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Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam)

Appeal by a mother against the interim removal of her newborn baby

The mother had a history of drug and alcohol abuse and there had been local authority involvement with her seven older children, none of whom were in her care.  When the child who was the subject of these proceedings was born in October 2013, the mother was residing in a specialist resource with the aim of addressing her substance misuse.

The local authority's application for an interim care order in respect of NL first came before the family proceedings court on 1st November 2013, when the mother neither consented to nor opposed an order being made pending a contested hearing.  The result of this was that NL was removed to foster care. 

At the contested hearing on 7th November, the court heard evidence from Dr van Rooyen who had conducted a paper assessment and did not support the return of NL to his mother's care until she had completed her recovery programme.  She described her short-term prognosis as "extremely poor".  Relying on this evidence, the justices decided to continue the interim care order with the care plan that NL remain in foster care.

The mother appealed 14 days after this hearing but the matter did not come before Pauffley J until 28th January 2014.  The appeal was opposed by the local authority and the children's guardian.

In allowing the appeal, Pauffley J is critical of a number of the procedural steps that led to the decision of 7th November.

Firstly, Dr van Rooyen was instructed to undertake a 'triage psychological assessment' based on the case papers and without seeing the mother.  She was allowed less than one working day to undertake this piece of work prior to the 7th November hearing.  In spite of this, her evidence became pivotal to the case.  Pauffley J describes herself as "gravely troubled by the manner and ambit of Dr van Rooyen's involvement" stating that:

It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen's apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].

She concludes that the local authority had placed too much emphasis on finding an expert to support its care plan and that this had been at the expense of justice and a fair assessment.

Under the heading 'missed opportunities to assess – pre proceedings', Pauffley J goes on to identify flaws in the pre-birth assessment which she describes as 'limited' and a 'glaring omission' in that the local authority failed to continue to assess the mother when she moved to the specialist resource in August 2013.

Turning to the hearings of November 2013, Pauffley J is critical of the facts and reasons from the 1st November hearing which make no reference to the test for interim removal in Re LA (Care; Chronic Neglect) [2010] 1 FLR 80.  Whilst acknowledging that this decision was not the subject of the appeal, Pauffley J expresses disquiet at the approach taken by the justices on this occasion, whose first consideration should have been to consider whether NL could remain safely with his mother as a 'holding' position pending the contested hearing, particularly in the face of unequivocally positive reports from the maternity hospital.

In respect of the hearing on 7th November, Pauffley J describes it as "both startling and disturbing" that one reason given for refusing to return NL to his mother's care on that occasion was that it would necessitate a further change in his circumstances – the so-called 'status quo' argument.

She then goes on to strongly deprecate the widespread practice, as occurred in this case, of the magistrates simply adopting draft facts and reasons prepared by the local authority, particularly when there is no requirement that these are circulated to all parties prior to being e-mailed to the court.  She points out that "it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority's analysis of what their Findings and Reasons might comprise" and "Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again".

The judgment concludes with the judge's own welfare analysis, in support of her determination that NL must be reunited with his mother 'immediately'.

Sally Gore barrister, 14 Gray's Inn Square

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Neutral Citation Number: [2014] EWHC 270 (Fam)
Case No: RW13C000128

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Reading District Registry

Date: 13/02/2014

Before :

MRS JUSTICE PAUFFLEY

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Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons)
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Katherine Dunseath for the Appellant mother, EL
Isabelle Watson for the local authority
Seona Myerscough for the Children's Guardian, Ms G

Hearing date: 28th January 2014
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Judgment
MRS JUSTICE PAUFFLEY
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.

Mrs Justice Pauffley:
Introduction

1. I am giving this judgment a fortnight or so after the conclusion of the appeal hearing for three reasons. Firstly because the case raises important issues of practice and procedure during the earliest stages of care proceedings; secondly because significant irregularities have emerged as to the way in which the Justices had compiled their Facts and Reasons; and thirdly so I could discover, by delving into the court file, why the hearing of the appeal only came to be listed more than two months after issue.

2. At the conclusion of the hearing on 28th January, I indicated that the mother's appeal would be allowed; and that the outcome she had sought at the Family Proceedings court on 7th November 2013 would prevail – namely the return of her infant son on the basis that he would be cared for by her within the protective environment of a specialist resource.

