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appeals out of time in children law cases

S (A Child) (No’s 1 and 2): some learning points

Stephen Brown considers some learning points arising out of linked judgments recently handed down by the president.

Particulars of the case

In S (A Child) (No 1) [2015] EWFC 19, the president gave judgment following the retrial of an application by a local authority for care and placement orders.

S was born on 3.3.2013 and the local authority issued applications for care and placement orders with respect to him on 29.9.2013 when he was nearly 7 months old. Those applications were based, in part, on the father’s history of alcohol abuse and domestic violence, to which S had been exposed. During the first 6 months of S’s life there were 2 known incidents of domestic violence between the father and mother, to which S had been exposed. The father argued that he should be subject to further assessment, and that inadequate consideration had been given of the support his own mother and outside agencies could offer to him. On 24.3.2014, a lay bench made a final care order and, on 7.4.2014, a placement order.

Appeal against final orders

F appealed, out of time, against the final orders. The delay was at least in part because of difficulty securing legal aid. However, the intention to appeal had been communicated to the local authority.

Notwithstanding that communication, by the time the appeal came before a circuit judge, S had been placed with respective adopters. The circuit judge (HHJ Hudson) ordered a retrial on the grounds (inter alia) that there had been insufficient consideration of the support that could be offered to the father. The retrial was the hearing that came before the president.

The retrial

At the retrial, the father – supported by the mother – argued that S should be placed in his care under a supervision order. The local authority and the guardian were opposed. Everyone agreed that the only realistic options were rehabilitation to the father, or adoption.

Attempts to address the father’s issues

The father had made some attempt to engage in therapy and address his alcohol abuse. In an addendum parenting assessment, prepared for the retrial, the social worker acknowledged these efforts and went so far as to say:

‘Impressively, he has acted autonomously in accessing and completing a course in domestic violence and anger management… Given the lapse of time that has now taken place, it is evident that [he] has made progress and it would be unfair not to suggest the possibility that [he] would be able to provide good enough parenting to his son’.

The social worker’s concern – which must be a bind for many parents in this father’s position – was that his learning was ‘theoretical’ (ie he hadn’t had care of his son to put it into practice). The social worker was also concerned – and this must also be a bind for many parents in this father’s position, given the constrained timescales within which we all now work – that the father had not addressed the root causes of his alcohol-use and anger-management problems.

The president accepted that the father had taken steps to address his problems, including participating in courses. He accepted that ‘up to a point’, the father was in a better position at the retrial than he had been at the outset of the original proceedings to care for S. He set this improvement against:

(1) the fact that the father admitted some untruths in the early part of his evidence to the president, which the president took to be a sign that he was only beginning to acknowledge the extent of his problems

(2) the work which the father had undertaken had not addressed the root causes of his problems

(3) the fact that the father relationship with the mother was over did not guard against violence to future partners, to which S might be exposed.

The President said (paragraph 67):

‘At the end of the day, and stripped down to essentials, the question is whether S will be safe in his father’s care. I can have no confidence that he will be… There is in my judgment a very real, indeed a significant and substantial, risk that what has happened to him before will happen to him again… It is, in my judgment, a risk which is simply unmanageable’.

Learning points (1)

  • Generally: the case reminds us that the court need only consider – ie conduct its holistic analysis and balancing exercise of – realistic options.
  • For parents: if undertaking work (therapy, courses, etc), consider whether there are any options which will address (or begin to address) the underlying causes of an identified problem. Such work would meet (or begin to meet) the second of the 2 issues which the president set against the improvements made by this father. However, there is a need for realism in advising parents as to what can be achieved within the 26-week timetable.
  • For local authorities: the president gives a pithy formulation of the applicable test in evaluating the realistic options: will the child be safe if a particular option is taken? See also the 5-part exercise set out by Ryder LJ in Court of Appeal in CM v Blackburn and Darwen Borough Council [2014] EWCA Civ 1479, at paragraph 33. It is not supposed that ‘will-the-child-be-safe?’ is intended as a new or different test from that set out in the established case law, but it is an attractively to-the-point way of expressing the existing test.

Learning points (2)

In S (A Child) (No 2) [2015] EWFC 20 the president dealt with some of the fall-out from the above retrial. The following learning points are based on observations of the president, including observations of HHJ Hudson expressly approved by him:

  • The father could, and should, have lodged his appeal acting in person whilst applications for legal aid were pursued. This would have avoided the child being placed before the hearing of the appeal (and indeed – in this case – the retrial). NB: as set out above, the father’s solicitors had notified the local authority of the intention to bring an appeal, but the clear view of the president was that he could and should have done more.
  • The father’s solicitor should have written to the local authority on (at least) a second occasion, pointing out that the appeal was being pursued. (See my observation with respect to the point above).
  • The local authority should have acknowledged receipt of the original communication from the father’s solicitor, saying that the father intended to appeal.
  • Before placing the child for adoption, the local authority should have satisfied itself that the previously intimated appeal was no longer being pursued.
  • The local authority should have notified the father’s solicitor of the proposed placement in advance.
  • Overall (and this should have been common sense), the need was for the father’s solicitor to make sure a responsible person within the local authority had actually acknowledged receipt of the letter intimating appeal.

‘Frankness from the outset’

Once the local authority became aware that an appeal had been lodged out of time (remember that S had already been placed), they did not tell the prospective adopters for 6 weeks. Indeed, the retrial had been allowed before they were told. The president said that ‘Complete frankness was surely called for from the outset’.

In ordering the retrial, HHJ Hudson had directed an addendum parenting assessment to consider, inter alia, the practical support that could be offered. In part, the local authority addressed this within the assessment by saying that ‘the local authority would need to have discussion with [another relevant local authority]’. As the president said, ‘You do not identify what is needed by saying that you are going to discuss it with someone’.

Learning for local authorities

There is a learning point, for local authorities, of more general applicability here. Quite often, in my experience, local authority documents are highly ‘aspirational’ – in the sense that they will say ‘If/when X is returned to the care of Y, the [eg SureStart centre] could be approached for support’. Clearly, what is required is that the [eg SureStart centre] is approached and that details of the support they can offer are specified.

Stephen Brown

Stephen Brown specialises in public and private family law cases, appearing mainly for local authorities and parents, although he also represents guardians and other family members. Read Stephen’s profile.