Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

23 JUN 2015

Re T (Care Proceedings: Judgment Delay) [2015] EWCA Civ 606

Re T (Care Proceedings: Judgment Delay) [2015] EWCA Civ 606
(Court of Appeal, Aikens, McFarlane, Bean LJJ, 18 June 2015)

Public law children – Procedure – Judgment – 6-month delay in handing down

The parents' argument that the judge had not regarded drastic changes in the family home in the six months between the concluding hearing and the judgment being handed down was successful and their appeal was allowed.

In care proceedings concerning 10 of the mother's 15 children there were allegations of long-standing neglect and poor parenting. The threshold under s 31 of the Children Act 1989 was agreed by all parties on the basis of neglect, physical and emotional harm. It fell to be determined whether the parents would be able to provide good enough care. Four of the 10 children had remained living with the parents throughout the proceedings under interim supervision orders.

Six mothers after the hearing concluded judgment was handed down and final care orders were made. The parents appealed, primarily in relation to the four children who had remained at home. They claimed that the judge had paid no regard to what had or had not occurred in the 6 month period leading up to the handing down of the judgment.

The appeal in relation to the four children was allowed and the final care orders were set aside. The case was remitted to the judge for a reappraisal in light of updating evidence which would be filed by the parties.

Pursuant to s 32(1) of the 1989 Act and FPR 12.22 the court's key responsibility was to draw up a timetable to ensure so far as was reasonably practicable that an application could be dispensed within 26 weeks. Where a case could not be completed in that timeframe and further time was required for preparation of the judgment s 32 continued to apply. It was incumbent upon a judge to make express provision for an extension of up to 8 weeks to the timetable for that purpose. In deciding whether to extent the timetable the court had to have regard to the requirements of s 32 and to the need for an extension to be limited to what was necessary to enable the court to resolve proceedings justly and to the need to have regard to the impact of any extension on the welfare of the child.

The judge had identified that the question of whether the parents could provide good enough care for the children was at the centre of his deliberations. He was clear that careful thought had to be given to whether it was really necessary to remove the children. He had addendum submissions which noted that the parents had made significant and sustained progress in the 6-month interim period. On the facts, it was necessary for the judge to receive updating evidence from the parties as to the welfare of the children who had remained at home.
Case No: B4/2015/0953
Neutral Citation Number: [2015] EWCA Civ 606

HHJ Meston QC BH14Z00053-56

Royal Courts of Justice

Date: 18/06/2015

Before :


- - - - - - - - - - - - - - - - - - - - -

R: T (Children)

- - - - - - - - - - - - - - - - - - - - -

Mr Lee Young (instructed by Hurleys Solicitors) for the Appellant
Mr Adam Langrish (instructed by Bournemouth Borough Council) for the First Respondent
Ms Carol Davies (instructed by Dutton Gregory) for the Child L
Mr Mark Elliott (instructed by Mustoe Shorter Solicitors) for the Children

Hearing date : 15 May 2015

- - - - - - - - - - - - - - - - - - - - -


Lord Justice McFarlane

[1] The issue in this appeal relates to what action, if any, a court should take when the preparation and handing down of a judgment in a case concerning the welfare of children has been very substantially delayed.

[2] Care proceedings with respect to ten of the fifteen children born to a mother were commenced in the Bournemouth Family Court on 14th February 2014. The father in the proceedings is the father of the youngest nine of the ten children. The proceedings, which involved allegations of long-standing neglect and very poor parenting, were necessarily complicated, in part as a result of the substantial number of children. The point in this appeal, however, is of an altogether narrower, but nonetheless important, compass. In short, it arises because some six months expired between 26th September 2014, which was the final day of oral evidence at the conclusion of a 7 day hearing, and 17th March 2015, when judgment was handed down. The appeal primarily relates to four of the ten children who had always had their home with their parents and who had remained in the care of their parents under interim supervision orders throughout the care proceedings and, more importantly, during the period of six months leading up to the handing down of judgment. The primary ground of appeal asserts that the judge paid no regard to what may or may not have occurred during this extended period of further parental care and simply decided the case in March 2015 on the basis of the evidence as it had stood at the end of September 2014.

[3] We heard oral argument on the appeal on 15th May 2015 at the conclusion of which we announced our decision, which was that the appeal should be allowed with respect to the four children who remained in the care of their parents. The final orders with respect to those four children were therefore set aside and the case remitted to the same judge for re-appraisal in the light of updating evidence which is to be filed by all parties. We reserved our judgments and this judgment therefore records my reasons for agreeing to the orders made by this court on 15th May.


