Update | Children: appeal points and problems, 26-week framework, impact of pre-care proceedings

In the case of G-B (Children) [2013] EWCA Civ 164, the Court of Appeal (CoA) was considering an application by the mother (M) for permission to appeal (PTA) against a case management decision taking in the care proceedings concerning her children (C). At the final hearing in the care proceedings, the father (F) made an application that the hearing be adjourned to allow him to obtain separate representation from M; until this point they were jointly represented by solicitors and counsel. M similarly made the same request. The request was refused and F left the court, playing no further role. M continued as a litigant in person. Orders were made which M disagreed with. She instructed new solicitors and counsel. Before the Court of Appeal (CoA), M's counsel argued that the decision to refuse the request for an adjournment was plainly wrong as it was important that M's position in the proceedings was protected by legal representation as it may well impact on the court's determination were she to have other children and if children's services were to intervene.

Article 6 was pleaded in the grounds relating to the importance of the litigation ?to M, the need for the parties to be on an equal footing as set out in the overriding objective of the Family Procedure Rules 2010, the difficulties that the mother was faced with in presenting her case (volume of papers to contend with, giving her own evidence and cross examining five witnesses).

Although M found new legal representation very quickly following the hearing, it was more than six months later that the appeal notice was lodged. It then took over three months before the paperwork was in order such that M's legal team were able to inform the civil appeals office that the issue of PTA was ready to be considered by a single lord or lady justice.

Delay issues

McFarlane LJ giving the CoA's lead judgment granted the application for PTA but dismissed the appeal itself. The judgment's import relates to the issues of delay in the appeal being dealt with, by which point the appeal was being head some 15 months after the final hearing in the care proceedings. The points of note for future practice as identified by MacFarlane LJ are:

? As the preparation of transcripts ?and securing prior authority from the Legal Aid Agency (LAA) for the funding the same may take much time, it is important to ask at each turn, whether securing the particular transcript is an essential pre-requisite for lodging the notice of appeal or indicating to the court office that the appeal papers are ready for PTA to be considered.

? In these cases where another first instance hearing is timetabled in the proceedings, serious consideration should be given to lodging the appeal notice despite valuable transcripts not at the time available. McFarlane said that this means, the CoA can support a prompt process by the LAA and transcribers in meeting a sensible timetable, enables the CoA to contact the first instance judge to chase up approval of transcripts of judgments and it would provides the vehicle for the appellant to seek a stay of the proceedings before the lower court pending the PTA decision in the CoA.

? Finally, McFarlane LJ said that the notice of appeal if not already filed should be filed within a matter of a day or two after the LAA grants funding for the appeal and not weeks later (as occurred in this case) and that transcripts which are at best peripheral should not delay the PTA consideration stage.

Timetable concerns

Ryder LJ gave the CoA's judgment in Re S (A Child) [2013] EWCA Civ 926. Here a paternal grandmother (PGM) applied within care proceedings for a special guardianship order in respect of C who she was already caring for while the proceedings were ongoing. PGM was unsuccessful before the circuit judge and a care order was made. As the local authority (LA) was clear that it wishes to remove C from PGM's care and so a stay of the care order was granted whilst PGM sought PTA.

The appeal was granted and the ?matter remitted to the country for a re-hearing. The case is worthy of mention given the comments made by Ryder LJ about care proceedings in the new 26-week framework. Readers will be aware that all courts must pilot the Revised Public Law Outline which underpins the 26-week deadline and many courts commenced the pilot from 1 July 2013.

Ryder LJ was scathing about the LA's conduct. He described the LA's attitude as "unacceptable and arguably contemptuous" and said this was "evidenced by the cavalier treatment of the Rules and directions of the court" [5]. The LA had failed to put before the court a permanence report to support why it was suggesting that adoption was in the best interests of C.

Whether or not the court had expressed a view about what would be the timetable for the child, this was not recorded on the face of the case management order and no notice was taken of it. Readers will note that the concept of the timetable for the child is an important one because it impacts on and informs the court's view as to the timetable for the proceedings. Under the Revised PLO, the court will have to specifically state on the CMO what the timetable for the proceedings will be and any reasons for a change to that timetable will need to be recorded. A new requirement is that the reasons for an extension to the timetable should be stated orally in court [6].

Ryder LJ states in the judgment that "each of the parties has a duty to co-operate with the court to ensure that there is compliance." Under the Revised PLO the template case management order will contain a standard direction to the parties informing them that they must report to the court any parties' non-compliance with the court's directions [7].

For those representing parents in these difficult cases in future, it is helpful to note Ryder LJ's comment that: "Fairness dictates that whatever the local authority's final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family." [24]

Greater attention

Following on from the introduction of the current pilot scheme for the management of care and supervision proceedings (and other specified Part IV Children Act 1989 proceedings) through the new Revised PLO, it must be the case that the court and the parties should pay greater attention to what and how matters are conducted pre-proceedings. It is expected that in all but the most serious cases, pre-proceedings work will have been conducted with a child and family. That means that the parents will be expected to engage with the LA's children's services through that process which usually will commence when the LA sends to the parents (or persons with PR) a letter before proceedings inviting them to the pre-proceedings meeting and to attend with their legal representative.

The LA is expected to make its application to the court for an order and to furnish the court at the time its lodges the application with various 'annex documents'. There will also be other checklist documents (evidential documents and decision-making documents) which do not need to be filed but should be served if requested by ?any party. A key document is the LA's ?social worker's statement. That should ?set out for the court the basis of the application and would summarise the evidence that the LA relies on. The evidence will usually be in the form of the assessment of the child and family. Most LAs call this the core assessment.

In the my view, a core assessment is only complete if all aspects are covered. If there is a need for a specialist assessment (e.g. psychiatric, psychological, other medical assessment) then the LA will be expected to commission so that those assessment reports can feed into its core assessment and properly inform the LA's thinking and planning for the child and family. Often such specialist assessments are not commissioned pre-proceedings and so expert reports are obtained through the proceedings. The President of the Family Division is clear that such expert reports cause delay. It will now be increasingly difficult to gain the court's permission to instruct an expert. Representatives for parents must critically read the LA's assessment of the child and family and consider whether gaps exist which could not have been properly filled by social work knowledge and in fact the need for a specialist assessment was necessary. If so, then the argument must be that the gaps remain in the LA's evidence before the court and must be remedied by obtaining an expert assessment in the proceedings.

The recent Supreme Court decision of Re B [2013] UKSC 13 is ripe with comment which all practitioners should consider and reading the judgment in full will serve care lawyers well. However, specifically in cases where the child is a newborn, the LA that makes an application will probably rely on the likelihood of future harm rather than actual harm already suffered (as that may not be relevant). In those cases, the following points are instructive:

? "Significant harm is harm which is 'considerable, noteworthy or important'. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened" [193(3)].

? "[W]here harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a 'risk' is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm ?is likely" [193(5)].

? "The child's resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the 'real possibility' solidify." [190]).