This is a post by Emily Ward. Emily is a barrister based at Broadway House Chambers and is Deputy Head of the Family Team. She practises in all areas of family law, and has a particular interest in matrimonial finance and complex children cases. Emily tweets as @e_v_ward
This case is about a little boy, J, who was approaching three years of age at the time the decision was made. His mother was 19 when J was born and she was living with J’s father. The local authority issued care proceedings in relation to J in August 2018. The proceedings began as J suffered a number of injuries whilst he was in the care of his mother and a Mr K. At a hearing before His Honour Judge Jack (‘the Judge’) findings were made that the mother had suffered serious abuse at the hands of J’s father.
The hearing before the Judge was supposed to be the final hearing in the case, where final decisions were made for J. However, the local authority changed their proposed plan for J’s future care. The initial plan was a plan of adoption, but the proposed plan was changed to a plan for J to be rehabilitated back to the care of his mother, and her then partner, Mr M.
The rehabilitation plan did not last very long, as only a few days after the start of this placement a violent incident occurred between J’s mother and Mr M. J was present. The police were called and J was returned to his previous foster care placement. At the time of the hearing before the Court of Appeal, which this write up concerns, J remained in foster care. The violent incident described above resulted in J’s care plan reverting back to a plan of adoption.
Hearing: 18 February 2021
The Judge dealt with a hearing on 18 February 2021. A number of applications (which need not be set out here) were made. They were refused by the Judge. None of these decisions were appealed.
At this hearing, the Judge listed a final hearing which was estimated to last for ten days. Some court time was identified in April before a Deputy Circuit Judge, and some time was also identified in June in front of the Judge. The local authority and the other parties wanted the hearing to take place on the earlier dates; J’s mother wanted the hearing to take place on the later dates. Importantly, J’s mother is pregnant and her expected due date is 5 May 2021. After receiving an email which contained details of the parties’ preferences, the Judge decided that the case would be listed in April.
The local authority then made an application for directions and J’s mother made an application seeking an adjournment of the final hearing.
J’s mother set out her arguments in a written document, which is sometimes called a ‘skeleton argument’ or ‘position statement’. She was concerned that her first birth (J’s birth) was not without difficulty; she had to be induced due to J stopping growing. J’s mother also raised that she would be heavily pregnant at the time of the final hearing, she would be unable to take an active part in the hearing and that a fair hearing could not take place.
In the same document, the Judge’s attention was brought to the Equal Treatment Bench Book (more on this later), within which there is a section about pregnancy, maternity leave and breastfeeding.
The local authority, J’s father and J’s guardian opposed the application for the final hearing to be adjourned.
The local authority made the following points in it’s written document:
12. The position of the Local Authority is that the hearing as listed in April should go ahead. The case is ready for a final hearing. There is no necessity to extend these proceedings any further and the Court will have all the information it needs at that stage to make decisions in this case. These proceedings have now been ongoing for some 2 years and 7 months and the question here really is, how many more years can this case be expected to continue?
13. The paramount consideration for the Court is the welfare of the child (section 1(1) Children Act 1989) and any delay in determining the questions in the case is detrimental to the welfare of the child (section 1(2) Children Act 1989).
14. Whilst it is appreciated that it is far from ideal for the final hearing to proceed whilst the mother is some 8 months pregnant, this must be balanced against the prospect of a delay of another 4 months for this child and proceedings hitting the 3-year mark. It is in the interests of justice for this final hearing to proceed without delay.
15. If the adjournment is granted, further applications are likely to be made by the mother for further adjournments before the next listed final hearing. The Local Authority would submit that the needs of J of stability and certainty in his life should be the paramount consideration, and in the Local Authority’s submission, the child’s right to a private and family life out of proceedings outweighs the mother’s case for an adjournment.
16. It is the Local Authority’s position that the mother would receive a fair trial, and simply being pregnant is not a reason to suggest that she would not. No medical evidence has been provided to the Court to suggest that the mother has any particular difficulties with this pregnancy as suggested within the skeleton argument by reference to the early delivery of J.
17. There are a number of participation considerations that can be given to the mother. Namely, that the mother give evidence over video link and attend from the comfort of her own home. The mother to not be expected to attend Court in person (paragraph 30, Equal Treatment Bench Book). The mother can also be afforded regular breaks throughout Court days. It is not anticipated that the mother’s evidence would last any longer than an absolute maximum of one day even with regular breaks. It is anticipated that the mother would give evidence on Day 3, namely the 10th April, which is nearly 1 month away from her due date.
18. The Equal Treatment Bench Book is not law. It is guidance that the judiciary are encouraged to take into account, and in the Local Authority’s view, the above participation considerations do take that guidance into account when balancing the mother’s pregnancy against the Court’s paramount consideration and the interests of justice. The delay would be detrimental to J and an extension of proceedings should be granted only if necessary and if the Court is not equipped to make decisions (Re B-S).”
On balance, considering the length of the proceedings already and the need to avoid further delay, the Guardian supported an April hearing.
The Judge refused to adjourn the final hearing and he dismissed the application.
This is the reasoning given by the Judge for his decision:
Yes, it is a difficult one. Certainly not an easy decision. I’m just reminding myself again of what was in the LA’s position statement. This case has run far too long already, not the fault of anyone. Not in J’s interest to continue to run and run. Whilst taking on board all of the arguments raised on behalf of Mother, I do take the view that it is desirable, if at all possible, that the hearing should be completed before she gives birth. Also, mindful there are risks with starting a hearing in April, highlighted by Miss S [mother’s solicitor], and yes, it may go wrong but overall, I take the view that attempt should be made to hear the case. There’s no guarantee it’ll work but it’s important to try to make it work for that to be attempted. Of course, Mother’s best interests need to be considered, there will have to be breaks, if worst comes to worst, hearing may need to go off. My view is that on balance, it is right it should proceed in April and it is important to try and make this work for J and on balance the hearing should proceed. Everyone will have to do their best to try make sure that that works. That is my decision in relation to that. Indeed, if it can be done, Mother may not see it in that way now, but it is likely to be better for her to have these proceedings over and done with before giving birth.