[4] The mother’s five older children, who were not the subject of these proceedings, range in age from 18 years to 25 years. The younger ten children, who were the subject of proceedings, range from a boy, C, who is now aged 17 years down to a girl, W, who is aged 2½ years. The local authority had apparently been aware of and involved with the family since 1995, when the mother’s eldest child was aged 5 and she only had the care of three children.

[5] Within the proceedings all parties agreed that the statutory threshold in Children Act 1989, s 31 was met on the basis of neglect, physical harm and emotional harm. The mother had a longstanding diagnosis of generalised anxiety disorder coupled with a recurrent depressive disorder. In addition she was said, at times, to be emotionally unstable and to exhibit traits of avoidant personality. It was accepted that these mental health difficulties had adversely affected the mother’s ability to meet the needs of the children in the past, with the risk that they would continue to do so in the future. Finally, it was noted that there was a history of sexualised behaviour with respect to the now adult siblings and that, since the commencement of these care proceedings, there had been a level of concern about sexualised behaviour amongst the young boys in the family.

[6] Matters had apparently taken a turn for the worse in December 2013 following a deterioration in the mother’s mental well-being during which she had threatened to harm herself and had stated that she could not cope with the care of the children. As I have indicated, care proceedings were issued on 14th February 2014. At the first hearing the local authority applied for the removal of all ten children under interim care orders, but, in the event, only three of the children, the eldest two, a boy C and a girl L, together with the fifth child, a boy P, were removed under interim care orders following a contested hearing. Interim supervision orders were made in respect of the other seven children who remained living with their parents at home. The order of 7th March 2014 recorded that the local authority had changed their care plans for those seven children, who were to remain at home, with the local authority intending:

“to gradually reduce the intensive support currently offered to the family with a view to the position in 12 weeks being that of home support confined to mornings and evenings, 3 days per week”.

[7] CA l989, s 32 requires a court dealing with public law child proceedings to draw up a timetable with a view to disposing of the application without delay, and in any event within 26 weeks beginning with the day on which the application was issued (CA l989 s 32(1)). At its first hearing this case was timetabled to conclude on or before 15th August 2014. That timetable was extended to 15th September by an order made on 16th June. The final hearing, before HHJ Meston QC, commenced on 19th August 2014 for four days, it was resumed on 1st September for three days and the evidence concluded on one additional day, 26th September.

[8] Prior to the final hearing concern developed as a result of something that had apparently been said by one of the boys, P, aged 9, indicating sexual activity with one or more of his brothers. As a result of this information the court was told at a hearing on 1st July that the local authority was seeking the removal of all six of the children who were then still living at home (a boy, J, aged 12 having been removed to local authority accommodation by agreement in April 2014). In the event the local authority modified its position after the start of the contested interim care order hearing on 4th July so that they only sought the removal of two of the boys, G, then aged 7 and S, then aged 5 years. Those orders were granted. As a result, at the start of the final hearing four children, a girl J, then aged 11 years, a girl A, then aged 5 years, a boy J, then aged 3 years and the youngest, W, then aged 2 years were still at home in their parent’s care under interim supervision orders.

[9] At the final hearing the local authority sought care orders on all of the children with a plan that the eldest six would be placed in long term foster care, but the youngest four would be placed for adoption. The two Children’s Guardians who had been appointed for the various children supported the local authority position; the parents opposed the care plan.

[10] On 17th March 2015, the day on which judgment was handed down, the judge made the final orders sought by the local authority. By his notice of appeal the father seeks to challenge that outcome with respect to the four children who have continued to remain at home with the parents. He also seeks to challenge the care order on the 14 year old girl L and the care order and placement for adoption order on the 7 year old boy, S. Mr Young, who appears on behalf of the father before this court and appeared before the judge below, focuses his grounds of appeal and submissions entirely upon the consequences of the judge’s delay in handing down final judgment. There is, therefore, no challenge at all in the context of this appeal to any of the findings made by the judge as to the parent’s capacity to care, as he found it to be, as at the close of oral evidence on 26th September 2014. It is not, therefore, necessary for me to dwell upon the details of the judge’s welfare analysis based upon that evidence. I propose therefore to turn to the history of the proceedings following the departure of the final witness from the witness box at the end of September 2014.

