B v A Local Authority & Ors  EWFC 154 (21 August 2023)
- The case relates to an appeal of the Children’s Guardian against the decision of the lay magistrates to refuse the application of the Children’s Guardian for a full Friends, Family, or other Connected Carers assessment of the paternal grandparents by an ISW at an IRH. The magistrates dismissed the application for an ISW assessment by order of 9 August 2023 on the basis that such an assessment was not necessary to enable them to deal with the proceedings justly. The Children’s Guardian appealed the case management decision of the Lay Justices on the basis that their decision was wrong and that they had incorrectly stated that in making their decision the child’s welfare was not their primary consideration. The appeal was dismissed and the appeal Court concluded that the Lay Justices had applied the right test and that any challenge to the viability assessment should take place at the final hearing. This case helpfully reminds us of the test to be applied by the Court in making case management decisions and the circumstances in which an appeal Court will consider those decisions wrong.
- The Local Authority had undertaken an initial viability assessment of the grandparents which was negative raising concerns about their age and insight of the concerns. The grandparents initially stated that they were unable to be considered for long term care due to their age but later mentioned the possibility of caring for the child for five years until another family member could take over.
- The Children’s Guardian at the IRH sought an assessment of the grandparents by an ISW. In his analysis, the Children’s Guardian said this, “F and G, paternal grandparents have submitted an application to the Court seeking to challenge the outcome of their viability assessment, E35-49. I note the Local Authority’s evidence and accept that F and G have been given ample opportunity to challenge their assessment before these proceedings were issued and during these proceedings, however, having met with F and G on 18 July 2023, they outlined to me that up until recently, they were under the impression that the plan for C would be for him to be rehabilitated to his parent’s care. F and G’s application stems from being informed that the local authority seek to pursue a plan of adoption for C. I found F and G to have good understanding of the risks posed to C by his parents and what a kinship placement would mean for C, mostly with regard to this being in place throughout the rest of his minority. I outlined to the grandparents that any placement of C with them, would not be a bridging placement, as there is no guarantee that C’s parents will make the necessary changes in the future, should the Court deem it not safe for him to be placed in their care. F and G appeared to understand this and informed me they continue to seek to be assessed as kinship carers for C. Of course, the grandparents are protective of their son and D, they did advocate for them throughout my meeting with them, which would be something that needs further exploration via a full fostering, special guardianship assessment, in my view. The Local Authority’s viability assessment outlines concerns in relation to the paternal grandparents and why the assessment concludes negatively. If the Court is minded to endorse my recommendation of further assessment of them, then the local authority should consider what intervention can be done with F and G to assist them in bridging these gaps during their assessment.
- The Magistrates refused the application for an ISW assessment of the paternal grandparents on the basis it was not necessary and would course unnecessary delay to the proceedings.
- The Children’s Guardian subsequently appealed the case management decision of the Lay Justices to refuse the ISW assessment of the grandparents on the basis that their decision was wrong.
- In their written reasons, the magistrates identified the legal basis for consideration of the application correctly, they identified the need for the Court to have regard to delay which was likely to prejudice the welfare of a child in section 1(2) of the Children Act and the Adoption and Children Act 2002, section 1(3). They correctly identified the statutory requirement for courts to complete public law cases within 26 weeks, pursuant to section 32 of the Children Act. However, they reminded themselves that justice should not be sacrificed on the alter of delay. They correctly identified that the Court is not required to hold that the child’s welfare is the paramount consideration when making case management decisions. The solicitor on behalf of the children said this, in the grounds of appeal, paragraph four:
“The Court wrongly determined that a child’s welfare is not a paramount consideration when making case management decisions, showing no understanding of the fundamental premise of the Children Act 1989, and therefore approaching the application on a fundamentally flawed basis. The welfare of C is paramount in all decisions made by the Court in these proceedings.”
