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Family Law

The leading authority on all aspects of family law

11 AUG 2014

Re M-F [2014] EWCA Civ 991

Re M-F [2014] EWCA Civ 991
Case No: B4/2014/1460
Neutral Citation Number: [2014] EWCA Civ 991

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT BRIGHTON
Her Honour Judge Probyn

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 15 July 2014

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE KITCHIN
and
LORD JUSTICE UNDERHILL

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In the Matter of M-F (Children)

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Ms Tina Cook QC and Ms Katie Phillips (instructed by local authority solicitor) for the local authority
Mr Jonathan C L Bennett (instructed by Fitzhugh Gates) for the mother
Ms Anna McKenna (instructed by Lawson Lewis Blakers) for the child M

Hearing date : 16 June 2014

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Judgment

Sir James Munby, President of the Family Division
:

[1] This is an application for permission to appeal, with appeal to follow if permission is granted, listed in accordance with an order made by Ryder LJ on 14 May 2014, from a judgment and order of Her Honour Judge Probyn dated 28 April 2014. The judge was sitting in the Family Court at Brighton hearing care proceedings in relation to two children, a girl, V, born in March 1998 and her brother, M, born in October 2003.

[2] The proceedings have had a distressingly chequered history, exemplified by the facts that although commenced as long ago as 28 March 2013 they have still not concluded some 67 weeks later and, of even more concern, that the order which is challenged before us was an order adjourning the fourth final hearing. It might be thought that something has gone badly wrong. The question for us, however, is whether, as the local authority submits, Judge Probyn was wrong to adjourn the most recent final hearing.

[3] In fairness to all concerned, it needs to be acknowledged that these care proceedings began on 28 March 2013 before the implementation (in Brighton in August 2013) of the pilot revised PLO. Initially they followed an appropriate path. The adjourned CMC took place before a District Judge on 21 June 2013. A fact finding hearing, with a time estimate of 5 days, was fixed for the first available date after 9 September 2013. A social work assessment of the mother by the local authority was directed. No other expert evidence was sought or directed. The IRH took place before the DFJ on 9 September 2013.

[4] The first hearing commenced before Judge Probyn on 16 September 2013 and lasted for six days, concluding on 27 September 2013. The judge heard evidence from a number of witnesses and made findings against the mother of significant physical harm to V and emotional harm to both children. During the hearing the judge had indicated that a psychological assessment of the children and their attachment to the mother and wider family was necessary in order to evaluate the competing outcomes for the children. In the event, Judge Probyn directed that a consultant clinical psychologist, Gail Miller, report by 8 November 2013 on the potential impact on the children of the local authority’s care plans, given the children’s expressed wishes and in light of the court’s findings, and on the risks posed to the children by a return home to the mother.

[5] Ms Miller’s report was dated 8 November 2013. It needs, of course, to be read in full but for present purposes I can be selective. Ms Miller recorded the mother as being quite unable to accept the court’s findings – she would “never” admit to having assaulted V because it simply was not true. She expressed the opinion that the mother has “very limited” capacity for change at all and “certainly” not within the timescales for V. Nor, she said, would the mother be able to make change within a timescale that would enable M to return home. Ms Miller said that she did not see any current benefit in family work for the mother, M and V, and added that she did not believe the mother to be “receptive to interventions regarding her parenting.” Her conclusion was that the children should not return to their mother’s care as she would not be able to care for them safely.

[6] The guardian’s stance in her first report dated 6 May 2013 had been that V and M should remain in foster care pending a fact finding hearing. The recommendations in her report dated 2 September 2013 had been contingent on the outcome of that hearing. Having read Ms Miller’s report, the guardian’s recommendation in her report dated 6 December 2013 was supportive of the local authority’s care plan – care orders and long-term fostering – though advising re-consideration of the timing of the proposed reduction in, and the inclusion of further details as to, indirect contact.

