President s Guidance Bulletin number 2 Case management decisions and appeals therefrom. December 2010.

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1 President s Guidance Bulletin number 2 Case management decisions and appeals therefrom December Introduction If my first Guidance (regarding split-hearings, issued in May 2010 and published in the July issue of Family Law at [2010] Fam Law 752) began with a note of a health warning, such a health warning applies even more strongly to what follows. I hope, however, that it will, nonetheless, be of assistance. As I have gone around the country, a number of judges and magistrates have told me that they feel unsupported by appellate jurisdictions. They thus feel, for example, that they must order an expert s report or an additional assessment by an independent social worker for fear that if they do not they will be appealed and criticised on appeal for not having done so. I cannot, of course, speak for the Court of Appeal, which will deal with any given appeal, or application for permission to appeal, on its merits. Equally, in my view, no court should ever deal with a case on the basis that one discretionary outcome rather than another may find greater favour with an appellate tribunal. I can, however, offer the following by way of guidance. It seems to me that there are two particular types of case management decisions in which this dilemma principally arises. The first relates to additional reports or assessments of children and their parents in care proceedings. The second is applications under section 38(6) of the Children Act I propose to deal with each in turn. Before doing so, however, it will, I think, do no harm to repeat a few obvious messages: - 1. As a general proposition, and as a matter of policy, appellate courts recognise that decisions at first instance are often taken quickly and under pressure both of time and other work. It follows that the instinct of the appellate court is to support the decision made below, unless that decision is as both Asquith LJ and Lord Fraser emphasise plainly wrong - see paragraph 3 below. 2. Judicial decisions under the Act are mostly discretionary. A judicial discretion must, of course, be exercised judicially. That said, the discretion is, usually, a wide one, particularly in relation to case management decisions. 3. It is worth remembering always what Atkin LJ said in Bellenden (formerly Sattersthwaite v Sattersthwaite [1948] 1 All ER 343T 345 (and cited by Lord Fraser in the Family case of G v G [1985] 1 WLR 647 at 651-2, [1985] FLR 894 at 898 namely: - 1

2 It is, of course, not enough to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two minds may reach different conclusions in relation to the same subject matter without either being wrong: or, to put it another way, an appellate court cannot reverse a court of first instance unless the decision at first instance is plainly wrong. 4. When exercising a first instance discretion, it is essential for the tribunal to take all relevant matters into account and to exclude all irrelevant matters. The pros and cons should then be weighed and a decision reached. The decision itself must be reasoned and clearly articulated. Provided it follows these rules, the decision should be fireproof. 5. Decisions can, of course, be plainly wrong if judges or magistrates make an error or errors of law. However, such errors in this category of case are unusual. The argument is more likely to centre on the manner in which the discretion has been exercised, and this in turn will depend upon the performance of the balancing exercise. 6. So when you are performing such an exercise, even if you are entirely clear about what you intend to do, I suggest that you take a few moments in your room to jot down or underline the relevant points to ensure that you have taken everything relevant into account and discarded the irrelevant. Itemise the considerations for and against the application and explain why you have decided as you have. Don t labour the fact that you are exercising your discretion, but say so, and remind yourself that it has to be and is being exercised judicially. 7. Quite what the factual matrix will be in a given case will, self-evidently, depend upon the facts of that case. However, always bear in mind that assessments or additional reports take time. It is thus always important to take delay and the timing of the application in question into account. There will be cases in which an assessment will not cause additional delay: there will be other cases in which the delay caused by an additional assessment may be a critical factor which tips the balance against it. Either way, ensure that you have dealt with the point in your judgment. 8. Any hearing you conduct must, of course, be ECHR Article 6 and 8 compliant. 9. Any appeal against a case management decision must be mounted swiftly see the decisions of the Court of Appeal in Re A (Residence Order) [2007] EWCA Civ 899 [2007] Fam. Law 1061, Re S (Child Proceedings: Urgent Appeals) [2007] EWCA Civ 958, [2007] 2 FLR 1044 and Re P and P (Care Proceedings: Appointment of Experts) [2009] EWCA Civ 610, [2009] 2 FLR 1370 (also discussed below). 2

