Children law update: October 2023

Michael Jones KC rounds up the latest cases of interest to children law practitioners.

Obviously, this article is the one that all readers have been eagerly anticipating. I ask you, what could be more fun than taking time out of your already busy day to read a public law update? The obvious question is nothing (save for base jumping, sky diving, hele-skiing and eating Frosties whilst watching The Lincoln Lawyer on Netflix). I am going to kick this update off with the proverbial ‘hot potato’ of children placed at home under the auspices of full care orders, which has now been dealt with by the Court of Appeal in JW (Child at home under care order) [2023] EWCA Civ 944. Within the judgment, the President refers to the Public Law Working Group report and endorsed its recommendations. The report concluded as follows;

"'Care order with child at home

158. There is an increased/significant regional variation in the number of children returning home under a full care order, which is of very real concern. There is as yet a lack of clarity as to why, in some areas, this practice is so common and elsewhere so rare. There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child's day-to-day care.

159. The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of the child, an alternative means/route should be made available to provide this support and these services without the need to make a care order. This will include clarity as to the legal status of the child following the proceedings, in terms of whether they will be the subject of a child protection plan, or treated as a child in need, with accompanying reviews and services. In Wales, the current statutory guidance is set out in para 116 of the Code to Part 6 of the SSW-b(W)A 2014.

160. The making instead of a supervision order to support reunification of the family may be appropriate. However, there are many concerning issues regarding their use. They have the highest (20%) risk of breakdown and return to court for further care proceedings within five years and there are widespread professional concerns that supervision orders "lack teeth" as well as significant regional variation in their use and variability in the provision of support services.

161. A final care order should also not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. Any such order should only be made where the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the Care Planning Placement and Care Reviews (Wales) Regulations 2015 or the Care Planning, Placement and Case Review (England) Regulations 2010. This provides that any such placement has to be approved by a senior nominated officer, and can only be approved if, in all the circumstances, and taking into account the services to be provided by the responsible authority, the placement will safeguard and promote the child's welfare and meet their needs.

162. The making of a final care order must be a necessary and proportionate interference in the life of the family. A care order has a very intrusive effect of state intervention, with ongoing mandatory statutory interference not only in the lives of the parents, but in the life of the child, who will have the status in law as a looked-after child and all that goes with this. It can only be justified if it is necessary and proportionate to the risk of harm to the child. Where such an order is made there will be a real prospect of further litigation in the future, because the responsible local authority should regularly review whether the care of the child is such that the order is no longer necessary, and if so an application to discharge the order should be made. In an appropriate case, consideration should be given to the making of a supervision order.'

The President concluded that;

‘The present situation, in which the law is applied in a markedly different manner in two halves of England and Wales, cannot continue. There needs to be a common approach throughout England and throughout Wales. What that common approach should be has been determined through consultation and discussion by the multidisciplinary membership of the PLWG. The recommendations at paragraphs 158 to 162, and the Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and Appendix C of the April 2023 report on supervision orders, which have already had extra-curial endorsement, I now formally endorse in a judgment of this court. They must be applied in all cases. The approach taken by the PLWG is no more than the logical development of the earlier caselaw, once account is taken of the need for proportionality and once it is understood that, following Re DE, there are only procedural differences between the power of removal where there is a care order or where there is none. As Hale J/LJ made plain, it has never been the case that a care order should be used as a means to ensure that a local authority meets the duties that it has with respect to children in need in its area, nor should it be used to influence the deployment of resources.

The President then went on the summarise the PLWG’s recommendations and guidance as follows;

a) a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;

b) a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents;

c) unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;

d) where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;

e) where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular the court should require the local authority to have a Supervision Support Plan in place.

The Court of Appeal has accordingly made clear that the approach set out above must now be uniformly applied by the Family Court and also stressed the importance of adhering to the PLWG recommendations. The judgment essentially gives real ‘teeth’ to the PLWG’s report and its conclusions.