The delayed judgment

[11] At the conclusion of proceedings on 26th September 2014, the court directed that the parties should file written closing submissions by 13th October. However that plan was overtaken by events as a result of the local authority issuing fresh applications for interim care orders on 10th October in reliance upon further allegations that the boy, P, had apparently made. The interim care order application was adjourned to be heard on 13th November so that the fresh information from P, which indicated a possible sexual risk to the children, could be the subject of an additional expert opinion from the child and adolescent psychiatrist, Doctor B, who had previously been instructed in the case. Shortly before the adjourned hearing Dr B advised that P’s allegations lacked sufficient substance and the local authority therefore withdrew its application for interim care orders. On 13th November the judge issued a case management order, made without a hearing, which provided for the parties to file and serve their final written closing submissions by 19th November. With respect to the “timetable for the proceedings” the order provided as follows:

“The proceedings cannot be completed within 26 weeks, but are to be completed within following judgment (sic) because: Despite robust and rigorous case management, the nature of the proceedings has changed and it is necessary to extend the timetable for the proceedings for one or more of the children in order to resolve the proceedings justly because: P and, most recently S have made allegations such that the question of interim removal pending receipt of judgment following the final hearing had to be considered and further expert view sought.”

[12] In the context of CA l989, s 32, that paragraph would seem to be defective. Section 32(1) requires an application for a care order to be concluded within a period of 26 weeks from the issue of the application. A court may extend the period if it considers that an extension is necessary to enable the court to resolve the proceedings justly (CA l989, s 32(5)), but any such extension is to end no more than eight weeks after the date of the extension (CA l989, s 32(8)). An extension to a date “following judgment”, with no fixed date specified, has the potential to be an extension for more than 8 weeks if the preparation of judgment is delayed; most unfortunately that potential was plainly realised in these proceedings.

[13] The parties, with the exception of the local authority, met the deadline for filing submissions of 19th November; the local authority’s submissions being delivered on 25th November. Thereafter, the only activity within the proceedings was that the judge acceded to a request by the girl, L, for a meeting. Initially that meeting had been timetabled for November, but for some reason it did not take place until 8th January 2015. On the same date the judge records receiving a request on behalf of the father to allow for the submission of an addendum to his closing submissions to describe the progress of the children since the conclusion of the hearing. The judge allowed that request and received short additional submissions which were supported by a number of documents, in particular letters from the various schools and/or nursery attended by the children. In this addendum Mr Young submitted that it was clear “that the parents have made significant changes for the better and that the changes are being sustained.” It was asserted that the children were “clearly thriving” at home. Subsequently the judge received short email communications from the local authority and the Children’s Guardians to the effect that they did not intend to add to the closing submissions that they had already prepared.

[14] No further activity took place in the proceedings until the judge handed down his reserved judgment on 17th March 2015. The judgment is a very substantial piece of work. It runs to 256 paragraphs spread over 60 pages. It plainly will have required a significant amount of preparation time and I have no difficulty in readily understanding the professional pressures that a circuit judge is under in a very busy Family Court centre, hearing case after case, with little time for additional judgment writing if the window for judgment preparation immediately after the conclusion of a particular case is missed.

[15] The judge’s conclusions led to the making of final care orders and, for the younger four children, orders authorising the local authority to place the children for adoption; those orders were made on the morning that judgment was handed down. Through Mr Young, the father applied for a short stay to the implementation of these final orders in order to permit him to make application to this court for permission to appeal. It is, in my view, unfortunate that the judge effectively refused to grant any stay at all. The result was that the four children were collected by social workers from their schools or nurseries that afternoon and taken to foster care. Mr Young made a telephone application to the Court of Appeal for a stay during the late afternoon of 17th March; I granted that application with immediate effect. I am grateful to the local authority who met my request for the children to be returned to the parent’s care by bedtime on that day. The stay granted was subsequently extended until the hearing of this appeal and, in consequence, the four children have continued to reside in their parent’s care.

The judge’s judgment

[16] In order to set the appeal in context it is necessary to make reference to certain passages in the judgment handed down by HHJ Meston on 17th March 2015. However, the first point to make is to note a topic which does not appear within that judgment. Other than describing procedural events that occurred after the close of oral evidence, the judgment makes no reference at all to the fact that it is being delivered some six months after the oral hearing and nearly four months after receipt of closing submissions. The topic of delay is, however, referred to at paragraph 12 in these terms:

“The court is also required by both statutes to avoid delay with its potential adverse effects on a young child in foster care, unless some delay is likely to serve a useful purpose in terms of either fairness to the parties or in terms of providing useful further information without which the court could not reach a properly informed decision on the all-important questions concerning the child’s long term future. The timescale and the implications for the child have to be considered carefully. Delay can create uncertainty and deprive the child of the security and continuity of permanent placement. Delay (or further delay) may require a child to spend more time with temporary carers and may make it harder to move him or her on and harder to find him or her a suitable long-term placement”

[17] In the body of the judgment the judge records the procedural history in detail, together with a description of the oral evidence he had heard which came from the social worker, Dr B, an independent social worker, the parents and the two Guardians. The professional evidence entirely supported the local authority care plans which looked to place the children other than in the care of the parents. Part of the case put forward by the parents was to offer to undertake a six month programme of “protective parenting work” with an independent social worker, Mr L. It was, apparently, envisaged that the work would concentrate for half its time on general areas of protective parenting and for the other half specifically on “sexual risk”. The proposal achieved cautious support by the independent social worker who had been instructed in the proceedings and from Dr B. Both of those experts advised the court that it was necessary for there to be some confidence that the parents would, and could, engage, focus and co-operate with the proposed work.

