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K (A Child) [2016] EWCA Civ 462

Successful appeal against the refusal of a mother’s application for permission to oppose the adoption application in relation to her eight year old son.

In April 2015, the mother of an 8-year-old boy, P, applied for permission to oppose an adoption application in relation to him. P had been removed from his mother's care in 2011; and, in February 2012 he had been made subject to care and placement orders. At the final hearing, the court had the benefit of two reports (dated August 2011 and January 2012) from a consultant clinical and forensic psychologist, whose opinion had been that, whilst the mother cared deeply for P, her own needs would have prevented her consistently from meeting P's.

Separate proceedings took place in relation to P's younger sibling, K who had been adopted in 2015. In the course of those proceedings, the same psychologist had produced an updated report (dated June 2013); which indicated that the mother was not likely to change very much within 5 to 10 years without therapeutic treatment – and, that she showed little motivation for such treatment.

At the hearing for permission to oppose the adoption application in relation to P, the mother referred to a number of ways in which her situation had improved. In refusing the application, HHJ Orrell referred extensively to the psychologist's evidence which was, the learned judge found, "only 6 months old" (on the basis that the mother had, in February 2015 when the proceedings relating to K concluded, conceded that it was, at that point, current and valid).

On appeal, the mother argued that HHJ Orrell was wrong to base his conclusion on an old psychological report and that the application should have been adjourned for an updating assessment; at a very late stage, the children's guardian and Derby City Council indicated that they did not oppose the appeal.

Peter Jackson J sitting in the Court of Appeal gave the lead judgment of the Court and held that, given the importance of the decision and the significance of the psychological evidence, it would have been necessary for the judge to confront the fact that it was some 18 months old if he was to rely upon it – that is not what he did and, further, it was not for the Court of Appeal to do so either.

In addition, given the unusual circumstances of the case, an updating report would be required – and, "matters having reached the stage that they have", at [13], it would be better to ask an alternative professional to undertake that report.

In his concurring judgment, Munby P re-iterated that it is unusual in an application of this sort for the court to be assisted by, or for the court to direct, the filing of a psychological or similar report. Even more unusual (but appropriate here) was the preparation of the report by a different professional. Munby P emphasised that: "it is no ground for seeking the view of a second expert that one or other of the parties (in this case the mother as it happens) disagrees, it may be profoundly, with the view of the first expert."

The mother's permission application was remitted to be re-heard by a different judge.

Summary by Alex Laing, barrister, Coram Chambers

________________________.

Neutral Citation Number: [2016] EWCA Civ 462
B4/2015/3385

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY FAMILY COURT
(HHJ ORRELL)


Royal Courts of Justice
Strand
London, WC2

Thursday, 14th April 2016

 
B E F O R E:

PRESIDENT OF THE FAMILY DIVISION
(SIR JAMES MUNBY)
 
LORD JUSTICE SIMON

MR JUSTICE PETER JACKSON
 
 
IN THE MATTER OF 

K (A CHILD)
 
 
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The Applicant appeared in Person
Mr P McCandless
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1. MR JUSTICE PETER JACKSON:  This appeal concerns a claimant known as "P" in the transcript of this judgment, an 8 year old boy who was removed from his mother's care in 2011 when he was aged 3.  In 2012 he was placed with foster carers and in 2015 they applied to adopt him.

2. In April 2015 P's mother applied for permission to oppose the adoption application.  Her application was dismissed on 18th August 2015 by His Honour Judge Orrell, sitting in the Family Court at Derby.  The mother now appeals from that decision with the permission of the Senior President of Tribunals granted on 23rd February 2016.

3. At a very late stage the Derby City Council and P's children's guardian indicated that they would not oppose the appeal.  In the circumstances that I will describe we propose to allow the appeal and give directions for the mother's application to be reheard.  I accordingly say no more than is necessary by way of explanation.

4. During the hearing today the mother represented herself with the support of a family member and the city council was represented by Mr McCandless of counsel who has been exceptionally helpful.