3 Guidance Applications for additional assessments or for expert reports 10. Re-read the experts practice direction at [2009] 2 FLR Remember always that it is your case and your decision. An expert can only be instructed if you agree, and the function of the expert is to provide an opinion about a question that is not within the skill and experience of the court (PD paragraph 1.3). So always ask yourself: do I need this additional report to enable me to make a fair and proper decision? What can this expert add or contribute to the case? If the answer to the first question is no and to the second nothing, you are unlikely to order a report. 11. Process is important in family law, and every hearing you conduct must be ECHR Article s 6 and 8 compliant. This does not, of course, mean that you must accede to every parent s application for a second opinion: each decision is a matter of judgment. What is important is that your conduct of the proceedings is transparent and your conclusion is fair. This will inevitably involve balancing different factors in the manner I have already described before reaching a reasoned conclusion. 12. Always bear in mind the effect which any order you are being asked to make has on the time-table for the child and the case overall. 13. Always remember that issues of fact and credibility (who is believed and who is not) are matters for you, and not for the expert. 14. In public law care proceedings, judges and magistrates cannot make care orders under the Act unless they are satisfied both that the threshold criteria under section 31 of the Act are satisfied and that it is in the best interests of the child for a care order to be made. If the material available to you does not enable you to fulfil your statutory obligations to the child, say so, specifying the gap that needs filling, and - if you make an order for an expert opinion - list that as a principal reason for doing so. 15. Note that by virtue of paragraph 4.3(8) of the Practice Direction the party seeking permission to instruct an expert must explain why the expert evidence proposed cannot be given by social services undertaking a core assessment or by the children s guardian in accordance with their respective statutory duties. 3

4 Applications under section 38(6) of the Act 16. There are additional factors which should be taken into account when dealing with applications under sections 38(6) and (7). 17. It is, I think, worthwhile remembering that section 38 of the Act deals with interim care orders and interim supervision orders. So the court cannot make an order under section 38 (6) unless such an order is or will be in place. Section 38(6) is thus an exception to the general rule that where a care order is made, the local authority is in the driving seat and can effectively dictate how parental responsibility is to be exercised under section The two leading cases are the decisions in the House of Lords in Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, [1997] 1 FLR 1 (Re C) and Re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68. [2006] 1 AC 576, [2006] 1 FLR 601 (Re G). They should be re-read. 19. Two points of law were decided by Re C. They are: (1) that sections 38(6) and (7) of the Act are to be broadly construed and confer jurisdiction on the court to order or prohibit any assessment which involves the participation of the child and is directed to providing the court with the material which, in the view of the court, is required to enable it to reach a proper decision at the final hearing of the application for a full care order (per Lord Browne-Wilkinson); and (2) that the phrase the medical or psychiatric examination or other assessment of the child in section 38(6) is not to be interpreted so as to restrict assessments to the medical or psychiatric. 20. In addition, Re C makes it clear that it is impossible to assess a young child divorced from his or her environment and thus the assessment includes the relationship between the parents and the child or children concerned. 21. Re G, whilst adopting the broad approach set out in Re C decides that an assessment under section 38(6) does not include therapy or treatment, particularly for a parent. Inpatient treatment was thus beyond section 38(6) and the court had no power to order it under the sub-section. 22. Lord Scott, who conducts a helpful review of the authorities, specifically agreed with a statement by Holman J in Re M (Residential Assessment Directions) [1998] 2 FLR 371 at 381 which I think it useful to follow. Holman J said: -.. The court s powers..are limited to a process that can properly be described as assessment rather than 4

5 treatment although no doubt all treatment is accompanied by a continuing process of assessment. And they are limited to a process which bona fide involves the participation of the child as an integral part of what is being assessed. 23. Section 38(6) should thus be seen as part of the essential evidence gathering process. Plainly, if the proposed assessment is in fact a therapeutic intervention for the benefit of the parents, you will refuse the application. If, on the other hand, the assessment falls within Holman J s statement in Re M, that will be a factor which opens the door to the exercise of your discretion. I propose to illustrate this guidance by reference to examples of decisions of the Court of Appeal in which I gave the leading judgment. In the first, we supported the decision of the judge not to allow a further assessment. The second is a reversal of the judge s decision, but is largely concerned with an error in law. The third is an example of further expert evidence being required to assist the court. The fourth concerns the question of a second opinion, but was wholly exceptional on its facts. Example Re S [2008] EWCA Civ 1078, [2008] Fam Law 1267 (not otherwise reported). In this case, the Court of Appeal (Mummery LJ and myself) refused an application for permission to appeal the decision not to allow a section 38(6) assessment. We did so because: - (a) the judge was exercising a discretion, and had done so judicially; (b) the judge had conducted a careful balancing exercise: he had identified all the factors in favour of an assessment and had balanced them against the factors which militated against it; (c) he cited from and followed the relevant authorities; (d) he expressly weighed the question of delay; (e) he also considered carefully the likely disruption to the child caused by the assessment; (f) the judge was concerned about the information the mother had made available to those proposing the assessment, and took into account what he found to be the mother s lack of frankness in this respect; (g) the judge asked himself the question: would the report give him any important additional information? In this case, although it might not be necessary in all cases, there had been a previous, unsuccessful attempt at a residential assessment; 5