[18] The judge’s analysis commences at paragraph 239 with a review of the relevant elements in the welfare checklist contained in CA 1989, s 1(3). Under the heading in relation to “Harm” the judge adopts as accurate a summary offered by the Guardians in their report as follows:

“318. All the children have suffered emotional and physical neglect and the boys possible sexual harm through the inadequate care provided by their parents.

319. The conditions in the home had been chaotic and dirty with a failure to protect the children from animal faeces. The children have not been provided with clean or appropriate clothes, regular mealtimes and taken to school and nursery on time. Appointments for immunisations and other medical appointments had been missed and A and J have been taken to hospital following the consumption of adult medication.

320. The children’s parents have failed to supervise the children so that injuries had been caused by fighting between the children. The children present as unhappy and fearful of being hit by older siblings. It is likely that the children could have been subject to inappropriate sexualised behaviour within the family and owing to lack of supervision by the parents.

321. The children’s need for love and affection, routines and boundaries has not been adequately provided by the parents despite considerable input from professional services for many years. There can be no confidence that the situation would not continue if the children were to remain living within the family.”

[19] After that summary the judge then goes on to make the following observation:

“The risks to which the children have been exposed by the parents have been the result of those features of their personalities and circumstances described in the documents in these proceedings. The sad reality is that without significant and lasting changes in the mother’s and father’s functioning, in the event of any of the children being left in or returned to, their care it is probable that the deficiencies will continue and the problems will recur, with a risk of another crisis leading to the breakdown of any such placement, a risk which may be aggravated if there is a lack of cooperation with the local authority. Plainly any such further breakdown would have a harmful impact on the child or children concerned.”

[20] In terms of the “capabilities of the parents” the judge records his conclusion as follows:

“It has been tempting to hope that the parents could manage better with fewer children, and possibly with less intense involvement by professionals. However the past parenting history which has been of great concern indicates that there were problems even when there were fewer children. Although the mother and father are loving parents, there is a cogent evidence of a lack of basic care and control. They have a dislike of criticism which indicates a lack of real insight. Their reluctance to rearrange the bedrooms or to accept the possibility of the truth of the sexual allegations which they rejected as “all rubbish”, the mother’s decision to take a job, the decision to allow J to travel unaccompanied on a coach and the mother’s decision to acquire another puppy showed more than poor judgment: these events showed an unwillingness to take advice or to heed the possibility of risk.”

[21] Thereafter the judge offers short observations in the context of the welfare checklist within Adoption and Children Act 2012, s 1(4) before moving to his conclusions.

[22] In the course of his analysis the judge identifies factors specific to the various children. In relation to the four children still at home, the judge says this with respect to the older girl J:

“247. The final submission on behalf of the guardians raised the possibility of an interim care order for J given the uncertainty of her position if she is removed from the family home. The suggestion is that she should, if at all possible, be spared the outset of the removal of the other children and therefore moved to a foster placement which could become a long-term placement if the proposed move to LT could not be implemented. However the local authority invite the court to make a final care order, entrusting the local authority with the ability to make appropriate decisions about a placement. Having decided that J should now move into care as proposed by the local authority and supported by the guardian I consider that the way ahead is sufficiently clear for the court to make a final care order. Plainly it is now important that the placement with LT is swiftly investigated. Meanwhile, like L, J should be spared the great emotional upset to which she would be exposed if left alone in the family home with the parents.”

[23] With respect to the four youngest children, three of whom were still at home, the judge describes the balancing exercise that he has undertaken in the following terms at paragraph 248:

“In conducting the balancing exercise the following factors are to be considered.

(1) As re-emphasised by the Supreme Court, the court should only regard placement for adoption as the necessary and proportionate outcome if nothing else will do. A child’s right to grow up in her own family if possible is a fundamental consideration.

(2) Placement within the family would enable the children to preserve their links and sense of identity with their family of origin and would allow them the opportunity to grow up with, and be cared for by, familiar adults and also to maintain a connection with their siblings and half-siblings. It would also enable them to enjoy emotional warmth and affection from the parents.