Whilst we are on the subject of the PLWG, its report in relation to supervision orders has also recently been published. Needless to say, that it is required reading. A summary of the recommendations of the report are as follows;

• Each local authority’s children’s services department implements the BPG.
• Supervision orders are only made when all of the matters set out in the supervision order template within the BPG have been considered and addressed.
• Each children’s services department adopts and completes the self-audit questions within the BPG in respect of every supervision order made in its favour.
• Each children’s services department considers developing good practice tools to embed the BPG (e.g., Essex Children’s Social Care’s ‘thinking tool’).
• In light of the report and recommendations of the Independent Care Review commissioned by HM Government, HM Government to commit to provide the necessary resources to local authorities to enable them to adopt and implement the BPG to the fullest and most effective extent possible. The PLWG also made four additional proposals for long-term change along the following lines; Amending the Children Act 1989 to provide a statutory basis for supervision support plans (akin to s 31A, CA 1989 in respect of care plans).
• Placing local authorities under a statutory duty to provide support and services under a supervision order.
• Amending statutory guidance to reflect the recommendations in this report and the BPG.
• HM Government undertaking or funding an external body to identify all supervision orders made by the Family Court to support family reunification and collect data on (a) the supervision plan at the end of proceedings, (b) the implementation of the plan during the life of the supervision order and (c) change of placement or return to court for the children and their parents up to two years after the end of the supervision order.

I really cannot stress enough how important it is to read the report in full and its annexes. I have to say that I view the proposed changes to the legislative provisions as welcome and probably long overdue.

Re P (A Child: Fair Hearing) [2023] EWCA Civ 215 is an interesting judgment from the Court of Appeal. This is a case in which during the final hearing within care proceedings, the mother’s solicitor and counsel had to withdraw mid-way through her evidence (the mother was a vulnerable party and had the assistance of a lay advocate). The mother applied for an adjournment which was refused, with the Court ultimately making care and placement orders. I found the judgment of particular interest as within it, Peter Jackson LJ sets out the legal principles which governed the decision to refuse an adjournment, namely those relating to a fair hearing having been facilitated;

‘The question of whether proceedings should be adjourned can arise at different stages in proceedings and for a variety of reasons. When it does, the authorities contain a range of propositions:

1) The court must strike a fair balance, having regard to all the interests at stake, and not merely the interests of one party. In a case involving children, their interests (though not paramount) must be considered, as must the effects of delay.

Re B and T at [21]; Re L at [9]; Re G-B at [52] and [54]

2) There can be more than one right answer to this evaluative exercise; the question is whether the decision was a fair one, not whether it was "the" fair one.

Terluk at [19]

3) These are classic case management decisions, and as such an appeal court will be slow to interfere.

Re TG (A Child) [2013] EWCA Civ 5 at [24-38]

4) However, the question on appeal is not whether the decision lay within the broad band of judicial discretion but whether, in the judgement of the appeal court, it was unfair in the circumstances identified by the judge.

Terluk [18]; Solanki at [32-34]; Re A at [43]

5) The assessment of what is fair is a fact sensitive one, and not one to be judged by the mechanistic application of any particular checklist.

Re G-B at [49]; Bilta at [30]

6) The starting point is the common law principle of natural justice, reflected in the overriding objective, which ensures compliance with the requirements of Article 6 ECHR. In this area, domestic and Convention requirements march hand in hand.

Re B and T at [28]; Re A at [26-28]

7) The question is whether the proceedings as a whole are fair. It is not appropriate to extract a part of the process and view it in isolation.

Re B and T at [21]; Re G-B at [50]

8) The right of access to a court is not absolute and any limitation will only be incompatible with Article 6 where it impairs the very essence of the right and where it does not pursue a legitimate aim in a proportionate manner.

P, C and S at [90]

9) However, Article 6 contains certain minimum requirements. An obvious example is the right and ability of those concerned in the proceedings to put their case effectively. The appearance of fairness is also important and the seriousness of what is at stake will be relevant.

Re B and T at [22]; P, C and S at [91]; Re A at [30-31]

10) The principle of equality of arms under Article 6 and the overriding objective do not require all parties to be legally represented.

Re B and T at [23]; P, C and S at [90]; Re GB at [53]

11) When considering whether to adjourn, the court will be cautious before taking account of the strength or weakness of a party's case, mindful that forensic fortunes may change at trial, but the realistic consequences of any lack of representation may be considered.

Re A at [29]; Re G-B at [51]

12) Fairness may be achieved by the manner in which the court hearing is conducted.

Re G-B at [55]

I emphasise that these propositions are a selection and not a checklist, still less an exhaustive one. The essential touchstone is fairness and the weight to be given to any individual proposition or other relevant factor must be a matter for the judgement of the court in the case before it.’

