This is a post by Emily Boardman. Emily is a founding partner at Boardman, Hawkins & Osborne LLP – family lawyers and mediators based in Oxfordshire. She has a national practice in adoption proceedings, appeals and representing parents in care proceedings. Emily tweets as @bho_eb

The background 

The appellant is the great-aunt of J, a child who was the focus of care proceedings that began in 2017. J’s mother accepted early on that she could not care for him and the proceedings focused on assessment of his great-aunt instead. Throughout the care proceedings the great-aunt was unrepresented (and for most of it, not a party). She is a formidable woman. 

The care proceedings eventually concluded with the making of care and placement orders for J. His great-aunt sought permission to appeal. 

I was instructed by J’s great-aunt after she had already obtained permission to appeal. Our counsel was Matthew Brookes-Baker from Harcourt Chambers. 

The appeal 

W (A Child), Re (Rev 1) [2019] EWCA Civ 1966 (18 November 2019) 

The appeal focused on the basic premise that a ‘losing party needs to know why he or she has lost on any particular point’ (McFarlane LJ (as he then was) in Re V). This must be even more important in a case where a family is losing a child and the losing party is unrepresented. At the end of the Judgment the great aunt should have understood why she lost, even if she didn’t agree with it. In this case there was no way she could have understood why she lost because the Judgment did not tell her. 

The Judge did not tell her why she considered the negatives of the various assessments to outweigh the positives. She did not even mention the (many) positives. 

There were other problems with the care proceedings at first instance. 

Lady Justice King described the proceedings as having a ‘lengthy and tortuous progress towards trial’. 

The proceedings started at the end of 2017. 

There was an ISW assessment of the great-aunt. It was finely balanced but the conclusion in May 2018 was negative and the LA filed an application for a Placement Order in June 2018. At which point the great-aunt sought party status, but this application was adjourned many times. 

The Guardian at that stage felt unable to support adoption so an addendum ISW report was ordered in September 2018. That assessment, filed in November 2018, recommended further assessment in the great-aunt’s home. Later that month the Court approved the proposal to increase contact and put in place a transition plan for J to be placed with his great-aunt. They sought to withdraw their application for a Placement Order and that was approved. 

Just days later the LA changed their mind. Nobody really knows why the LA changed their mind at that stage and they didn’t entirely refuse to support the great-aunt – they just said J should be placed under a Care Order with her, which would mean she needed to become an approved foster carer. (That process is an entirely separate story.) 

Remember, the great-aunt is still not a party or represented. 

So in December 2018 (week 51) the LA are still planning to increase contact and it is agreed there should be another ISW addendum that assesses this increased contact to make a final recommendation. The increased contact leads to one of the fundamental disagreements between the LA and the great-aunt. 

The contact was so good the independent observer (‘DJ’) repeatedly requested to progress it. He wrote copious notes that contained very few, if any, criticisms. His requests to the LA to progress contact received no response and his notes (having supervised 75% of the contact, equating to 36 hours) were largely excluded from the Court bundle. 

The Court of Appeal observed:

“It is unfortunate that DJ was not called. It is, in my judgment, no answer for the local authority to say in its defence that the (unrepresented) great-aunt did not require DJ to be called, or that DJ’s role was not to assess but to supervise.” 

“The judge was put at a distinct disadvantage by on the one hand having an unmanageable number of contact records put in front of her but without a complete set of the most recent and relevant ones.”

“It is hard to see how the picture painted by DJ, but not put before the court, tallies with the final evidence filed by the social worker…”

“It should be emphasised also that the local authority have a duty to put an even-handed case before the judge. The judge had only evidence that the great-aunt still required ‘prompting’ at all contact visits. DJ should have been called to give evidence and his notes should have been available to the judge and the ISW. It is frankly disingenuous to say that DJ’s role was mere supervision and that he was not assessing contact…. Even if the outcome was ultimately the same, the result was that the great-aunt might reasonably feel that an uneven picture had been presented to the judge.”