3. Now I give my reasons for that decision and begin by setting out the background to what was, on any view, a complex case.

The background
4. The mother, EL, is 32 years old. She had a sad, unhappy childhood and became a 'looked after' child during adolescence. In 1996, when only 15, she formed a relationship with a 26 year old man who came to be the father of her elder four children. She and the children's father abused alcohol, took illicit substances and there was domestic violence – both were seen as instigators. Their children were born between 1998 and 2001. There was local authority involvement, Child Protection Plans and eventually proceedings were brought which resulted in residence orders in favour of the father of those children together with a 12 month supervision order.

5. The mother's evidence is that until she went to [a specialist treatment unit in the north of England] last August, she and the four older children were 'messaging' one another every day. Since then, she has had telephone contact when they are around at the maternal grandmother's home visiting.

6. The mother's younger three children were born between 2006 and 2009 when she was in a relationship with another man. Again there was local authority involvement resulting from the mother's longstanding issues with illicit substances – heroin, crack cocaine – and alcohol. Her then partner was also taking heroin and crack cocaine. The mother's seventh child was born in May 2009 withdrawing from drugs. There was local authority intervention. He was made the subject of an emergency protection order and placed with foster parents.

7. Although the two older children of the sibling group were also subject to proceedings, initially no orders were made because their parents demonstrated a willingness to engage with the local authority so as to effect change. In 2010, a random drugs test of the father, positive for cocaine, led the local authority to issue further proceedings. Ultimately, in March 2012, those two children were returned to their father who, together with the paternal grandmother, looks after them under a residence order. The mother's evidence is that she has a good relationship with the father; they talk about the children regularly and, prior to last August, she would take them out, for example, to the park. Now her contact with them is over the telephone and by writing.

8. The youngest child of the sibling group, now aged four and three quarters, was made the subject of full care and placement orders. Very recently, and after an overly lengthy period of uncertainty, he has been 'matched' for adoption with his current foster parents.

9. The mother became pregnant with NL as the result of a fleeting relationship with a third man. He has played no further part in the mother's life nor in these proceedings.

10. The mother contends that she went to see her GP when she was 7 weeks pregnant and asked the doctor to notify social services. The local authority maintains that information about the pregnancy resulted from a referral made by the youngest child's social worker in late June by which time the mother was 18 weeks pregnant.

11. On 20th July 2013 there was a meeting between the then allocated social worker and the mother; EL admitted to using crack cocaine but said she had done so as the result of 'slip ups.' Subsequent information from a local drugs treatment service revealed the mother had taken the drug regularly.

12. On 16th August 2013 the mother was admitted to [the resource], a specialist family service which works intensively with individuals who have become dependant upon drugs and alcohol. The aim of the organisation is to keep families together. The approach is three pronged – focusing on substance misuse, parenting and child development. There is group work as well as one to one sessions within what is intended to be a therapeutic community.

13. During her first few weeks at [the resource], the mother completed her detoxification from methadone and diazepam. When NL was born in October 2013, he showed no signs of withdrawing from drugs. Whilst in the hospital environment, the mother was viewed by the Vulnerabilities Specialist Midwifery Team as having provided good care to NL. She was "accepting of all advice… reacts well to baby's demands." EL and her baby were said to be "bonding well" and there was "good emotional interaction." There were no concerns in relation to the mother's parenting whilst in the hospital setting.

These proceedings

14. The local authority began its application for a care order on 29th October. It is plain on the documents that a decision had been taken prior to issue to seek NL's removal from the mother. There was, as might have been expected, extensive reliance upon her history.

15. The local authority relied on the fact that during her first and second trimesters of pregnancy, the mother had exposed NL to illicit substances in utero. It was also claimed that she had failed to prioritise NL's needs above her own; and it was suggested that NL was likely to "continue to suffer significant harm if returned to his mother" because of her unwillingness until mid August to "address her dependency issues." It was also said she had failed to make meaningful lifestyle changes; there had been a lack of consistent engagement with professionals; and she had had very little positive life experience to help guide her own parenting skills.

