Birmingham City Council v X & Anor [2024] EWHC 3659 (Fam)

IMPORTANT NOTICE This 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.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

Case No FA-2024-000227

[2024] EWHC 3659 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London

Date 13 September 2024

WC2A 2LL

Page Count: 5 Word Count: 2310 Number of Folios: 32

Before

MRS JUSTICE LIEVEN

Between

BIRMINGHAM CITY COUNCILApplicant

XRespondent

YRespondent

MR DAMIAN SHEPHERD (Solicitor/Advocate of Birmingham Children’s Trust)

appeared for Applicant

THE FIRST RESPONDENT appeared In Person for in person

THE SECOND RESPONDENT appeared In Person for in person

Approved Judgment

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[1]This is an appeal brought by Birmingham City Council in respect of an order made by Recorder Dawar on 20 March 2024 to make a supervision order. The supervision order was in respect of two children A aged 9, and B aged 6.

[2]The appellant Birmingham City Council has been represented before me by Mr Shepherd, to whom I am extremely grateful. The parents, the first and second respondents, did appear and support the appeal in the sense that they wish for the supervision order to be set aside. They were assisted by an interpreter and they were in a room with the social worker who has helpfully ensured that they understand what is going on. The grounds for the set aside are effectively technical procedural ones rather than anything to do with the merits of the case. I note at the outset that although I do intend to set aside the judge’s order, there is no criticism of the judge in this case. As Mr Shepherd and his predecessor Mr Maynard, who drafted the local authority’s skeleton argument, freely accept, the Recorder was very much led into error by the local authority.

[3]There are three issues before me, first of all whether permission to bring an application for permission to appeal is granted out of time; second, permission to appeal; and thirdly, the substantive merits. I will deal with the second and third stages together. I will explain the background to the case which will show why the appeal is brought out of time.

[4]The case stems out of private law proceedings between the parents. There are, as I have said, two children and there has been some local authority intervention in the family over some time due to allegations of domestic abuse. In March 2023, the mother applied for injunctive relief pursuant to the Family Law Act 1996 making serious allegations of domestic abuse, against the father. Various orders were made and those proceedings continued with the involvement of the local authority.

[5]There was a hearing before the Magistrates on 13 December 2023 and a report was ordered pursuant to Section 37 of the Children Act 1989. That order did not make any interim order pursuant to Section 38.

[6]The matter returned to court on 27 February 2024 before HHJ Rowland, at which point the Section 37 report was not available. Time was extended and the matter was adjourned for a hearing before the judge.

[7]Matters then become a little mysterious because it is clear that there was a hearing before the judge on 20 March but the order that was produced is dated 27 February 2024 in two places. The substance of the order made by the judge was that both parents had attended, assisted by interpreters, and that the social worker and author of the Section 37 report Mr McNeil was also present. No party was represented.

[8]The court noted in the order the recommendation of the Section 37 report which was that there be a supervision order. The court put in a recital that it was satisfied that the threshold criteria were met and a child arrangements order was made for the children to live the mother and a prohibited steps order to prevent the father from removing the children from the mother, and a final supervision order was made, which was dated to last until 20 March 2025, i.e. a period of one year from period of 20 March, which is the maximum period a supervision order can last.

[9]Although the order is dated 27 February 2024, I am confident from the papers, the substance of the orders, and from what Mr McNeil has told me, that the hearing was actually on 20 March 2024. It is important to note that there was no application by the local authority for a supervision order and no interim supervision order was ever made.

[10]Unfortunately, although the order was made on 20 March, it appears from the chronology that it was not received by the local authority until 13 April 2024. The reasons why it took all that time are not clear to me, but I accept that it was through no fault of the local authority. Therefore, the operative date for appeal was 20 March 2024 but the local authority did not actually get the order until after the 21 days for appeal had expired.

[11]Perhaps unsurprisingly in the light of all this confusion, the local authority then made considerable efforts to contact the court and try to find out when the order was made and why a supervision order was made when there was no application. I am told by the local authority that emails were sent to the court on 21 May, 28 May, 20 June, 27 June, and 10 July 2024 requesting a perfected copy of the order, or, in the alternative, clarification of whether the 27 February date was correct. No response to any of those emails was received. As such, it was only on 12 July 2024 that counsel was instructed to settle grounds and advise. In the light of that chronology, it is hardly surprising that the application for appeal was brought significantly out of time, I think some four months out of time. So the first issue for me is whether to grant permission for the application to be made out of time.