When considering the grounds for appeal the appellate Court stated in so asserting, the solicitor for the child was making a submission that was fundamentally flawed. Section 1 of the Children Act states, “When a Court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration.”
- The appellate Court stated, here the Court was not making a decision with regard to the upbringing of a child, it was making a case management decision, and in particular a decision on whether to direct further expert evidence. Therefore, the magistrates were correct in identifying that the appropriate statutory tests under section 13(6) Children and Families Act 2014 and the criteria set out in section 13(7) of that Act. In addition, the Magistrates were right to bear in mind the Overriding Objective, set out in the Family Procedure Rules of 2010 and in particular Rule 1.1, which provides criteria which define dealing with a case justly on an inclusive basis.
The Law: Appeals against Case Management Decisions
- The Family Procedure Rules for 2010, Rule 30.12(1) states:
“Every appeal will be limited to a review of the decision of the lower court …
(3) The appeal court will allow an appeal where the decision of the lower court was wrong.”
- This is an appeal against a case management decision of the magistrates. I accept the submission made that a case management decision should not be interfered with or reversed by the appellate court, unless it is wrong, in the sense of being outside the generous ambit where reasonable decision makers may disagree.
- In Re TG (A Child)  EWCA Civ 5, Sir James Munby, the then president of the Family Division, said this,
“Fourth, the Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: Deripaska v Cherney  EWCA Civ 1235, and Stokors SA v IG Markets Ltd  EWCA Civ 1706. Of course, the Court of Appeal must and will intervene when it is proper to do so. However, it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: Royal & Sun Alliance Insurance plc v T & N Limited  EWCA Civ 1964, Walbrook Trustee (Jersey) Ltd v Fattal  EWCA Civ 427, and Stokors SA v IG Markets Ltd  EWCA Civ 1706. This is not a question of judicial comity; there are sound pragmatic reasons for this approach. First, as Arden LJ pointed out in Royal & Sun Alliance Insurance plc v T & N Limited  EWCA Civ 1964, paragraph 47:
‘Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process.’
Second, as she went on to observe:
‘the judge dealing with case management is often better equipped to deal with case management issues.’
‘The circumstances in which this court can or should interfere at the interlocutory stage with case management decisions are limited. Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case which they are managing. This court can intervene only if there has been serious error, if the case management judge has gone plainly wrong; otherwise, the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals.’
As Black LJ very recently observed in Re B (A Child)  EWCA Civ 1742
‘a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.’”
- In the case of Re P (Care Proceedings: Balancing Exercise)  1 FLR 824, the Court of Appeal refused an appeal against a case management decision from a circuit judge, refusing an application for assessment by a psychologist of the father’s parenting capacity following the Local Authority’s negative parenting assessment of the father. In giving the lead judgment of the Court of Appeal, Black LJ said this at paragraph 56,
“In my view, the judge was not wrong to refuse the assessment the father sought. Case management decisions of this sort are particularly hard to appeal, and, in this case, it cannot be said that the judge overlooked any considerations which were material. An assessment such as Local Authority's parenting assessment of the father can be challenged in ways other than obtaining a competing assessment. If the facts upon which the assessment has proceeded are wrong, they can be disputed. If the opinions are flawed, that can be explored in cross examination, the author of the report being taken to the material which undermines or contradicts the conclusions he or she has drawn. Or, as the guardian contemplated here, a party can take steps to address the problems that have been identified and/or that he or she acknowledges.”
- In making case management decisions and starting from first principles, the Court must further the overriding objective to deal with cases justly, having regard to the welfare issues involved. Rule 1.1(2) of the Family Procedure Rules for 2010 provides that:
“Dealing with a case justly includes, so far as is practicable,
(a) ensuring that it is dealt with expeditiously and fairly,
(b) dealing with the case in ways which are proportionate to the nature, importance, and complexity of the issues,
(c) ensuring that the parties are on an equal footing,
(d) saving expense,
(e) allotting to it an appropriate share of the Court’s resources, while taking into account the need to allot resources to other cases.”