[7] The second hearing had been listed for three days starting on 10 December 2013. Three days earlier, on 7 December 2013, V absconded from her foster placement and refused to return. There was discussion at court on 10 December 2013 about a possible recovery order. Judge Probyn concluded that an adjournment was needed to allow for Ms Miller and the local authority to consider what impact, if any, V’s actions had on their opinions and recommendations to the court. She accordingly re-listed the case on 20 December 2013, for review and to consider the local authority’s application for a recovery order, and for final hearing for 20 January 2014 (time estimate five days). Directions were given for Ms Miller to file an addendum report by 3 January 2014.

[8] Ms Miller set out some preliminary views in a letter dated 17 December 2013, in which she expressed “serious concerns” about the local authority seeking a recovery order in relation to V though being in “complete agreement” that V “cannot remain at her mother’s home.” Her addendum report is dated 3 January 2014. She said that there was no change in the level of risk posed by the mother, while recognising the difficulties created by V’s behaviour and looming 16th birthday.

[9] The guardian reported on 20 January 2014. By then the local authority had changed its care plan for V. Although M was to remain in foster care subject to a care order, the plan for V now was for her to remain with her mother, subject to a supervision order. The guardian agreed “on balance” with the local authority’s plan for V. The risk to V was, in her view, “manageable”, while the alternative had the potential to be “seriously damaging” if there were to be further absconding leading to recovery orders and possible secure accommodation. In relation to M, however, the guardian felt unable to recommend the care plan, inviting the local authority instead to apply for a supervision order.

[10] Asked to comment on the guardian’s recommendations, and to indicate whether they made her change her view, Ms Miller responded in a letter dated 21 January 2014. She said that she would not oppose the view that V should remain at home and was “sympathetic” to the guardian’s wish to return M home “in a controlled manner whilst further work is undertaken” though having “serious concerns” about the mother’s capacity to work genuinely with such a plan. She suggested the need for a plan in place which “clearly stated the specific requirements” from the mother. Perhaps unsurprisingly she concluded with the comment in relation to M that “there are no simple answers” and that the court “faces a complex decision.”

[11] The third final hearing commenced on 20 January 2014. Judge Probyn heard from various witnesses, including Ms Miller who gave evidence on 23 January 2014. The previous day, 22 January 2014, Judge Probyn had had a meeting with M. He said he wanted to go home. The transcript of Ms Miller’s evidence is not as good as one would wish – there was apparently some problem with the recording equipment – but it is clear enough for present purposes. In relation to M, Ms Miller said that there was potential for emotional harm in both settings and “I genuinely do not have clarity about which route we should go down.” Later she said “I feel on the cusp of both views.” She agreed that returning M home was “high risk”, for reasons which she then elaborated.

[12] On 24 January 2014 Judge Probyn adjourned the hearing until 5 February 2014 for two purposes: for enquiries to be made of the C Unit as to what, if any work, it could undertake with the mother, and for the local authority to set out the differences between the support provided under a supervision order and a care order.

[13] On 5 February 2014 Judge Probyn adjourned the case, for hearing over four days in the week commencing 28 April 2014:

“on the basis of the proposal advocated on behalf of M by his Children’s guardian to allow for two initial assessment sessions to assess the mother’s capacity to engage in work, such assessment to be carried out by the C Unit, the Court being of the view that this evidence is necessary to conclude the case and to do justice to all the parties and their competing positions.”

In relation to V, the case was listed for final determination on 12 March 2014.

[14] On 12 March 2014 the proceedings in relation to V concluded with the making of a 12 month supervision order.

[15] The fourth final hearing began before Judge Probyn on 28 April 2014. The C Unit had reported on 14 March 2014. Its report suggested some signs of change in the mother: acceptance that she had slapped V and that the children had witnessed domestic violence, awareness of the impact of this on them, changes in her relationship with V, and a wish to extend this to her relationship with M, suggesting a “readiness and responsiveness” to intervention. The report recommended “interventions that are both therapeutic and instructive”, specifically a programme of sixteen hours of individual 1½ hour weekly sessions “to look at the impact of her anger on the children, better strategies to manage her anger to ensure safety for her children, and the impact of domestic abuse on her and the link with being an abusive parent to her child.” Importantly, the writer of the report said “I am unable to comment on the likelihood that risk can be reduced to the extent that M could safely return to his mother’s care together with his sister.”

