Re H (A CHILD)[2018] EWFC 61

Re H (A CHILD) [2018] EWFC 61 concerned care proceedings which, as Sir James Munby (sitting as a judge of the High Court) observed, had by the time of the hearing on 12 July 2018 entered their 109th week.

The proceedings related to a boy born in January 2014 and his younger sister born in March 2016. In April 2016 the girl was admitted to hospital in critical condition, having suffered life-threatening injuries. Care proceedings were issued on 27 May 2016 in respect of both children. Following a fact-finding hearing in November 2016, His Honour Judge Simon Wood found that the injuries had been inflicted by the father and that the mother bore no culpability. Notwithstanding that exoneration, both parents were prosecuted. The mother’s criminal trial was listed for March 2017 but put back to 16 October 2017. On 27 October 2017 the jury was directed to return a not guilty verdict against the mother, and on 31 October 2017 the father too was acquitted.

The criminal proceedings caused the best part of a year’s delay since Judge Wood’s findings. The mother’s bail conditions seriously hindered the assessment of her capacity to care for the children, one of whom had significant ongoing disabilities and extremely complex needs. Despite this, applications to vary bail conditions were opposed by the prosecution and refused by the Crown Court. The mother also lost her accommodation, and the entire process subjected both the mother and the wider family to very considerable stress. By early 2018 the focus had shifted to finding suitable accommodation for the mother and the two children. Because of the daughter’s special needs and the mother’s need for proximity to her support network and the hospital, the search was protracted. A suitable property was identified in late May 2018, and on 10 July 2018 the mother was given the keys.

By the time of the hearing before Sir James, the accommodation issue had effectively been resolved. The parties were agreed that no directions were needed on that issue. Sir James directed the final hearing before Judge Wood for 13 August 2018 and ordered the local authority to serve by 17 July 2018 an action plan in tabular format setting out a timeline for necessary works to the property. On 14 August 2018 Judge Wood made a supervision order, thereby ending the care proceedings in their 116th week.

However, Mr Dorian Day, counsel for the mother, sought to use the hearing to address two broader questions: what can the family court do to avoid delay engendered by concurrent criminal proceedings, and what can the family court do when delay is caused by the acts and omissions of other government departments or agencies. Mr Day acknowledged the principle established in In re R (A Minor) (Wardship: Criminal Proceedings) [1991] Fam 56 and endorsed in more recent authorities such as Re A Ward of Court [2017] EWHC 1022 (Fam) that it is constitutionally improper for the wardship court to interfere with or undermine the criminal process or the criminal court. He nevertheless contended that, subject to procedural safeguards, it should not be constitutionally improper to witness summons the officer in the case to attend the family court to explain the need for bail conditions in light of the clear findings of the family court. Similarly, in relation to his second question and having referred to Re M and N (Parallel Family and Immigration Proceedings) [2008] EWHC 2281 (Fam) and Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, he submitted that subject to procedural safeguards it would not be at variance with Holmes-Moorhouse to witness summons the decision maker of a government department to answer to decisions and progress within their field that impact on and delay care proceedings.

Sir James declined either to embark upon the wide-ranging inquiry proposed by Mr Day or to adjourn to give the police, the CPS, and other third parties notice and an opportunity to respond. He gave several reasons for this decision. It was no part of his proper function to conduct a general investigation into the actions of the third parties in the case, nor to investigate the extent to which their actions or inactions contributed to the delay. Given the stage the proceedings had reached, nothing in Mr Day’s proposed process could make any difference to the mother, the father, or the children, or to the outcome of the care proceedings. The urgent imperative was to bring the very seriously delayed proceedings to as speedy a conclusion as possible. No good reason had been shown why further public funds should be spent in relation to proceedings which had already consumed very considerable public resources. Crucially, to the extent that it was appropriate to address Mr Day’s questions, there was in the judge’s view no need to adjourn. Given the state of the authorities and the relatively limited ambit of anything he could properly decide, there was no need to give notice to any of the third party decision makers. He was satisfied that there was neither unfairness to anyone else by not giving further opportunity to answer Mr Day’s submissions nor any real prospect of his judgment being sufficiently improved by such an exercise as to justify any further delay.

Sir James then proceeded to set out the relevant legal principles in considerable detail. He began with the fundamental principle articulated in a series of cases in the House of Lords and the Supreme Court, including A v Liverpool City Council [1982] AC 363, In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, and N v A Clinical Commissioning Group and others [2017] UKSC 22. That principle, as explained by Lord Scarman in A v Liverpool City Council, is that the High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority.

This fundamental principle has two corollaries. First, a family court cannot dictate to another court or agency how that court or agency is to exercise its powers. Secondly, absent statutory provision to the contrary, the ambit of family court judicial decision-making is constrained by the extent of the resources made available by other public bodies. The family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade. The family court can seek to persuade but must not apply pressure, as Baroness Hale of Richmond held in Holmes-Moorhouse. These principles apply whether the case is in the Family Court or the Family Division of the High Court or in the Court of Protection, and whether it is a private or a public law case. The High Court has no greater powers in this respect than the Family Court, even if the child is a ward of court.