(3) If the court decides that sadly a child cannot somehow remain within the family then, in general, adoption is the preferred option for a young child whose long-term welfare requires permanent placement away from the birth family. Adoption is a profound intervention in family life; but well-managed adoption is likely to provide the stable and consistent care needed by children, particularly those whose upbringing has been disrupted. Adoptive parents are seen as having an additional commitment to children placed with them on the basis of complete legal integration into the adoptive family, and it is a commitment which does not end when children reach the age of majority. The court is normally entitled to assume that the local authority will take particular care in the assessment and selection of suitable adopters, and in this case there is no specific evidence or reason to think that an adoptive placement will fail.

(4) In this case it is plain that there are positives in respect of the parents requiring particularly careful thought to be given to whether it is now really necessary to deprive them of the further opportunity to show that they can bring up the children without the instability and risk that is predicted.

(5) There are serious risks and concerns in considering placement of these children with the parents which were identified before the start of the final hearing and which were confirmed by the evidence that has been heard and tested.

(6) Even if the support package of care which has been in place for a long time was to continue I do not consider that it would make sufficient difference to the long-standing problems and deficiencies of the family or to the risks inherent in the mother’s psychiatric make up.

249. I do not consider that any further assessment or delay for the parents to undertake work with Mr L for 6 months would be justified. The strengths and weaknesses of the parents have been thoroughly examined by the social worker, the independent social worker, Dr B and the guardians in a lengthy hearing. The parents have been provided with considerable support and guidance, latterly from Freedom Childcare. There are clear disadvantages in the inevitable further delay if a decision was deferred to allow for any further assessment or further programme of work. Such delay could only be justified if there was some real confidence that some new insight would be achieved which was likely to alter the evidential picture. In Re S (A child) [2014] EWCC B44 (Fam) Sir James Munby P referred to the 3 questions to be addressed: whether there is some solid, evidence based reason to believe that the parent is committed to making the necessary changes, If so, whether there is some solid, evidence based reason to believe that the parent will be able to maintain that commitment. If so, whether there is some solid, evidence based reason to believe that the parent will be able to make the necessary changes within the child’s timescale.”

[24] Having reminded himself of the approach to be taken to an application for an expert assessment the judge concluded his judgment on the primary issues as follows:

“251. Having reviewed the evidence and heard the parents I agree with the clear view of the guardians that there is unlikely to be a successful or lasting outcome from the work proposed. I regret that do not have sufficient confidence that the parents have the required commitment or ability to change, and I do not consider that the delay and further uncertainty would be justified. It would be contrary to the needs of the children, including the need for finality, to embark on such a programme of work with an uncertain and doubtful outcome.

252. In this case the court has had the evidence of two experienced and perceptive guardians, and an experienced independent social work together with a careful and concerned social worker. The guardians have taken a cautious and proportionate stance and have maintained objectivity and independence. All the professionals have conscientiously sought to distinguish and consider the children as individuals. I am persuaded by the arguments and evidence advanced by the local authority and have concluded, having regard to the children’s short and long term needs for stability and permanence and to the considerations set out in section 1 of the Adoption and Children Act 2012, that the welfare of the 4 youngest is best met by making care and placement orders. To do otherwise would deprive them of the opportunity of placement in a safe, secure and stable environment with obvious benefits during the remainder of their childhoods and beyond. Regrettably the parents are not able to provide such an environment for any of these children. The risks of leaving them in the care of their family, even under a care order, and of some further crisis then arising are unacceptable.

253. Adoption for the 4 youngest children is now clearly the best option and I find it to be necessary in their interests because it is the only option likely to meet their long-term needs for security, safety and stability.

254. I am satisfied that the consent of the mother and of the father to the making of placement orders should be dispensed with pursuant to section 52 (1) of the Adoption and Children Act 2002 on the ground that the welfare of each child requires it.”

The appeal

[25] Mr Young relies upon four grounds of appeal which can be summarised as follows:

i) Delaying judgment for a period of six months which then required the immediate removal of four children is a process which fails to be compliant with the children’s welfare, the timetabling requirements of CA 1989, s 32 or the Public Law Outline in general. The judge’s action as ‘an unjustifiable interference’ in the family’s ECHR’s rights under Articles 6 and 8;

ii) Having delayed judgment for six months, the judge failed to give any proper consideration to evidence indicating that significant and sustained change had been established by the parents during the six month period;

iii) The judge was wrong not to establish a further enquiry into the progress of the children, or otherwise, in the care of their parents;

iv) The judge was wrong to make a final care order with respect to L given the progress of the parents during the six month period and that child’s plainly stated wishes and feelings.

[26] Having now heard Mr Young develop his submissions orally I am of the view that his case stands or falls on the central submission that the judge was simply wrong not to obtain up to date information as to the welfare of the children once such a substantial period of time had elapsed from the close of the evidence. I am unpersuaded that arguments as to possible breach of the children’s or the parents’ ECHR, Article 6 right to a fair trial add anything.