The hearing on 1st November
16. The application for an interim care order came before the Justices on 1st November when NL was still in hospital in the north of England – he had a slight heart murmur. The final version of the Findings of Fact and Reasons record that, "The application for a holding Interim Care Order is not agreed or opposed today by mother pending a contested hearing on 7th November…" There then follows a comprehensive and very detailed analysis of the interim Threshold Criteria as well as the Welfare Checklist.  

17. The effect of the 1st November order for NL was that he was taken from his mother and placed within a foster home in the South East. His mother remained living at [the resource] in the north.

The 7th November hearing
18. By the time of the hearing on 7th November, the mother had filed evidence including a letter of support from [the specialist resource]. The legal adviser's notes, which Ms Myerscough, helpfully, has had typed since the hearing on 28th January, provide a good guide as to what happened on the day.

19. The Justices heard evidence over the telephone from Dr Celest Van Rooyen, a chartered clinical psychologist. 

20. Within her written report, Dr van Rooyen had said it was "positive that (the mother) is now motivated to seek assistance and bring about change, but until she has entirely resolved her unmet needs … the safety and best interests of the baby could not be ensured whilst in her care.  The assessments from  [the resource]clearly demonstrate that (she) has the knowledge and ability to provide daily instrumental care of a baby, however it is her capacity to provide consistent, reliable and safe parenting in the future (my emphasis), which needs to be the determining factor when it (sic) would be appropriate to place the baby with her."

21. Dr van Rooyen also said, "It would not be appropriate for baby NL to be place (sic) in the care of her (sic) mother until she has completed the detoxification plan, demonstrated the ability to maintain abstinence in the community, improved empathy and has demonstrated she has the capacity to translate her insight into her day to day functioning. It would only be at this point that she would be emotionally and psychologically receptive to parenting work, as without empathy and the capacity to translate what she has gained, there would be no foundation for the parenting work to be built upon."

22. Her written report ends with this – "When considering the background history, which highlights fourteen years of substance addiction and misuse, having seven children removed from her care and having continued to make use of substances well in to her pregnancy with NL, the prognosis for making essential and enduring change in the short term is extremely poor. It would only be by committing to long term psychological treatment and achieving complete abstinence that her prognosis for change or growth would increase."

23. Dr van Rooyen's oral evidence, according to Ms Myerscough, was "very strong and powerful." Now I've had the chance to compare Miss Watson's written summary with the legal adviser's typed notes, it's clear that Miss Watson's analysis could not be improved upon. It's in these terms – whilst Dr van Rooyen noted the mother's progress, she stood by her conclusion that there was a poor prognosis for change. Insofar as the immediate risk to the baby in the care of the mother was concerned, Dr van Rooyen said that the practical day to day care posed less of a risk but the difficulty lay with her capacity to provide emotional care to him. She said she was not sure how that could be mitigated by the staff at [the resource]. The mother's lack of empathy, in her view, would affect NL's ability to attach; the mother had attachment issues and this would affect his sense of security and ability to bond. Dr van Rooyen was concerned that because of the intense demands of the programme she was undertaking, the mother would not be available to NL because of her need to address her own issues. She opined that [the resource] might be able to provide some degree of physical safety for NL but could not provide the emotional safety he required.

Findings of Fact and Reasons – 7th November
24. The Justices' Findings of Fact and Reasons contain several references to Dr van Rooyen's evidence. Their all important determination on the issue of the risk of immediate harm was in these terms – "NL is at risk of physical and emotional harm if his mother cannot maintain her sobriety. Dr van Rooyen has noted that the history shows that the mother has not been able to learn from her past experiences, lacks empathy and has deep seated emotional and psychological limitations. The local authority's contention is that the deficits in the mother's empathy and emotional and psychological functioning will impact immediately on her care of NL. The balance of the immediate risk of harm to NL is such that his safety requires the continuing removal from his mother's care. It is proportionate and in his best interests."