6 (h) the judge found that, as an exercise of discretion, the antis outweighed the pros by a significant margin and he refused the application. 25. Such a decision is plainly incapable of being appealed, even if the appellate court would be inclined to disagree with it. Example Re L and H (Residential Assessment) [2007] EWCA Civ 213. [2007] 1 FLR 1370, a decision of Thorpe LJ and myself. 27. What is important to note about this decision is that it is a rare example of where we took the view that the judge had made an error of law. The two factors which predominated in the case were: (1) that the judge had refused the assessment on the grounds that it involved a therapeutic element and was thus outside section 38(6); and (2) he gave no weight to the fact that a previous psychological assessment had strongly recommended a residential parenting assessment both to give the professionals involved in the case important information about the mother s practical parenting, and also to provide important, even vital information about how the parents relationship bore up under stress. 28. In our view, the judge had been plainly wrong to characterise the recommended assessment as outside section 38(6). The psychologist had suggested a concurrent therapeutic intervention by others, not a therapeutic intervention as part of the residential assessment. 29. The judge had also been wrong in saying, as he did, that the assessment would of necessity give rise to considerable and in my judgement unacceptable delay.. Had he ordered an assessment it would have been completed well in advance of the fixed date for the final hearing. 30. Our decision in Re L and H, therefore, was not primarily concerned with the reversal of the judge s discretionary judgment. 31. It is, of course, the case, that I go on to discuss the principles underlying the 1989 Act and describe fairness and a full and proper investigation as points which go to the root of family justice. I do not, however, think that I am saying more than the following: - (1) that care proceedings are important; (2) that the court has a duty to act in conformity with ECHR Articles 6 and 8; (3) that before making a care order the court has to be satisfied about the threshold criteria and that a care order is in the best interests of the child concerned; and (4) that given the importance of the issues to the child concerned and his or her family every case needs to be fully and properly investigated. 6

7 32. In my view, there is nothing in Re L and H to lead anyone to the view that they cannot take difficult decisions about disadvantaged children with impunity. This is, after all, what judges and magistrates are doing day in and day out. Example A rare example of a case management decision being reversed is Re P and P (Care Proceedings: Appointment of Experts) [2009] EWCA Civ 610, [2009] 1370 in which Smith LJ and I felt compelled to reverse a decision by Coleridge J who had refused permission to a local authority to instruct an paediatric pathologist to investigate an earlier child death which had manifested symptoms similar to those shown by one of the children who were the subject of the care proceedings before the judge. Coleridge J refused the application on the ground that it would lead to an extensive investigation and that the resulting delay could not be justified. We took the view that his decision was premature: the judge should have ordered the report and then decided upon the direction of the case. He had deprived himself of information which would have enabled him to make an informed decision. The appeal was supported by the guardian, and the enquiries were plainly material. Example W v Oldham MBC [2005] EWCA Civ 1247; [2006[1 FLR 543. A decision of Thorpe LJ, Black J (as she then was) and myself. 35. This case, although required reading, was wholly exceptional on its facts. It is an example of circumstances when it is necessary in the interests of fairness and justice to allow a parent a second opinion. The judge thought she was dealing with a medical consensus. In reality, it turned out to be nothing of the sort. All the doctors in the case at first instance simply deferred to the one doctor who had the specialism lacked by the others. When a second specialist was instructed, he took a different view (which proved to be that adopted by the judge). The parents were initially deprived of the opportunity to challenge the medical evidence. Summary 36. As we stated in Re P and P (see 33 above) [17] Case management decisions are not to be challenged on a whim, or because one party simply happens to disagree with them. They are discretionary decisions in which the allocated judge enjoys a very wide discretion to deal with the case within the confines of the overriding objective and taking into account the best interests of the child. There must be a point of substance which requires an urgent 7

8 challenge and speedy resolution. In the overwhelming majority of cases, no such point will arise. Where it does, however, speed is of the essence. Delay, as the 1989 Act makes clear, is usually contrary to the interests of children, as well as being the enemy of justice in most child cases. Conclusion 37. Having sat in the county court, and having listened to everything which is said to me, I know how difficult and stressful these cases are. But the message of this guidance, I hope, is that provided it is followed, your work will be respected and supported, even if it may look to you as though the case being heard in the Court of Appeal bears little or no resemblance to the case you heard. Nicholas Wall December

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