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Re D (A Child) [2015] EWCA 1150

Successful appeal from a care and placement order in which the Court of Appeal found that the first instance judgment should have contained clear and reasoned findings about disputed facts.

This was an appeal to the Court of Appeal by a mother against care and placement orders made in December 2014 in respect of D who was one year old at the final hearing.

On 15 September 2015 the Court of Appeal allowed the appeal and set the orders aside, remitting the case to the Family Court for rehearing, and giving directions to ensure that matters would proceed there with expedition. The Court of Appeal's reasons are set out in this judgment.

The mother was 17½ at the time of the final hearing and had experienced a troubled childhood. Social services had been involved for much of her childhood and she had been made the subject of a care order in November 2003. 

At the final hearing the mother disputed many of the facts pleaded and the trial judge was required to determine a number of factual issues. The judge heard evidence from a number of witnesses and accepted that the threshold criteria were met and made a number of adverse findings about the mother's behaviour and her ability to care for D.

The principal ground of appeal was that the judge failed to conduct a careful analysis of the disputed factual issues and to arrive at a reasoned and clear factual determination. Black LJ gave the leading judgment and allowed the appeal and accepted that the judge had failed to explain in sufficient detail his reasons for reaching his factual conclusions. Black LJ observed that in the circumstances of this case a careful factual investigation was required to enable the court to understand the extent to which the mother's conduct or mere circumstance had caused possible harm or instability for D and therefore the extent to which this may remain a risk-factor for the future. It was not sufficient for the judge to simply state "if the evidence conflicts with the evidence of the mother I prefer the evidence of the professionals."

Black LJ acknowledged that a number of positives had been identified in respect of the mother's care and it was therefore particularly important not only that findings were made but also that they were sufficiently nuanced to enable proper weight to be attributed to them when the judge came to make decisions about what the future was likely to hold if D remained with the mother. Only in that way could a proper welfare balance be struck and a decision made as to whether the orders that the local authority sought were justified.

The local authority had also relied upon a number of statements which included hearsay evidence to prove the threshold criteria. Black LJ reiterated that whilst care and placement proceedings should be concluded with expedition this was not a licence not to observe proper procedure. In this regard she observed that some factual issues cannot be resolved merely on hearsay evidence relayed by the social workers. The local authority has to establish its factual case and if that case is challenged, it must adduce proper evidence to establish the fact that it seeks to prove, see for example Re A (A Child) [2015] EWFC 11, usefully summarised by Aikens LJ in Re J (A Child) [2015] EWCA Civ 222, and Re P (A Child) [2013] EWCA Civ 963 at paragraphs 111 et seq.

Finally, it was also accepted that the judge had failed to properly address in his judgment the positive aspects of the mother's care including D's good attachment to her. The judgment referred to these but did not "convey the reality that emerges from the contemporaneous records, particularly of the mother and baby placement and the health visitor". In particular, the judgment did not refer to these positives or the question of capacity to change in his evaluation of welfare which was a significant omission which added further weight to the appeal.

Summary by Alison Easton, barrister, Coram Chambers
___________________________

Neutral Citation Number: [2015] EWCA Civ 1150
Case No: B4/2015/0637

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT CANTERBURY
HIS HONOUR JUDGE SCARRATT
ME14C01575


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 18th November 2015


Before :

LORD JUSTICE LONGMORE
LORD JUSTICE RICHARDS

and
LADY JUSTICE BLACK

Re: D (CHILD) 
 
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(Transcript of the Handed Down Judgment of
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Mr Jeremy Hall (instructed by Rootes & Alliott) for the Appellant
Ms Caroline Budden
(instructed by Kent County Council) for the Respondent
Mr Adrian Pidduck
(instructed by Atkins Hope Solicitors) for the Children's Guardian

Hearing date: 15th September 2015

Judgment
As Approved by the Court
 
Lady Justice Black :
1. J was born in October 2013 and is now two years old. He was made the subject of care and placement orders by His Honour Judge Scarratt on 16 December 2014. His mother appealed to this court against those orders.

