clear gaps in the investigation, which he understood had only meaningfully begun in early January 2011, and, acting as then advised, he supported the decision to direct an addendum report. It is recognised, however that the Learned Judge’s later reference to Ms Sutton’s report having been “comprehensive and thorough” inevitably raises the possibility of the former interpretation of the Learned Judge’s actions being more accurate.22
(4) If, notwithstanding the above, the Learned Judge did have the power to make a further section 37 direction (because the section 37 report was insufficient and/or inadequate), and to make a further interim care order as well, then the Learned Judge was entitled, on the totality of the evidence available to him, and in the exercise of his broad discretion, to make a further section 37 direction and to renew the interim care order. That said, and as observed already in relation to the renewal of the interim care order, it was incumbent upon him in these circumstances to explain the taking of that course rather more clearly and fully than he did.
22 See the judgment of 12th April 2011, to be found in the Appellants’ bundle at Section A, p 183.
20
Order of 4th March 2011
43. Leicestershire County Council having produced its 30 page addendum section 37 report,23 the next substantive order to consider is that made by the Learned Judge on 4th March 2011.24 This was at a hearing at which the Children’s Guardian could not be present; and, as the arrival of the addendum report post-dated his absence on leave, he had not been able to read it so as to provide instructions to his representative.25
44. Again there is not an approved judgment of this date (just an attendance note of the hearing26 and one of the judgment27) but the order does contain a preamble in the following terms:
“AND UPON the Court indicating its dissatisfaction with the addendum s 37 report of Ms Sutton dated 2nd March 2011 and in particular the report having raised additional concerns then failing to address them. The Court is not satisfied Te would be safe in the care of Mr and Mrs Baggaley.”
45. Upon that preamble, the Learned Judge renews the interim care order, grants permission to the parties and the Guardian to file and serve a position statement setting out their concerns about the s 37 report by 18th March 2011, and directs Leicestershire County Council to prepare a
23 See the Leics CC bundle at C121-151. At para 13.5.1, Ms Sutton concludes that “although the concerns within this case are well documented, and not to be ignored or minimised, the assessment of Leicestershire County Council is that T should not remain in foster care and that the instigation of Care Proceedings in respect of this 11 year old child would not be appropriate, necessary or proportionate intervention based upon our assessment to date” (C149-150). The report records that Leics CC is of “the opinion that Te should return to his mother’s care” under the auspices of a 12 month family assistance order to Leics CC (C150).
24 To be found in the Torbay BC bundle at Section B, p 9.
25 This much is clear from the note of the hearing (see footnote 26).
26 Prepared by counsel then appearing for Leics CC, to be found in the Appellants’ bundle at Section A, pp 208-210. As appears from it, the representative for the Guardian “did not have instructions from the Guardian to challenge the report as he had not as yet read it”.
27 Appended to the father’s skeleton argument for this appeal.
21
further addendum s 37 report “addressing the concerns expressed by the father, the Guardian and the Court” by 25th March 2011”.
46. The preamble and order are consistent with the following, said to be part of the judgment (as noted by counsel for the father):
“I am satisfied that it would not be right to act on what Rachael Sutton has said and I am not minded to discharge the ICO. I require the Local Authority to address the concerns of the father and the Children’s Guardian and the Court on reading the statement.”
47. In relation to that order and the Learned Judge’s justification for it, the submissions are these:
(1) Whilst the order of 31st January 2011 might be capable of being rescued on a relatively generous interpretation of the statute and the case-law, the decision and decision-making on 4th March 2011 are a different matter. It is hard to resist the conclusion that the Learned Judge’s actions in this regard constituted an impermissible interference: (a) with the professional exercise of the local authority’s investigative functions under CA s 37, and (b) with the exercise of its parental responsibility under an interim care order. It is similarly hard to avoid the conclusion that this was a judge in private law proceedings effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in the Children Act 1989, that separates the local authority from the court. It is of course entirely proper for a court, when making a section 37 direction in the first instance, to express an opinion as to the possible appropriateness of public law orders – the section demands as much – but here the Learned Judge appears to go considerably beyond that in the way in which he seeks to influence and shape the decisions of the local
22
authority.28
(2) If Wall J is right in his statutory analysis of CA 1989 s 37, then the court did not have the power anyway to renew the existing interim care order absent the initiation of care proceedings.
(3) If the Learned Judge did have the power to make a further section 37 direction, and to make a further interim care order as well, then, and especially given the local authority’s consistent and reasoned stance, it was incumbent upon him to explain clearly and fully why he was exercising those powers. On any basis, that he did not adequately do.
The Learned Judge’s repeated use of section 37 directions and ICOs
48. Taking an overview of the actions and decisions of the Learned Judge more closely analysed above, the plain facts are that, by reason of the orders that he made, the local authority section 37 investigation was made to run for 3½ months, and the local authority itself was made to carry in private law proceedings (in which it is not and cannot be a party) successive interim care orders, which it did not want and did not seek, for a similar period of time.
49. Even allowing for the most generous interpretation of the statute, it is hard to imagine that this is what Parliament had in mind when enacting CA 1989 ss 37 and 38(1)(b). The Leicestershire submission that the court has an “unfettered discretion” to make further section 37 directions cannot be accepted, for it would be irreconcilable with the careful structure of the Children Act 1989. Its attempt to align the section 7
28 Again reference should be had to the Learned Judge’s subsequent reference to both of Ms Sutton’s reports having been “comprehensive and thorough” (see the judgment of 12th April 2011, to be found in the Appellants’ bundle at Section A, p 183).