25. An interim care order was made on the basis of a care plan of foster placement and contact twice a week for 3 or 4 hours on each occasion, "subject to the mother being able to travel …"

The Grounds of Appeal
26. The matters relied upon in support of the appeal are, as Miss Watson observes, essentially those matters which had been urged upon the Justices by the mother's Solicitor on 7th November. It is argued that the services offered to the mother at [the resource] are and would be sufficient to meet her need for cognitive behavioural therapy and other worthwhile programmes. Emphasis is placed upon the safety of the environment for NL at the unit; that the mother would have the opportunity to bond and continue to maintain empathy with her son; that [the resource] would liaise with community based services so as to prepare the mother and NL for a return to the community; and that – consistent with the decision in Re L (A Child) [2013] EWCA Civ 489 – the court's focus should be upon the child's interests in the interim rather than his long term future.

27. Thus, and overall, argues Miss Dunseath, the Justices were wrong to come to the decision they did.

28. The essence of the responses to the appeal by both the local authority and on behalf of the guardian was that the Justices conducted an entirely proper balancing exercise, considered all the factors of relevance and met 'the test' for interim removal on the basis of the evidence given by Dr van Rooyen.  Accordingly, it was said that the decision was neither wrong nor unjust due to any serious procedural or other irregularity and the appeal should be dismissed.

The ambit of Dr van Rooyen's instruction
29. My reading of the papers prior to the hearing on 28th January revealed causes for considerable anxiety as to whether there had been a fair and appropriate assessment exercise in relation to the mother's abilities to look after NL.

30. The letter of instruction to Dr van Rooyen invited her to undertake "a triage psychological assessment in respect of (the mother) by reading the papers, liaising with the Practice Manager and liaising with [the resource] (as necessary) and report upon (her) findings." She was asked, insofar as she was  able, to provide her view in regards to (the mother's) history of drug use, the current treatment she's receiving and her prognosis for abstinence in the future." The second question of Dr van Rooyen invited her commentary upon what (the mother) would need to demonstrate in order to care for NL long term and her progress in achieving these goals. She was also asked to comment upon further advisable treatment and likely timescales.

31. There was no suggestion that it might be necessary for Dr van Rooyen to meet with the mother in order to provide her report. The terms of the letter make clear that what was being requested was a paper assessment supplemented by a telephone discussion with the Practice Manager, [named]. The mother, I should say, has never met [the Practice Manager].

32. Although it had been thought, on the part of the local authority at least, that it might be advisable for Dr van Rooyen to discuss the case with [the resource], her report makes clear she did not avail herself of that opportunity. In evidence, she said, according to the note, "I hadn't because of tight timetable."

33. That last piece of information leads on to consideration of exactly how and within what period, Dr van Rooyen's report came to be prepared. The letter of instruction is dated 31st October 2013. In the section headed "Timetable," it is recorded that the local authority's lead Solicitor understands that Dr van Rooyen was "able to file (her) report by 5pm on Thursday 31st October," that same day. The first hearing in the Family Proceedings court was scheduled for 1st November.

Dr van Rooyen's involvement – fundamental flaws

34. I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen's involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

35. It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen's apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].

36. To my mind, it is quite simply unacceptable for an 'independent' expert to be instructed in the way Dr van Rooyen was – to conduct such a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child.

Rationale for the instruction
37. The reason why the local authority acted as it did, requesting Dr van Rooyen's assistance in preparation for the 1st November hearing, may be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. I have not conducted any kind of inquiry into exactly why the instruction for a "Triage Assessment" occurred but gained the distinct impression that this case is not an isolated instance, rather that similar practices have been applied in other proceedings locally so as to assist in ensuring the case achieves a conclusion within its allotted timeframe. 

Discussion

38. Albeit in the context of care proceedings where the care plan is for adoption, the President has made it abundantly clear that justice must not be subverted by the requirement that public law cases be concluded within 26 weeks. In Re B-S (Children) [2013] EWCA Civ 1146 he said – "Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."

39. More recently, in his 'View from the President's Chambers (7)' entitled "The process of reform, changing cultures" the President reiterated that message saying, "We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy."

40. My enduring anxiety in relation to this case is that in the frenzy of activity which preceded the first hearing in the Family Proceedings court, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.

41. Overall, having conducted an extensive review of what happened in the period between NL's birth and 7th November, I conclude that the mother and NL were unfairly treated; that the evidence justifying their separation was flawed; that the Justices' decision to separate was wrong because NL's immediate safety could have been secured by remaining with his mother at [the resource]; and that, accordingly, the interim care order predicated upon continued separation must be set aside.

