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R (A Child) 2015 EWCA Civ 1581

The Court of Appeal dismisses a mother’s appeal against care and placement orders in relation to her young daughter.

A young mother (G) appealed care and placement orders made in relation to her daughter (M), aged 16 months at the time of the appeal hearing. The local authority's concerns focussed on the risks posed to M by her father, who had a worrying criminal history, including for extensive violence. It was accepted that the day-to-day care provided by G was good. The risks from M's father were compounded by: G lying to the police about an incident of aggression in the family home; G and the father being found together by the police and G being arrested for giving the police a false name; G and the father surreptitiously spending several days together in a hotel – an event about which G then lied to the local authority; and, G falling pregnant with a second child of the father and failing promptly to disclose this to the local authority. By the time of the final hearing, the father had been remanded in custody for threats to kill during an affray.

A viability assessment of the maternal grandmother was negative on the basis of problems with her own parents, her housing situation, engagement with professionals and her assessment of the risks posed by the father.

Final hearing
The court had two detailed professional assessments before it: (1) the social worker's evidence, incorporating an analysis of the advantages and disadvantages of placement options – which concluded that M needed a secure placement and would be exposed to a high risk of violence and volatility in G's care; and (2) the children's guardian's report, in which strengths and weaknesses of a return to G's care were evaluated and a recommendation of adoption made.

At the end of the hearing, the judge made care and placement orders. The judgment dealt with the care and placement order applications separately. Confusion crept in to the part of the judgment dealing with the legal effect of the care order, at [25]; the placement order was dealt with "in a somewhat disorganised way", at [33] – [34].

The appeal
A single ground of appeal was advanced on G's behalf: the judge failed to engage in a proper welfare analysis, in that she adopted a linear approach, did not properly balance the pros and cons of each option for M, did not give adequate consideration to the Article 8 rights engaged and unfairly ruled out the maternal grandmother's claim as carer. The local authority and the guardian sought to uphold the orders.

The Court of Appeal found that criticisms of the form of the latter stages of the judgment could legitimately be made. The function of a judgment, however, is to explain what a court has decided and why, above all to family members. In stepping back and asking whether this function had been fulfilled, the Court of Appeal noted that the judge was fully aware of the momentous nature of the decision and the positives in G's day-to-day care – however, she had found that G's relationship with M's father exposed M to serious physical and emotional harm and that G neither recognised this nor demonstrated any dependable signs of change. In relation to the argued adoption of a linear approach, it was not accepted that the judge fell into error: she had two options to consider and was clearly alive to the advantages and disadvantages of each. As such, the appeal was dismissed.

Summary by Alex Laing, barrister, Coram Chambers

____________________________ 

B4/2015/2648
Neutral Citation Number: [2015] EWCA Civ 1581

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COMBINED COURT CENTRE
(HER HONOUR JUDGE MOIR)

Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 16 December 2015

 
B E F O R E:

LADY JUSTICE HALLETT DBE
LORD JUSTICE KITCHIN
MR JUSTICE PETER JACKSON
 
 
IN THE MATTER OF: R (A CHILD) 
 

Computer Aided Transcript of the Stenograph Notes of 
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Mr M Maynard (instructed by Brendan Fleming) appeared on behalf of the Applicant Mother
Mr T Spain
(instructed by Northumberland County Council) appeared on behalf of the Respondent County Council

J U D G M E N T
(As Approved by the Court`)

Crown copyright©

1. MR JUSTICE PETER JACKSON:  We will direct that in any report of these proceedings the identities of the family members are not to be revealed.

2. This is an appeal by [G], now 21, from care and placement orders made in respect of her daughter [M] who was born on 23 July 2014 and is now aged 16 months.  Those orders were made by Her Honour Judge Moir at Newcastle Family Court on 14 July 2015.  Permission to appeal was granted by McFarlane LJ on 14 October. 

3. I will firstly summarise the background facts.  The mother is herself one of four children.  The maternal grandmother of [M] is now in her early 40s.  In around 2012 the mother met [X], a young man now 19 years of age with a worrying criminal history including for extensive violence.  He, the father, is now in custody and is apparently likely to remain there until early 2017 or thereabouts.

