FAILURE TO COMPLY WITH DIRECTIONS IN THE FAMILY COURT: “THEY ARE NOT PREFERENCES, REQUESTS OR MERE INDICATIONS; THEY ARE ORDERS”

I am always wary of venturing into an area occupied by many exceptional family bloggers. However court order, and in particular compliance with court orders,  is part of the regular diet of this blog. That is why a case with a heading BCP v M (Failure to Comply with Direction; Family Placement) [2021] EWFC B26 caught my attention.  HHJ Simmonds expressed profound concern about the local authority’s failure to comply with directions made and thus to undermine the orders made by the court.   The judge felt the need to repeat observations made 8 years ago.

 “I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders”

THE CASE

The local authority had taken a child into care.  The court made an order that the local authority consider placement with the child’s aunt and made directions setting out the steps the local authority should take.

THE LOCAL AUTHORITY’S FAILURE TO COMPLY

4.                  As a result of HHJ William’s order the paternal aunt made those enquiries in respect of her work, but I am clear the Local Authority have singularly failed to provide the information that was required by the learned judge, as I will shortly set out.

5.                  The Local Authority maintain their position today with regard to the Aunt.  It appears that a manager, who has never met or spoken to the Aunt has three major issues with regards to this that were fleshed out for me by Mr Hand on behalf of the Local Authority.

6.                  The first point is that she is on the list of potential people that could be placed in the pool of perpetrators.  They say that the police enquiries are at an early stage, that although she has not had any unsupervised contact since 14 March 2021, the position of the Aunt and the family are all “self-reporting”.  Mr Hand accepts that there is no evidence whatsoever that she has had any unsupervised contact.  At best, it is a suspicion, a worry, but with no evidential basis. It is a “we have a feeling there is something going on”. To hold that position would mean that in every case where a viable family placement is an option a Local Authority could oppose it without any evidential basis. This is a direct violation of both the family and the child’s Art 8 rights and has no foundation in law. 

7.                  I have heard from Ms H.  I remind myself of the local authority assessment of her, that of a woman, who appeared to be “strong, genuine and willing to work with the Local Authority”.  She tells me that she has had no contact since 14 March 2021, never had any unsupervised contact, that the contact on 14 March was with other members present, that perhaps before that the contact was on the 5^th and was a lift with the Mother, and there is no evidence whatsoever to contradict that.  The idea that evidence that is “self-reported” is unreliable has no basis in law.    There is no evidence that Ms H could possibly be on the list, and I accept that.

8.                  Secondly, dynamics and ability to protect.  I asked Mr Hand, frankly, “Where do I find the evidence for that?”  He accepted,  “There is no evidence for that.  If there is no evidence, you cannot rely upon it.” Indeed the evidence that I have is that the paternal aunt is more than capable of standing up to her brother.

9.                   I, therefore, have two areas of concern that I am told has been robustly put by an Area Manager that has no evidential basis. 

10.              Thirdly, the Aunt has had little time to think about the ramifications, and also the effect of a placement on her and her family.  I accept that, but there is a caveat to it, and it is this: what support is this Aunt going to be given by the State in respect of looking after this child because, of course, the child is with a foster carer, which this Local Authority are funding and, of course, will be providing the normal fostering support, as they must do.

11.              HHJ Williams, at paragraph 14 of his order, (iii), said this:

“(iii)  In the event that the court places M with Ms H, either under a section 38(6), if possible, or an Interim Child Arrangements Order, details of the support, which will be available to her, including any financial support and annexing the proposed written agreement it would enter with her.”

12.              The Local Authority have failed to provide that information.  They have drafted a written agreement, but failed to share or discuss it with the paternal aunt, the person who it is about. The Local Authority have failed to comply with paragraph 14(b)(iii) of the order of HHJ Williams.  Details of any support to include financial support has not been set out.  They could not tell me, even now, what support would be given, what the process would be, or indeed what the emergency funding would be.  They do not know what start-up items she would need.  They, therefore, have not done what the learned judge required.

THE LOCAL AUTHORITY PUT ON NOTICE

The judge was highly critical of the local authority’s approach to compliance with the order.

27.              The Local Authority disagree with HHJ Williams’ order and the possible placement with the aunt. By failing to comply with the Court order, failing to provide her with the basic information necessary and failing to engage with her to make the necessary decisions they have in reality used their corporate might to scupper the placement and the possibility of that today. That cannot be acceptable.

28.              In Re W (A Child) Adoption Order Leave to Oppose [2013] EWCA Civ 1177, the then President, at paragraphs 51 and 53, said this:

“51.   I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227…”

29.              It goes on further, at paragraph 53, saying this:

“53.   Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non‑compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.”

30.              In A Local Authority in v DG [2014] and Re A (A Child) [2014) and Re W (Children) [2014], the law is clear.  As Keehan J said in Re HU v SU, at paragraph 48:

“48.   It must now be clear and plain to any competent family practitioner that:

         i)       court orders must be obeyed;

ii)      a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and

iii)     any application to extend the time for compliance must be made before the time for compliance has expired.”

31.              In that case, of course, Mr Newton QC, sets out the provisions of the Civil Procedure Rules and how he argued they applied to Family.

32.              It is in my Judgment also simply not acceptable for a Local Authority to fail to provide essential information or take those steps to frustrate the Court process.

33.              The reason I cannot place M today with the Aunt is because of the Local Authority’s failure to comply with what was expected of them by HHJ Williams last week.  I make it plain that that is why.  I find that absolutely unacceptable.  I do not know the reasons.  The Local Authority have spent far too much time trying to find evidence that does not exist and less time complying with a court order.  I appreciate the entire team involved in this case – all five of them – are new to the Local Authority but this cannot be an acceptable reason.

34.              I am going to require, therefore, the Local Authority to set out and comply fully with the order of HHJ Williams.  I am going to bring this matter back for an urgent hearing next week to consider that.  I am going to require a senior person from the Local Authority to attend and explain why:

i)                   The order of Williams HHJ was not complied with.

ii)                 What any issues that arise from that are.

iii)               How we can ensure this does not happen again in this matter.

I must also put the Local Authority on notice as to costs thrown away as it seems to me that I am going to have to list this matter for a hearing next week for reasons only, and solely, as a result of their inability to comply with an order. They are therefore on notice as to why a costs order should not be made against them for their complete failure to do what was asked.