[16] As against that, and in the teeth of Judge Probyn’s earlier findings, the mother in her final statement dated 28 April 2014 specifically denied that she had ever slapped V.

[17] The local authority’s final care plan for M dated 31 March 2014 was that he should remain in his current foster placement while his mother participates in further work, the local authority stating that, once this work had been completed, it would re-assess the mother in six months time to consider if the necessary improvements and changes had been made to ensure his safe return to her care.

[18] The guardian’s report was dated 23 April 2014. In it she identified and analysed the various options for M as she saw them: first, return to his mother under a care order; second, as proposed by the local authority – she was concerned about the emotional impact on M of what she saw as the “deeply confusing” message from the local authority it would convey; third, a supervision order with M being accommodated for a period pursuant to section 20 of the Children Act 1989 to enable the work with his mother to progress; and, fourth, the option she recommended, “purposeful delay for a period of three months” to enable the mother to undertake the recommended work with the C Unit. The guardian reported a discussion she had had on 10 April 2014 with Ms Miller, who had expressed concerns that the mother’s stance was untested and that this might be a case of “disguised compliance”. The guardian’s recommendation was that the mother have the opportunity to undertake a “considerable number” of the recommended sessions with the C Unit. She said that she considered it realistic to expect that within six weeks of that work being progressed there would be some indication of the mother’s capacity to effect change. She said, “I consider that this postponement is necessary to enable the fullest information to be available to inform long term decisions for M’s care.”

[19] The guardian’s position statement for the hearing on 28 April 2014 summarised matters thus:

“M needs a decision. But it must be the right decision. [The mother] has embarked on a programme of work which was recommended by the Court’s expert and is supported by the local authority. What was the point in starting that work if the rug is to be pulled from under her at this stage given the significant consequences for M? It is disproportionate. The Guardian says there is a gap in the evidence. The missing information can be provided with a relatively short time-frame. It is purposeful delay.”

[20] Five days earlier, on 23 April 2014, M had absconded from his foster placement and turned up at home. On 24 April 2014 Judge Probyn made a recovery order.

[21] Pausing at this point to take stock, the history of events as I have described them, deliberately in some detail, demonstrates the difficulty and complexity of the task facing Judge Probyn on 28 April 2014. (1) More than once, the case had taken an unexpected turn. V’s absconding led to a fundamental change in the care plan for her. At the same time the guardian, for understandable reasons, signalled her inability to support the planning for M. Subsequently, M also absconded. (2) It is of course absolutely no criticism of her, but Ms Miller had somewhat changed her stance (compare paragraphs 5 and 10 above) and, understandably, found it difficult to express any clear view (paragraph 11 above). (3) The initial report from the C Unit contained a vitally important caveat (paragraph 15 above). (4) The local authority’s final care plan (paragraph 17 above) would no doubt have achieved legal finality for M but no finality for him ‘on the ground’, since it contemplated the possibility of him returning home following re-assessment of the mother in six month’s time. (5) The guardian was expressing the clear view that there should be a further adjournment for reasons (paragraphs 18-19) which on any view merited very careful consideration. And (6) back of all this there was an important point to which Judge Probyn herself drew attention (see paragraph 33 below), M’s feeling that it was unfair that V was able to be at home when he could not – particularly poignant, it might be thought, given that it was V, not M, who had been subjected to physical harm by the mother.

[22] Judge Probyn gave judgment on 28 April 2014, accepting the guardian’s submission that the case be adjourned on the basis, as the order expressed it, that “in order justly to conclude this case it is necessary to obtain a further report from [the C Unit] following six sessions of work as to the mother’s progress in the work she is undertaking.” She listed the case for an IRH on 4 July 2014 and for final hearing, with a time estimate of 4 days, starting on 10 July 2014. The following day she refused the local authority’s application for permission to appeal.

[23] The local authority filed its appellant’s notice on 8 May 2014, seeking expedition as the next hearing had been fixed for 4 July 2014. On 14 May 2014 Ryder LJ adjourned the application for permission to the full court, with appeal to follow if permission granted. The matter came on for hearing before us on 16 June 2014. The local authority was represented by Ms Tina Cook QC and Ms Katie Phillips, the mother and the guardian, both of whom resisted the appeal, by Mr Jonathan C L Bennett and Ms Anna McKenna respectively. The local authority’s case was that we should grant permission, allow the appeal and, then and there, make the care order which, in its contention, Judge Probyn could and should have made on 28 April 2014.