The Court of Appeal dismissed the appeal, concluding that the first instance Court had properly applied the correct legal principles in refusing an adjournment;

‘In the first place, the events of 24/25 October 2022 must be placed in context. The question of whether C could safely live with her parents had been the subject of particularly exhaustive consideration throughout the proceedings. All that information was captured in the written evidence. The father had legal advice and representation throughout the period and the mother had legal advice and representation for all but a day and a half. Up to that point she had been able to present her case in an effective manner by making statements, by her accounts being extensively recorded in a wide range of professional assessments, and by her having given almost all of her oral evidence. That is not to minimise the unsatisfactory position she was placed in at the end of the hearing, but to put it into perspective.

Next, it is relevant to consider the extent to which the loss of representation placed the mother at an actual disadvantage, as opposed to a notional one. Here, given the overall complexion of the case, I do not consider that the mother was deprived of any significant further opportunity to urge her case on the court. The significant psychiatric and psychological evidence was unchallenged. Critical evidence had been given by the independent social worker. The essential issue for the court concerned the reliability of the written record of the parents' situation. That was a factual question in respect of which the mother's representatives, had they remained or been replaced, could have made little impact by means of questions to the father or the Guardian, whose advice about welfare was almost entirely predicated on the court's findings of fact, or by closing submissions. The weight of the written record and the absence of any favourable professional opinion would have hampered any advocate. Mr Day was unable to make good his submission that there might have been forensic opportunities for an advocate to distinguish the mother's position from that of the father. He fell back on the possibility that new lawyers might have advised the mother to abandon her case and separate from him. However, by that stage this was fanciful. Even if such advice was given, the mother would not have accepted it, and it would in any case have been too late. For better or worse she had remained with the father and any chance to separate from him was probably lost in March 2022. They presented as a couple throughout the trial and indeed at the hearing of the appeal. Taking all these matters into account, I, therefore, accept that the impact on the mother's case (as opposed to the mother personally, as to which I am sympathetic) was limited, and I take that to be what the Recorder meant. She need not have relied on the concrete quality of the mother's closing missions as a further indicator of lack of insight, but that was only one of several examples that were independently available.

Third, the predicament in which the mother was placed was mitigated by the presence of the father's lawyers, presenting broadly the same case, and her own lay advocate, and by the assistance given to her by the Recorder.

The court was also bound to take into account the weight to be attached to the rights and interests of others. Most particularly, the presumption that delay was prejudicial to the child sounded loudly in this case. C had been waiting all her life for her future to be decided and the proceedings were already overrunning at double the statutory maximum. If the case was adjourned it would take several months before a decision emerged, incidentally entailing considerable expense and burdens on witnesses and the court. The parents had understandably found the proceedings difficult and did not want to start again, whatever they now say. The Recorder was therefore right to give weight to the serious disadvantages of an adjournment.

I acknowledge that the withdrawal of the mother's lawyers was concerning to the father, but it is impossible to accept his submission that it led to unfairness to him. As the Recorder's judgment shows (see paragraph 12 above), his behaviour in the witness box was of a piece with his earlier behaviour, and with many other recorded observations.’

The next case of interest that I am going to draw your attention to and tediously quote from, is a great judgment from Peter Jackson LJ (who else?) in Re C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889. In this case, the previous care proceedings had concluded with A, a 14 year old boy, being made subject to a care order when aged 12 in 2021. The judge within the care proceedings accepted the expert analysis that A did not have capacity to separately instruct his own solicitor (A’s views departed substantially from those of his Guardian). One of the central concerns was the impact that A’s father’s views had upon A; i.e. the extent to which A’s expressed wishes and feelings were genuine and free from parental influence. The father subsequently issued an application to discharge the care order, which came before the same Judge. The previous expert was re-instructed to consider A’s competence to instruct a solicitor directly. The conclusion to this assessment was that A was not competent to do so. The Judge then conducted a meeting with A for 1 hour and 25 minutes;

‘It is unnecessary to refer at length to the discussion, and I only note these matters. The judge made clear that she was not taking evidence from A. His first question was about seeing court documents, saying that he knew he would be able to see documents in the future. He related his complaints against his mother and asserted that she had manipulated him into foster care. He said that he despised the psychologist Ms Gill and that she had manipulated the case. Dr Bourne, Ms Gill and the independent social worker had simply agreed with the social worker without making their own assessments. A asserted that he was very mature as a result of the court case and the judge responded that he seemed very mature to her. A said that his therapist had been useless and that he didn't want to talk to anyone associated with Ms Gill. Urged by the judge to take advantage of the opportunity of therapy, A said that he didn't see the point and would not see his mother if he was not allowed to see his father. He said that he would be asking for another change of social worker.

