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R (Children) [2013] EWCA Civ 1240

Application by mother to appeal placement orders made in 2012. Delays in matter coming before the court. Pragmatic way forward agreed.

The mother sought to appeal placement orders made in May 2012 in respect of her two children aged 11 and 5.  These orders were predicated on the children being placed together in foster care or adoptive homes.  Despite the prompt lodging of an appeal application the permission hearing was not listed until September 2013. In the intervening period the children's situation had changed. In particular a plan to place them together (either in foster or adoptive placements) could not be achieved and the local authority sought only to place the younger child.

The local authority conceded that, rather than the court consider the application to revoke the placement order, the whole issue of the children's welfare needed to be addressed afresh.  They agreed the placement orders should be revoked and any new proceedings determined in light of the current circumstances.  McFarlane LJ, giving the judgment of the court, agreed that this was a pragmatic and child focused way forward.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers
_________________________________

Case No: B4/2013/2410
B4/2012/1413

Neutral Citation Number: [2013] EWCA Civ 1240
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
(HIS HONOUR JUDGE BROMILOW)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 6th September 2013

Before:

LORD JUSTICE PATTEN

LORD JUSTICE McFARLANE

LORD JUSTICE FLOYD

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IN THE MATTER OF R (A CHILD)
&
R (CHILDREN)

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(DAR Transcript of
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C Naish (instructed by Porter Didson) appeared on behalf of the Appellant

Richard Powell and Sheila Taurah (instructed by Somerset County Council) appeared on behalf of the Respondent
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Judgment
( As Approved )
Crown Copyright

Lord Justice McFarlane:
1. This is an appeal brought by the mother of two children, a girl, E, born on 10 March 2001 and therefore now 11 years old, and a boy, N, born on 3 July 2008, and therefore five.  The children were the subject of care proceedings before the Taunton County Court from February 2011 onwards and those proceedings culminated in HHJ Bromilow making final care orders in relation to both children, and orders authorizing the local authority to place both children for adoption on 9 May 2012.  The mother lodged her application to appeal those determinations, particularly the placement for adoption orders, very promptly on 11 June, the judgment having only been available to the parties after 17 May 2012.  Permission to appeal was refused on the papers,  again promptly, by Thorpe LJ in early August, and, again promptly, counsel Mr Naish, who represented the mother throughout, filed his statement seeking an oral renewal hearing of the permission issue, that statement being dated 13 August 2012. Here we are on 6 September 2013, over twelve months after those events, and for whatever reason it is unfortunate, to say the least, that after the filing of Mr Naish's statements seeking an oral permission hearing the matter did not come before a judge of the Court of Appeal to hear that oral application until 11 months later when the case came before me on 16 June.  I adjourned matters then so that the case could be clarified before the court in Somerset, but on 26 July I gave the mother permission to appeal the placement order in relation to the youngest child, N.

2.  Of course, life has gone on in the lives of these two young children in the intervening period, and the landscape as it was before the judge, which I shall summarise in a moment, has unfortunately substantially changed in the ensuing twelve months.  Before the judge the importance of the children being placed together was set at a premium, initially by the evidence of the independent expert, Mrs F, but also that position came to be accepted by the local authority and the children's guardian.  The local authority changed its care plan so that all of the parties before the court and the judge were plain that the most important thing for these two children was to find a long-term placement together.  Secondly to that was the status or character of the placement, be it long-term fostering or adoption. 

3. In order to facilitate the local authority's search for both categories of placement the judge made the placement for adoption orders, but he did so, as paragraph 25 of his judgment shows, on the basis that he was quite satisfied that the local authority "will keep these children together and that they will not be separated".