[24] At the end of the hearing we indicated that, even if we were otherwise with the local authority, we could not ourselves make a care order, that the matter would therefore in any event need to go back for a further hearing at first instance, that there was no reason why that further hearing should not be before Judge Probyn (and, indeed, I might add, every reason why it should), and that the case should therefore, irrespective of the outcome of the hearing before us, remain listed before Judge Probyn in accordance with her order of 28 April 2014. We subsequently made an order containing additional directions designed to ensure the efficacy of the further hearings before Judge Probyn. On 3 July 2014 we communicated to the parties, and to Judge Probyn, our decision, namely that although the draft judgment was not yet ready for circulation, we had unanimously decided to grant permission to appeal but to dismiss the appeal from Judge Probyn. We now give our reasons. Although this judgment was not formally handed down until 15 July 2014, it was sent to the parties on 9 July 2014 so as to be available to them when the final hearing commenced before Judge Probyn the following day.

[25] The arguments before Judge Probyn on 28 April 2014 had centred, as indeed the arguments before us centred, on the judgment I gave on 16 April 2014 in the Bournemouth and Poole County Court in In re S (A Child) [2014] EWCC B44 (Fam). That judgment built upon the judgments of this court in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563. It explained the impact of the new statutory reforms under the Children and Families Act 2014 that came into effect on 22 April 2014, in particular, so far as is material in this case, the amendments to section 32 of the Children Act 1989, including the requirement in section 32(1)(a)(ii) that care cases be concluded within 26 weeks and the limited circumstances, spelt out in sections 32(5)-(7), in which that period can be extended.

[26] I need not repeat what I said on this topic in In re S. It suffices to note my observation (para 28) that the 26 weeks rule “is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy”, and my endorsement (para 29) of Pauffley J’s warning in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 1 FLR 1384, that “Justice must never be sacrificed upon the altar of speed.”

[27] I continued (para 30):

“So despite the imperative demand of section 32(1)(a)(ii), there can be exceptions. But before going further it is vital to recall the equally imperative language of sections 32(5) and 32(7). An extension beyond 26 weeks is to be permitted only if it is

“necessary to enable the court to resolve the proceedings justly”. This is precisely the same language as appears in section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act, so it must mean the same. Specifically, the learning in Re TG and in In re H-L must, in my judgment, apply as much to section 32(5) of the 1989 Act as it does to section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act. Moreover, extensions are “not to be granted routinely”

and require “specific justification.””

I emphasised the point (para 34)

“I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.”

[28] I went on to consider in what circumstances the qualification in section 32(5) might apply. Recognising that in the final analysis the question can be determined only on a case by case basis, I offered what I was careful to describe (para 32) as “some preliminary and necessarily tentative observations”. I continued (para 33, citations omitted):

“There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed … (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures…

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks …”

[29] In relation to what I referred to as FDAC type cases, I said this (para 38):

“Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child's timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale?”

[30] I return to Judge Probyn’s judgment.

[31] Having summarised the background and set out the guardian’s position, broadly supported by the mother, Judge Probyn summarised the local authority’s stance:

“The local authority opposes the application to adjourn. There are two features to their opposition. One, they say that, substantively, it is the wrong outcome for M but also, on a preliminary basis, they argue that I should not decide the application until I have heard the evidence … M will be told about the care plan and the local authority accept that he will need help to understand it. M absconded from his placement last week and went home to his mother. The local authority sought a recovery order last Thursday and mother did not oppose that order being made, and M returned to foster care. The local authority point to this as evidence of how disruptive the litigation is for him and the need to bring proceedings to an end. They argue it is unfair to determine the application without my hearing the evidence. They rely on the psychologist, Ms. Gail Miller’s concern, that what is seen in relation to the mother is something called “disguised compliance”, ie superficial compliance, rather than any meaningful engagement with the issues. They point to the fact that the mother’s statement, filed today, seems to resile from the progress she is making, or she is described as making, by the [C Unit] programme workers.”