The court order which was drawn up after the decision contained the following information (often called a recital or a recording’):
“AND UPON the Court determining in an ex tempore judgement that it was desirable for the proceedings to be completed before the mother gives birth, that it was important for J given the delay in this case for matters to be concluded without delay, and that although the listing was not without risk, it was sufficiently important to make matters work and consideration should be given to the mother throughout that hearing by providing regular breaks accordingly.”
J’s mother made an application to appeal to the Court of Appeal. She appealed the decision to refuse the adjournment of the final hearing. The appeal was made on the basis that:
- the Judge placed insignificant weight upon the manner in which the mother’s pregnancy would affect her ability to partake in a final hearing, and
- because he placed too much weight on the need for the case to be finalised without further delay.
A successful appeal against a case management decision, which this was, is really quite rare. However, this was one of those rare cases, as the Court of Appeal granted the appeal.
The judgment which has been published by the Court of Appeal can be read in full here.
The Court of Appeal reiterated some basic concepts in the judgment. In summary they are these:
- The decision not to adjourn a trial, as was being sought in this case, is a case management decision.
- The welfare paramountcy principle under s. 1 (1) of the Children Act 1989 (which basically means that the child’s welfare is the paramount consideration for the Court) applies when a court determines any question with respect to the upbringing of a child. It does not apply to case management decisions.
- The ‘touchstone’ for case management decisions is justice, not welfare, though in a family case welfare plays an important part in the assessment.
- The overriding objective in Rule 1 of the Family Procedure Rules 2010, which requires the court to deal with a case justly, having regard to any welfare issues involved. That includes ensuring that it is dealt with expeditiously and fairly.
- The delay principle under s. 1 (2) Children Act 1989 – which provides that in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child – does apply to case management decisions.
- The 26 week timetable for proceedings to be disposed of, which is also set by statute, also applied.
In this case the Judge did not state what test he was applying, and it was not clear whether he was influenced by the incorrect submissions about the welfare principle.
At the hearing before the Judge, the Judge was referred to The Equal Treatment Bench Book (‘ETBB’). This is a text produced by judges, for judges. It is the product of serious thought about fairness in the conduct of legal proceedings. Its guidance should be taken into account wherever it is applicable. The ETBB is available to all to read here.
The Court of Appeal felt the ETBB was applicable here, and despite the Judge being referred to it by the advocates, he did not mention it. The ETBB advises the court to achieve sensitive listing. It advises that a woman in the last month of pregnancy should not be expected to attend a court or tribunal unless she feels able to do so. Whether that refers to physical attendance or to participation, the Court of Appeal stated that the Judge should have addressed the fact that his order was not in accordance with the guidance. The “try it and see” approach adopted by the Judge is what the guidance clearly aims to avoid.
The Court of Appeal also said that the guidance is there to protect women from the argument, which was made in this case, that there is no medical evidence of any particular risk to the pregnancy. It was not for the mother to put forward additional medical reasons to justify her request for postponement; if such evidence exists it may add to the picture, but its absence does not weaken the guidance.
The final hearing in this case ‘will be of very considerable importance’ for J and J’s family. As the Court of Appeal pointed out, it will determine J’s future and will very likely influence the future of the unborn child, for whom proceedings are also contemplated. The following paragraph from the judgment is helpful to repeat in full:
A hearing in these circumstances is bound to be exceptionally stressful for a person in this young mother’s position, and her experience of her first pregnancy can only exacerbate matters. Her evidence will doubtless be significant, and she will face cross-examination. The Local Authority has suggested that she need not attend court in person and that she could give evidence by video link and attend the rest of the hearing “from the comfort of her own home”. This overlooks the important fact that a party participating in a court hearing remotely is still attending court and should be able to engage fully with the process. The mother is in any event entitled to expect that she could attend for the whole of the hearing in person if she wants, and certainly that she should be able to choose to attend court to give evidence: indeed we are told that the court was willing to accommodate that.
The decision of the appeal court was that the Judge did not sufficiently grapple with these matters. There were numerous difficulties identified. The court imposed a date, despite being told of the mother’s situation and that of her advocate. The Court of Appel found that the starting point, which did not happen, was to identify the likely practical arrangements for the hearing. A general intention to allow breaks in proceedings, whatever their format, does not remedy the position if the hearing should not be taking place at all. Then, no adequate consideration was given to the mother’s anxiety, expressed with moderation, at the prospect of having to participate in such a heavy hearing during her last month of pregnancy. Rather than engaging with her concerns, the Judge told her that it would be better for her if the hearing went ahead, and he did not refer to the fact that she would be doing so without her advocate of choice in a case with a long history.
Ground One of the appeal was therefore successful.
Although the Court of Appeal said that there was ‘obvious good reason to be concerned about the impact on J of the disturbing length of these proceedings, which, after 2½ years, are now in week 135’, the Judge needed to consider the actual consequences of further delay for J and the fact that he is in a familiar and potentially permanent foster placement was clearly of some relevance.
The Court of Appeal made the point that there are some family cases that must be heard although a party is at a disadvantage, giving the example of interim care orders at the time of a new birth which are sometimes inevitable for the protection of the baby, and there will also be cases where short, procedural hearings can quite properly take place when substantial trials cannot.
The original Judge did not explain why avoidance of further delay was such an overriding consideration. Ground Two of the appeal was also made out.
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