4. As a result of that relationship, [M] was born on 23 July 2014.  On the following day, the local authority started care proceeding because of the risks posed by [M]'s father.  It has been acknowledged throughout that on a day to day level the care given to [M] by her mother has been good insofar as she has been able to provide it.  Indeed, when the local authority applied very shortly after [M]'s birth to remove her from her mother's care, the District Judge refused that application.  That decision was appealed by the local authority and as a result the matter came before Her Honour Judge Moir for the first time.  That was on 7 August and an agreement was reached between the parties and endorsed by the judge to the effect that [M] would remain at home, there would be orders keeping the father away and there would be a contract of expectations between the local authority and the mother.

5. Unfortunately, matters did not go smoothly and about a week later there was an incident when mother and [M], who was then only about 2 weeks old, had to shelter in their home from the father's aggression.  Despite that, in September 2014 the local authority carried out an assessment of the mother which was guardedly positive, being based on her account of the ending of her relationship with the father.  Within a matter of days, however, there was a second similar incident in which the father behaved aggressively within the home and the mother unfortunately lied to the police about what had taken place.  This led the local authority to change its position and to apply for [M]'s removal from her mother.

6. There was a hearing on 2 October.  This was a substantial hearing at which the judge, Judge Moir, had to make what she described as a very finely balanced decision.  The recommendation of the children's guardian was that the mother and child should go to a refuge as protection against the attentions of the father.  However, having considered matters, the judge was not satisfied that that would provide sufficient protection and in consequence [M] was placed in foster care.

7. There has been throughout [M]'s time in foster care regular contact between her and her mother and other family members, particularly her grandmother.  That has consistently been seen to be of high quality and the professional assessment is that there is a good attachment between [M], her mother and her grandmother.

8. However, on 4 October, and so 2 days after the decision made by the judge in regard to [M]'s removal, the mother and father were found together by the police and the mother was arrested for giving a false name.

9. In December, [M] was moved to her current foster home.  In the same month, a viability assessment in relation to the grandmother was negative, with reference to problems with her own parents, her housing situation, engagement with professionals and her assessment of the risks posed by the father.

10. Against this background, it was particularly damaging that the mother and father surreptitiously spent several days together in a hotel over the Christmas period.

11. In January 2015, in ignorance of that fact, a parenting assessment of the mother found that she did not appreciate the risks that the father posed to herself and to [M].

12. In February, the local authority learned by other means that the mother and father had been together over Christmas at least.  When the mother was confronted about that, she lied about it.

13. In March, the local authority discovered that the mother was again pregnant, that she had known about this in February but that she had not disclosed it.  It has been established that [X] is the father of the younger child.

14. On 21 March, there was a frighting incident as a result of which the father was remanded in custody for making threats to kill during the course of an affray involving police.  Although details are not certain, it would appear that his current spell in custody arises from that event.

15. Meanwhile, the family proceedings were continuing and on three occasions, one in March, one in April and one in May, Her Honour Judge Moir gave case management directions.  By June, the local authority had decided that it was necessary in [M]'s interests to apply for an adoptive solution and it made its application for a placement order.

16. When the matter came before the court at a later stage, the judge had before her two detailed professional assessments.  The first was provided by [M]'s social worker at the end of May.  She set out the advantages and disadvantages of the various options for the child in tabular form and addressed the welfare checklist.  She concluded that [M] needed a secure placement but would be exposed to a high risk of violence and volatility if she was returned to her mother.

17. At the end of June, the children's guardian filed a combined report in relation to the applications for care and placement orders.  She also set out her consideration of each of the options in a tabular form.  She pointed to the strengths to be found in the mother and in her family, and the closeness within the family but she noted that it was unhelpful that the mother's views were not effectively challenged by them.  In the guardian's expression, denial and avoidance were very powerful defence mechanisms.  The guardian recommended that [M] should be adopted.

18. In July, the mother filed her own statements, explaining that she was expecting a child in the following month.  She said that she had not been honest with the local authority because she had been given reason not to trust them.  She explained that she had referred herself to a number of supportive agencies.

19. The hearing before Judge Moir took place on 13 and 14 July and the judge on this occasion heard evidence from the mother, the grandmother and the guardian.  It was not thought necessary to cross examination the social worker. 

20. I will come back to the hearing itself in a moment but completing the chronology, the mother's second child, [A] was born on 26 August.  She herself has been removed and placed in foster care separately from [M] under the auspices of an interim care order.  Those proceedings have advanced to the point that there is to be an issues resolution hearing on 26 January before a different judge, those proceedings having been issued by a different local authority.