[27] In like manner, I am afraid that the father’s appeal with respect to L and S, who had not been placed at home with the parents during the interim period, never really got off the ground. It is difficult to understand how obtaining fresh information about the intervening six months will have impacted upon the overall judicial analysis with respect to these two children, given their limited exposure to the parents during the intervening period. With respect to L, the key feature is her often and firmly stated wish to return home immediately to her parents’ care. As the judgment demonstrates, the judge was fully and totally aware that this was L’s view and, indeed, he had encountered her as recently as January 2015 and will no doubt have heard directly from her, loud and clear, as to her stated wishes and feelings. He took full account of that matter, but nevertheless concluded that, for the present, she should remain in the stable and secure home provided by her foster carers.

[28] The court was assisted by clear and forceful submissions on behalf of the local authority by Mr Adam Langrish who had also appeared at first instance. The local authority opposed the appeal on the primary ground that the judge found that the evidence established long term and deep seated parental inadequacy of a character which simply could not be turned around by the passage of some six months further parental care. His submissions were hampered by the absence from the appeal bundle of any of the relevant evidential documentation, but he was able to indicate certain extracts of the evidence which appeared in his closing submissions to the judge. Mr Langrish submitted that these extracts demonstrated years and years of poor parenting which had failed the children despite attempts to bolster it up by support from the local authority. Mr Langrish also submitted that the judge did have the clip of additional information submitted as an addendum by Mr Young but nevertheless concluded in relation to the younger children that “nothing else would do” and adoption was therefore justified.

[29] In response to an argument from Mr Young to the effect that the local authority had held back from applying for the removal of these children under interim care orders during the proceedings and that that, in some way, indicated a finely balanced case, Mr Langrish submitted that, as a matter of law, the grounds for removal under an interim order were well established, were narrow and were of a different order to an analysis necessary to underpin a decision to provide for a child’s long term care away from the family.

[30] The father’s appeal was supported by Ms Carol Davies on behalf of L and opposed by Mr Mark Elliot on behalf of the children’s Guardians.

Discussion (i)

Delayed judgment and the 26 week time limit

[31] The statutory requirement under CA 1989, s 32(1) and Family Procedure Rules 2010, r 12.22 is for the court to ‘draw up a timetable’ and ‘give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to’ in order to dispose of an application within 26 weeks. The key responsibility under this provision is therefore upon the court to establish the necessary timetable and to make orders aimed at keeping the case within that timetable. The s 32 regime is all about the management and control of the process by the court. At times this will require the court to manage and control its own contribution to achieving the conclusion of the proceedings within the 26 week bracket. Where a case cannot be completed within 26 weeks and further time is required solely for the court to prepare its judgment, the CA 1989, s 32 strictures continue to apply; the key stage in s 32 is ‘disposing of the application’ and that stage can only be reached when the court hands down judgment and makes a final order. It is therefore incumbent upon a judge, who requires time to prepare a reserved judgment at the conclusion of a hearing, to make express provision for an extension (of up to 8 weeks) to the timetable for that purpose. That this is a requirement upon the judge is made clear by FPR 2010, r 12.26B which provides that: ‘[FPR] Rule 4.1(3)(a) does not apply to any period that is for the time being allowed under section 32(1)(a)(ii) of the 1989 Act.’ CA 1989, s 32(1)(a)(ii) refers to the requirement on the court to draw up a timetable with a view to disposing of the application ‘in any event within twenty-six weeks beginning with the day on which the application was issued’. FPR, r 4.1(3)(a), which by r 12.26B does not apply to a s 32 timetable, gives the Family Court a general power to: ‘extend or shorten the time for compliance with any rule, practice direction or court order (even if the application for extension is made after the time for compliance has expired).’ In a public law case, the effect of r 12.26B is that the court does not have a general power, of its own motion, to grant itself an extension from the s 32 timetable. Any extension beyond the 26 week deadline can only be determined after the formal process required by r 12.26A with the court making a positive decision on the question of extension and, if an extension (of up to 8 weeks) is given to accommodate the need to prepare the final judgment, r 12.26C must be complied with so that the court announces its decision together with: ‘(a) the reasons for that decision; and (b) where an extension is granted or refused, a short explanation of the impact which the decision would have on the welfare of the child.’

[32] When deciding whether to extend the timetable in order to accommodate preparation of the judgment, the court must have regard, as with any proposed extension, to the requirements of s 32 and, in particular, to the need for any extension to be limited to what ‘is necessary to enable the court to resolve the proceedings justly’ and to the need to have regard to the impact of any extension on the welfare of the child. The judge must identify the ‘specific justification’ for an extension of time to prepare the judgment (s 32(7)). It is of particular note in the context of the present case that the court does not have jurisdiction, at any one time, to grant an extension of more than eight weeks (s 32(8)).