[32] Explaining her decision, Judge Probyn said this:

“Ultimately it is of course a matter for me to assess whether the adjournment proposed by the children’s guardian is realistic, or whether it is simply postponing the final decision without any real justification. I rely on the recent authority of Re S, the judgment of the president, Sir James Munby: Re S (A Child) [2014] EWCC B44 (Fam). Whether, it is necessary to adjourn for the purpose identified by the guardian and the impact upon M’s welfare. The President identified three questions”.

[33] Having quoted from the latter part of what I had said in para 38, she continued:

“In my judgment the significant factors are as follows: M is ten and a half years of age. He is an articulate child and has consistently expressed a very clear wish to return home. Further delay, in proceedings which have taken over a year to resolve, is inimical to his welfare and I accept he needs a decision as soon as possible, and as soon as it can be done, in a fair and proportionate fashion. M loves his mother and there is no issue that she loves her children. V is at home on the basis of an agreed care plan and M finds it unfair that his sister is able to be at home and he cannot. M will suffer emotional harm if he cannot return home and that must be balanced against the risk of continued emotional harm, and potential physical harm identified in my judgment in September of 2013. M is a black African Portuguese boy and the local authority’s care plan is that he be placed on a long term basis with a white foster carer, who does not, as I understand it, speak Portuguese. M has absconded from the foster placement twice and there is a real risk that he may well do so again. The guardian is concerned about what sense M will be able to make of the care plan, particularly given his desire to return home. Mother has engaged positively with the [C Unit] programme to date and she is said to have co-operated fully and demonstrated being open to developing a therapeutic relationship. While the assessment of the mother is positive they are unable to indicate at this stage whether the risk can be managed so that M can safely return home. The guardian is clear in her analysis that it is realistic to expect that within six weeks of the work commencing with the … programme – and I remind myself that there have already been two sessions – there should be some indication of the mother’s capacity to change. The … work is important and necessary evidence in terms of the mother’s capacity to safely parent M. In my judgment the three questions identified by the President are answered in the affirmative. I accept the submission that cross-examination at this stage may be counter-productive and that, if it is right that the … work is a necessary piece of the jigsaw, there is no real purpose to hearing the evidence at this stage. I remind myself of Mrs Justice Pauffley’s observation in Re NL, that: “Justice must never be sacrificed upon the altar of speed.” I accept of course that that can hardly be said to be the case here, but in these circumstances I do find delay is purposeful. This is a finely balanced decision but I accept I cannot properly evaluate the competing factors and M’s overall welfare without the evidence, or the further evidence from the … In the circumstances, albeit delay is inimical to M’s welfare, this is, in my judgment, a potentially vital piece of the jigsaw. I see no purpose in challenging the mother at this stage, particularly given that I am going to re-list this matter within a short period of time. Of course, my decision is informed not only by M and his mother’s Article 8 rights, but also by the principle of fairness and access to justice, and the ability of the mother to fairly argue her case in the absence of this evidence. Equally, for the matters to be properly and fairly explored in the absence of this evidence.”

[34] Explaining the next day why she was refusing the local authority permission to appeal, Judge Probyn amplified what she had said the day before (I quote from an agreed advocates’ note):

“What I meant by that [the reference to Re NL] was that the proceedings have taken some time to resolve but there are exceptional circumstances of this case as I set out. Not least of all M’s age, understanding and cultural identity and continued separation from his family who he desperately wants to be back with and in the face of a final care plan for long term separation in a placement which, with the best will in the world, cannot meet his cultural needs save to ensure support for his Portuguese inheritance through language lessons and wider cultural assistance and his social identity.”

