Appeal judge urges councils to help with bundles in care cases involving LIPs

It should be “standard practice” for local authorities in care proceedings to contact a court and see if they should supply alternative bundles where those provided by an unrepresented appellant are deficient or non-existent, a Court of Appeal judge has said.

The comments from Lady Justice Black were made in R (A Child) [2014] EWCA Civ 597, an appeal by a mother over care orders made over her four children and placement orders in relation to the youngest two.

The mother appeared in person before the Court of Appeal, but it was not known why did not have legal representation.

Giving practice points in the judgment, Lady Justice Black said the case was illustrative of an increasing problem faced by the court.

“More and more litigants appear in front of us in person,” she said. “Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear.”

Lady Justice Black said the court office found itself having to attempt to make sure that the parties to the litigation were notified of the appeal because litigants in person did not always know who should be served. The only respondent named by the mother in this case was the local authority.

The Court of Appeal judge said that the bundles that the court required in order to determine the appeal were often not provided by the litigant, or were incomplete, and proper papers had to be assembled by the court, “not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start”.

She continued: “The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.”

Lady Justice Black said the court had no extra resources to respond to these added challenges.

“It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties,” she pointed out.

“If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles.”

The judge said: “Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice.

“It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant's proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.”

Lady Justice Black pointed also to comments she made about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014.

“Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult,” she said.

In the case in question, the Court of Appeal allowed the appeal and ordered that the case be reheard.