5. The mother, now aged 25, has two children, P and his younger half brother, K, who is now aged 3 and was adopted in 2015.  The proceedings concerning P have been heard in Derby and those concerning K have been heard in another court.  After a lengthy and troubled history P was, not for the first time, removed from his mother's care in April 2011.  In February 2012 he was made subject to care and placement orders following a contested hearing before His Honour Judge Orrell.  During those proceedings the court had two reports on the mother from Professor Daniel Wilcox, a consultant clinical and forensic psychologist.  He had met her three times in June and July 2011 and produced a report dated 2nd August 2011, which he updated in an addendum report dated 12th January 2012.  The gist of his opinion was that the mother cared very much for P, that she lacked commitment to work with professionals and that her own needs would prevent her from consistently meeting P's needs.

6. Professor Wilcox next became involved during the proceedings relating to K.  He met the mother twice in May  2013 and produced an updated report dated 12th June 2013.  This report described the mother in very negative terms.  Dr Wilcox did not consider that she was likely to change very much within five to 10 years without therapeutic treatment, for which she did not show motivation.  In February 2015 care and placement orders were made in relation to K.  The mother did not oppose these orders.  The reason why those proceedings took so long is unclear but the delay is relevant to the events that subsequently occurred in these proceedings concerning P.

7. In order to obtain permission to oppose the adoption application in relation to P the mother had at the outset to demonstrate a change in her circumstances since 2012.  She accordingly gave details of a number of ways in which her situation had recently approved, citing some professional support for this proposition.  That claim was contested by the local authority and by the Guardian.  The 2013 report by Dr Wilcox in K's proceedings was handed to the course in the course of the hearing.

8. In refusing the mother's application Judge Orrell referred extensively to Professor Wilcox's evidence which he described as "careful and comprehensive work over a period of 3 years".  He regarded it as "highly influential if not determinative".  He described Professor Wilcox's final assessment as being "only 6 months old", saying that the mother had conceded it was current and valid as at February 2015 when K's proceedings ended. He concluded:

"The mother cannot get round the crucial factor in this case, that in February of this year, she accepted in the proceedings relating to [K] that Dr Wilcox's grimly pessimistic prognosis in his updating report had to be accepted.  So little time has gone by that it is quite simply inconceivable that she could have addressed, or started to address, the problems that Dr Wilcox there outlined.  What she has done is commendable but it pales into insignificance when compared with what Dr Wilcox was saying was the situation and saying what had to be done in order to remedy it.  I have come to the conclusion that the mother has evidenced no change of the sort that could possibly lead me to move on to the second limb of the test."

9. In this appeal the mother complaints that the judge was wrong to base his decision on an old psychological report, that he failed to properly to take into account the change in her circumstances and was wrong not to adjourn his final assessment for her to have a further psychological assessment.  She argues that in effect she has not been psychologically assessed since 2011 or at latest 2013. 

10. In my view, the learned judge's portrayal of Professor Wilcox's as being current in February 2015 was an error that undermines his conclusion.  Given the importance of the decision and the significance of the psychological evidence, it would have been necessary for the judge to confront the fact that it was some 18 months old if he was to rely upon it.  It might have been possible for him to justify his conclusion with reference to reports from an earlier period but that is not what he did and it is not open to this court to do so either.  I would therefore allow the appeal and remit the matter for the earliest possible hearing before a different circuit judge.

11. I come then to the matter which has received the most detailed consideration during the course of this hearing.  The question is whether the court should have before it, when it considers the mother's application, an updated psychological report in respect of her.  I would first say that in proceedings of this kind, namely an application under section 24 of the Adoption and Children Act 2002, it is by no means routine for the court to direct that there should be a psychological report or an updated psychological report if there have been previous reports.  However, the circumstances that I have described are unusual and it seems to me that the court meets, within the terms of the rules, and updating report on the mother, so that it can accurately assess whether she has shown the necessary change in the way that she contends.