I refer to two more matters surrounding this meeting. The first is that, shortly before A met the judge, Ms Gaff told him that B had taken part in an important family event the week before, involving the mother but without the father or A being aware. A referred to this when meeting the judge. The other matter concerns this exchange:

"J – Are you glad you came to see me or has it not been good? You can be honest. I won't mind.

A - I am not sure what has been clarified.

J – For me, it's always better to see somebody if they want to see me. I am not taking evidence but there will be bits of what you have said to me that will stick with me. I will certainly remember how tall you are and how mature you are. I know that families and lives are not frozen in time. Things happen and things move on. It does not stand still. I hope that there is less of a whirlwind and that it is easier to find a way through. It's a bit like being in a sandstorm. If you are in a sandstorm, you can't see where you are going. Where we have got to now is better than where you were before. But it's not simple. It's important that your voice is heard. It has been helpful for me to see you. It is not necessary that I see every child. I don't need to see every single child. But I think it helps me.

A – To continue your analogy about a sandstorm, I want to give you goggles and a compass.

J – You really are mature. That's very clever.’

A note of the meeting was sent to the expert, whose views in relation to A’s capacity remained unaltered. Notwithstanding this, A’s solicitor invited the Court to direct separate representation for A, based on her assessment of A’s level of understanding. The Judge allowed this application and gave an ex-tempore judgment, permitting A to instruct his own solicitor. The mother appealed this decision.

Peter Jackson LJ handily summarises the central legal points relating to separate instruction of solicitors by a child;

‘The United Nations Convention on the Rights of the Child 1989 has been ratified by the United kingdom and although it is not incorporated into domestic law, is reflected in our legislation and practices. Article 12 provides:

"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

Section 41(1) Children Act 1989 provides that the court shall appoint a guardian for a child who is subject to specified proceedings, which include applications to make or revoke a care order, unless satisfied that it is not necessary to do so in order to safeguard the child's interests. That is what occurred in this case, both in 2020 when the care proceedings began and in 2022 when the discharge applications were made.

The rules governing the representation of children in family proceedings are found in Part 16 of the Family Procedure Rules 2010 ('the FPR') and PD16A. As noted by Baker LJ in Re Z (Interim Care Order) [2020] EWCA Civ 1755, [2021] 2 FLR 830, they are far from straightforward. Under PD16A 6.2, the guardian must appoint a solicitor for the child unless one has already been appointed.

The Children Act 1989 of course provides by s.1(3)(a) that the court must have particular regard to the wishes and feelings of the child, and by FPR 16.20(3) this duty also falls upon the guardian.

FPR 16.29 concerns the question of who instructs the child's solicitor:

"(1) Subject to paragraphs (2) and (4), a solicitor appointed –

(a) under section 41(3) of the 1989 Act; or

(b) by the children's guardian in accordance with the Practice Direction 16A, must represent the child in accordance with instructions received from the children's guardian.

(2) If a solicitor appointed as mentioned in paragraph (1) considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children's guardian; and

(b) is able, having regard to the child's understanding, to give such instructions on the child's own behalf, the solicitor must conduct the proceedings in accordance with instructions received from the child.

(3) The matters the solicitor must take into account for the purposes of paragraph (2) are –

(a) the views of the children's guardian; and

(b) any direction given by the court to the children's guardian concerning the part to be taken by the children's guardian in the proceedings.…"

Rule 16.29(1) accordingly provides that the solicitor must conduct the proceedings in accordance with instructions received from the guardian, whose role is to act on behalf of the child with the duty of safeguarding the child's interests having regard to the principles set out in the welfare checklist: FPR 16.20(1) and (3). The guardian must also advise the court of the wishes of the child in respect of any matter relevant to the proceedings, including the child’s attendance at court: PD16A 6.6(b).

