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Court of Appeal calls for fresh attention to fundamental principles of good case management in care proceedings as workload grows

The desired shift in professional practice in care proceedings can be achieved by paying fresh attention to the fundamental principles of good case management, the Court of Appeal has stressed in two cases appealed from the Family Court at Leeds.

One appeal succeeded and the other failed but in H-D-H and C, Re (Children: Fact-Finding) [2021] EWCA Civ 1192 Lord Justice Peter Jackson said: “In each case a judge hearing care proceedings made a case management decision that the court would not investigate and make findings of fact about a serious allegation and in each case the local authority appealed.

“The appeals raise the same question of principle and we now give our judgments on them together. They provide an opportunity for this court to review the long-standing guidance contained in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031 in the light of the current pressures on the Family Court.”

Peter Jackson LJ noted that in response to the pandemic, Sir Andrew McFarlane, Head of Family Justice, gave guidance that “if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing.

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"Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear."

Peter Jackson LJ said: “It is important for us to affirm that fundamental legal principles do not change in response to workload. At various points in the cases under appeal it has been said that there needs to be 'a culture shift' on the part of professionals away from the 'leave no stone unturned philosophy'.

“But the proper approach has never been to leave no stone unturned. The desired shift in professional practice can be achieved by paying fresh attention to the fundamental principles of good case management.”

On the guidance in the leading authority of Oxfordshire, Peter Jackson LJ said the factors identified should be approached "flexibly in the light of the overriding objective in order to do justice efficiently in the individual case".

He added: "These are not always easy decisions and the factors typically do not all point the same way: most decisions will have their downsides. However, the court should be able to make its ruling quite concisely by referring to the main factors that bear on the individual case, and identifying where the balance falls and why.

"The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise."

In the case named HDH three children were made the subject of a child protection plan aged 14, 13 and 9.

After their mother died an older sister asked the mother’s partner Mr D to leave the home, which he did.

The sister could not cope and the local authority began care proceedings. An interim care order placed the children in the care of Mr D.

Proceedings began after the police were called and found Mr D intoxicated and unable to care for the children. He was arrested for child neglect and the children were placed back with their sister.

The middle child M then made “very serious sexual allegations against Mr D…including oral rape and other sexual assaults of an extreme nature and involving drugs and alcohol”. Mr D was arrested and remains on bail; a charging decision has not yet been made.

HHJ Hillier in March 2021 conducted case management hearings at which Mr D disputed the allegations against him.

The local authority involved and the Children’s Guardian invited the judge to determine M's allegations.

HHJ Hillier though felt that without a fact-finding hearing, welfare orders could be made in early July whereas a hearing would occupy five to eight days, including a decision about whether M should give evidence.

The judge said Sir Andrew’s guidance called for “very robust case management and a clear consideration of the overriding objective”, and the court was not called upon to analyse the strength of the allegations.

There was a public interest in prosecuting sexual offences but it was for the Crown Prosecution Service to determine whether Mr D should be prosecuted.

HHJ Hillier had said: “What has exercised me most is how the welfare outcome for M and her siblings would be any different if those allegations were litigated because I think the care planning would be the same.”

The local authority challenged both the substance of these decisions and the fairness of the process.

Peter Jackson LJ said: "I do not accept that the process here was unfair.” He said HHJ Hillier heard full argument and the transcript showed “she clearly grasped the arguments being made by the local authority and the guardian.

“Having considered these submissions, I conclude that the judge's decision was sustainable for the reasons she gave,” Peter Jackson LJ said.

“It is troubling that M's allegations may never be effectively investigated…other things being equal, it would be highly desirable for these allegations to be resolved, but the Family Court cannot stand in the shoes of the criminal justice system.”

Dismissing the appeal, he added: “The judge was also entitled to conclude that care planning for the children did not depend upon further findings of fact and to give significant weight to the issues of delay and resource. She weighed other relevant factors in order to reach a conclusion that was open to her.”

Turning to the case of J, a boy born in July 2020, he noted the mother, now aged 19, has a learning disability and a troubled family history.

The local authority took proceedings when J was born and he and his mother lived with foster carers where after three weeks J suffered a serious head injury, which appeared to be inflicted. J was moved, and a police investigation ended with no further action.

The local authority applied for a fact-finding hearing to clarify the risks posed by the mother so that a further assessment of her and a new partner could be completed.

This hearing did not proceed as the couple split up and when the matter was heard, HHJ Murden revisited whether it remained necessary to litigate the cause of J's injuries.

She decided this was not necessary “in the light of the delay litigation would cause to J's overall welfare, to determine the causation of J's injuries.”

HHJ Murden added: “If I were to approve the litigation again, essentially I would be signing this little boy up to months of delay, three and a half to four months from now, would be the first time I would be able to consider the case and make orders about his future. The proceedings have been going on all of his life.”

Peter Jackson LJ said: the judge was right to be concerned that, 11 months after J’s birth, no decision had been reached about his future, and noted the appeal court “should be very slow to involve itself in a case management decision made by a judge who clearly had a grip of the case”.

Despite that he found the decision to dispense with a fact-finding hearing was wrong.

Peter Jacksn LJ said the judge approached the matter too narrowly and did not take into account all of the relevant matters.

“Delay was clearly a weighty factor, but it was not the only consideration,” he said.

“The fact that the threshold was likely to be crossed on the basis of the psychological assessment of the mother's disability and psychological profile was also a factor, but it only takes matters so far.”

He said HHJ Murden “must have made the tacit assumption that the mother's case was bound to fail, because she cannot possibly have considered that J could be returned to his mother without knowing whether she had injured him.

“This…might not present insuperable difficulties in J's case, but it would certainly place professionals and the court in a real predicament when considering the position of the future children that are likely to be born to the mother.

“The assertion that those children could be removed at birth on the sole basis of the mother's learning disability and psychological state is at least questionable. “

He noted that a distinctive feature of the case was that J was injured while under the supervision of a professional foster carer.

This made it unsatisfactory for the public interest - and potentially unjust to both the foster carer and the mother - that unproven allegations “should hang over them indefinitely when it is at least highly possible that they could be satisfactorily clarified”.

Mark Smulian

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