2. J's mother is still only young. At the time of the hearing before Judge Scarratt, she was 17½ and herself subject to a care order in favour of the local authority. Details of J's father are unknown and he has not been involved in the proceedings in relation to J at any stage.

3. The local authority actively resisted the mother's appeal but the guardian remained neutral in relation to it, although providing helpful submissions. She remained of the view that the outcome of the hearing before Judge Scarratt was the right one for J, but accepted that the judgment had some shortcomings. 

4. On 15 September 2015, at the conclusion of the appeal hearing, we allowed the appeal and set the orders aside, remitting the case to the Family Court for rehearing, and giving directions to ensure that matters would proceed there with expedition. It was not necessary for the process in the Family Court to be held up pending the provision of our reasons, which we said we would give subsequently in writing. My reasons are set out in this judgment.

5. It is very important that nothing that I say should influence the judge now hearing the case, who needs to approach the matter completely afresh and who will have the benefit of considering the evidence in its entirety. I have therefore deliberately kept what I say to the minimum necessary to explain why we reached the decision that we did on the appeal.

The substance of the case
6. The mother had a troubled and sad childhood. Social services have been involved in her life for many years. The care order in respect of her was made in November 2003. 

7. She managed to look after J herself for the majority of the period from J's birth until Judge Scarratt made his orders. At the time of the hearing in front of Judge Scarratt, she was living with J at her mother's home but she and J had had a number of changes of accommodation since he was born and this was one of social services' central concerns. They blamed it upon her anger and her inability to manage relationships. It featured as the first item on the schedule of threshold findings, it being alleged that the mother had "not provided stable and consistent accommodation for J" and that she "leads a chaotic lifestyle and J has been subject to instability and inconsistency in routine, primary carers and potentially inappropriate persons as a result".

8. The catalogue of accommodation was as follows. J was initially discharged from hospital with the mother to the maternal grandmother's home, following his birth. The mother preferred this to the mother and baby placement that social services had offered her. However, it did not work out well and she and J moved to the maternal great-grandparents' home. There appears to have been an incident there, and the mother moved back to the grandmother's again, leaving J with the great-grandmother but continuing to have contact with him. On 23 December 2013, she moved with J to a mother and baby foster home where they stayed for a period of 8 weeks, leaving at the end of the appointed period in February 2014. After that, she and J moved first to supported lodgings. The mother had been resistant to moving there because she thought it too far away from her own mother and her friends, and she and J left after less than a week, moving back to the maternal grandmother's. In July 2014, she moved from there into supported lodgings provided by someone called Debbie. This was short-lived, coming to an end at Debbie's request. On the local authority's case, this was because of the mother's violent and aggressive behaviour. She moved to another supported lodgings, in Rainham this time, which proved to be unsuitable through no fault of hers. She agreed to go from there to another placement but, in the event, was not prepared to stay in the new placement and left within minutes, returning with J to the grandmother's. This was mid-October 2014 and she was still there by the time the case came before Judge Scarratt.  

9. Whilst agreeing that there had been a number of moves, the mother disputed that the fault for this was all hers or that the moves were all avoidable. Furthermore, she did not accept that moves of accommodation were likely to continue, pointing to the period of "significant stability" whilst she had been living with the grandmother in the run up to the hearing, which she said would continue for the foreseeable future. Her case about accommodation was set out, in broad terms, in her response to the threshold document, and she also dealt with the matter in her statements. Mr Hall, who represented her for the purposes of the appeal but not at first instance, provided us with a table summarising the mother's contentions in relation to each of the lodgings, from the mother and baby placement onwards, and providing page references for the relevant passages in her statements. There is no point in going into the detail here, but it is clear that there was a significant challenge to the local authority's version of events. 

10. The judge's finding about this aspect of the case was as follows:

"I find on the evidence that I have heard, accepting the evidence as I do of the professionals, that the mother has not in fact provided constant, stable and consistent accommodation for J. He has had numerous changes of accommodation in his life, and I am not at all certain that the current placement with [the grandmother] in the light of all that I know about the mother and the co-dependency of that relationship will be sustainable. So I make the finding that the mother has not provided stable and consistent accommodation for J."