[12]Applying the principles in Denton v White, I have no doubt that it is appropriate to grant permission for an appeal to be brought out of time here. First of all, the order itself was sent in a way that meant the appeal was outside the 21 days before the local authority even knew about it. Secondly, I am satisfied that the local authority has made full attempts to try to sort this situation out and find out what was happening, but received no assistance from the court. Thirdly, as I will come to in a moment, the merits of this appeal are extremely strong and therefore, that is a factor in the Denton v White considerations.

[13]The next question is whether or not this should be an appeal to the High Court or an appeal to the Court of Appeal given that it is an appeal against the making of a supervision order. That is not by any means a straightforward issue in this case because the only proceedings that were before the judge were private law proceedings. In those circumstances, I am prepared to accept that the correct route is to the High Court rather than the Court of Appeal and I am going to continue to consider this appeal.

[14]The next issue is the merits of the appeal. The simple point made by the local authority in Ground 1 is that the learned judge had no jurisdiction to make an appeal in circumstances where there was no application. This is a purely jurisdictional appeal. The position under the statute is that by Section 31(1) of the Children Act 1989:

“On the application of any local authority or authorised person, the court may make an order— (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority.”

[15]There were only two exceptions to the provision in Section 31(1) that a court can only make a supervision order under Part 4 when faced with an associated application. Pursuant to Section 31(5) of the Children Act 1989 on an application for a care order, the court may make a supervision order, or on an application for a supervision order the court may make a care order. However, in this case, the court cannot rely on that provision because there was no application for a care order.

[16]The second exception is pursuant to Section 37 of the Children Act 1989 to make an interim order pursuant to Section 38 of the Children Act 1989. However, no interim order was made here and so that exception does not apply. In those circumstances, Mr Shepherd on behalf of the local authority says that there is simply no jurisdiction for the court to have made a supervision order here. As far as I can see, that is plainly correct. It says, in terms, that there must be an application.

[17]There is only one aspect of that which troubled me in the hearing, namely that “application” in Section 31(1) is not defined in either, as far as I can see or Mr Shepherd could find, the Children Act 1989 or in the Family Procedure Rules. Therefore, there is nothing in law, as far as I can see, that says that an application has to be made in writing. However, Mr Shepherd has pointed me to the table in the Family Court Practice, table D13, which covers the making of care and supervision orders. In respect of the application, that table says that the application must be made on a form C110A with various copies, and the reference is made to the Family Procedure Rules PD12A and PD5A, which refer to the said form. Of course, practice directions are not law but there is an absolutely clear expectation there that if an application is going to be made for a care or supervision order, it has to be made in writing. It also appears to me to be somewhat surprising if it was possible for an application simply to be made orally given the very careful procedure set out in the Rules for service of such applications.

[18]In those circumstances, although it is clear to me that no application for a supervision order was made, it may be that the judge was thinking that an application had been made because of Mr McNeil’s presence and because the Section 37 report recommended such an order. I am told by Mr Shepherd, and there is witness statement to this effect, that the local authority have a procedure for considering such reports and recommendations, and, for whatever reason, that procedure was not followed in this case. Therefore, the lawyers did not scrutinise the report and did not realise that an application for a supervision order needed to be made.

[19]In any event, all I need to find is that no application was made even if it could have been made orally, which, for the reasons I have set out, I think is very unlikely. In any event, what I can find beyond any doubt is that the judge did not have before her an application in any form and, therefore, the terms of Section 31 were not met. In those circumstances, the judge had no jurisdiction to make an order and the order must be set aside.

[20]I note that the local authority also brings in Ground 2 an argument that the order was made in breach of Articles 5 and 8 of the ECHR because threshold findings were made without notice and particularisation, and the final order was made without notice. In the circumstances where I have set the supervision order aside as being ultra vires, and therefore necessarily set any findings aside because there was no jurisdiction to make the order, I do not need to deal with Ground 2.

[21]I therefore set aside the supervision order. The local authority tells me that the parents are now working well with the local authority and they do not wish the matter to be remitted to fresh hearing for an application to be made. Therefore, I can bring these proceedings to an end. - - - - - - - - - (This judgment has been approved by the Judge.) Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com