She continued:

“Having heard the application on submissions in the first instance, on the basis of the factors I identified, the case could not be resolved justly in the absence of further information of the mother’s progress with the work with [the C Unit] and her capacity to care for M. In those circumstances I did not accept … the LA submissions that hearing evidence would be of assistance and [some words seem to be missing] would be likely to cause the mother stress and anxiety and would in effect potentially compound the unfairness pointed to by the Children’s Guardian on the mother’s behalf, as she would be giving evidence in what is no doubt a challenging process of doing this work and without the advantage of being able to rely on and indeed refer to any up-to-date information as to her progress … having decided the need for additional evidence, I consider that an extension of time is necessary to justly resolve the case. It is implicit in my judgment that this is the case but it is right to raise that and I do find that the additional evidence is necessary to resolve the application.”

[35] I have set out Judge Probyn’s reasoning at length because it demonstrates not merely the care she gave to this very difficult case but also, as it seems to me, why she was entirely justified in deciding as she did and for the reasons she gave. Her reasoning, in my judgment, displays no error of law or approach; it correctly identifies the relevant factors that had to be taken into account; and it explains her ultimate decision in a way which makes clear how very understandable that decision was in all the circumstances, not least in the light of those factors upon which the guardian placed particular emphasis. Despite all Ms Cook’s endeavours, her attack on Judge Probyn’s judgment fails. I should add that at one point in her submissions Ms Cook suggested that Judge Probyn had “lost her way”. I unhesitatingly reject that criticism.

[36] The local authority has formulated six grounds of appeal, although in substance they fall into three groups:

i) The first complaint (ground 1) is that Judge Probyn was wrong to direct an adjournment without first hearing the evidence in the case. It is said that she was wrong to accept (a) that the report from the C Unit was a vital piece of evidence, (b) that the mother was committed to change that could be achieved in M’s timescale and (c) the guardian’s submission that cross-examination of the mother might undermine her therapeutic work.

ii) The second complaint is that Judge Probyn was wrong to adjourn the case, already in its 57th week and particularly when it had been adjourned three times already, (a) having regard (ground 2) to the harm that M would suffer by further delay and his need for a final decision, (b) having failed (ground 3) to answer correctly the three questions posed in Re S, (c) thus failing (ground 4) to comply with the mandatory 26 week time limit and wrongly finding that an extension was necessary which would inevitably take the case beyond the next eight weeks, thus breaching PD12A, and (d) in circumstances where (ground 5) the further delay was not purposeful and would in any event be inadequate to demonstrate the necessary changes in the mother.

iii) The third complaint (ground 6) is that Judge Probyn was wrong to adjourn the case to achieve a purpose, namely further assessment of the mother, which was already provided for in the local authority’s proposed care plan. To continue the proceedings in these circumstances was to exercise an inappropriate supervisory role over the proper functions of the local authority in the exercise of its responsibilities and duties under the implementation of its final care plan.

[37] I shall deal with these complaints in turn. First, however, I note that this is an appeal from a case management decision. The approach this court must adopt is accordingly that set out in Re TG: see In re B-S, para 77, though in my judgment the outcome would be the same whichever approach we adopted.

[38] In relation to the first complaint, Ms Cook submits that the court was not in a position to evaluate the importance of the work done and to be done by the C Unit, nor to evaluate the reality of the mother’s seeming changes (the evidence in relation to which was contradictory), without hearing oral evidence from, as I understand it, Ms Miller, the mother and the social worker. Everything hinged on the mother’s progress or otherwise, something that required to be probed by cross-examination. In granting an adjournment on the basis of submissions alone, Judge Probyn was failing to decide the case fairly and justly.

[39] In my judgment it was pre-eminently a matter for Judge Probyn, as the trial judge exercising her case management powers, to decide whether to hear oral evidence before determining the application for an adjournment. It is the kind of decision in respect of which this court should be slow to intervene. Judge Probyn’s decision to proceed on submissions was, in my judgment, a decision that fell comfortably within the range of decisions with which this court will not, indeed must not, interfere.

[40] Sometimes it will be appropriate to hear at least some evidence, particularly if the evidence falls within a narrow compass and is likely to have significant impact. Often it will not, particularly if what is proposed is, as here, hearing oral evidence from a number of witnesses. Any application for an adjournment, especially if, as here, the case is already badly overrunning, requires the anxious scrutiny and rigorous approach which Judge Probyn rightly adopted. But we need to guard against applications for adjournments turning into mini trials. The fact is that Judge Probyn had been hearing the case over a period of some months and was well aware of, indeed steeped in, all its subtleties and complexities. She had heard Ms Miller, the social worker, the guardian and the mother give evidence on previous occasions (the mother twice). She was therefore better placed to evaluate what appeared on the papers, and without the need for oral evidence, than a judge who had not had those advantages.