23
report with the section 37 investigation is similarly misconceived.
50. Again, taking an overview of the period in question, it seems impossible to resist the conclusion that the Learned Judge exceeded his powers. Perhaps the most charitable interpretation is that he forgot that he was still presiding over a private law case, for he acted as a judge in public law proceedings, aiming to get the local authority to bend to his will.
The care proceedings
51. In terms of the impact of the hearing on 4th March 2011, it can only be described as pivotal. As Leicestershire County Council’s position statement for the hearing on 6th October 2011 retrospectively records, “the hearing of 4 March 2011 turned out to be a very difficult date on which the carefully forged working relationship between LCC and Mr and Mrs Baggaley broke down”.29 In its case summary for the hearing on 12th April 2011,30 Leicestershire County Council:
relates that “until the hearing on 4th March 2011 LCC believed that they were able to work co-operatively with the Baggaleys and supported Te’s wish to return to their care” (para 2);
describes this as “a carefully thought out position, which took into account the entirely normal presentation and development of the Baggaleys’ own children …; Te’s strong wish to remain with his mother; Te’s development in the Baggaleys’ care; and the Baggaleys’ co-operation with LCC” (para 3);
asserts that “against that background there were insufficient grounds
29 See the Leics CC Position Statement at para 2.12 (Appellants’ bundle at Section A, p 39).
30 See the Leics CC bundle at A22.
24
for LCC to seek to separate Te from the Baggaleys” (para 3);
now states that “in the light of the Baggaleys’ lack of co-operation [withdrawn on 4th March 2011], LCC now support T being placed with the Burtons (maternal grandparents) with whom To is already residing” (para 7).
52. Given those matters, given too that the care proceedings were presided over by the same judge whose impermissible actions had caused or contributed to their initiation, the issue of whether the care proceedings can be viewed as demonstrably fair cannot be divorced from what went before.
53. Were it otherwise, the Guardian’s submissions would be these:
A. On the totality of the evidence that he had, and in the exercise of his broad discretion, the Learned Judge cannot be said to be plainly wrong to have made an interim care order on 12th April 2011. In the circumstances, however, he can be properly criticised for not having set out more fully the basis upon which he found the CA 1989 s 38(2) criteria met.
B. Balancing the rights of the parties, the Learned Judge was entitled to proceed with the final hearing on 13th January 2012.
C. On the totality of the evidence that he had, and in the exercise of his broad discretion, the Learned Judge cannot be said to be plainly wrong to have found the CA 1989 s 31 threshold criteria satisfied, and to have made supervision and special guardianship orders in respect of T.
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Conclusion
54. In considering issues of fairness and propriety, the court has to look at the proceedings as a whole (see Re V (Care: Pre-Birth Actions)31).
55. Adopting that approach here, by reason of the matters set out above, and notwithstanding the many ill-considered actions of the Appellants themselves, it is hard to resist the objective conclusion that the essential requirements of fairness and propriety have not been sufficiently met in these proceedings.
56. On that basis, the appeal ought to be upheld, the final orders under appeal set aside, and the care proceedings in respect of T remitted for case management (to include consideration of the involvement of NYAS) and hearing by a different tribunal as a matter of urgency.
57. That conclusion is reached with obvious regret, not least because it extends already lengthy and difficult litigation for T, which of itself may have profound implications for his welfare.
58. Nor should it mislead. It does not mean that the Guardian resiles from the assessments that he made and from the conclusions that he reached, which at all times resulted from his objective analysis of the facts as they appeared to him and were dictated by his appraisal of what was in the best interests of the child. His motivation throughout has been to promote Te’s welfare and to secure for him an environment in which his needs would be met and in which he would be protected so far as
31 [2004] EWCA Civ 1575, [2005] 1 FLR 627.
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possible from harm. He is very clear that T living with the Appellants is not compatible with his short and long term welfare.
59. Nor does it alter the self-evident reality that the Appellants, in part through their decision mostly to do without legal representation, have on far too many occasions been ill-served by their own actions, which have caused immense difficulties for the courts and the professionals involved, as well as for Tehimself.
60. But it is to recognise that important decisions about children, particularly those in public law proceedings, must be taken by means of a demonstrably fair and proper process.
61. Finally, apology is made for the lateness of this Skeleton Argument. Authority from the Legal Services Commission for representation on this appeal was not received, despite pressing, until Friday, 19th October 2012, and counsel, who has no prior involvement in this case, did not receive all the bundles now in his possession until late on that Friday. The skeleton argument has been prepared as quickly as circumstances have allowed.
22nd October 2012 Piers Pressdee QC
29 Bedford Row, (counsel for the child,
London, WC1. by his Children’s Guardian)
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APPEAL NO: B4/2012/0430
IN THE COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL FROM
THE EXETER COUNTY COURT
(CASE NO: EX11C00033)
(DECISION OF HHJ TYZACK QC)
IN THE MATTER OF
THE CHILDREN ACT 1989
AND OF THE CHILD:
TUNDE KAZEEM (DOB 20/1/2000)
_________________________________
SKELETON ARGUMENT
ON BEHALF OF THE RESPONDENT CHILD (ACTING BY HIS CHILDREN’S GUARDIAN)
FOR APPEAL HEARING
ON 24TH OCTOBER 2012
Tozers
10 St Paul’s Road,
Newton Abbot,
Devon,
TQ12 4PR.
DX 59102 Newton Abbot
Ref: MW
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