11. He found also that:

"….although there have been improvements acknowledged by everybody and acknowledged by this court, the mother has led since the date of these proceedings something of a chaotic life style….. That has led inevitably in my judgment to instability and inconsistency in routine for this very young child."

12. Dealing with other matters set out on the schedule of proposed threshold findings, the judge also found it established that:

a. The mother had struggled with her finances in the past;

b. J had not been provided with opportunities for interaction with other children; the mother had not taken J to as many groups as she could have done;

c. The mother had needs and "cannot prioritise J's needs over her own, such as travelling around during the day denying any kind of routine to J";

d. J was likely to suffer emotional abuse in the care of the mother "as a result of him simply being around her and being exposed to her aggressive and volatile behaviour towards others".

13. The process by which the judge reached his findings on the facts was criticised by Mr Hall as inadequate and the findings themselves were said to be deficient. The principal criticism of the process was that the judge failed to conduct a careful analysis of the disputed factual issues and to arrive at a reasoned and clear factual determination.

14. I have already identified the dispute that there was over the circumstances of the mother's moves of accommodation. There were other disputes as well, including that the mother did not accept that she and J spent excessive periods away from their home base, except when she was in Rainham where she was not able to be at the lodgings with him because she was not provided with a key. She did not accept that she had failed to establish a settled routine with J, or that she was struggling with finances, or that she had failed to provide him with opportunities to interact with other children. She said that, contrary to the allegation that she was unable to work co-operatively with professionals, she had worked with a number of social workers including her own social worker, and was prepared to continue to do so.

15. The judge heard evidence over a day and a half and gave his judgment extempore at the end of the hearing. He heard from the mother, the mother's social worker, the allocated social worker responsible for the child, a social work assistant who had done extensive work with the mother, an independent social worker who had conducted an assessment of the mother's parenting of J, producing a report dated 29 October 2014, and the guardian. He also had a lot of written evidence.

16. The judge's approach to establishing the factual matrix for his determination of the case was first to set out, at paragraphs 16 to 32 of his judgment, a summary of the evidence that he had read and heard. At paragraph 33, he then said that he accepted the evidence of the local authority social workers, the guardian, and the independent social worker. Although he had commented at paragraph 23 that he was "struck by the mother's honesty on occasions in her evidence", he explained his acceptance of the evidence ranged against her in only a few words as follows:

"If the evidence conflicts with the evidence of the mother I prefer the evidence of the professionals."

17. In my view, this was insufficient. Although the mother had accepted some shortcomings on her part, as can be seen from paragraphs 23 to 25 of the judgment, she had by no means accepted the whole of the local authority's case and the judge needed to analyse the evidence and make clear and reasoned findings about it. Given that there were good things to be said about the mother's care of J as well as criticisms to be made of it, it was particularly important not only that findings should be made but also that they should be sufficiently nuanced to enable proper weight to be attributed to them when the judge came to make decisions about what the future was likely to hold if J remained with the mother. Only in that way could he strike a proper welfare balance and decide whether the orders that the local authority sought were justified.

18. I will take the question of the mother's moves of accommodation as an example of the judge's failure to deal with material issues. Judge Scarratt recorded that the mother accepted that she would put her own interests first when it came to housing difficulties, that she moved around a lot with J, and that she wanted to live independently in a particular area. However, there is no indication that she resiled from her detailed case as to how and why each placement came to an end. In the light of the central role that the housing issue had in the local authority's case, an examination was required of the reasons why each placement had failed, in order to establish the extent to which this was attributable to the mother and the extent to which similar problems would be likely to recur in future. This is absent from the judgment, which just set out the basic history of the addresses at which the mother had lived, without setting out, considering, or ruling upon her contentions as to what had gone wrong and why all the moves had come about.

19. Depending on precisely which aspects of the accommodation problem were relied upon by the local authority as material to the court's decision, they may have needed to produce further evidence in order to prove their case. As it was, their evidence on the question of accommodation included multiple hearsay in the form of reports of what social services had been told had occurred. For example, dealing with events in the lodgings provided by Debbie, the social worker relayed what had been noted by another social worker (the mother's social worker) of a conversation that she had had with Debbie, which in turn included material provided to Debbie by another resident in the lodgings (see the social worker's written assessment of the mother).