[41] This complaint must, in my judgment, be dismissed.

[42] In relation to the second complaint, Ms Cook points to M’s fragility, his need for stability and for final decisions about his future, and the adverse effects on him not merely of the continuing delay but also of seemingly final hearings proving anything but. For M, she says, the decision to adjourn has been ‘the worst of all worlds’. The mother, she submits, is in denial and there is lacking the “solid” foundation of evidence that Re S shows was needed if an adjournment was properly to be granted. The court failed to comply with its obligations in relation to the mandatory 26 week period, permitting a yet further adjournment when this was not “necessary”, when the adjournment will not achieve its purpose, given the limited time available for further work with the mother before the final hearing, when there is at present no expert or other professional view recommending M’s safe return to his mother’s care now, and when whatever work is done by the final hearing will not enable M to return home at that stage.

[43] I do not resile from a word of what I said in Re S, but as with any judgment it has to be read in context and is not to be treated as if its language is that of a statute, particularly if it is qualified in the way in which I was deliberately careful to qualify what I said in paras 32 and 38 (note my use of the word “typically”).

[44] The reality is that this was a case which had already been derailed (see Re S, para 33(ii)). Nor was it a typical FDAC type case. There is nothing to suggest that Judge Probyn was, as I put it in Re S, para 38, “driven by sentiment or a hope that ‘something may turn up’.” She had much more solid grounds than that for proceeding as she did. There was an indication of some change in the mother, but it was something that the judge found, accepting the guardian’s submission, necessitated further probing and evaluation if she was to be able to come to a just and fair decision, having been furnished with all the information she needed but which, with all her knowledge of the case, she felt was in part still lacking. The adjournment was sought and granted with a very specific purpose in mind. It was carefully and appropriately time-limited.

[45] The impact on M was obviously a weighty factor, and one to which Judge Probyn properly gave careful attention, weighing the various factors in the balance and ultimately coming to a conclusion which was, in my judgment, plainly open to her on the materials before her. In considering Ms Cook’s arguments based on M’s need for finality, one has to bear in mind that, as I have already pointed out, even the local authority’s plan was offering M no more than finality in the legal sense, not finality ‘on the ground’. This, in my judgment goes a long way to blunting the force of this part of her submissions.

[46] In my judgment each of these grounds of appeal fails and must be dismissed.

[47] In relation to the third complaint, Ms Cook points to the principles definitively stated by Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan), In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 2 AC 291. She submits that since the local authority’s care plan was for active consideration of M’s rehabilitation to the mother, the court was wrong to adjourn the proceedings.

[48] I cannot, with all respect to Ms Cook, accept any of this. The situation with which Judge Probyn was faced had nothing to do with the profoundly important principles enunciated by Lord Nicholls, which pre-suppose that the court has already decided, at least in principle, to accept the local authority’s care plan but wishes to monitor or police it before finally devolving responsibility to the local authority. But here the proceedings have not got to that stage. The court has not yet resolved the issue between the local authority and the guardian as to whether the appropriate form of order is, as the local authority contends, a care order or, as the guardian suggests, a supervision order. Even on the most restrictive reading of section 31(3A) of the Children Act 1989, that outstanding issue is plainly a matter within the court’s exclusive competence. And until the court has ruled on it – and that point has not been reached – the court is doing nothing that can properly be described as exercising an inappropriate supervisory role over the local authority. In directing the adjournment Judge Probyn was, as Ms McKenna helpfully put it, indicating that she was unable at this stage to find that the order which best met M’s needs was a care order backed by this care plan. If the adjournment was otherwise appropriate, as it was, objection on this ground is, in my judgment, misplaced.

[49] It follows that this ground of appeal also fails and must be dismissed.