Missed opportunities to assess – pre proceedings
42. It should also be said that the local authority's pre birth assessment would seem to have been both limited and, very surprisingly, was curtailed altogether when the mother moved to [the north] on 16th August. There were just two social work home visits, 22nd July and 15th August.

43. On 27th September, the then allocated social worker visited the mother in [the resource] where her progress was reported to be good; she had detoxified from both methadone and diazepam. She was engaging with all of the programmes on offer. According to the mother, she was told at the meeting that when the baby was born, the local authority would seek his removal into care.

44. The strong likelihood, it seems to me, is that by the time that the mother went north in mid August the local authority had already decided its post birth strategy would be to seek removal.

45. It was a glaring omission, to my mind, that there was no continuation of the assessment process during the period mid August and leading up to NL's birth in the third week of October.

Where the case went wrong – 1st November
46. Turning from the question of assessment to what occurred at court, I begin by considering events at the initial hearing before the Justices. When I delved within the court file I found the final version of the 1st November Facts and Reasons. The edition within the appeal bundle, self evidently, was a draft. It is silent as to which Justices and which Legal Adviser dealt with the hearing or, indeed, the case number. There is a blank in relation to the identity of the Children's Guardian. A sentence which starts, "The application for an Interim Care Order is" ends with "[opposed / not opposed by???]" 

47. In the final version, though not the draft, there is reference to the report of Dr van Rooyen. It is recorded that she has prepared a report, dated 31st October 2013; and that, "She has highlighted the long term nature of the mother's issues, the timescales for her to make changes and her view that NL should not be placed with the mother at [the resource] now." That is, so far as I could see, the only difference in content between the draft and final versions.

48. There is no mention within the 1st November Facts and Reasons of the three well known propositions derived from the Court of Appeal's decision in Re LA (Care; Chronic Neglect) [2010] 1 FLR 80 applicable to  interim care orders. Firstly, that the decision taken by the court must necessarily be limited to issues that cannot await the substantive hearing and must not extend to issues that are being prepared for determination at that fixture. Secondly, that separation is only to be ordered if the child's safety demands immediate separation (my emphasis). And thirdly, that a local authority in seeking to justify the removal of a child from home necessarily must meet a very high standard – reiterating what had been said in Re K and H [2007] 1 FLR 2043 namely that "…at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection."

49. On 1st November, the Justices' only determination in relation to the interim care plan was in these terms – "The local authority has proposed that NL be placed in foster care until decisions can be made about his permanent care. Should there be a need for the placement to be terminated before a decision is made, then another foster placement will be sought. The allocated social worker will continue to gather information to inform care planning including viability assessments of family members put forward. The mother has not provided any details of the father. We approve this plan."

50. I hesitate to criticise the Justices for their decision on 1st November particularly since there has been no suggestion, from any quarter, that they acted other than appropriately. However, the result does trouble me; and I would be failing in my duty if I were not to describe the reasons for my disquiet.

51. NL was exactly one week old at the time of the hearing. He had been with his mother throughout his time at hospital. The midwifery reports from [the hospital where he was born] were uniformly positive as to the way in which he was being cared for on all levels by her. The mother's suggestion had been placement together at [the resource] where there is an abundantly safe and protective environment for a neonate. It has a deservedly high reputation – no one has suggested otherwise. As Dr van Rooyen said in evidence albeit on 7th November, "[It] is excellent."

52. The Justices' first consideration should have been to keep NL together with his mother for the very short interval – 6 days – between the 'holding' and contested hearings. That should have been "the default setting". Nothing within the papers, to my mind, justified immediate separation because of risks to NL's physical or emotional safety; quite the reverse. I would like to believe that had their attention been drawn to the three propositions identified within Re LA (supra), the Justices' decision at the first hearing would have been different. There is, after all, an elemental as well as a physiological need to keep mothers and new born babies together wherever possible, so long as the child will not be endangered.

