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Order made by email in childcare case exhibited “serious procedural irregularity”, Court of Appeal rules

An order made by email to vacate a psychological assessment in a childcare case was wrong and unjust for “serious procedural irregularity”, the Court of Appeal has ruled.

In M (Children: Applications By Email) [2021] EWCA Civ 806 Lord Justice Peter Jackson, with whom Lady Justice Simler and Lord Justice Phillips agreed, ruled in favour of an appeal made by solicitors to the mother.

The Court of Appeal judge said the fact that an application is made by email or decided without a hearing "does not mean that it should receive less careful scrutiny".

The case was a case management appeal that arose from an order made by HHJ Williscroft in April 2021 by email, in which she discharged a direction that a psychological report was to be prepared in relation to the appellant mother.

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Jackson LJ said that the "rapid" exchange of emails the order was made in illustrated the problems that can arise "when this convenient but relatively informal means of communication is used as a means of making applications and orders".

The case concerned four young children who have not been cared for by their mother since last year. All four children, the eldest being 5, currently live with their maternal uncle and aunt.

The local authority started proceedings in September 2020 with the main issue being whether the children can return to their mother or whether they should remain with their uncle and aunt.

As part of the proceedings, an application for a psychological assessment of the mother was made. A cognitive assessment was carried out prior to this, which found her reading level and comprehension skills were at the 9-year-old level.

The application was granted by District Judge Gillespie on 21 December 2020. The following case management order included other standard orders that allowed for applications to be made by email. These read:

"20. Any application to vary this or any other order is to be made to the allocated judge on notice to all parties."

"21. An application to vary this or any other order may be made by email to the allocated judge provided the party seeking variation seeks the prior agreement of the other parties and when seeking the variation must submit a draft order and confirm whether:

a. the proposed variation is agreed; and, if so

b. to what extent the proposed variation would affect the timetable for the proceedings."

An appointment was made for the psychological assessment to take place on 29 March 2021 with an expert clinical psychologist. However, the mother failed to show up for her appointment on 29 March because she had forgotten.

While solicitors were trying to reschedule an appointment, the mother's mother died unexpectedly. Contact between the mother and her solicitors ceased, and the parties were not aware of the death for more than a week until a social worker was notified of the children's maternal grandmother's passing.

At this time, the children's guardian took the view that any further delay would impact the timetable for the proceedings and instructed the children's solicitor to write to the court to seek for the direction granting permission for the instruction of the expert to be 'vacated'.

On the same day that the mother’s bereavement was made known, the children's solicitors sent an email to the court addressed "FAO HHJ Williscroft". The email set out the history of the missed appointment and the lack of communication from the mother and it invited the court to vacate the direction for a psychological assessment.

The mother's solicitors immediately emailed the court referring to the recent death. They stated that they were following the mother's last instructions, which were that she wished to complete the assessment and opposed the discharge of the order.

Judge Williscroft emailed the parties and granted the order.

The order was in the form of the draft order that had been submitted:

        "Upon consideration of a letter dated 14 April 2021 from [the children's solicitors]

1. The direction made on 21 December 2020 for the instruction of an expert clinical psychologist, [Dr D] to prepare an assessment of the mother and file her report by 15 April 2021 is vacated."

At the Court of Appeal, Jackson LJ said the judge should not have made the order and "she certainly should not have made it in the way she did".

He added: "What happened here might have been appropriate on an application for a consent order, but this was not a consent order. Clearly the mother's failure to keep the original appointment had led to an unsatisfactory situation, but the court was bound to take account of her difficulties, which had made the assessment necessary in the first place, and of her exceptional family circumstances. Unfortunately, it did not do that.

"It did not hear argument from the parties. It did not consider the mother's solicitors' request for a hearing or explain why a hearing was not appropriate, as the rules require. It did not give any reasons for its decision. In consequence, the decision was, I regret, arbitrary."

The court had several other courses it might have taken, according to Lord Justice Peter Jackson. It should have, in his view, referred the matter to the allocated judge, instead of HHJ Williscroft.

"Or, if there was some reason for the judge to make any order herself, she should first have ensured that she had enough information to allow her to determine whether the application could be decided without a hearing."

"Instead, there has been a time-consuming and expensive appeal, at which the Guardian and the local authority have neither defended the decision nor conceded the appeal," he said.

LJ Peter Jackson concluded that the order was wrong and unjust for serious procedural irregularity. He allowed the appeal and informed the parties that the direction would be reinstated, allowing further time for it to be complied with.

Judge Jackson said: "The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person."

Adam Carey

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