- Rule 1.4 imposes a duty on the Court to manage cases actively, active case management includes identifying the issues at an early stage, 1.4(2)(b)(i); deciding promptly which issues need investigation and hearing and which do not, 1.4(2)(c); and considering whether the likely benefits of taking a particular step justify the cost of taking it, 1.4(2)(h).
- The primary legislation, the Children Act 1989, recognises the general principle that any delay in determining the question is likely to prejudice the welfare of the child (section 1(2)). In Public Law proceedings, this principle is given sharp focus by section 32 of the Children Act, introduced by the Children and Families Act 2014, which requires the Court to:
“(a) draw up a timetable with a view to disposing of the application-
(i) without delay and
(ii) in any event within 26 weeks beginning with the day on which the application was issued; and
(b) if such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that the timetable is adhered to.”
- Subsection (3) requires the Court to have particular regard to the impact which the timetable would have on the welfare of the child to whom the application relates and on the conduct of the proceedings. The 26-week requirement was introduced as a means of driving the length of care cases down. The philosophy behind it was well expressed in 2011 in this extract from the Foreword to the Family Justice Review by Sir David Norgrove,
“Here, all the dedication to family justice can harm children, not help them. Having read dozens of replies to our consultations, I was struck by the way in which almost every group thought things would be better were they allowed to do more, including judges, magistrates, social workers, and expert witnesses. Hardly anyone thought they themselves should do less. The reality, of course, is that time and money spent on one child means less time and money available to help another. Dedication to achieving the best possible result for one child comes at the hidden expense of another whose case is delayed or whose social worker has come to court again, when they might have been working to help another child to remain safely within the birth family.”
- Sir Andrew McFarlane, President of the Family Division gave guidance in June 2020, entitled the Road Ahead, and in June 2021, the Road Ahead 2021. The key message of the first document advocated a significant change in time management, paragraph 43:
“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 timely determination of applications, there will need to be a very radical reduction in the amount of time that the Court afford to each hearing. 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 is necessary for the Court to hear.”
- At paragraph 47, it quoted elements of the overriding objective, it stated:
“In these times each of these elements is important, but particular emphasis should be afforded to identifying the welfare issues involved, dealing with the case proportionately in terms of allotting to it an appropriate share of court’s resources and ensuring an equal footing between the parties.”
- Family Procedure Rules 2010, part 25.4 states
“The Court may give permission for expert evidence, only if the Court is of the opinion that the expert evidence is necessary to assist the Court to resolve the proceedings.”
- Section 13 of the Children and Families Act 2014, states:
“The Court may give permission only if the Court is of the opinion that the expert evidence is necessary to assist the Court to resolve the proceedings justly.”
- Section 13(7) of the Children and Families Act 2014, provides:
“When deciding whether to give permission, the Court has to have regard in particular to
(a) any impact which giving permission would likely have on the welfare of the child concerned and the impact on the child of any assessment of them,
(b) the issues to which the expert evidence would relate,
(c) the issues with which the examination or other assessment would enable the Court to answer,
(d) what other expert evidence is available, whether obtained before or after the start of proceedings,
(e) whether the evidence could be given by another person on matters which the expert will give evidence,
(f) the impact which giving evidence would be likely to have on the timetable for and duration in the conduct of the proceedings,
(g) the cost of the expert evidence,
(h) any matters prescribed by the Family Procedure Rules.”
Reasons for dismissing the appeal
- On 16 January 2023, the President of the Family Division identified the need for Family Courts and the Family Justice System as a whole, to realign with the tenets of the Public Law Outline. He identified how the understandable consequence of the Covid pandemic had been that section 32 of the Children Act had fallen out of sharp focus. It was necessary, for the Family Justice System to succeed in its objective of providing timeous outcomes for children, to bring Section 32 and the Public Law Outline back into sharp focus. That drive came on the back of the final recommendations made by the Public Law Working Group, fully endorsed by the President. These identified the need to exert control over the number of experts that were being used by Family Courts and in particular identified independent social workers and psychologists as two disciplines where there was an overuse of experts. The Court already had the expert input from social worker and children’s guardian and therefore such applications should be scrutinised to ensure that they met the statutory tests.