7th November hearing
53. There can be no denying that the outcome of the 1st November hearing paved the way for what happened 6 days later. It is not just that the two Findings of Facts and Reasons documents are strikingly similar – the majority of the paragraphs are identical – as the result, almost certainly, of 'cutting and pasting.' It is also that by the time of the second hearing, NL's move to a foster home on 2nd November is identified as a reason against reuniting him with to his mother. The Justices decided that such a change in his circumstances "may have an effect upon him. NL is very young and needs to form an attachment to his primary carers." 

54. I found that evaluation both startling and disturbing. The fundamental principle is that wherever possible, consistent with their welfare needs, children deserve an upbringing by their natural parent(s). It seems to me wholly unwarranted to deploy the status quo argument as part of the reason for continuing an interim foster placement for a week old infant.

55. This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the more reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

56. Drawing the threads together – I am in no doubt but that this appeal must succeed but not for the reasons suggested within the mother's Solicitors' Skeleton Argument. To their very great credit, both Miss Watson and Ms Myerscough implicitly accepted there were fundamental flaws in what happened. They did not seek to justify the local authority's actions nor did they suggest there had been an adequate assessment exercise. Miss Watson positively encouraged me to supply a considered judgment believing that it would be of assistance.

Compilation of the Justices' Findings of Fact and Reasons
57. Lastly in relation to the way in which the proceedings were dealt with at the Family Proceedings Court, I should mention the manner in which the Justices' Findings of Fact and Reasons were compiled.

58. The 1st November draft within the appeal bundle caused me to question whether the local authority had been involved in its creation. Initially, I was told not. Later, and having taken more detailed instructions, Miss Watson explained that Counsel (other Counsel), rather than the Joint Legal Team, had drafted the entire document. 

59. The draft was sent to the court, by email, at some stage prior to the hearing. It was made available to the parties' legal representatives, in hard copy, outside court on the morning of 1st November.

60. The mother's Solicitor had "an inkling" the document may have been handed out at court by Counsel for the local authority. The mother's legal team had no input into the draft.

61. Miss Watson has also discovered that on 1st November at court, Counsel then instructed for the local authority amended the draft to reflect the parties' positions and included reference to Dr van Rooyen's report. The amended document was sent electronically to the legal adviser during the hearing and became the perfected 'Facts and Reasons.' I had assumed, wrongly, that such minor amendments as there were, had been made by or at the behest of the Justices.

62. It is suggested on behalf of the local authority and the children's guardian that it would have been possible, in theory, for the mother's legal team to have requested alterations to the document. In practice, I entertain doubts as to whether those who represent parents at interim care hearings would have the temerity or, indeed, any proper opportunity to undertake a significant re-draft on the day.

63. More generally, Miss Watson explained that the Family Proceedings Court  expects the local authority to provide draft 'Facts and Reasons' for every public law hearing; and that where such a document has not been sent in advance, a request for its production will be made. Miss Watson described a customary practice of such documents being sent electronically; and thus, they may be easily adapted. Over the last 18 months or so, the local expectation – that such drafts will be provided – has become the norm.

64. The Family Proceedings Court, so I was informed, does not expect or require that such draft documents are circulated to the parties in advance of the hearing. Legal advisers do not routinely inquire as to whether the parties have received them before the hearing begins. According to Miss Watson, whilst local practitioners know about the court's expectations, none of these practices "sits easily" with the Solicitor members of the Joint Legal Team.

65. Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.

66. The first matter for emphasis is that every parent is entitled, pursuant to Article 6 of the European Convention on Human Rights to a fair trial.
Article 6.1 reads as follows – "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

67. Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party. 

68. Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority's analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

"Unequivocal acceptance of one party's case has always posed a problem for judges. To simply adopt that party's submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge's true thinking, it reflects poorly on the administration of justice: for … appearances matter."

69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.

70. I am reassured that whatever has occurred in recent years, it has not always been the case that, nationwide, local authorities have been required to provide draft 'Facts and Reasons' documents. I know from past personal experience that diligent legal advisers have provided legal and sometimes proper secretarial assistance to Justices in formulating their Reasons. I have been present whilst such judgments have been compiled.

71. Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.

72. The President of the Family Division, Munby P, has read and approved this section (paragraphs 57 – 71) of the judgment.

Welfare analysis

73. I am in no doubt, having conducted my own welfare analysis, that NL should be reunited with his mother forthwith. I identify in headline form why I have so concluded.