20. Miss Budden for the local authority submitted that it was normal practice for a social worker to report on what she had been told by the provider of accommodation and that the judge was entitled to rely upon hearsay evidence. She submitted that it was for those representing the mother to ask for the attendance of another witness if the mother wished to challenge the material directly. She pointed out that public law proceedings should be concluded within 26 weeks and that only key findings should be sought. If witnesses had been called to deal with every disputed fact, the case would have run on for several more days, she submitted. She did, however, accept that accommodation was an important issue in the case and also that the judge's explanation that he preferred the evidence of the professionals (see above) did not suffice to explain why he accepted evidence from third parties relayed to him by the professionals rather than the mother's evidence. In fairness to the judge, I would observe that criticism of him for failing to deal more specifically with why he preferred material coming from other sources, such as Debbie, to the mother's account, must be tempered by the appreciation that, given the material presented to him, it might have been quite difficult for him to have done otherwise, unless the case had been adjourned for more evidence.  

21. It is, of course, very important that care and placement proceedings should be concluded with expedition and that the focus should be kept on the things which really matter to the court's decision. That is not, however, a licence not to observe proper procedure. Some factual issues cannot be resolved merely on hearsay evidence relayed by the social workers. The local authority has to establish its factual case and if that case is challenged, it must adduce proper evidence to establish the fact that it seeks to prove, see for example Re A (A Child) [2015] EWFC 11, usefully summarised by Aikens LJ in Re J (A Child) [2015] EWCA Civ 222, and Re P (A Child) [2013] EWCA Civ 963 at paragraphs 111 et seq.

22. Mr Hall argued that, on the question of accommodation, the judge needed also to take express account of the local authority's own responsibilities towards the mother, particularly in relation to housing, as a result of her being, herself, a child in care. This would, perhaps, have been a matter to consider but I would not have taken the same view of the appeal had this been the only omission from the judgment, particularly as it does not seem that this was a matter which was argued before Judge Scarratt. In contrast, however, in my view the judgment is significantly undermined by the absence of a more detailed determination of what had caused the mother's sequence of moves and what the future held in the light of the facts so established.

23. Mr Hall submitted that the judgment failed also to deal properly with the positive things that could be said about the mother. He relied upon her good attachment with J, her cognitive ability to care for him and his appropriate developmental progress in her care, as well as her insight into her difficulties and the way she had, in his submission, matured over the course of the proceedings. He pointed out that she had done very well in the 8 week mother and baby placement but that this important feature was not considered in the judgment. This omission was perhaps explicable, in his submission, because the positives of the mother and baby placement had not been properly highlighted by the local authority. However, he submitted that positive features such as this from the past were important to an assessment of the mother's ability to mature and change. Not only did the judge fail to give weight to what the mother had done well, he also erred, in Mr Hall's submission, in assuming that matters would remain constant, failing to take account of the fact that the situation was a dynamic one and that maturity and experience may affect the mother's ability to parent J.

24. Once again, I think there is force in Mr Hall's submissions. I will take the 8 week mother and baby placement as an example of why the material identified by Mr Hall mattered to the judge's decision. Had the detailed records of the placement been available to the judge, which it seems they were not, he would have seen that there was a great deal that was good recorded there about the mother's care of J. There are plentiful records of her taking care of him calmly and confidently without any prompting, being very patient and caring with him, talking and singing to him. There was an incident on 22 January 2014 which Mr Hall described as a "teenager moment" (but which the new judge will of course evaluate for him or herself) but, that apart, the theme is positive. That appears to fit in with the health visitor's observations, which may also not have been available to the judge, which speak, for example, of "[l]ots of positive warm and loving interaction physically and vocally" and a good weight gain, and describe J in April 2014 as an "[a]lert active infant, smiling, babbling, focusing following reaching and grasping" and as having age appropriate development. There was also evidence from a later period that the mother's care of J and her lifestyle had had no ill effect on J to date (see the report of the independent social worker of October 2014 at paragraph 1.31 for example). Material such as this had to be put into the balance when evaluating the evidence of the social work assistant who said there was little interaction with J and that the mother chose to spend a lot of time on the telephone or watching television. It was also very important in assessing the prospects for the future. However, for the most part, it does not feature in the judge's judgment.