[33] The judges who undertake the relentless diet of high-end and burdensome care cases that is the lot of the senior, and often the only, judge at a Designated Family Centre are amongst the most hardworking individuals in our justice system. Within that group of judges HHJ Meston is entitled, in my view, to hold his head high for the conspicuous care and hard work that he has consistently displayed since his appointment to the bench. Although, inevitably in the light of our decision, this judgment must point up errors in the progress of this case before the lower court, my purpose is to seek to identify lessons for the future rather than to be critical of the judge. Instead of criticism, I have more than a little professional sympathy for the situation that seemingly developed after the close of oral evidence; it is a situation which may well be familiar to many judges faced with the twin, but conflicting, drivers found in the need to spend time immediately after a substantial case in order to prepare the judgment, on the one hand, and, on the other, the need to get on and begin a fresh trial in the next heavy case which is booked to commence before them on the following working day. Once the moment for penning a judgment immediately after the conclusion of a case is lost, not only is it harder to carve out time for writing at a later date, but the very task of composing the judgment takes longer as the judge has to read back into the case in order to regain the level of knowledge that he or she had on the last day of the hearing.

[34] In this regard, the advent of the new, tightly drawn, time limits imposed by s 32 ought to be seen as a benefit to a judge, rather than the contrary. Although s 32 does not provide a clear outcome to the conflict between the need to give prompt judgment in Case A, as against the need to get started with the hearing in Case B, given that both cases are subject to the same ‘26 week’ deadline, the s 32 regime does require the court to make express provision for the preparation of a judgment in its timetable. The court must now specifically determine how much extra time is ‘necessary’ for judgment writing and, after considering the impact of any further delay on the welfare of the child, set a date no more than eight weeks away by which time the proceedings are to conclude. Where the judgment has not been prepared within any extended period, the court is required to go through the s 32 exercise again and determine what is ‘necessary’ and the impact on the child’s welfare before setting any further extension for preparation of judgment.

[35] Although, ultimately, it is a matter for the court to determine the s 32 timetable, r 12.24 now makes it a requirement on each of the parties to the proceedings to:

‘(a) monitor compliance with the court’s direction; and

(b) tell the court or court officer about:

(i) any failure to comply with a direction of the court; and

(ii) any other delay in the proceedings.’

In a case where, for whatever reason, handing down of judgment is delayed and the date fixed by the s 32 timetable has passed, r 12.24 now makes it the responsibility of each and every party to raise the matter with the court and it is open to any party to apply to the court for further timetabling directions.

[36] Notwithstanding the existence in the court diary of other cases fixed for hearing during a period which, may be unexpectedly, is required for the preparation of judgment in a previous case, I would suggest that the principle at the heart of s 32, which requires the conclusion of care cases within 26 weeks, dictates that the provision of judgment writing time for those cases that need it must now have an enhanced priority. In the end the judge is in control of the timetable for each case, but, under s 32, he or she must now only take such time for judgment writing as is ‘necessary to enable the court to resolve the proceedings justly’ and in the light of any impact on the welfare of the child who is the subject of the proceedings.

[37] In the context that I have described, it is clear that there was a lack of proper adherence to the s 32 requirements in this case in the following respects:

a) The timetable was originally set for the proceedings to conclude on 15th August; that date was subsequently extended to 15th September.

b) The 15th September date came and went without any further extension being granted either during the final hearing, or, more importantly, on the last day of the hearing (26th September).

c) There was then further necessary delay while the fresh allegations made by P were investigated. Once it was clear those allegations were not going to result in any further hearing, the case management order of 13th November, whilst establishing a date for submission of closing submissions, failed to establish a new date (up to eight weeks later) for the completion of the proceedings.

d) The reference in the 13th November order for the proceedings ‘to be completed within following judgment’, being open-ended, was plainly outside the requirements of s 32.

e) The justification offered in the 13th November case management order for an extension, which was that P’s allegations required further expert opinion, was a justification for the additional time taken prior to 13th November and did not relate at all to the necessity for further time to be taken thereafter.

f) There is no indication on the papers that any further consideration was given to the s 32 timetable after 13th November.

g) Despite their obvious growing concern at the passage of time, and despite the requirement under r 12.24 for them to contact the court in the event of delay, none of the parties applied to the court for a direction as to the s 32 timetable.

[38] Moving above the procedural minutiae, it is, finally, plainly wholly unacceptable in the context of s 32, and more importantly contrary to the interests of these children, for there to be a period, which itself is just short of 26 weeks, between the close of evidence and the giving of judgment.

