Max Melsa appears in Court of Appeal remotely in Re: B [2020] EWCA Civ 584

30 Apr, 2020
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This is the second case since the Government’s “lockdown” was imposed to reach the Court of Appeal regarding the welfare of children in public law proceedings.

It sets out guidance for cases where local authorities apply to place children into care in the interim whilst proceedings continue.

The judgment can be accessed here: https://www.judiciary.uk/wp-content/uploads/2020/04/b-children-judgment-300420-1.pdf

Max Melsa reviews the findings of the case having appeared for the local authority. Please see below.

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“The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam.”

This was the Court of Appeal’s finding of what occurred in Re: B and sums up what must be avoided whilst all parties work in the new environment for hearing applications in care proceedings.

The facts

The local authority changed their care plan from an interim supervision order (‘ISO’) to an interim care order (‘ICO’) for one of the children subject to the proceedings, on the same morning as the hearing. The case had been listed just a day after proceedings had been issued, giving all parties very little time to prepare their case and take instructions.

This change of plan included removal of the child from the Special Guardian that had cared for him for all of his life.

Part of the reasoning for this change was because of the effect of the Government’s “lockdown”, meaning that social work teams had found it more difficult to fulfil their duties, including visiting children’s residences whilst subject to care proceedings. The local authority, having reviewed their position, put forward that no measures would be sufficient to safeguard the child whilst remaining in the Special Guardian’s care, despite the local authority’s own care plan saying otherwise.

The Judge at first instance granted the local authority’s application and the child was removed that evening.

The Special Guardian appealed.

Judgment

Four key points have been made in the President of the Family Division’s judgment:

1. The current “lockdown” restrictions should not be used as a reason for a child to be removed into care where no reason would otherwise exist.

This emphasises the true limitation of ISOs, in that there will only be a small number of scenarios where face-to-face supervision is so crucial that a child cannot be adequately protected, even with the restrictions of the “lockdown.” Local authorities must discount this as a possibility, having ensured that they have explored all reasonable alternatives, before resorting to applying for removal of a child from their carer.

 

2. Applications for adjournments must be properly considered.

The balance between the potential risk to the child of a decision not being made on the day of the hearing, against the injustice that may occur by making a decision without sufficient time being given to parties to put their case, remains a difficult exercise. In this case, an adjournment would have allowed for the Special Guardian to properly respond to the local authority’s significant change in care plan for the child on the day of the hearing. It would have also allowed her to put forward potentially material changes, such as the maternal aunt who was seen as a risk to the child, changing residences. The Court of Appeal found that the adjournment should have been allowed.

 

3. In cases that require urgent decisions, the use of video platforms should be pursued.

The Court of Appeal went so far as to say that if a video hearing could have been conducted if the case had been briefly adjourned, this might, of itself, have justified an adjournment, as a determination was not so urgent that it had to be determined that day.

 

4. Applications must be supported by written evidence

Local authorities and guardians must ensure that, despite the time pressures that will inevitably restrict analysis (especially under “lockdown”), applications made to take the Draconian step to remove a child from their carer must be properly evidenced.

Comment

At the time that this case was initially heard, and as the Court of Appeal appreciated, local Authorities were and remain under extreme pressure in the current national health crisis.

However, the initial issues that arose from the restrictions should have now been, or at least to a great extent, ironed out. Courts, local authorities and legal professionals have now had over a month of handling cases remotely. The Courts will not allow these restrictions to be an excuse for significant (and possibly unnecessary) infringements to a right to a family life or to a fair hearing.

This judgment should be used as a guide for cases where a decision must be made of whether an ICO or ISO is to be pursued in current times and can be of use to both local Authorities and respondents.

It should also be used to assist access to justice. Video hearings should be used where possible, and if a determination need not be made immediately, applications to adjourn to allow hearings to be conducted by video will be considered favourably.

The High Court has since this judgment handed down the decision of A Local Authority v Mother [2020] EWHC 1086 (Fam). This ruling revolved around the father in the case, who was suffering from ill-health, having his evidence adjourned. His evidence was to be given via video link.

Mrs Justice Lieven considered that the father giving evidence at a final hearing via video link was fair, distinguishing the intensity imposed upon that a lay party following court proceedings in a final hearing whom has had time to consider the case, from that of an urgent hearing where evidence is provided late.

This demonstrates the use of Re: B alongside the case of Re A (Children) (Remote Hearing : Care and Placement Orders) [2020] EWCA Civ 583 (handed down at the same time as Re: B) when the court considers not only urgent interim hearings, but also proceeding in final hearings.

 

 

 

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