25. The judgment is not devoid of any reference to features of the case which favoured the mother; elements of this kind can be found in his summary of the evidence of the various professionals. However, it does not convey the reality that emerges from the contemporaneous records, particularly of the mother and baby placement and the health visitor, and which had been alluded to, although in less vivid detail, in the social work evidence. Reference to the social work chronology is somewhat misleading on this point as it focuses largely on the 22 January incident and its aftermath, positive information about the mother and baby placement being confined to the fact that no concerns were raised by the foster carer at the child protection conference.

26. The judge's evaluation of the welfare decision can be found between paragraphs 41 and 44 of the judgment. At this point, a rounded and accurate picture of the mother's relationship with J and her care of him needed to be put into the balance. Even such positive features as were identified in the course of the judge's summary of the evidence do not feature in the welfare section, however. Paragraph 42 explains what the judge saw as the negatives of a placement with the mother. The judge there concluded that the mother has overwhelming needs of her own and cannot prioritise J's and he appears to have assumed that this will continue. The only reference which might relate to the potential for change in the future is the reference to CAMHS. However, it is very difficult to know what the judge had in mind in his comments about that, except that he discarded it as a factor that he could take into account in favour of the mother.

27. Miss Budden submitted that the judge had dealt with the welfare evaluation adequately and pointed out that none of the professionals supported a placement of J with the mother. It was also significant, in her submission, that the professional evidence included the social work assistant's account of her extended observations of the mother and J as well as the assessment of the independent social worker, both of which took place not long before the hearing. However, in my view, Mr Hall is right that it was necessary for the judge to analyse the material that was available, balancing all the various features of it, and reaching conclusions as to what had occurred in the past and what was likely in the future, and that it is not sufficiently apparent from the judgment that he did this.

28. I do not intend, in the circumstances, to say much about the other points that were raised in the course of the appeal. The inadequacy of the factual findings and of the welfare analysis dictated that the appeal should be allowed. The judgment did not lay the ground sufficiently for the judge's conclusion that adoption was required and that conclusion was insufficiently reasoned. It was not necessary for Mr Hall to convince us of the merits of his other points in order to succeed in having the matter remitted for rehearing.

29. I would not myself set much store on the judge's inexact reference to the threshold criteria at places in his judgment. He is a very experienced family judge and I am confident that this does not indicate that he had in any way mistaken the statutory provisions. What was potentially of more consequence was the lack of analysis of the evidence as to whether J had actually suffered harm so far and of a finding about it. In the social worker's final statement, J was said to be in good health, and was referred to as "a delightful little toddler" who "appears to be thriving". However, the social worker's view was that his emotional welfare had been significantly affected by his mother and that he had "most likely suffered emotional abuse caused by" her. On the other hand, the independent social worker said that it appeared that there had been no ill effects on him to date. This was a matter for the judge to resolve, going on to consider what it told him about the likelihood of harm coming to J in the future. In that respect, he needed to identify what sort of harm he considered would be likely to be caused to J by the problems that he had found to exist and why it would be likely to occur.

30. I should conclude by expressing my understanding of the pressures that there are on the hard pressed and very hard working judges of the Family Court, like Judge Scarratt, who are doing their best to process the many cases which come before them with care and expedition. Their task is a very difficult one and it is important that we do not expect too much of the judgments that they have to produce at speed, often extempore. They have to pick their way through large quantities of evidence and make delicate evaluations about risk and about likely future events, and then explain their decisions in a way that withstands the attentions of those who would subject them to detailed critical analysis. Unfortunately, the criticisms made of the judgment in this case were borne out by an examination of the case on appeal and so we had to allow the appeal. J's future will now be determined by another judge and I stress again that nothing that I have said in this judgment is intended in any way to influence his or her decision.

Lord Justice Richards :

31. I agree.

Lord Justice Longmore :

32. I also agree.