EDUCATION AND TRAINING

Re H: Relief from sanctions and appeals out of time

The recent case of Re H (Children) [2015] EWCA Civ 583 highlighted some of the difficulties that can be encountered by parties acting in person in family proceedings, and the stark consequences that can flow from a simple failure to follow procedural rules.  The decision gives some guidance on the circumstances to be considered when deciding an application for relief from sanctions, namely an application for permission to appeal out of time.

 

The original proceedings involved the Local Authority applying for care orders in respect of four children. Ultimately, three of the children were made subject to supervision orders, remaining in the care of their Father.  The district judge at first instance then went on to make the youngest child subject to a care and placement order, with a plan of adoption.  By the time the case reached the Court of Appeal, all parties (including the Local Authority) were in agreement that the judge did not give sufficient reasons for his decision to place the youngest child for adoption (as required by the case of Re B-S [2013] EWCA Civ 1146) and conceded that the judgment would not stand up to scrutiny on appeal.

 

The Father wished to challenge the judge’s decision in respect of the youngest child. The difficulty for the Father arose (after – it seems – having been wrongly advised by his counsel that there were no grounds of appeal) when he lodged his own notice of appeal 20 days later than the 21 day time limit permitted by Family Procedure Rule 30.4.  The notice was considered by the circuit judge and refused, with short written reasons issued.  The circuit judge indicated that the Father could renew his application at an oral hearing, if he wished.  The Father, having been advised by his counsel that there were no grounds of appeal and having read the judge’s reasons for refusing him permission to appeal, then considered that there was no merit in making a further oral application and declined to do so.

 

The child was placed with prospective adopters shortly thereafter.  Some months later, an application was made for an adoption order.  The Father obtained fresh legal advice through solicitors and counsel, who promptly made an application for permission to oppose the adoption order.  This was refused by the district judge, but allowed on appeal to the circuit judge.  At the same time as this appeal, the Father’s original appeal against the making of the care and placement orders was redrafted and reinstated by his new legal team.  This fresh application was refused by the circuit judge, and that decision was subsequently appealed to the Court of Appeal.

 

It was conceded by all parties that, given the deficits in the judge’s original reasoning at first instance, if permission to appeal were to be granted by the Court of Appeal, then the appeal itself would be allowed.  The question was: should the Court of Appeal allow the Father permission to appeal the original decision, now eight months on?  The issue the Court of Appeal had to grapple with was what weight – in the light of recent decisions in both the civil and family jurisdictions which have reiterated and promoted the importance of proper compliance with procedural rules to ensure efficient administration of justice – should be given to consideration of the relative merits of the proposed appeal, when deciding whether to allow relief from sanctions.

 

Ultimately, the Court of Appeal granted the Father permission to appeal, allowed the appeal, and remitted the case for a re-hearing.  This was because the proposed appeal was clearly very strong on the face of it, and would not require much further investigation.  The judge had erred in suggesting that the appeal was “arguable” but “not unanswerable”.

 

The Court of Appeal recognized that this has had very significant consequences for all parties, not least the proposed adopters, who were represented at the hearing as interested parties.  They had accepted the child without any indication that there would be a likely challenge from the birth family. The child had now been living with them for several months, however, its future – and the question of whether it could return to live with the Father – once again needed to be decided.

 

The Court of Appeal recognized the stark consequences that can befall any party or child in family proceedings when there is delay, but declined on this occasion to distinguish family cases from any other civil jurisdiction.  That question appears to have been left open:

 

“As I indicated at the start of this judgment it is not my purpose to suggest that the approach in family cases should differ from that applied in the ordinary civil jurisdiction. It is a point that could be left open for another day in a case where the merits are less strikingly clear as they are in the present case, yet the consequences of the order, namely implementation of an adoption plan, remain at the highest level of intervention and therefore consequence for the proposed appellant and his or her children.” (McFarlane LJ)

 

It was suggested by the Court of Appeal that all judges at first instance make clear to parties that any appeal should be launched within 21 days, and the fact that this advice had been given ought to be recorded on the face of any final order. Judges dealing with any application for permission to appeal out of time should do so with the utmost efficiency.

 

More and more often, parties are representing themselves in the Family Court. Sometimes, people have had no access to legal advice at all. The Family Court often deals with cases which involve very complex areas of law and procedure and it can be very difficult for litigants in person to properly manage and present their case in the best possible way. Sometimes, a very simple failure to follow the rules – often cause by misunderstanding – can have absolutely devastating consequences. It is always prudent to seek some form of legal advice if at all possible.

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Re BR (Proof of Facts) [2015] EWFC 41 – an examination by Jackson J of the proof of facts; a child’s likely pain response and an analysis of generic risk factors and protective measures in alleged NAI cases

The case of Re BR (Proof of Facts) [2015] EWFC 41 follows a fact-finding hearing held in private concerning a baby who sustained a very large number of fractures. The specific details of the fact-finding hearing do not form part of this judgment, nevertheless, the Honourable Mr Justice Peter Jackson makes a number of observations arising from issues raised during the course of that fact-finding hearing.

 

Jackson J addresses the followings issues in this judgment, namely the:

 

“(1) Proof of facts;

 

(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015); and

 

(3) An analysis of generic risk factors and protective factors.”

 

i. Proof of Facts

 

Jackson J provides a helpful overview of the standard of proof, namely the balance of probabilities; and emphasises that the burden rests upon the person asserting that particular fact. He comments that the “court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.”

 

ii. Evidence about a child’s likely pain response – Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015)

 

Jackson J considered the judgment of HHJ Bellamy in the matter of Re FM following reference to this case by the respondent parents, in particular paragraph 115 of that judgment. Jackson J quotes this paragraph and notes at paras 15-17 of his judgment the following:

 

“[15] Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.

 

[16] Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.

 

[17] In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.”

 

iii. Risk Factors and Protective Factors

 

Within his judgment Jackson J acknowledged that a helpful framework had been provided on behalf of the Children’s Guardian, following an analysis of information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals, of possible risk and protective factors that may assist the court when considering cases of this nature.

 

(For a further review of Re FM and its full judgment click here.)

 

 

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Case Law Updater – Private children law (March 2015)

Please find attached the March 2015 Private children law case update.

 

This has been compiled by Ricky Seal of No.5 Chambers.

 

Private law case updates will be posted on the website on a bi-monthly basis.

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Cases on threshold should be supported by facts – the impact of Re J (A Child) and Re A (A Child)

 

The Court of Appeal has recently determined the appeal of a mother against a care and placement order regarding her 8 month old son in the case of Re J (A Child)  [2015] EWCA Civ 222. The parents disputed some of the matters relevant to the threshold criteria and argued at the appeal that the analysis and evaluation of the local authority’s plan by the judge was not adequate. The appeal was allowed and the case was remitted to be heard by a different judge.

 

In his judgment Lord Justice McFarlane stated that the judgment in the first instance family court was “by a wide margin, wholly inadequate.”

 

Lord Justice McFarlane also summarised and endorsed the matters highlighted by Sir James Munby in his judgment in Re A (A Child) [2015] EWFC 11.  In that case the President of the Family Division stated:

 

“The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, fact A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z.”

 

 

 

 

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