However, where the solicitor considers, having taken into account the guardian's views and any direction given by the court, that the child (a) wishes to give instructions which conflict with those of the guardian and (b) is able, having regard to the child's understanding, to give instructions on his or her own behalf, the solicitor must conduct the  proceedings in accordance with instructions received from the child: rule 16.29(2) and (3). In such a case the guardian will continue to carry out their duties, usually without legal representation.

A solicitor acting for a child in family proceedings will be a member of the Law Society's Children's Panel, an accreditation signifying experience and expertise in representing children. The judgement about whether a child has the ability to instruct is quintessentially a matter for the solicitor in the unique circumstances of the case and expert advice will not always, or even usually, be necessary. However, this was not a usual case, as Ms Gaff recognised. She did not simply start to take instructions from A under rule 16.29, but sensibly issued an application so that the matter could be decided by the court, which has the ultimate right to decide whether a child has the ability to instruct a solicitor: Re CT (A Minor) (Wardship - Representation) [1993] 3 WLR. 602, [1993] 2 FLR 278 at 614F.’

His lordship then went on to consider a number of further authorities including Mabon v Mabon, and Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051. Peter Jackson LJ also referred to the Guidelines for Judges Meeting Children who are Subject to Family Proceedings, issued by the Family Justice Council and Sir Nicholas Wall P in April 2010. His lordship noted that;

‘In my view, these decisions show that the Guidance remains a workable framework; indeed applications to this court for permission to appeal arising from meetings between children and judges are rare. It encourages judges, in appropriate circumstances, to meet children as one way of helping them to feel more involved in and connected with proceedings that affect them in important ways. It makes clear that the judge decides whether, when and how a meeting will take place: these decisions are very much a matter for the discretion of the individual judge in the individual case. It emphatically stresses that the meeting is not for the purpose of gathering evidence. Another critical feature is that a meeting should help the child to understand that it is the judge (and no one else) who is responsible for the decisions in the case and that the outcome is never the responsibility of the child.’

The Court allowed the appeal, noting that the Judge had taken a different view to the expert instructed, and asking itself how the Judge had reached the opposite conclusion to the expert; ‘How, then, did the judge come to reach the opposite conclusion? The answer clearly lies in her response (and that of Ms Gaff) to the meeting with A. As to that, there were in my view three errors of approach.

First, it was the judge's role to adjudicate, not to assess, but she made her own assessment of A's ability to instruct in a manner that went well beyond the permissible use of a meeting of this kind. As in Re KP and Re AH (and in contrast to Re N-A), the assessment went to the heart of the resulting decision. The problem was compounded by the judge not expressly disclosing to the parties the reliance she was planning to place on her own view, so that they were deprived of the opportunity to alert her to how questionable that would be.

Second, and more substantively, the reasons given by the judge for her assessment are not sustainable. This can most conveniently be illustrated by reference to the judge's image of the sandstorm, where A's response ("To continue your analogy about a sandstorm, I want to give you goggles and a compass.") obviously made an impression. Further thought would have shown that it was in fact a vivid sign of A's lack of understanding. His proposal that it is the judge, and not he himself, who needs goggles and a compass encapsulates his lack of insight and his blanket rejection of her assessment of what has happened in this family. In the same key, the father submitted to us that the judge had made a U-turn and that she now realised that A speaks for himself. Both father and son are under the same delusion about the cause of the problems and the opportunity for A to instruct his own solicitor gives him a powerful extra dimension within which to perpetuate this damaging narrative, oblivious to the harm that he might be causing himself.

Third, the judge described A as very mature and very insightful, while the evidence from two psychiatrists was that he is emotionally immature and lacking insight. Since September 2021, Dr Bourne had repeatedly advised that A has 'absorbed' his father's damaging belief system and that this was more insidious and far reaching than mere 'parroting'. The judge nevertheless preferred her personal assessment that A has "his own clear views". She rightly directed herself that experts advise and judges decide, and she referred to Dr Bourne's opinion, but she gave no reason for rejecting it, as required by Re B (Care: Expert Witnesses) [1996] 1 FLR 667; Re D (A Child) [2010] EWCA Civ 1000. This was all the more necessary when she had whole-heartedly accepted his advice the year before.

