“You’re nobody special”

27 Jun

In Re W [2014] EWCA Civ 405, the Court of Appeal reminded us that even guardians are fallible and that their opinions do not carry additional weight merely because they are those of a guardian. The facts of the case are set out below.

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In Re W [2014] EWCA Civ 405, the Court of Appeal reminded us that even guardians are fallible and that their opinions do not carry additional weight merely because they are those of a guardian. The facts of the case are set out below.
Mother, father, and their 2 children (now aged 10 and 7) were all Polish nationals who had lived in England since 2007. In April 2013, Father was convicted of mother’s murder and was sentenced to life imprisonment. The children had witnessed their mother’s injuries after the attack but not the attack itself. However, they were present in the home at the time of the attack and so would have been aware of the violent altercation that led to mother’s death.
The children were placed with local authority foster carers under interim care order. They flourished in the placement. They had regular face-to-face contact and contact via Skype with a maternal aunt and uncle who lived in Poland who, from the beginning, said that they wanted to care for the children. At first, the aunt and uncle appeared to be regarded as an appropriate long-term placement for the children. That changed when a new social worker was allocated to the case part way through proceedings.
At the final hearing, the local authority (supported by father and the children’s guardian) sought full care orders for both children on the basis of a care plan for long-term fostering with the carers who had been looking after the children since mother’s death.
The aunt and uncle (who spoke no English) opposed the application and sought special guardianship orders for both children. They were litigants in person at the final hearing.
The special guardianship report before the court did not support the making of orders in favour of the aunt and uncle, commenting negatively on their ability to support the children consistently and emotionally in relation to the loss of their mother, their motivation for wanting to care for the children, and the impact of their own family life. The report also called into question the stability of their relationship and commented on the possible effects of marital breakdown on the children if they were placed with the aunt and uncle.
HHJ Serota QC at first instance was deeply impressed by the aunt and uncle, finding that they were impressive and honest witnesses, and granted them special guardianship orders. The local authority and father appealed, arguing that:
(1) The judge’s sympathy for the aunt and uncle (as non-English speaking litigants in person) had clouded his judgment and led him into error both procedurally and legally.
(2) The judge failed to have sufficient regard to the special guardianship report and had failed to articulate his reasons for preferring the evidence of the aunt and uncle to that of the author of the special guardianship report.
(3) The judge failed to give reasons for departing from the views of the guardian.
(4) The judge failed to give appropriate weight to individual components of the welfare checklist.
(5) The judge incorrectly transmuted the principles to be derived from Re B (A Child)(Care Proceedings: Appeal) [2013] UKSC 33 and other cases since these were only applicable in cases involving adoption without parental consent.
The Court of Appeal (Sir Terence Etherton, Kitchen and Macur LJJ) had little trouble dismissing the appeal, holding:
(1) Part of the judge’s adjudicative exercise depended on his assessment of the credibility and accuracy of both the social worker and the aunt and uncle. He had seen them all give evidence and concluded that the aunt and uncle were impressive and patently honest witnesses. He thereby implicitly rejected the social worker’s disputed factual evidence. The judgment read as a whole made clear the judge’s reasoning. He was also entitled to reject the evidence of another social worker on the availability of children’s services in Poland as being worthless in the overall balance he had to strike (paras 28-29).
(2) The guardian conceded that her opinion as to the appropriate placement had been reliant on the integrity of the social work assessment. Accordingly, in dismissing the local authority’s case, the judge must necessarily have rejected the guardian’s opinion in that it depended on the same. In those circumstances, the judge’s failure to express his reason for departing from the guardian’s opinion did not mean that he had failed to give weight to her views (para 31).
(3) The judge’s consideration of the welfare checklist factors was present but dispersed throughout his judgment. The judge considered the children’s family ties to have particular resonance in the circumstances of the case, particularly in light of his entirely favourable impression of the aunt and uncle. His judgment read as a whole illustrated that he had balanced biological family life against other considerations of the children’s ascertainable wishes, the disruption of what had become an entirely successful long-term foster placement, education and social life, their bereavement and consequent physical, emotional and educational needs. The appellants were unable to demonstrate that the judge’s conclusion that the balance came down in favour of the long-term benefits of a family placement was wrong (paras 38-39).
(4) In arguing that the judge had wrongly focussed on cases where the court was being asked to remove children from their parents and place them for adoption, the appellants took an overly simplistic stance. There were clear principles to be drawn from those cases concerning the necessity to police the proportionate response of involuntary state intervention into family life by rigorous judicial scrutiny, Re B considered (para 35).
(5) A judge’s role in such a case, involving litigants in person and complex legal issues, was precarious. He had to remain the adjudicator of fact and law and avoid descending into the arena, but nevertheless had to ensure that all reasonable assistance was afforded to the non-represented party in putting their case.

It was unrealistic to require advocates representing other parties who opposed the non-represented litigant’s application to assist in promoting it, whether by positive action in the framing of questions to be asked of other parties or a reticence to challenge the contrary evidence. Advocates were reminded of their duties of fair play and to squash any lingering misconception that the children’s guardian’s exercise of duties in the advice tendered to the court, service of documentation and inspection of records in accordance with the Family Procedure Rules 2010 PD 16A established them as an advocate to the court. It was a misconception that the evidence and opinion of a children’s guardian, however demonstrably poorly rooted or reasoned, carried additional weight by virtue of their ‘special’ status.

The guardian was required to proffer advice to the court, but in doing so became a witness subject to the same judicial scrutiny as any other. A children’s guardian started with no special advantage (paras 18, 22, 32).

Graeme Harrison

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