“Over optimistic and unrealistic time estimates” within care proceedings

Re T (Children: Care Proceedings: Appeal) [2023] EWCA Civ 1004

This was a set of care proceedings that ended up in the court of appeal. Care proceedings began in October 2022 in relation to 3 children. The grounds for the proceedings related to domestic abuse, parental drug use, alcohol use and the mother’s mental health concerns. The initial interim care plan was for the children to remain with the father, with the mother having supervised contact. The parents signed a `contract of expectations’, clearly agreeing not to arrange any other contact between them.

In April 2023, the police alerted the local authority to an alleged assault by the father on another man at the family home, whilst mother was also present. The father denied the allegation and the authority’s application to remove the children to foster care was refused by the court.

In June 2023 the local authority then received another police referral regarding the father being a suspect in an aggravated burglary. The mother, who had been at the home again, stated that a caller to the home had said the father owed money for a drug debt, and threatened to smash up the house. The father denied involvement, but the children were removed into foster care in early July 2023.

At an urgent hearing shortly afterwards, the Recorder was able to view the police CCTV footage but it was unclear if she fully read the 29 page police report. The Recorder heard evidence from the social work team and the guardian. It was ordered that the children be returned to the father once he was released from police custody. The Recorder stated she was not clear as to “precisely what the risk to the children was” and she felt she couldn’t identify the father as being one of the two people on the CCTV footage.

An appeal was lodged by the local authority, stating that the Recorder had failed to conduct a `multifactorial assessment’ of all evidence, the CCTV footage being only one part of the evidence. The local authority’s case was that the police report was compelling evidence that the father was involved in the burglary.  Further the authority stated that such a finding should have triggered a review of all of the evidence regarding drugs, debt, violent reprisals, and risky associations, together with parents’ breach of the contract of expectations.

The appeal was allowed.  Despite the Recorder’s assessment that she could not identify the father from the CCTV, she reached that conclusion without regard to all of the evidence. She didn’t refer in her judgement to all the materials in the police disclosure which could identify him. She did not give reasons as to why she placed no reliance on that evidence. The mother’s disclosures were pertinent circumstantial evidence.

The Court of appeal stated that a finding that the father was involved in the alleged burglary would have important implications for the future arrangements for the children, their welfare would’ve been impacted by finding that he was involved in a burglary, and compromised further by his use of drugs and risky associations. They found the welfare implications of removing the children should have been addressed as should the parents’ breach of the contract of expectations, which presented significant risk.

This case is unfortunately an example of the dangers of taking a `compartmentalised approach’ to these cases. The court of appeal made no criticism of the Recorder’s judgement, making clear she had had no previous involvement in the case, the hearing being listed for one hour, the bundle being 350 pages long, the CCTV footage needing to be viewed, as well as the other police evidence. The judge was given no preparation time and the ex-tempore judgement was given after 5 pm.  The Recorder was commended for having grasped some of the complicated background. The Court of appeal noted the “over optimistic and unrealistic time estimates are sometimes given in the hope that things will work out”. Clearly they did not in this case and the case was remitted for an urgent case management hearing. The children remain in foster care in the interim.

Comment: Unfortunately, the court system at present is overwhelmed with such cases, and sufficient time is not afforded to Judges, who have to make really impactive decisions about children’s lives with little time or a detailed knowledge of the case.  This results in further applications to the court, which adds to the pressures upon the system.

We specialise in providing advice and representation in Care proceedings. Please contact our Patricia Beckett at p.beckett@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986

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