I consider that the judge was distracted by general observations about exercising caution before depriving intelligent older children of their own representation, and that it led her to overlook how extreme and effective the father's abuse has so far been. This is not a case where A had his own solicitor in the previous proceedings, as in Re W. Nor is it a case where a child has formed an unwise view of their own, even if it might be coloured by adult influence. Instead, these children have been the victim of severe alienation of a kind that should have led the judge to firmly reject the application for A to be allowed to instruct a solicitor directly, for all the reasons she gave when making these care orders.

I am sure that (as the judge said) A will feel frustrated by not having his voice heard in the way that he wants. The father has, without concern, predicted that the mother will face more resistance and opposition. It would however be naïve to expect that A or his father will be satisfied by any outcome they do not want, and the prospect of A, who has clearly shown his interest in gaining access to the court papers, being satisfied with limited disclosure is unlikely.

In parting from the case, I again recall the pressured circumstances in which the judge was taking her decision. There has been no complaint about the quality of what was after all an ex tempore judgment given after hours. I also recognise that she had balanced submissions from the guardian and his experienced solicitor, but their footing was no stronger than hers. It is always a professional challenge to represent an older child whose wishes conflict with a guardian's assessment, but it was not suggested to the judge or to us that the situation was untenable, any more than it had been during the previous proceedings.’

So again, the Court of Appeal as reiterated the importance of Judges keeping within the parameters of the guidelines when meeting and speaking to children. In terms of considering a child’s capacity to instruct a solicitor, it is essential to do so applying the relevant principles set out within the authorities and in this case, the Judge erred in allowing her own experience of speaking to the subject child during a meeting with him, impact upon her overall assessment of is capacity to separately instruct a solicitor.

Next up is A Local Authority v X & Ors (Need for Finding of Fact Hearing) [2023] EWFC 121, which draws together the various authorities relating to the issue of the circumstances in which it is necessary and proportionate for the Court to engage upon a fact-finding hearing. This case neglect of Z, and that it was neither necessary nor proportionate to engage upon an enquiry in relation to C’s death, even if, taken at its highest, the post-mortem report provided evidence that the local authority could rely on in seeking findings against Z’s mother and sister in this respect;

‘In these  circumstances, to adjourn these proceedings to await the post mortem report, and thereafter to await the local authority’s decision on whether to plead C’s death as an element of its threshold, would result in Z having to wait for a further unknown period of time before the local authority is even in a position to formulate its final threshold  document. I accept the submission of Mr Jones and Ms Moody that if one factors in the likelihood of the police wishing to undertake further interviews before disclosure of the report should the post mortem implicate the adults in C’s death and thereafter time for the local authority to decide whether to seek findings and formulate a threshold, the court is looking at a delay of at least a number of months. As set out above, the court is required by law to have regard to the principle that delay is inimical to Z’s welfare and, pursuant to s.32 (3) of the Children Act 1989, to have particular regard to the impact the timetable for the proceedings will have on the welfare of the child to whom the application relates and on the conduct of the proceedings. Approving a timetable that waited for the post-mortem report before determining the question of whether a fact finding hearing on the causation of C’s death is necessary would, I am satisfied, expose Z to further and indeterminate delay, which would be plainly inimical to his welfare.

In this case, there is a wide range of evidence beyond the issue of C’s death which, on a neutral and objective evaluation, is clearly capable of crossing the threshold criteria pursuant to s.31(2) of the Children Act 1989. Neither parent sought seriously to dispute that proposition. In particular, the evidence currently before the court suggests that Z was exposed over many years to chronic neglect and drug use. Professor Billington is clear that Z has suffered multiple adverse childhood experiences during his early years and has, in consequence, suffered nightmares, sleep difficulties, social communication difficulties, severe toileting difficulties and dental and ophthalmological issues, the evidence being that Z’s functioning and the trauma that he has experienced relates primarily to his experiential and environmental circumstances.

As suggested by the President in Re G (which, in contradistinction to this case, concerned injuries sustained by the subject child’s sibling), where the court is faced with a significant delay in the provision of the post mortem report but there is a range of evidence prior to death which, if established, would be sufficient for the court to determine both the s 31 threshold and the ultimate welfare decision, it may not be necessary to await the full post-mortem report where the impact on the child’s welfare in postponing the process until that report is received may be disproportionate and unacceptable. In the circumstances I have set out above, I am satisfied that that is the position in this case. Given what I am satisfied would be the adverse impact of Z to further adjourn these proceedings for a wholly indeterminate period to an unknown date, and having regard to range of evidence of neglect prior to C’s death which, if established would be sufficient for the court to determine both the s 31 threshold criteria and, for the reasons I will come to below, the ultimate welfare decision for Z, postponing this process until the post mortem report is received would be disproportionate and unacceptable.