12. The next question is who should provide that report.  The mother's position is this.  She says that she does not particularly see the need for further psychological expert evidence but that is she is prepared to co operate if that is what the court requires.  She is concerned about previous evidence and previous opinion being carried forward to her disadvantage.  As to that, I would reassure her that what has been said in the past will have to be looked at afresh, in order to see whether it continues or not but it is an absolutely essential part of the overall process of psychological assessment to take into account long term information going back into the past in order that one can make projections into the future.

13. The identity of the expert has been subject to some discussion. The starting point, in my view, would be to continue with Professor Wilcox, on the basis of his long knowledge of the family stretching across not one child but two, because of his ability to identify whether or not there has been change.  However, the mother has expressed considerable anxiety at the prospect of undergoing further assessment by Professor Wilcox and, for my part, I am persuaded that matters having reached the stage that they have, it would be more effect to take up the proposal that has been offered by the local authority as an alternative, namely that the assessment of the mother should be carried out by Dr Gill Iverson.

14. I would want to added this.  In carrying out her assessment Dr Iverson will inevitably give full consideration and may give considerable weight to the opinions of her professional colleagues, expressed at earlier stages in the various proceedings.  What she will also want to do, and we shall direct, is that she should not only see the mother for interview or interviews which can take place, we are told, in mid June but also make contact with those who are currently offering therapeutic help to the mother and locally so that she can be informed by them of anything that they think proper to tell her when she is formulating her opinion.  That I believe would be a balanced outcome to a most unusual situation but I would wish to stress that the ordering of a psychological report in these circumstances is to be regarded as unusual and that in departing from continuity with Professor Wilcox I, for my own part, convey no criticism whatever of the work that he has done so far in relation to these children.

15. Before coming to the details of the consequent order, I would lastly want to say that I regret the course that these proceedings have taken.  P and the couple that he now regards as his parents have now been awaiting a decision about his adoption for a year.  It is imperative that the mother's application is heard at the earliest opportunity and if at all possible no later than the end of July.  So that the adoption application itself can then be heard without further delay, whether or not the mother is permitted to participate in it.

16. LORD JUSTICE SIMON:  I agree.

17. PRESIDENT OF THE FAMILY DIVISION:  I also agree.  There are just a few matters I wish to emphasise. 

18. We are not giving the mother permission to oppose the adoption application; all we are doing is directing there is to be a rehearing before a different judge of her application for such permission. 

19. In common with my Lord, I also wish to make clear that it is unusual in an application of this sort for the court to be assisted by, or for the court to direct, the filing of a psychological or similar report.  However, this case is unusual.  Appropriately, as it seems to me, Judge Orrell took account of such material at the previous hearing and it is therefore appropriate for there to be an updated report.  I emphasise however that it is unusual in this kind of case.  What is particularly unusual, and in my judgment wholly exceptional, is that this updating report should be by a different professional.  I emphasise that it is no ground for seeking the view of a second expert that one or other of the parties (in this case the mother as it happens) disagrees, it may be profoundly, with the view of the first expert.  However, emphasising that this course is and must be exceptional, I am persuaded, as are my Lords, that this is an exceptional case justifying that course.

20. I want to make two observations before we come to the detail of the order we will be making.  The first is that this is probably going to be the mother's last chance to achieve her objective.  It is therefore vitally important, both for her and for her son, that she puts before the court all the material, all the evidence, all the facts and all the circumstances that she wishes the court to take account of in coming to a conclusion as to whether or not the circumstances have changed.  Secondly, and for very much the same reason, it is essential that the mother co operates fully, openly and frankly with Dr Iverson in the work that Dr Iverson is going to undertake.

21. Finally, I must emphasise this.  Without in any way pre judging the outcome of the hearing, which will take place, as my Lord has indicated, before a different judge, and, I very much hope, before the end of the July, the mother has to recognise that she has a very high and very steep mountain to climb.  The fact that she has been successful today on this preliminary matter is no indication as to the ultimate outcome of these proceedings.