Sir James referred to what he had said in Re M and N about the need for the fullest and most up-to-date information where the outcome is dependent upon or is likely to be affected by the decision of some third party such as a local authority housing department, the Secretary of State for the Home Department, the Crown Prosecution Service, or an NHS Primary Care Trust. In such situations, consideration needs to be given at the earliest possible stage as to whether and if so how that third party decision maker should be brought into some appropriate form of direct engagement with the family proceedings. Sir James noted that while his decision in Re M and N had referred to the then recent decision of the Court of Appeal in Holmes-Moorhouse, the Court of Appeal’s decision was subsequently reversed by the House of Lords. What Lord Hoffmann said in the House of Lords was of great importance: the third party decision maker should not be made an intervenor in the family proceedings and should not be required to argue its case. Lord Hoffmann had emphasised that it would be helpful for the court to know what accommodation, if any, a housing authority is likely to provide, but the provision of such accommodation is outside the control of the court, which has no power to decide whether the reasons why the housing authority declines to provide such accommodation are good or bad. The two procedures for deciding different questions must not be allowed to become entangled with each other.

Nothing in what Lord Hoffmann said affects the general thrust or most of the detail of what Sir James had said in Re M and N. The family court can properly seek from the third party decision maker information as to what has happened and as to what it is anticipated will or may happen, and where necessary documents. Moreover, if this is necessary to enable the family court to perform its task and to come to a decision on the matter before it, the family court can legitimately ask the third party decision maker to explain why it has come to its decision and, if this is necessary for the family court properly to understand the decision, to probe the proffered explanation, if need be by asking searching questions. What, in contrast, the family court cannot legitimately do is to require the third party decision maker to justify its decision, let alone with a view to putting it under pressure to change its decision. Where one draws the line between explanation and justification may be difficult, but the principle is clear. It is not for a family court to require a third party decision maker to justify its decision; that is a matter, if at all, for the Administrative Court exercising its powers of judicial review. It is not a proper function of the family court or the Family Division to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court.

It is also clear that the family court can, if this is necessary to enable it to dispose of the proceedings before it justly and fairly, make an order requiring the third party decision maker, or an individual specified by the family court for the purpose, to disclose relevant documents or to give evidence. The jurisdiction to make such an order is plainly conferred by section 31G of the Matrimonial and Family Proceedings Act 1984, and there is nothing in section 31G itself, the provisions of the Family Procedure Rules, the case-law, or in principle to exonerate the police, the CPS, or any other public agency or authority from the reach of section 31G. However, section 31G goes to the power of the court to make an order for the disclosure of documents or the giving of evidence; it does not empower the court to disregard the principle that although the court can demand an explanation it cannot require the third party to justify its decision.

It follows from the principle in A v Liverpool City Council that a family court cannot dictate the contents of its care plan to a local authority. The duty of any court hearing an application for a care order is carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order. However, it is important to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion. That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once. How far the court can properly go down this road is a matter of some delicacy and difficulty. In an appropriate case the court can and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking. Rigorous probing, searching questions, and persuasion are permissible; pressure is not.

Not infrequently, an important component of the appropriate care plan will be input from services to be provided by another public authority, for example health care to be provided by the NHS as part of a holistic care plan or social housing to be provided by another local authority. In such a case the family court can engage with the third party decision maker both indirectly, by requiring the local authority as part of its consideration or reconsideration of its care plan to discuss and negotiate with the third party, and directly by the court making orders against the third party of the kind already described.

Sir James referred to two protocols he had issued in 2013 which were designed to facilitate the exchange of documents and information between the family justice system and, respectively, Immigration Tribunals and the criminal justice system. The Protocol and Good Practice Model: Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal and Care Directions Hearings, issued jointly with the then Senior Presiding Judge and the then Director of Public Prosecutions, went further than mere disclosure. While Parts A and B dealt with disclosure into and from the family justice system, Part C dealt with Linked Directions Hearings, applicable where a person connected with the child who is the subject of care proceedings or the child himself is to be tried at the Crown Court for any violent or sexual offence or for an offence of child cruelty against the child or any other child or any person connected with the child. Sir James noted that Part C did not apply to cases where the child is to be tried in the Youth Court, nor to any offence other than a violent or sexual offence or an offence of child cruelty.

Underpinning both protocols is a vitally important point Sir James has repeatedly made: subject always to the imposition of any necessary safeguards and conditions, family courts should not stand in the way of, and should on the contrary take all appropriate steps to facilitate, the proper administration of justice elsewhere. This principle is equally applicable in relation to the civil justice system and in relation to proceedings or proposed proceedings before the European Court of Human Rights. Sir James indicated that he would anticipate ready recognition of the reciprocal principle by the criminal, civil, and tribunals justice systems.

Sir James expressed the view, based on his own judicial experiences and too much anecdotal information, that these protocols are not working as well as one would wish. Recent discussions by Francis J in Re L (A Child) [2017] EWHC 3707 (Fam) and by Gwynneth Knowles J in Lancashire County Council v A, B and Z (A Child: Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) surely demonstrate, at least in relation to Part A, that the criminal Protocol and Good Practice Model is not working as it should and as it must.

Part A of the criminal protocol provides in terms for the making by the family court of orders for disclosure against the police and the CPS. It states that the police and the CPS will comply with any court order. Sir James observed that this statement might be thought otiose, for it is, after all, as Romer LJ said in Hadkinson v Hadkinson [1952] P 285, the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.

Sir James referred to what he had said in Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2013] EWCA Civ 1177 about the slapdash, lackad

In the Matter of a Ward of Court [2017] EWHC 1022 (Fam)
Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413
Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591
Moorhouse v Richmond -upon -Thames London Borough Council [2007] EWCA Civ 970; [2008] 1 FLR 1061
R v Secretary of State for Home Department ex parte T [1995] 1 FLR 293
Barnet London Borough Council v Y and X [2006] 2 FLR 998
Hadkinson v Hadkinson [1952] P 285, [1952] 2 All ER 567, 2 TLR 416
Isaacs v Robertson [1985] AC 97
Lancashire CC v A [2018] EWHC 1819 (Fam)