This conclusion of course, by definition, requires the court to determine the question of whether it is necessary to conduct a fact finding hearing without the contents of the post mortem report. I am however, satisfied that that does not present an insurmountable difficulty in this case.

I accept the submission that the contents of the post mortem report can be said to be relevant to the determination of the question of whether it is necessary to conduct a fact finding hearing with respect to C’s death as part of the examination of the question of evidential outcome. However, given the way post mortems are reported, the range of possible outcomes for the post mortem in respect of C is limited and can be anticipated. As Mr Jones and Ms Moody submit, the post mortem will either be unable to identify a cause of death, will identify a cause of death that does not implicate the mother or the intervener, or will identify a cause of death that does, or is capable of, implicating the mother and/or the intervener. In the first and third of those situations, the local authority may decide to seek findings in respect of C’s death. Within this context, I am satisfied that the court can factor the absent post-mortem report into its analysis of the question of whether a finding of fact hearing is necessary by assuming for the present purposes that the post-mortem report on C will allow the local authority to pursue threshold findings in respect of his death. Within this context, the question I now turn to is whether, assuming that the evidence does allow the local authority to pursue findings in respect of C’s death and balancing the factors set out in Oxfordshire, it is necessary to hold a fact finding hearing on that issue.’

This judgment on proportionality really needs to be considered in the context of the re-piloting of the PLO and the ‘Road Ahead’. There is an increasing onus upon Judges and practitioners to limit issues that are to be the subject of litigation at a contested hearing, to what is absolutely necessary in order for the Court to make a proper welfare determination. My experience is that the Courts are now, quite rightly, carefully case managing issues and strictly limiting evidence to only what is necessary in order to determine welfare. MacDonald J properly reminds us that in considering the issues of proportionality and necessity, the proper approach is set out in Oxfordshire v DP, as reiterated in Re H-D-H (Children), and that is the approach which the Courts must take. As Baker J noted in Re H-W (Care Proceedings: Further Fact-Finding Hearing) [2023] EWCA Civ 14, it is the factors set out in Oxfordshire represent the definitive metric against which the question of whether or not a particular fact finding exercise is  necessary falls to be determined;

“The decision whether or not to hold a factfinding hearing is one of the most important case management decisions to be taken in the course of proceedings under Part IV of the Children Act. It is not always a straightforward decision. Care proceedings are quasi-inquisitorial. They are not confined within the tramlines of adversarial pleadings. There is therefore a recurrent danger that they veer off track. In a case with a complex family history, the court will often be encouraged by one party or another to explore an issue that has been unearthed during the investigation. Judges have to be very careful before acceding to such an application to avoid the unnecessary use of the limited resources available. In deciding whether to hold a factfinding hearing, it is imperative that they conduct a proportionality analysis by reference to the factors identified in the Oxfordshire case and Re H-D-H.”

I am going to finish this update with the case of Re G & H (Leave To Revoke Placement Order) [2023] EWCA Civ 768. This is a case in which care and placement orders were made in relation to two children, following which, the grandmother filed an application for leave to revoke the placement orders, as the local authority had refused to assess her as a carer (this was a matter of days after the care proceedings concluded). The judge did not deem it necessary to join the children as parties to the application, nor to appoint a Guardian, until the application for leave had been determined. The Court subsequently refused leave and provided an ex tempore judgment. The grandmother appealed. The two grounds of appeal put forward were, in summary (1) the hearing was procedurally incorrect because the children’s guardian ought to have been joined as a respondent and (2) the decision to refuse leave was wrong.

