J (A Child : application for a care order), Court of Appeal - Family Division, October 19, 2018, [2018] EWHC 2840 (Fam)

Resolution Date:October 19, 2018
Issuing Organization:Family Division
Actores:J (A Child : application for a care order)
 
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Neutral Citation Number: [2018] EWHC 2840 (Fam)

Case No: WX18C00483/FD18P00052

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19/10/2018

Before :

MR JUSTICE WILLIAMS

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Between :

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Ms Alicia Collinson (instructed by The Local Authority) for the Applicant

Ms Leonorah Smith (instructed by Cross Solicitors) for the 1st Respondent

The 2nd Respondent was not present or represented

Ms Shân Morris (instructed by Gamlins) for the 3rd Respondent by his Children's Guardian

Hearing dates: 17th - 19th October 2018

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Judgment ApprovedThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Williams :

Introduction

  1. I am concerned with a little boy, whom I shall call J, who was born in Ireland in July 2015. He is represented by his Children's Guardian from Cafcass Cymru and Ms Morris, counsel. J's mother lives in Ireland and is represented by Ms Smith. She is currently in a mother and baby unit in Ireland and the mother has not attended this hearing in person. Arrangements were made for her to attend by video link. The mother is still breastfeeding (at least partially) her newly born baby, B-R, (born in August 2018) and so says she could not reasonably be expected to attend this hearing in person. However even though those arrangements were made she has chosen not to participate, preferring to prioritise attending contact sessions with J and B-R. J's father lives in north-east Wales. He is not named on the birth certificate and so does not have parental responsibility. He also has been given the opportunity to participate in these proceedings but has not done so. Statements of service of the proceedings on him appear at C14 to C19 and attempts to engage him have been made, both by the social worker and by the Guardian. He has not responded in any substantive way.

  2. The local authority bringing the applications is represented by Ms Collinson, counsel. The applications which I have been considering over the last three days are the application for a care order apparently issued on 27 September 2018 and an application for a placement order apparently issued on 12 October 2018. [I say `apparently' since it has subsequently become clear on the 19th October that the Central Family Court has declined to issue the two applications and they must now be issued at the Wrexham County Court. I give consequential directions as part of these proceedings and this judgment is given on the basis that the applications will now be issued.] At first blush a final hearing on such applications taking place on the 17th to 19th of October might appear like a very rapid disposal indeed. For reasons which will become apparent in fact quite the contrary is the case. I have also been considering, within the care proceedings an application issued by the mother dated 3 October for a direction pursuant to section 38 (6) Children Act 1989

    Background

  3. In February 2015, His Honour Judge Gareth Jones gave judgment on an application by the local authority for a care order in respect of R, J's older half-brother. R had suffered serious inflicted injuries at the hands of either his mother or his father (unrelated to J). His Honour Judge Gareth Jones was unable to determine which of them had inflicted the injuries but he concluded that it was one or the other and that the parent who had not inflicted them had known of them and had failed to protect R. He made a care and placement order and R has subsequently been adopted.

  4. At the time of that decision the mother was around four months pregnant with J. No one involved in the proceedings was aware of this save for the mother. The mother then left Wales and travelled to Ireland where she gave birth to J. She gave a false account of the circumstances in which she came to be in Ireland to the Child and Family Agency (CFA), when she first became involved with them, telling them that R was living with her father in Wales.

  5. J was born in July 2015 and remained in hospital for some three days before being removed into foster care. The CFA had made enquiries in Wales and had ascertained that R was not living with his maternal grandfather but rather was in care. They learned of His Honour Judge Gareth Jones' decisions and, given what the CFA had learned about the mother and R, they had serious concerns for J's safety. The CFA made an application for an interim care order in respect of J, which was refused because the mother agreed to him being placed in voluntary care. On 29 July 2016, the CFA made a further application for a care order and on 9 August 2016 an interim care order was made. Those care proceedings continued through 2016 and 2017 and were listed for final hearing in October 2017. For reasons which I have not fully understood it was only at that hearing that the court came to consider whether the proceedings should be transferred to Wales pursuant to article 15 of EC regulation 2201/2003 (referred to in this judgment as BIIa). On 6 October 2017, the Irish court determined that J had a particular connection with Wales and that the Welsh courts would be better placed to hear the case and, at a later hearing in December 2017, the Irish court determined that it was in J's best interests for the courts of England and Wales to hear the application. For reasons which I will set out briefly later, that application was not finally determined by this court until June 2018. Given that J had been effectively in care for nearly 3 years by that stage I decided that rather than require the proceedings to be issued in the family court at Wrexham, that I would continue to deal with J's case so that a final hearing could be expedited. I listed the matter for a three-day hearing commencing on 17 October and prehearing reviews including an issues resolution hearing took place in September and October 2018. The mother's team confirmed that she would not be seeking to reopen the fact-finding relating to R, and thus the three day time estimate still appeared realistic. Regrettably the preparations for the hearing were not as thorough as they should have been. In a case such as this with a tight time estimate it is even more essential that the preparatory work including the documentation for the court is undertaken. Unfortunately in this case no preliminary documents were filed with the bundle and the bundle which was filed was missing almost all of the updating material. A chronology was in the bundle but was five months out of date. No list of essential reading was provided and the parties position statements came in on the morning of the first day. The video link and telephone links were plagued with difficulties both at the English end and at the Irish end. Indeed on Thursday when the Irish social worker was to give evidence the video link did not operate at all because somehow communications had broken down between the local authority and the Dublin end such that the suite was not available in Ireland. Time did not permit a further enquiry into how this most unsatisfactory situation came about. But it bears repeating that when video links are to be used it is essential that the lead solicitors understand the process by which the link is to be achieved and that they liaise closely both with the court in this country but also with the provider elsewhere to ensure that the facilities are available and the connections can be made at the time that is required. Setting up video links with a booking made for 1030 on the second day, when the hearing is due to start at 1030 simply results in a loss of time - bookings must be made to ensure that the link can be tested before the time the hearing is due to start, even when the same video link had worked the day before.

  6. At the commencement of the hearing Ms Smith, on behalf of the mother, made an application to adjourn the hearing until Thursday morning. The basis of the application was that the mother was attending contact on Wednesday afternoon and wished to attend by video link but she did not have the laptop facilities to do so whilst at contact. Given that the hearing had been set up some three months before and directions had been given to ensure that the mother could attend by video link her decision to attend contact, rather than seek to rearrange it, was surprising. I refused the application. As it turned out, on Thursday morning the mother instructed Ms Smith that she would not have participated in the hearing by split screen video link even if that had been possible. Again she decided she would attend contact. She did not wish to either listen to the evidence of the witnesses nor to give evidence herself; she said her statement was sufficient. At the end of evidence on Thursday, I gave Ms Smith a further opportunity to speak to the mother to see if she wished to give evidence on Friday morning. Given that the mother was critical of the Guardian for reaching conclusions without having seen the mother, I wondered whether the mother might wish to reconsider her position and to participate in the hearing. However on Friday morning Ms Smith said that the mother had maintained her position that she did not wish to participate and relied on her written statement. The irony of the mother criticising the Guardian for not seeing her prior to filing her report (the Guardian was unwell on the day she was due to travel to Ireland to meet the...

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