Case Study
N (Children: Interim Order/Stay [2020] EWCA Civ 1070
Decision of Lord Justice Peter Jackson.
A helpful reminder of some basic principles
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This successful appeal by the mother was dealt with on 29 July 2020 during the current COVID 19 restrictions.
The facts are not as important as the principles which were dealt with.
BACKGROUND:
The parents were from Afghanistan and the mother spoke no English and needed an interpreter.
There were three children aged 5, 7 and 12. The 7 year old had global learning difficulties.
The family had come to the attention of the local authority at the end of 2019 when the older child went to school with a mark on his face and said that he had been slapped by his father. He also spoke of being hit on other occasions, including with a cloth belt.
A neighbour had reported that the mother had visited her for help in 2018 after being assaulted by the father.
The children were taken in the police protection on 8th November 2019 and placed together in foster care for a week.
The local authority applied for interim care orders with a plan for the children to stay in foster care pending assessments but at a hearing before a circuit judge on 15th November 2019 it was agreed that the children should be returned to the mother on the basis of a working agreement.
The parents accepted that the interim threshold was crossed and an order was made under s.38A of the Children Act excluding the father from the home.
On 18 December 2019 and again on 20th February 2020 the local authority made two applications to remove the children from the mother’s care which were not pursued.
This appeal arose out of the local authority’s third application for the children’s removal in April 2020 with a care plan for indirect contact only due to the then COVID-19 lockdown with supervised contact with the mother twice a week thereafter.
On 27th April the hearing was before the same circuit judge, sitting as a Deputy High Court Judge, who had already dealt with the second removal application on the 20th February.
The matter did not take place on 27th April for lack of time and of an appropriate interpreter. It was adjourned for a one-day remote hearing on 6 May 2020, although the parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses.
The judge, however, when adjourning the matter directed, that the only witness to give evidence would be the social worker and the parents were directed to file sworn statements which the judge stated she would take “at face value”.
The judge made it clear that she would need to have “robust” evidence from the social worker and the impression given to the parties was that the local authority’s evidence was going to be scrutinized to see whether it was capable of sustaining its revised care plan.
The Guardian was unable to attend the hearing on 6th May but the judge was aware that the Guardian did not support removal.
At the hearing on 6th May 2020 the social worker gave evidence for three and a half hours, not limited to the three latest allegations but ranging over alleged breaches going back to December 2019.
The mothers advocate was at a disadvantage in that the remote hearing was being interpreted to the mother by an interpreter connected via the judge’s laptop and there was no real means of taking instruction during the hearing.
Do the course of the evidence, the solicitor for the father applied for him to be allowed to give evidence which the judge refused on the basis that she had read the father’s statement and understood that he disputed the social worker’s evidence.
During closing submissions, the request was repeated for the parents to be allowed to give evidence if the judge was considering removal of the children.
The judge was also reminded by the parents, supported by the Guardian, that the social worker had brought the case back to court on two earlier occasions because of reported breaches of the safety agreement but that on both occasions the local authority had not pursued removal of the children. It was submitted that the fact that this was the third occasion that the matter had been returned to court was insufficient pass the test of necessity and proportionality.
The judge did not agree with this analysis of the situation and looked at the pattern of behaviour which she said had built up a body of circumstantial evidence which, although individually could be ignored, together demonstrated a concerning persistent pattern of breaches of safety agreements, flouting court orders and a failure to implement the safety plan put in place for the protection of the children.
The judge further commented that she was satisfied at the pattern of evidence in the case gave the court reasonable grounds to believe that the standard required at the interim hearing had been established.
The judge approved the removal of three children from their mother and their placement in local authority foster care on the pre-existing interim care orders.
Counsel for the mother sought permission to appeal and a stay; both were refused and the children were taken in the foster care that evening.
During the hearing, the mother and children were at home, together with the interpreter. Counsel for the local authority suggested that it might be appropriate to have the matter listed for further directions on the following afternoon to enable the parents’ representatives to take instructions. The judge did not agree and said it was a matter for the local authority as to when it implemented its interim care order.
Counsel for the mother was not able to take her client’s instructions because communication with the interpreter came to an end when the judge rose. Consequently an application to the out-of- hours judge was not possible before the children were removed.
THE APPEAL
They were four main grounds of appeal:
1: The judge’s decision to hear evidence only from the social worker and not from the parents was unfair.
2: Consequently findings were made without disputed matters being tested.
3: The judge should have heard evidence from the Guardian, who did not support removal
4: In adopting a “reasonable grounds to believe” test the judge had applied the wrong standard of proof.
When deciding to grant the appeal Peter Jackson, LC, made the following comments (in italics and bold type for emphasis only):
The power to make interim orders in cases involving children allows the court to regulate matters that cannot wait to final hearing.
Here, the interim threshold was accepted to have been crossed and the court was making an interim welfare decision.
A court considering an interim application in proceedings concerning children is required to undertake a level of investigation that is appropriate to the issues that need to be decided and sufficient to enable it to make a fair and effective evaluation of the advantages and disadvantages for the children of making or not making the interim order. Acting within the framework of the relevant substantive and procedural law, the court has a wide and flexible discretion as to how its investigation and evaluation should be conducted at the interim stage. Depending upon the case and the issues to be decided, the decision may well be properly taken without hearing any oral evidence: the question will be whether it is necessary to hear some, probably limited, oral evidence to enable a fair and effective evaluation to be made.
It is understandable that the judge did not feel able to deal with the issue before her on submissions only and that she needed to hear some evidence. However, once she had decided to do that, fairness required that in this situation she should hear from both the accuser and the accused…… The investigation was a factual one into events where the parents were primary witnesses. They were not making bare denials but giving possible explanations for much of the evidence brought against them and, at least on paper, those explanations were not self-evidently implausible and deserved proper consideration.
However, instead of taking them at face value (whatever that might be taken to mean), the judge largely left them out of account.
The investigation that was carried out was therefore not fair and effective.
The test for interim removal could not reasonably have been met on the evidence that the judge received.
(Paragraphs 28-34 of the judgement).
SHORT TERM STAYS:
When refusing the request for a stay the judge dealing with the matter had expressed concern that there were grave risks and concerns to the children in respect of breached exclusion orders and possible risks of removal, if not from the jurisdiction, but to another part of the country.
The Court of Appeal decided that the reasons given by the judge fell short of justifying refusal to grant a stay.
When deciding that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers, the Court of Appeal reminded itself of the distinction between such a short term application from a stay pending a decision on permission to appeal or a stay pending appeal.
By contrast, a short term stay is purely a practical remedy, distinct from the decision about permission to appeal.
With reference to Re A [2007] EWCA 899 at [27] Peter Jackson, LJ, said that the correct approach for the court to take to an application for a short term stay was described by Wilson, LJ, that the judge should always give serious consideration to allowing an applicant “a narrow opportunity” to approach the Court of Appeal so that the opportunity for a successful appeal is not unfairly eroded.
It may be helpful to set out the arrangements that then prevailed which were as follows:
The court could be contacted during working hours on civilappeals.registry@justice.gov.uk between 9.00am and 4.15pm and out of hours through security officers at the RCJ on 020 7947 6260, who will refer the matter on to the Duty Deputy. Urgent applications should whenever possible we made within court hours.
Unless already filed, the applicant or the applicant’s representative will be required to give an undertaking to file the necessary application form and court fee. Instructions may then be given for the transmission of essential information by email so that the application can be considered by a judge, who may decide to grant a stay, for example until the end of the following working day, to enable further documents, such as a note of the judgment and draft grounds of appeal, to be sent to the court for consideration of the merits of a further stay.