In relation to ground 1, Baker LJ considered the provisions of the FPR in some detail and identified an issue in relation to the provisions of the Rules regarding the issue of the appointment of a guardian. His lordship concluded as follows;

‘……the position under the 2005 Rules seems more logical than under the FPR. On an application for leave to apply to revoke a placement order, a guardian was not appointed unless a party applied for one or the court appointed one of its own initiative. If a party applied for a guardian to be appointed, the court had to appoint one unless it considered that such an appointment was not necessary to safeguard the interests of the child. On a substantive revocation application, the court appointed a guardian unless it considered that such an appointment was not necessary to safeguard the interests of the child. Under the FPR, the court has the power not to appoint a guardian at the substantive hearing if it considers such an appointment to be unnecessary to safeguard the child's interests but is seemingly under a mandatory obligation to appoint a guardian at the leave stage.

This reinforces my feeling that this situation is an unintended consequence of the reforms implemented by the FPR. If my Lady and my Lord agree, I would propose referring this matter to the Family Procedure Rule Committee for review. One solution would be to amend the FPR by providing that applications for leave to apply to revoke a placement order are specified for the purposes of s.41. As set out above, s.41(6) (i) allows for proceedings to be specified by rules of court. A number of additional proceedings under the 1989 Act have been so specified FPR rule 12.27(1). If applications for leave to apply to revoke a placement order were included as "specified proceedings", the court would have the power not to appoint a guardian at the leave stage as it does on the substantive application.

I recognise that the conclusions I have reached may cause some alarm amongst judges dealing with applications for leave to revoke. In practice, I suspect that many judges have been proceeding on the basis adopted by the judge in the present case that the rules allow them not to join the child or appoint a guardian on an application to for leave to apply to revoke a placement or a risk that the limited resources of Cafcass, which are in great demand, may be diverted to deal with applications which have no prospect of success.

As set out above, the court's extensive case management powers under rule 4.1(3) include, under subparagraph (o), taking "any other step or make any other order for the purpose of managing the case and furthering the overriding objective." In my judgment, whilst a judge is obliged to join the child to an application for leave to revoke a placement order and to appoint a guardian, it is entirely permissible to direct that the guardian take no substantive step in  connection with the application and/or, as rule 18.9(1)(a) permits, to deal with the application without a hearing.

These are, however, powers that should be exercised with caution. Parliament has legislated to allow the issue of whether it is in the interests of a child's welfare throughout his or her life to be adopted to be considered by a court as soon as the local authority is satisfied that the child ought to be placed for adoption: s.22(1)(d) of the 2002 Act. It is at the stage of making the placement order that the court has to consider whether the parents’ consent to the child being placed for adoption or, if they do not, whether their consent should be dispensed with: s.21(3). But the quid pro quo is that a parent is entitled to seek leave to revoke the placement order if there has been a change of circumstances and the court is satisfied in all the circumstances that leave should be granted. That is consistent with the fundamental principle identified by the European Court of Human Rights in YC v United Kingdom (2012) 55 EHRR 967 (at paragraph 134) that:

"family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family."

Protection against meritless applications is provided by the imposition of a leave filter. But the court's power to revoke a placement order at any point prior to the child being placed is an important element of the statutory scheme and it is to my mind unsurprising that the rules therefore require the child to be a party.

Furthermore, while many applications for leave to apply to revoke a placement order have no prospect of success, some do. In those circumstances, the guardian will plainly have a role in assisting the court to come to a decision whether to grant leave, particularly when addressing the second stage of the test, if the court finds that there has been a change of circumstances. The local authority is likely to have a position on the application, having obtained the placement order. The children's guardian adds essential balance to the picture presented to the court. In the case of Re JL, cited by Ms Henry, a grandmother who was already successfully looking after two grandchildren as a kinship foster carer, initially decided not to put herself forward to care for their younger sibling, in part because her accommodation was too small. After she moved to a larger property, she applied for leave to apply to revoke the placement order which had been made with respect to the third child and to apply for a special guardianship order. The applications were opposed by the local authority but supported by the guardian representing the child who had been joined to the application. The applications were refused at first instance but allowed on appeal.’

The Court allowed the appeal on ground 1, noting that under the rules, the child was a party should be granted. But the judge did not approach the issue in that way. The appeal on ground 2 was also allowed, on the basis that the Judge had not properly considered the issue of whether there had been a sufficient change in the circumstances which had led to the making of placement orders.

The judgment has therefore clarified the issue relating to appointment of Guardians in these applications and outlined the issues regarding the current content of the procedural rules and the need for their review by the Family Procedure Rules committee.

Michael Jones KC is a barrister at Deans Court Chambers.