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W & M (Children) [2009] EWCA Civ 1278

Application for permission to appeal, with appeal to follow, refusal to allow a s38(6) residential assessment in care proceedings. Application granted but appeal dismissed.

The parents had five children aged from 2 to 14 years old. The couple had been in a relationship for 10 years but both had been heavily involved in drink and drugs during that time and that contributed to the refusal of the assessment. The judge had also considered that the assessment would also introduce harmful delay into the proceedings.

In this application, counsel for the parents introduced a further report outlining that the mother was making good progress in combating her dependencies while the father was in prison. He then went on to argue that the judge, in summary; i) attached insufficient weight to his own comments that this was a make or break decision; ii) failed to recognise the advantage of the children living with their natural parents; iii) attached to much weight to the delay and the cause of delay. The judge had therefore been plainly wrong. Coleridge J rejected these submissions as the judge had carefully considered all the issues and that he had rightly found that the decisive factor was the impact on the children. He also concluded that delay can be a basis for refusing an assessment, particularly when such an assessment may be of limited use.


Case No: B4/2009/1796

Neutral Citation Number: [2009] EWCA Civ 1278
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 22nd October 2009


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IN THE MATTER OF W & M (Children)

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(DAR Transcript of
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Mr C Hyde (instructed by Rosie Bracher Solicitor) appeared on behalf of the 1st and 2nd Appellants, the mother and father.

Ms A Smith (instructed by Ewing Hickman & Clarke Solicitors) appeared on behalf of the 1st Respondent, the local authority.

The 2nd to 6thRespondents, the children through their Children’s Guardian, did not appear and were not represented.

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Judgment (As Approved by the Court)
Crown Copyright©

Mr Justice Coleridge:
1.This is in effect an application for permission to appeal with appeal to follow if leave is granted in respect of an order made by HHJ Marston on 31 July 2009 sitting in the Portsmouth County Court.  I say ‘in effect’ because Mr Hyde, who appears for the father and the mother this morning, points out the fact that the father has in fact filed a notice of his own by way of a respondent’s notice in which he seeks further time before the appeal is heard, but as I say the reality is that the mother and the father seek to overturn the judge’s decision.

2.The effect of the order was to refuse the parents’ application for a residential assessment under Section 38(6) of their ability to parent their five children.  Although the precise order is silent as to that refusal, that is indeed its effect.  HHJ Marston also refused permission to appeal.

3.This application has been made by the parents in the course of care proceedings which were begun on 9 February 2009, although the children had been received into voluntary care some 11 months earlier.  The s.38(6) application was opposed by the local authority and the guardian and they similarly oppose the application for leave today.

4.The five children who would be the subject of the assessment are A, who is 14, M, who is seven, K ,who is five, N, who is two, and S, who is 19 months. 

5.When adjourning the case to be heard by a full court Wall LJ said this:

“1. I have come to the conclusion that this is an application which should be decided by the full court.

2. On the one hand, the judge was exercising a judicial discretion, and the judgment is both full and careful.  On the other hand, there is little doubt that a refusal of the application effectively ends the parents’ case for the return of the children to their care.  The case thus raises the dilemma posed by such applications in an acute form.

3.  I would not want mother to build up her hopes too much.  The court may well take the view that the judge was entitled to reach the decision which he did.  It seems to me however, that she should have the opportunity at a full hearing to persuade the court that she has an arguable appeal and that her appeal should succeed.”

This is indeed one of those Section 38(6) cases where the significance of the order is very considerable, but, I would venture to suggest, not in fact in itself necessarily determinative of the whole of the main application.

6.The judgment leading to the making of the order is at A13 in the bundle.  It was in no sense an off-the-cuff decision, the judgment was not ex tempore and the judge had taken time to consider his decision and was fully appreciative of the crucial importance of the decision.  In the transcript of the hearing, which is in the bundle at A54, he said this in relation to it when dealing with when he was going to give a decision:

“Quite frankly [he said this because it was a late hour] I would sit and do it now but we are going to finish by about ten past four, half past four, or whatever.  Then going out and considering a judgment -- I have myself criticised Magistrates for doing that and not coming back until 6 o’clock.  It is just not appropriate in a case like this, particularly where it is such an important decision, because, one way or the other, it is right to say that this may well hold the key to the whole case.  I will have 24 hours, or 36 hours, to think about it, and I will produce something.  All right?”

7.In reaching his decision the judge had the documents which are in front of us, and in particular he had the following documents.  He had statements from the social workers and the parents, a lengthy core assessment and an addendum core assessment carried out by the local authority relating to a period of close and recent assessment of the mother over two days.  He also had a psychiatric report by Dr Alam on both parents, a sibling attachment report from Hilary Rafter, an independent social worker, and a preliminary report from Dudley Lodge, the proposed assessment centre.  Finally he had a lengthy guardian’s report.  