- In this case, the Local Authority’s position is that it has assessed the paternal grandparents in the initial viability assessment, and that has resulted in a negative assessment on the bases set out above. It is the professional judgment of the social worker that there is no necessity to proceed to a full assessment. The Children’s Guardian does not share that opinion and suggests that there is such a need. There is, therefore, an issue between the two experts in the case.
- The application of the Children’s Guardian, with the support of the parents and the grandparents, is essentially to determine that issue summarily, by directing a further assessment by an independent social worker. In other words, the Court should not be satisfied with the viability assessment of the local authority and should start the assessment process again with another expert. The local authority object to that course.
- In my judgment, the appropriate venue to litigate that difference of opinion is before the trial judge, it is not a matter either for the appellate judge to determine, nor indeed to tribunal at an issues resolution hearing, unless it could be demonstrated that the assessment was flawed.
- I am not satisfied on the basis of the evidence put before the Court that that is a decision that can be made without all of the evidence being tested holistically by the trial judge.
- It may be that at final hearing, the trial judge reaches a judgment that the situation has changed sufficiently and that having conducted an analysis, applying section 13(6) and 13(7) of the Children and Families Act 2014, and bearing in mind the overriding objective, and having regard to the provisions of section 1 of the Adoption and Children Act and Children Act, that a full assessment of the grandparents is merited on the basis that there is a gap in the evidence that needs to be plugged, and the consequential delay is justified, notwithstanding the delay that has already been occasioned in this case.
- On the other hand, the trial judge may reach the judgment that the grandparents are being unrealistic in putting themselves forward as long-term carers for C, and that their late change of position, for it is accepted by them and the Children’s Guardian, that it is late, is driven by pure emotion rather than proper analysis of what is best for the child, and what they realistically can do. Alternatively, is driven by some other extraneous factors such as third-party pressure or guilt, or a combination of factors.
- However, in my judgment, if the Court at this stage directs a full assessment by the independent social worker, in the absence of demonstration that the initial viability assessment was flawed, (indeed on the basis of those matters set out in the initial viability assessment, if these matters were found by the trial judge, then the conclusion in my judgment would be justified) then the Court is essentially determining the application without considering all the evidence. It would be to pre-determine the issue. It would also drive a coach and horses through the clear direction of travel for the Family Justice System, repeatedly set out by the President of the Family Division and with full statutory justification.
- I am not satisfied that the magistrates were wrong in finding that they could not be satisfied that it was necessary for the Court to direct a full assessment by an independent social worker of the paternal grandparents. It cannot be said to have been a decision that was outside the generous ambit for their discretion. Having provided a correct analysis of the law, they identified that the grandparents had been subject to an initial viability assessment. It was clear they chose not to challenge the assessment timeously. They had considered the assessment to be fair and comprehensive. Only at week 19 did they seek to challenge this, despite many opportunities for the grandparents and the Guardian to respond earlier. They were made aware that adoption was a realistic option at the time. The application could significantly delay the final outcome. The social worker is an expert in her own right and gave full reasons as to why the viability assessment concluded negatively. This covered the potential conflict with regard to contact, which was accepted by the grandmother. She also acknowledged concerns around the impact of their age. H has been approached on four separate occasions, but was not in a position, or was unwilling to become a full-time carer. They were mindful that the case centres around permanent planning and one which could lead to adoption.
- Therefore, in my judgment, the grounds for appeal are not made out in this case. It is open to the grandparents to challenge the Local Authority’s assessment, indeed it is open to each of the other parties to challenge the Local Authority’s assessment of the grandparents, but the correct forum for that is the final hearing and not at an interlocutory hearing.