At this point in the proceedings the ISW filed a further addendum which concluded that the great-aunt was still not ready or capable of meeting J’s needs; and the LA issued another placement application. 

Only now was the great-aunt made a party to the proceedings, ten months after she had applied to be joined. 

In those ten months various Orders had been made that referred to her and her position, that suggested she should receive funding from the LA for legal advice (if they supported her) and that she should give evidence ‘if advised’ without clarifying who should advise her. 

The Guardian’s report relied upon the ISW’s final report and the Court of Appeal found that she did not fairly reflect the many positive aspects of the great-aunt’s care or adequately reflect just how finely balanced the decision whether to place J with his great-aunt had been. 

The next thing that went wrong was that the final hearing was heard by a judge who had had no previous involvement with the case. She was not given most of DJ’s contact records and did not hear from DJ. She had an unrepresented party, a local authority who failed to be even handed and a Guardian who did not challenge the local authority on their case management. 

When HHJ Bush decided against the great-aunt and made a Placement Order for J she failed to provide a satisfactory judgment. She failed to explain why she made the decision she did. The Court of Appeal found that her judgment: 

• “contains very little background or detail of the evidence she heard”

• “does not deal specifically with the oral evidence of the ISW”

• contains a finding that “seems to be wholly contrary to the totality of the written evidence of the ISW” which “represents a profound defect in the judgment”

• contains “no reference … to evidence which undoubtedly should have been put on the other side of the scales, that is to say the great-aunt’s complete love of and commitment to J”

• makes a finding of “actual risk” but “does not identify any evidence in support of a finding of “actual risk” which was, as the court understands it, not one sought by the local authority”. 

• makes no reference to the local authority’s “’U Turn’, and what had changed in terms of risk in a matter of weeks”

• and does not contain “reference to the great-aunt’s many strengths which had been identified throughout the assessment process”. 

The Court of Appeal concludes that the “judge gave inadequate reasons and failed adequately to analyse important factors” and “when criticising the great-aunt, it would appear that, on occasion, she misunderstood or misinterpreted the evidence”.

“Without a clear consideration of both sides of the equation, the judge cannot hope to reach a proper balanced decision.”

“It is not possible from the reasons as articulated by the judge for the court to be satisfied that the making of a placement order would be a proportionate outcome for J.”

So why does this all matter? 

It matters a great deal to my client and to J, who is now living with his great-aunt; but it matters more generally too. 

There is a great deal of debate currently about transparency in the family courts that centres around the mistakes that are made in ‘secret’ courts and local authorities not being held to account for the way they treat families. 

In this case it must have been impossible for this family to understand why they were being treated in this way by the local authority – who first supported an assessment of the great-aunt (quite properly); then didn’t support her and sought a Placement Order; then did support her and withdrew their application for a Placement Order; then still supported her and agreed to J moving in to her home; then finally, didn’t support her and sought a Placement Order again, and presented an unbalanced, unfair case against her. All while she had no lawyers to help her. 

Setting transparency alongside confidentiality for families is a difficult balance, undoubtedly, for those involved in the family justice system, but the more we are made aware of these kinds of cases, these kinds of mistakes and injustices, the more the move toward transparency will gain momentum. 

It also matters financially to J’s great-aunt. She was not eligible for legal aid during the care proceedings and she privately funded her appeal. 

Costs

Which leads me to the second Court of Appeal judgment on costs:

W (A Child), Re [2020] EWCA Civ 77 (05 February 2020)

A costs order was made against the local authority as a result of their “failure to be even-handed in their presentation of the case at first instance and thereafter a failure to recognise (save to a very limited extent) that the judgment as drafted could not justify the order that was made”. 

It was accepted that the great-aunt had spent substantial sums of her own money during the previous proceedings in renovating her home so it was suitable for J to live there, and she then spent substantial sums of her own money in taking the case to the Court of Appeal to challenge the decision to permanently remove J from his family. The costs awarded to her are only a contribution to her costs, not all of them. 

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. 

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. 

Thanks for reading!

Feature pic: seeing eye by Valerie Everett on Flickr (creative commons)