8.So far as the background allegations in the case were concerned as against the mother and the father, he also had in section B of the bundle a very lengthy schedule of findings.  Many of these findings were in large measure agreed. They disclose a long and very serious involvement by both the mother and father in drug abuse and the associated drug culture.  He also had careful skeleton arguments from the parents and from the local authority and the guardian.

9.I mention these documents specifically because although the judge does not necessarily highlight every passage upon which he relies, he makes it plain that he has considered all the material and there is a great deal of it.  That is very important in a case of this kind where the court has to look at the whole background history and indeed assessment history.

10.So I turn to look at the judgment.  The judge started by setting out at considerable length the very serious and worrying background to the case, especially the parties’ long involvement with drugs.  At page A15 he said this:

“The mother and father have been in a relationship for about 10 years now, and looking at the background history as reported to Dr Alam for many years before the forming of their relationship, both of them were heavily involved in all forms of illegal drugs use, and the mother also has had drink problems.  Both of the parents fulfil the criteria for multiple substance dependency with evidence taken from the mother that she still was cannabis dependent and has been since the age of 16.  For a year she was dependent on amphetamines when she was 23 and for a considerable period of the last 2 years she was suffering from opiate dependency syndrome as a regular heroin and then methadone user.  She also used crack cocaine on a regular basis, but, at the time when her doctor saw her in late May of this year, she had been free of cocaine and heroin for about 6 months, but was still drinking and using cannabis on a regular basis.  She was having limited insight into the impact of her alcohol and drugs on the care of her children.  The doctor said that if she was able to remain drug and alcohol free for 6 months and engage with treatment services her prognosis would be improved, but, that prognosis was closely associated with the [father] and if he returned to substance misuse after release from prison it would place her at a high risk of relapse herself.  The father was in prison for dishonesty offences and his earliest date of release was January 2010.  He has had a number of previous offences and spells in prison, his offences of dishonesty I assume in order to obtain money for drugs.  In his history of drug use it is quite clear that from his mid-teens he was enmeshed in this particular sub-culture as were a number of members of his family and friends.  When he was admitted to prison he was suffering from cocaine and opiate dependency syndrome and he has attended various drugs rehabilitation and detoxification courses in prison.  Since he has been in prison he used heroin on three occasions the last of these being in early 2009.  His insight into his situation was described as limited although he did show some insight into the use of drugs when looking after children.  Dr Alam’s view was that at the present time he was in a controlled setting in prison and will become more significant and he needs to remain drug free outside prison for 6 months and engage with treatment services before his prognosis could be thought to be improved.  I do not intend to go through at any length the impact that the parents drug use has had on the children.  There is a great deal of evidence contained for all of this in the papers, although, of course, there have been no adjudications on any of these matters and no findings of fact made yet.  However, the consequences of the First and Second Respondents drugs use on the children seems to me to be that beyond any doubt they have suffered significant harm as a result.  For example, when [S] was born on 20 March 2008, she was actually suffering from heroin dependency herself and that was the fact which precipitated the children being taken into care under Section 20 of the Children Act 1989 on the 23 April 2008.”

I read that passage because it seems to me it is the whole context in which the judge approached the case.  Then at A18 he asked himself the three questions averted to by Holman J in Re M [1998] 20 FLR 374.  The three important questions so far as he was concerned were these:

“(a) Is the assessment necessary to enable the proper discharge of duty in deciding if a care order is appropriate.

(b) Is an assessment required to provide material which otherwise the Court would not have and which the Court considers is needed to reach a proper decision …

(d) Is the assessment in the contrary interests of the children taking a wide long term view of those interests ie. balancing delay against an immediate advantage to be gained.”

11.He then addresses the arguments and accepts that there were indeed some shortcomings in the local authority assessment process, and that much of the delay was indeed attributable to local authority inaction.  He said this at page A19:

“So it seems to me that the question (a) and question (b) are capable of being answered in the affirmative subject to the answer to (d), but, if I was to find that the assessment was contrary to the interests of the children then that would be sufficient for me to refuse it.  I have to take a wide and long term view of the interests of the children and that means in particular that I have to take into account the expert’s report of Hilary Rafter, the Independent Social Worker, whose sibling attachment assessment appears in the papers at D38.  At D53, the assessment of Mrs Rafter is that the sibling attachments are very important to these siblings even closer than usual, partially at least because the inadequate parental care and attention that they have been given in the past, if the children are not rehabilitated to the parents then this inevitably means breaking up the sibling group.  It is highly likely that the two youngest children will be adopted and that [A] will be placed separately from [M] and [K], so I have to take that carefully into account when considering whether there is any road that can be taken which might lead to rehabilitation of the children as a group with their parents. However, I have got to balance that keeping the sibling group together as at least a possibility with the delay that a residential assessment would entail, what is the time line here?   Dudley Lodge proposed to starting the assessment in November 2009 and then a process whereby [N] and [S] are with their mother for two weeks, then [M] and [K] join them for the next 5 weeks  and then once Mr [M] has been released from prison a further 6 weeks making a total of about 13 weeks, taking us to the end of February 2010, so [there] would then be a hearing to decide the case perhaps in April 2010. By that stage, [S] will be 2 and [N] will be 3½.  [S] and [N] will be removed from the carers they are with at the moment and to whom they are strongly attached and placed in the care of their mother.  [S] has never been cared for by her mother.”

And then crucially at paragraph 6 on page A21 he says this:

“All that really concerns me here is whether it is appropriate for Dudley Lodge to even start work at the date that they indicate.  The mother as of May was not drug free and the assessment of the jointly instructed psychiatrist was that it was only after abstaining from alcohol and illicit drugs [for] 6 months and engaging with treatment services could her prognosis be thought to have improved.  Even more concerningly, if the father moves from prison to Dudley Lodge, one controlled environment to another, given that the mother and father are absolutely linked together in this case and propose to parent as a couple, is there a realistic assessment being carried out.  In my view there is a very strong argument for saying that before any assessment of father could take place he would have to live in the community and be drug free for 6 months.  So that his prognosis would be improved before any assessment from Dudley Lodge.  That, would of course make the commencement of the assessment July of next year at the earliest and a completion date for that in September or so of 2010.”

He then alludes particularly to the guardian’s position statement, which he found very important and persuasive. Under paragraph 5 of that position statement the guardian sets out the particular impact of delay on the individual children and their particular needs. And finally he says at A22:

“Giving all these factors, taking into account the Guardian’s careful analysis and all of the other documentation before me [and] the submissions made, that my answer to question (d) is the assessment contrary to the interests of the [children] taking a wide and long term view of those interests, and the answer in each of the children’s cases is yes it is and that conclusion also decisively answers questions (a) and (b). The assessments are not necessary to enable me to discharge my duty in deciding if a care order is appropriate and given the delay that an assessment would produce it is not required to provide the material for me upon which to reach a proper decision.”

12.It seems to me clear from a whole reading of the judgment that the judge was particularly influenced by six factors. Firstly, the long and very serious history of drug involvement by both mother and father and the general history of domestic neglect and chaos always associated with such a lifestyle. Secondly, the lack of insight by both parents, certainly at an earlier stage, into the effects on the children and their lives of their drug dependence. Thirdly, the inability to properly assess the full extent of the parents’ dependence on drugs because such would depend upon their absence from drugs for firstly a considerable period, and secondly that it would need to be at a time when they were each fully exposed to the full rigours of parenting children rather than being in an artificial environment, in the mother’s case having no children to look after on a day to day basis, and in the father’s case because he was incarcerated in prison. Thirdly, the period of abstinence had hardly started in the case of the mother -- she was still using some cannabis -- and in the father’s case there had been lapses in prison. Fourthly, the fact that the two cases were totally interlinked and so it was completely artificial to consider either case in isolation. Each parent might influence the other to relapse and their circumstances might as well. Fifthly, the fact that neither the mother nor the father had ever parented all five of the children and, so far as the youngest was concerned, never parented at all. Sixthly, overall the likely considerable delay caused by the parenting assessments being carried out, starting with the mother and moving on perhaps to the father, which in the circumstances were likely to be of only limited value even if positive. In other words, even if the assessments were positive they were of limited real value, given the particular circumstances of the parents’ history and the prognosis both separately and together.

13.The grounds of appeal originally were short but have been very fully fleshed out by Mr Hyde QC in his careful and lengthy written argument. I shall not attempt to repeat all his arguments here, but in essence he said this in his skeleton:

“The judge was wrong to refuse the application and by so doing had:-

a. Attached insufficient weight to his own observations, set out in paragraph 22 above [that was that the assessment was in a sense a make or break decision]:

b. Failed to recognise the overwhelming advantage of children being brought up by their natural parents -- or failed to give sufficient weight to that consideration;

c. Attached too much weight to the impact of delay -- in particular finding that the delay could render no longer required, an assessment which but for delay was required;

d. Attached insufficient weight to the cause of the delay;

e. Reached a conclusion on those factors … which was ‘plainly wrong’?”