21. On 14 October, permission to appeal was granted in this matter and this hearing has taken place this morning.  We have considered the judge's judgment in detail.  It runs to 39 paragraphs spread across 7 pages.  It is constructed in the manner set out in the skeleton argument of Mr Maynard, who appeared today, but not below, for the mother.

22. I am going to read some relatively limited passages from this judgment, starting with the learned judge's summing up in relation to the mother's case:

"This case is one where everyone, it seems to me, has struggled in that to separate her from her mother is indeed a draconian step when the mother is capable of providing good day to day care for [M].  However, I have to look at the risks of placing [M] with the mother.  The court and the professionals cannot be satisfied bearing in mind mother's behaviour thus far and present behaviour/past behaviour tends to predict future behaviour.  The mother's behaviour thus far has not been to work with the local authority.  She did not work with the local authority when she was pregnant.  It was thought after [M] was born that perhaps the mother had started to see the necessity to do so.  But it has become clear that she has continued to lie her way through and to place her own needs and wishes above those of [M] despite the fact that the professionals have tried time and time again to assist and to point out what [M] needs to be doing.  Therefore, the risks in the future are significant.  Sadly, the harm to which [M] may be exposed is very serious physical harm and also serious emotional harm by reason of her mother's involvement in a relationship with a very violent and unpredictable man.  It is [M]'s welfare that I have to consider.  But even if there is a glimmer of change now, and I am not satisfied there is, but if there was [M] has not got time to wait for her mother to recognise how her behaviour and lack of responsibility has caused harm or would cause harm to [M]."

23. The learned judge in the following paragraph then considers the position of the grandmother and says this:

"The maternal grandmother puts herself forward.  I find that the grandmother is in a very difficult position.  She wishes to support her daughter but sadly what has happened is that none of the maternal family has ever challenged her.  The viability assessment in relation to the grandmother is not positive.  There are concerns about the way that the grandmother allowed her children, the mother included, to avoid school, and the guardian has highlighted within her report that the screening assessments of the extended family have been negative.  She says 'the family members appear to work as a team and I do not consider they have demonstrated a capacity to establish a degree of separation in their thinking from that of the mother.  I am quite sure that if [M] were to return to her grandmother's care, the mother would be an~integral part of her life'.  I am satisfied that this is an accurate reflection of the situation within the maternal family."

24. The learned judge then went on in these terms:

"The decision that I have reached to make a care order in relation to [M] has been made after a great deal of consideration and with great regret.  It is a draconian move.  [M] will cease to be a member of her birth family.  I am very conscious of that but I am satisfied that her welfare requires that a care order is made and that is the order made by this court."

25. It is clear that in that paragraph the judge was misstating the effect of a care order.  The references to ceasing to be a member of the birth family and being satisfied that welfare requires an order to be made are concepts taken from the Adoption and Children Act 2002 applicable to placement orders and to adoption orders.

26. Despite that mistake, however, it shows that the judge was fully alive to the magnitude of the decision that she was taking.  It is nevertheless unfortunate that the judge did not make clear in terms that she was in reality making a placement order, the making of a care order being but a necessary preliminary step.

27. As a result, perhaps, there then followed this rather surprising exchange.  After the judge had asked whether there were any other matters to be dealt with, counsel then representing the mother said this:

"COUNSEL:  It goes without saying, your Honour, that making a care order, that you also make the placement order today.

THE JUDGE: No, I have not made the placement order.  I am very conscious of the fact that I need to look at that and I was just dealing with the judgment at the moment."

28. After some further exchanges in which the judge spoke of the desirability of making the placement order at that point because it would be upsetting to postpone and some time being taken to identify and locate the placement order papers as opposed to those in the care proceedings, the judge concluded in two passages that I will also read now:

"The local authority makes application for a placement order in respect of [M], who was born on 23 July 2014.  I have just given a judgment in the care proceedings.  I do not intend to repeat what I have said within those proceedings.  At the time that the care hearing was listed for final hearing, the court order set out that the placement application followed if appropriate and the notice of hearing specified the placement application be heard with the care order at the same time and if appropriate. 

Counsel on behalf of the mother asked me to deal with it now and I take the view to delay dealing with it would be not only detrimental to [M] but also in fact to her mother.  There is no consent to the placement application but that is not surprising.  In the circumstances it would be too much to expect the mother to consent. 

I have before me a statement of facts dated 1 June, which I have read, I have the Annex B dated 29 May, both this year, and I have the guardian's report dated 30 June in which the guardian recommends that the placement order is granted.  It is apparent from the judgment that I have just given that I am satisfied that the welfare of [M] requires that I dispense with the content of the mother."