74. He is an infant, still only 3 months old. There is no way of knowing how these proceedings will play out or whether, ultimately, the mother will succeed in sustaining progress in remaining abstinent from drugs and alcohol. My decision has to be limited to the short term and to ensuring NL's safety. At [the resource], an organisation which rightly enjoys an almost unrivalled reputation in the field, I can be reassured that NL will be protected from harm. The early signs are that the mother has every ability to respond to NL's cues; there was good emotional interaction. The quality of contact has been either good or excellent.

75. The mother has demonstrated her commitment to NL. In the words of a family support worker from a drugs treatment service with which the mother had been involved before she went to [the north], she had been "both motivated and had a good level of insight into her past parenting, substance misuse and the impact this has had on herself, her children and her family." It was the opinion of that specialist worker, that the mother was "Now in a more stable position to address her substance misuse and maladaptive coping strategies…" She continued, "… we appreciate there is an entrenched history of substance misuse which has impacted upon her ability to parent but we have assessed that due to her motivation, desire to be a better parent and the changes she is making, the current level of risk can be managed."

76. The mother's commitment to achieving change and remaining drug free has continued right up to the present time, as verified by the allocated social worker. She was not deflected from continuing with her engagement to the programmes of work at [the resource] after the hearing on 7th November. Her progress is so pleasing that were it not for considerations as to where NL and the mother might live if reunited, the mother would have been discharged for the next phase of 'work' to be undertaken in the community.

77. The history is bleak – that cannot be denied. But to formulate interim decisions for this child on the sad background as it has affected the older seven children would be to do NL an injustice. Only if, ultimately, the risks are assessed as being too great, will separation be justified. I note in that regard there is a proposal to fully assess the maternal grandmother as an alternative long term option should the mother fail. The initial viability assessment of her was positive. 

78. The mother now has an opportunity to demonstrate that all of the investment she has made, thus far, in turning her life around will be of benefit to NL. If she remains on course in her recovery, if she demonstrates she is able to meet his developmental needs, then there will be the potential for him to grow up alongside her throughout his childhood.

Listing the appeal
79. The penultimate matter for comment is as to the interval between the launch of the mother's appeal and this hearing. The Notice of Appeal was lodged with the court on 21st November. By 26th November it had been established that Miss Watson was available to represent the local authority on three identified dates in December. That same day, Ms Myerscough notified the mother's Solicitors that the guardian would be on leave between 13th December and 7th January and asked that the court be informed, as it was the very next day. A record within the court file suggests the appeal papers reached His Honour Judge Everall on 29th November, so within an entirely acceptable timescale. His manuscript note reads as follows, "This needs an early hearing date."

80. A listing on 28th January was eventually given.

81. Three things should be emphasised. Firstly, appeals from interim care orders where separation has been sanctioned are amongst the most urgent of all public law hearings: time is of the essence and the court must do its utmost to list such appeals as a matter of urgency. By that I mean within days or at the most a very few weeks. Second, that listing for the convenience of Counsel, whilst desirable, should not be a factor leading to a hearing date later than the court can accommodate. Third, that the guardian's ability to attend in person at the appeal hearing is of minor significance when weighed against the requirement for an early hearing. Ms G's leave arrangements should not have resulted in any delay in fixing a date – though it was never suggested, in fact, that they should. 

82. I remain profoundly troubled that more than two months – two thirds of NL's life – has elapsed since the mother's appeal was lodged. I would hope that nothing similar will happen again here or anywhere else.

Next steps
83. My hope is that the local authority will be able to start anew in its relationship with the mother; that past differences will be put to one side and that a collaborative and multi agency approach to helping the mother will now be found. There is a great deal to be said for the FDAC (Family Drug and Alcohol Court) style of working in a case of this kind. FDAC is, of course, the project which began life at the Inner London Family Proceedings Court under the galvanising leadership of District Judge (Magistrates' Court) Crichton and has now permeated out to several other parts of the country.

84. I can think of no reason why a similar bespoke model of social work intervention could not be constructed locally in preparation for the mother's and NL's return from [the north], so as to provide them with the best possible chance of eventual success.