[50] Ms Cook raised a question as to whether the court can adjourn and re-timetable a case beyond the next 8 week period referred to in PD12A. She complains that Judge Probyn approved a timetable that took the case beyond the relevant 8 week period. This offended, she says, against all the principles which the statute and the PLO were designed to enforce.

[51] There is no need for us to consider the application in this context of the transitional provisions in article 8 of The Children and Families Act 2014 (Transitional Provisions) Order 2014, SI 2014/1042. It suffices to focus on paragraphs 6.4 and 6.5 of PD12A, which have of course to be read in the context of the recently amended section 32 of the Children Act 1989.

[52] PD12A, paragraphs 6.4 and 6.5, provide as follows:

“6.4 If the court agrees an extension is necessary, an initial extension to the time limit may be granted for up to eight weeks (or less if directed) in order to resolve the case justly (see section 32(8) of the 1989 Act). If more time is necessary, in order to resolve the proceedings justly, a further extension of up to eight weeks may be agreed by the court. There is no limit on the number of extensions that may be granted in a particular case. 6.5 If the court considers that the timetable for the proceedings will require an extension beyond the next eight week period in order to resolve the proceedings justly, the Case Management Order should –

(1) state the reason(s) why it is necessary to have a further extension;

(2) fix the date of the next effective hearing (which might be in a period shorter than a further eight weeks); and

(3) indicate whether it is appropriate for the next application for an extension of the timetable to be considered on paper.”

[53] There are two separate questions.

[54] The first is whether, compatibly with the imperative requirements of section 32, an extension beyond 26 weeks can be shown to be “necessary”. That is a matter I considered in some detail in Re S and I see no reason to alter what I said or add to it in any way.

[55] The second question is whether, if an extension is indeed “necessary”, the case can be re-timetabled for a period in excess of 8 weeks at a time. In my judgment the answer to this question is that quite plainly it can, if that is necessary. Take a very simple example. Suppose that, in a case of the kind I referred to in Re S, para 33(i), it is plain at the outset that the proper – the “necessary” – timetable will take the case to week 36. It would be absurd to suggest that the court cannot timetable it accordingly at the outset just because the timetable will stretch beyond 26 weeks and, indeed, beyond the first 8 week extension. To impose such a restraint on the court would be to defeat the very principles of proper case management which underlie the PLO. But in any event, PD12A does not have this consequence. PD12A para 6.5 is careful to distinguish between the “timetable” and the required “extension”, contemplates that the timetable may require an extension “beyond the next eight week period”, and provides for how that is to be managed.

[56] Nothing that Judge Probyn did offended against either the letter or the spirit of either section 32 or the PLO or PD12A.

[57] There is one final matter I should address. Judge Probyn referred to the delay in this case as being “purposeful”, a phrase that was also used by counsel in the course of submissions before us. ‘Planned and purposeful delay’ has had a long and distinguished place in this part of the law (see, for example, C v Solihull Metropolitan Borough Council [1993] 1 FLR 290, 304) but as a phrase it has, I suspect, outlived its usefulness. Too often in recent years it has served merely as a convenient label, justifying delay when, on proper and more rigorous analysis, delay was not appropriate. Today, when, to repeat, the relevant test is that set out in section 32(5), this handy expression is apt to mislead. For an extension to be “necessary” it may be appropriate to demonstrate that what is proposed is, indeed, planned and purposeful, but even if that is, and I am not saying it is, a necessary condition it is certainly not a sufficient condition for granting an extension. All in all, I suggest that this is a label that has had its day and is now better left unused.

[58] I add that in saying this I am not to be taken as disagreeing in any way with what Macur LJ recently said in Re S (Children) [2014] EWCA Civ 135, para 21:

“It is crucial to note that the family court will be faced on many occasions with asserted markedly changed circumstances, often poorly evidenced and very late in the day, necessarily exceeding the child's ‘timetable’ in terms of welfare considerations. In such cases there can be little prospect of delaying a decision, mostly inevitable in the light of the previous history of the case. However, there are cases where delay is ‘purposeful’. Each case must be judged on its own facts.”

Lord Justice Kitchin :

[59] I agree.

Lord Justice Underhill :

[60] I agree.

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