29. It would undoubtedly have been better and would better have reflected the recommended thought process if at the end of the judgment, when drawing things together, the judge had clearly articulated and contrasted the two options: return to family on the one hand and adoption on the other.  Separation of the decision to make a care order from the decision to make a placement order raises the question of whether the judge approached the decision in an impermissible way.

30. It is, however, to be noted that the judge was clearly aware of the decision that she was being asked to make.  At paragraph 3, she records the local authority's case, saying that if [M] cannot be cared for within her family then adoption is the only feasible option.  At paragraph, 8 she again says this in her own words:

"What is very clear from these cases is that a plan of adoption is the option of last resort and only if it is necessary and nothing else will do shall the court consider making an adoption order."

So those passages in her judgment seem to me to carry forward into what happened subsequently.

31. The single ground of appeal in this case has been articulated concisely and to considerable effect by Mr Maynard on the mother's behalf.  It takes a well trodden path.  It is said that the judge failed to engage in a proper welfare analysis, in that she did not balance up the pros and cons of each option for [M], that she instead arrived at the conclusion that the child should be adopted by a linear process of elimination, that she gave no consideration or not adequate consideration to the Article 8 rights of the mother or the child and finally that she unfairly ruled out the grandmother's claims as carer.  Mr Maynard suggests the matter should be remitted for retrial and perhaps that it be consolidated with the proceedings in relation to [A].

32. The local authority, supported by the guardian, who is not represented today, seeks to uphold the orders by way of written submissions from Mr Spain.  He says, and this is common ground, that there were only two realistic options.  He argues that the judge's reasoned conclusion that the child would not be safe in the care of her mother was one that she was entitled to reach.  Some reservations about the structure of the judgment are accepted but what is important, it is said, is substance and not form.  Finally, the local authority contends that the judge had full knowledge of the grandmother's position, which raised no distinct case to the mother's.

33. In granting permission to appeal, McFarlane LJ noted that the central issue was the issue of risk from the father, that the mother's abilities were a real positive and that it is arguable that the judge failed to conduct a proper process, in that she did not weigh the pros and cons of the options or engage with the welfare checklist when doing so.  He noted that the manner in which the placement order was made might be said to compound the difficulties and observed that matters of this kind are not technicalities but are designed to ensure that the court makes the right decision for the child.

34. It is, with respect, easy to see why permission to appeal was granted in this case.  The concluded passages in the judgment do not methodically set out the judge's findings about each of the options.  The application for the placement order was made in a somewhat disorganised way.

35. Making oral submissions today, Mr Maynard focuses on his central point, which is that there was a failure by the judge to give full and proper weight to each of the options, to step back having done so and evaluate whether the high threshold for the making of a placement order was truly met in this case.  He says that by divorcing decisions in relation to the care and supervision order, the judge betrayed a confusion of mind.

36. I mean no disservice to Mr Maynard's submissions to focus only on the core of them as I have done.  He makes other surrounding comment.

37. It is an unfortunate aspect of the matter that attention has understandably been focused very much on the judge's approach to her task rather than on the all important issues surrounding [M]'s welfare and her future.  So before coming to consider the complaints made about the process, it is, I think, necessary to step back and look at the overall picture.  In the first place, the appeal concerns the manner in which this decision was arrived at.  It does not directly relate to the substance of the decision.  Secondly, although these cases are always extremely painful for the families involved and anxious for the court, the welfare evaluation that had to be made in this case was by no means unusual.  It involved a balancing of risks and benefits of a kind that judges in the Family Court carry out day in day out.  Thirdly, this was a case with which the judge was thoroughly familiar.  It came before her no fewer than five times over the course of a year, including two substantial hearings.  She had, effectively, been involved throughout [M]'s life and had a particularly close knowledge of her circumstances.  Fourthly, there was unanimous professional evidence in favour of the making of a placement order.  Fifthly, it is not disputed that the judge fully and correctly directed herself as to the law.  Those directions appear at paragraphs 8 to 10 of her judgment.

38. Turning to the central ground of appeal, I would accept that there are criticisms that can legitimately be made of the form that the latter stages of the judgment took.  Reference is made by Mr Maynard to the familiar authorities of Re: G (A child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re: B S (Children) (Adoption application under section 47(5)) [2013] EWCA Civ 1146.  In those cases, the dangers of an exclusionary linear decision process at the expense of a comprehensive welfare assessment are strongly emphasised. 