4. The way in which the landscape has changed is that, despite the substantial efforts – as no doubt they have been – of the local authority, it has not been possible to find either an adoptive placement to take both of these two children or a long-term foster placement.  They were in a foster home, to which they had gone at the beginning of the proceedings at the time the judge made his orders, but that situation changed in December 2012 when they moved to a new short-term foster placement.  We have been told that the situation is now seen by the social workers to be one in which the personalities of the children have developed in such a way that it is not necessarily in their best interests to be together, and it would be a particularly difficult parenting task to look after the two of them in the same home.  So the local authority's plan now is to place them in separate homes, and the local authority's hope, particularly given his young age, is that N could be placed for adoption.  They accept, given her age, an adoptive home will not found for E, and so by agreement the placement order in her case was revoked by Judge Bromilow at a hearing on 15 July this year.  Thus it is that the only live issue for which I gave permission to appeal was the challenge to the placement order for N.

5. In the course of mounting the appeal Mr Naish seeks to challenge as a matter of principle the judge's decision to make a placement for adoption order, notwithstanding the fact that he gave the priority that I have already indicated to the need to keep the children together, and although the mother now has an extant application to revoke the placement order for N – that in fact is due to be heard next week before the court in Taunton – Mr Naish says as a matter of principle that, if the original placement order was not justified as a matter of evidence and law, it should be set aside and the mother should not be in a position of having to now apply to revoke the placement order, as she is doing. 

6. During the course of submissions this morning we have been greatly assisted by counsel, Mr Naish, but also Mr Powell for the local authority who, rather than solely addressing the legal issues which are raised in this appeal, have grounded their observations to this court in the reality of the fact that the situation which everybody hoped could be achieved when the case was determined in May last year now on the local authority's case cannot be achieved.  It is not simply a matter of making a choice between placing the children together or separating them; the local authority says that there is no home available that could meet the first option of that choice, namely providing a home together.  It therefore seemed to us, as a matter both of trying to meet the welfare of the children but also the essential justice of the case and the need to respect the parents' position, that it was appropriate now that, instead of applying to revoke the placement order, the whole question of whether placement for adoption for N was justified should be considered from a standing start, as it were, before the court, in the light of the circumstances which are so totally different from the ones that it hoped would be in place with both children settled in one home.

7. Mr Powell has taken instructions and he indicates that the local authority agree that the right way forward is for the placement order for N to be revoked and for such proceedings that now move forward in the Taunton County Court to be including, if the local authority choose to do so, a fresh application for a placement order which would be determined – and in particular the parents' consent being determined – in the light of the circumstances as they now are.


8. We welcome that concession by the local authority; the local authority therefore do  not oppose the appeal made in relation to N's placement order, and Ms Taurah, on behalf of the children, similarly makes no opposition to that course.  Therefore it seems to me neither wise nor necessary for this court to descend to the detailed legal arguments that have been put before us by counsel in this unusual case.  For my part, I would simply accept that this is a pragmatic and child-centred outcome, which allows Judge Bromilow to re-evaluate N's welfare in the light of the circumstances that now obtain, and so for my part I would allow the appeal and set aside the placement order that has been made in relation to N on 9 May 2012.

9. Separately before the court the mother has issued an application for permission to appeal in relation to a determination made by Judge Bromilow in the course of the now defunct revocation proceedings on 2 August.  The mother sought to reinstruct Mrs F, who had been the psychologist who had been so influential in the court's determination at the original hearing.  Now that there are no revocation proceedings that will carry on before the court in Taunton, that application for the instruction of an expert is redundant and the application for permission to appeal therefore has no merit, and I would refuse it.  In doing so, I anticipate that Judge Bromilow will look afresh, as any judge would, at any fresh application for a placement order that is now made by the local authority, and in refusing permission to appeal on the expert issue I in no way either endorse or criticize his previous decision.  He will look at that issue of expert provision afresh in the light of whatever the issues are that he now has to determine in those proceedings as they move forward, and so on that basis I refuse permission to appeal in relation to the expert.

Lord Justice Patten:
10. I agree.

Lord Justice Floyd:
11.  I also agree.

Order:  Application granted in part