Cut to the Chase? Cautionary guidance from Lady Justice Macur on procedure in Public Law Children Act proceedings.

Mark Gilmartin, senior solicitor and advocate in the family team observes that there’s no getting away from applying due process in the family courts.On the 23^rd May 2017, Lady Justice Macur, Sir James Munby and Lady Justice Hallet heard an appeal from the Central Family Court following a decision of His Honour Judge Tolson QCThe case concerned three children aged 16, 14 and 12.   It is relevant to note that the 16 year old child was found to be competent to instruct his own solicitor. On 6^th November 2015 District Judge Arbuthnot made Interim Care Orders in respect of all three children. The Judgement is not clear as to the basis of threshold and the facts in this regard are not relevant to the issues in this report. On 24^th November 2015 the District Judge granted an application for a multidisciplinary assessment to be undertaken by the Anna Freud Centre which offers an assessment approach based on systemic mentalization, psychodynamic principles with a strong emphasis on attachment-focused assessments to serve the best interests of the child. The report was to be filed by 15^th March 2016 in advance of the Issues Resolution Hearing on 4^th April 2017. A final hearing had also been allocated and listed on 6-8^th April 2017.

The Local Authority and the court became concerned with the mother’s commitment and engagement with both proceedings and the assessment following the directions hearing. She dismissed her solicitor and was not inclined to attend necessary meetings to progress the Anna Freud assessment. On the 22^nd March 2016 at a directions hearing, the mother, who appeared in person, informed the court that she did now wish to engage in the assessment and would be committed in doing so. The children’s Guardian obtained revised appointment dates that could be offered by the Anna Freud Centre through to the 5^th May 2016. At an advocates meeting prior to the IRH there was an agreement reached that the court would be invited to approve the resumption of the Anna Freud assessment. At the IRH on 4^th April 2017 the mother sought to adjourn to acquire new representation. The children’s guardian supported the application as it would enable them to also review the position in respect of the 16 and 14 year old child’s separate representation. The IRH and Final Hearing were both vacated and the 7^th April 2017 retained as an adjourned IRH hearing. At the hearing on 7^th April 2017 the mother was required to give evidence. It is crucial to note that the basis of the mother’s evidence was envisaged and understood by all parties to be limited to assessing her capacity to engage fully and meaningfully in the Anna Freud assessment to enable the court to determine whether the resumption of that assessment was necessary and proportionate. At this stage in proceedings the 16 year old child was deemed competent and was instructing the children’s solicitor directly. The children’s guardian was not therefore represented. The Judge, having heard evidence, indicated his inclination to consider making Final Orders and invited brief written submissions. The parties submissions were unanimous in their position that it would not be appropriate for Final Orders to be made at this stage of proceedings for a number of reasons including procedural unfairness; Article 6 rights of the mother and children and the limited opportunity that the parties had had to file written evidence. Irrespective, the Judge made Final Care Orders in respect of the two younger children and allowed the parties an opportunity to address him on the making of a Final Care order in respect of the 16 year old child. The Judge gave a brief Judgment and ruled the mother out as a carer for the 16 year old. The parties raised concern that the Judgment handed down did not appear to refer to threshold. In his Judgment the Judge referred to the Guardian’s position as ‘not opposing threshold’. Whilst this may have been accurate, the Guardian had not filed a final analysis and recommendations setting out the reasons as to why such an order was appropriate.It seems that HHJ Tolson’s view was that given his determination that further assessment would not be necessary; any delay in the making of final orders would be unlikely to result in a different outcome based on the evidence before him.

HHJ Tolson felt that it was appropriate to follow this unusual procedure as he had considered the written evidence, offered the mother an opportunity to say what she wishes in written evidence, heard oral evidence from the mother and considered the Social Work and Anna Freud report which he felt pointed in one single direction. The mother and the 16 year old child sought to appeal and the Association for Lawyers for Children were granted leave to intervene on the procedural issues that arose.The Court of Appeal determined that the proceedings were indeed unfair and agreed with the mother and children’s observation that their Article 6 rights and Article 8 rights had been breached and/or improperly safeguarded. The Court of Appeal did not feel it appropriate that the parties were not given a proper opportunity to orally cross examine the evidence nor for the matter to conclude in the absence of a final report from the children’s Guardian that properly analysed the evidence. Mark Gilmartin, Wilson Solicitors LLP

If you have a case concerning a child and you would like to instruct Mark to represent you, please contact him on 020 8885 7980 or family@wilsonllp.co.uk

‍Read the full Judgment here