39. Further reference is made to Re: C (A Child) (Appeal from care and placement orders) [2013] EWCA Civ 1257 and Re: R (A Child) (Adoption: judicial approach) [2014] EWCA Civ 1625, where McFarlane LJ makes clear that in some cases the compartmentalisation of decision making into separate stages as between care and placement orders may prevent the effective evaluation of the ultimate issue, adoption or not, in accordance with the focus welfare checklist in section 1 of the Adoption and Children Act 2002.

40. The function of a judgment is to explain what a court has decided and why.  Particularly in cases of this importance, the judge must give reasons so that the decision can be understood by the parties, above all by the family members, and scrutinised by others, including by this court.  Whether the decision itself is right or wrong, the judgment itself has only to meet this standard.  It is not an examination paper.  As Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360:

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the District Judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [that having been a financial case].  An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

41. In the present case, this exceptionally experienced judge directed herself correctly as to the law as it applied to a case without unusual features.  Considering her depth of involvement and comparing her judgment to the material that was before her, it is clear to me that she had mastered the evidence and understood the advice that she was receiving.  That was set out in an appropriately formal tabulated way in the statement of the social worker and the combined report of the guardian.  Those documents dwell on the pros and cons and the realistically available options and it is fanciful to conclude that the judge did not have those matters well in mind.

42. There are no doubt cases in which a suboptimal form of judgment will be a symptom of a faulty decision making process.  Warning signs may be an obvious failure to appreciate significant features of the evidence or a surprising and unreasoned rejection of professional advisers, as seen in the decision of the Court of Appeal this week in the matter of Re: H (A Child) [2015] EWCA Civ 1284, a serious fault in the conduct of the hearing.

43. That is not the case here.  When I stand back and ask whether this court or, far more importantly, [M]'s mother has been put in a position to understand the judge's reasons for an order that she made, my clear conclusion is yes.  The judge was fully aware of the momentous nature of the decision and the positives in the mother's day to day care but she found that she could not be relied upon to work with the local authority and put [M]'s needs above her own.  In particular, she found that the mother's relationship with the father exposed [M] to serious physical and emotional harm, that the mother did not recognise this, that there were no dependable signs of change and that [M] could not wait for her future to be decided.  In short, in the light of the history, the mother could not be relied upon to keep [M] safe and provide her with the secure upbringing that she needs.  Likewise in the case of the grandmother, the judge accepted the evidence of the guardian that she was not able to challenge the mother and that moving [M] into the grandmother's care would lead to the mother being an integral part of her life.

44. I understand that the judge's decision will have been extremely distressing to this young mother but that is because she does not agree with it not because she does not understand it.

45. Addressing certain specific grounds of appeal; firstly, I do not accept that the judge took a linear approach.  She had two broad options to consider.  She was clearly alive to the advantages and disadvantages of each and she preferred one over the other for welfare reasons.  She did not arrive at adoption by an impermissible process of exclusion. 

46. Secondly, nor do I accept that the judge gave no consideration to the Article 8 rights of the child and her family.  She specifically reminded herself of the existence of these rights. 

47. Thirdly, Mr Maynard contends that the absence of an analysis of the concept of proportionality as applied in this case was a critical omission that profoundly undermines the order.  I disagree, finding that the judgment as a whole is permeated with the judge's consciousness of the draconian nature of the order sought.  I further find in the judgment, I would instance paragraph 6 in its entirety, that the learned judge was fully alive to the strengths in the mother, in her family and in what they themselves had to offer. 

48. Fourthly, there was little or no evidence on which the judge could have concluded that it would be in [M]'s interests to be brought up by her grandmother and the conclusion upon that issue cannot, in my view, said to be wrong or unfair. 

49. Finally, it is relevant that the proceedings, which should have been completed in 26 weeks, had already been on foot for a year when the judge made her decision.  They have now continued for no less than 14 months, which is entirely unsatisfactory for a child aged 16 months who urgently needs to settle into a secure family life.  The prospect of this case being remitted for rehearing is not one that could be contemplated unless the judge is shown to have been wrong in substance.

50. For the reasons given, I am not satisfied of that and I would therefore dismiss this appeal.

51. LORD JUSTICE KITCHIN:  I agree.

52. LADY JUSTICE HALLETT:  I too agree.