[39] Moving away from what is to be said about the statutory requirements in CA 1989, s 32, for my part the important question in this appeal is whether, as a result of the delay of six months between the close of evidence and the judge’s determination of the welfare issues, that determination itself was compromised by the passage of time. In a case such as this, where the issues were balanced and where the children had continued to reside at home with their parents, was it necessary for the judge to acknowledge that a significant amount of time had passed since the close of evidence and, as a result, solicit a report or reports on the progress of the children during the interim period?

[40] I should stress that I consider that the answer to the question that I have just posed will vary from case to case and will to a large part be determined by the facts and factors that are in play in each individual case. It is absolutely not a matter that falls to be determined by the imposition of an arbitrary deadline applicable to each and every case.

[41] In the present case, it is a striking feature of the judgment that the judge makes absolutely no reference to the fact that so much time has elapsed between the close of evidence and the announcement of his decision. He accurately states the dates when the hearing took place and when subsequent applications were made. He describes receiving updating material from the father’s advisers in January and he describes the importance of avoiding delay at paragraph 12 of his judgment. But at no stage does he acknowledge that a very significant period of time has passed since the close of evidence. It would therefore seem likely that the judge did not himself consider the question of whether the evidence upon which his assessment was based may have become stale or require updating in the light of the fact that the four children had been in the care of their parents for such a long period.

[42] It is correct that the judge referred to the updating material supplied on behalf of the father in January 2015 at paragraph 80 of his judgment. But that paragraph is no more than a factual description of the material. At no stage does the judge refer to the content of the material or bring that information into his overall welfare evaluation; it is simply not mentioned again. Indeed the fact that the parents have been caring for the children during the six months since the close of evidence is not a factor that the judge refers to at all in his welfare analysis. In this important respect, the judgment reads exactly as it would have done had the judge delivered it immediately after the oral hearing had concluded.

[43] In some cases the passage of a significant period of time following the close of evidence may have little relevance, and require little or no reference in the judgment. Such a case may involve long term issues relating to mental health, addiction, or other seemingly intractable and unchanging factors. In the present case, however, the question of whether or not these parents could care for some of their children was a very live issue, the answer to which had not been, and remained, at least to a degree, an open one. It was what the case was about. The local authority itself had been in two minds on this issue at various stages in the recent history. Despite long standing knowledge of the family over a period of years, care proceedings were not issued until there were ten children in the home and there had been an apparent deterioration in the mother’s mental well being in December 2013. When the proceedings were issued, the local authority applied for, but then did not pursue an application for the removal of the youngest 7 children. In March 2014 it changed its final care plan for these children to one of home care with support. In July 2014, when a further application was made for an interim care order, again the local authority trimmed its request and did not pursue the immediate removal of the four who have remained with their parents. Even after the close of the evidence, when, as a result of P’s allegations, an application for the removal of these children was issued, it was, in the event, not pursued by the local authority or taken up by the judge.

[44] Although I accept the general submission made by Mr Langrish as to the different test and different focus as between a decision to seek an interim care order and a decision for the removal of children under a final order, it is the case here that, for a time, during the currency of the proceedings, the local authority’s final care plan was for the seven youngest children to remain at home with a reduction in social work support.

[45]  As the judge’s judgment makes plain, the question of whether or not the parents could provide good enough care was at the centre of his deliberations. Their ability to demonstrate commitment to prioritising the needs of the children and their ability to sustain the delivery of good enough care was at the core of the case. The judge is clear at paragraph 248(4) that ‘particularly careful thought [is] to be given to whether it is now really necessary’ to remove the children. He had addendum submissions which asserted that the parents had indeed made significant and sustained progress in the intervening period. On the facts of the present case it was therefore, in my view, necessary for the judge to obtain short updating evidence from the local authority, the parents and the Children’s Guardian as to the welfare of the four children who had continued to be at home in the care of their parents under interim supervision orders during the 6 months prior to delivery of his judgment.

[46] For those reasons I agreed with My Lords that the appeal should be allowed with the result that the case must now go back to the Family Court so that the necessary updating evidence may be filed and considered by the court. As no challenge is made to the judge’s analysis of the children’s welfare on the material that was already before the court, there is every good reason, and no objection, for the case to go back to HHJ Meston, as opposed to a fresh tribunal, so that he may undertake the analysis of the updating material that is, as I have found, required.

Lord Justice Bean

[47] I agree.

Lord Justice Aikens

[48] I also agree

Financial Remedies Handbook

Formerly entitled the Ancillary Relief Handbook this is the first resort for thousands of...

More Info from £71.10
Available in Family Law Online

Family Court Practice 2016, The

(Red Book)

Order your copy today and get the Autumn Supplement

More Info from £465.00
Available in Family Law Online
Subscribe to our newsletters