14.Mr Hyde then carefully analyses the decision making process of the judge and concludes that he became confused and his reasoning in the end was illogical. He said this at page 16:

“[The judge] concluded that he had to balance the consequences of there being no assessment against the delay which would arise if there were an assessment.  His analysis of the delay is dealt with separately below.  His conclusion is that, ‘the assessment is contrary to the interests of each child taking a wide and long view of those interests’  He goes on to state – ‘that conclusion decisively answers questions (a) and (b).  The assessments are not necessary to enable me to discharge my duty in deciding if a care order is appropriate and given the delay that an assessment would produce its (sic) not required to provide material for me upon which to reach a proper decision.’”

In that last remark, says Mr Hyde, the judge is concluding that the delay obviates the need for an assessment. In other words, he is finding that however positive the assessment may be, he does not require it because of the delay it would cause. It is hard to imagine, given the observations in KD, any case where this case could be an appropriate conclusion.  Well, in this case it was plainly wrong and unfair.

15.Finally the impact is no less than the judge saying:

“However positive the assessment might be these children cannot wait for it, the material is not therefore required and I can reach a proper decision -- namely that these children will all live permanently away from their parents.”

16.I do no proper justice to Mr Hyde’s skilful submission this morning, which he amplified orally. He particularly stressed that everyone recognised at an early stage the need for assessment, including the judge, and that the assessments thus far undertaken were inadequate, and he argues from that therefore that this assessment is wholly necessary and should have been ordered. He emphasises in particular the signs of the mother’s increasing ability to distance herself from drugs and the drug culture, her moving down to the West Country and her behaviour in as it were forcing the local authority’s hand to carry out the proceedings through to a conclusion. It is indeed right that in October 2008 she moved to Devon and she has been drug free for a considerable time since then.

17.The further point that is particularly relied upon by Mr Hyde this morning is the fact that we have had put before us today a further report by Dr Alam which does indeed seem to show that the progress which the mother made earlier and which was referred to has been maintained. However, the doctor in his update continued to draw attention to the unknown quantity, namely the mother’s relationship with the father. He says in his report:

“She has visited him in prison and hopes for the relationship to continue upon his release from prison.”

However, as I say Dr Alam is very pleased with the progress which she has made since that time. The unknown factor, he says at paragraph 49, is the quality of the relationship between Ms W and Mr M upon his release from prison.

18.Mr Hyde, therefore, has a twin attack on the judge’s judgment. Firstly, he says that the assessment is necessary but then argues the refusal of the order in an illogical way, having decided that if an assessment was necessary it was wrong for that need to be as it were trumped by the time it would all take for the parents to be fully assessed.

19.So far as the local authority are concerned, in response to the points made by the mother and father’s counsel their principal argument is that they have no confidence in the future protestations of abstinence by either the mother and the father, and in making that point they emphasise very strongly, unsurprisingly, the very chequered history which had led up to the proceedings being instituted in the first place and indeed had led up to the involvement of the local authority in the family.

20.The guardian has not attended today. Very responsibly she has confined herself to filing a helpful and careful skeleton argument, and it contains this important passage. This is contained, as I say, in the guardian’s position statement drafted by Anthony Hand, counsel, and filed on 20 October.  He says this:

“Lastly, there was clear evidence as to the children’s up to date emotional needs from the report of the independent social worker. This evidence is contained in the report of Mrs Rafter dated 22 May 2009 and was highly important when considering the s.38(6) application in July. There was an urgency for their case to be determined. The ISW wrote that:

* ‘… [S] needs to be offered permanency either with her parents or in alternative placement without further delay …

* … [N] also needs permanency without further delay within a placement with his sister …

* … [K] needs to have decisions made about her future without further delay …

* … [M] needs to have decisions made regarding her future without further delay and she is very much ‘in limbo’ at the present, very much aware that her future remains unclear which is potentially destabilising for her …

* … [A] … She has experienced considerable change and needs to know where her future lies without further delay’ ... The ISW wrote of [A’s] wish to return to her mother’s care, but also wrote of the child’s inability to commit herself emotionally to her foster placement until decisions concerning her future had been made.”

21.In relation to delay also the local authority in their skeleton argument set the position out starkly in this way:

“a. The proposed assessment would begin by assessing mother’s ability to care for [N] and [S] over two weeks. [M] and [K] would then join them for the next 5 weeks. Once Mr [M] has been released from prison there would be a further period of 6 weeks, making a total of 13 weeks.

b. Dudley Lodge proposes that the assessment will begin in November 2009 and, presumably, end in mid-February 2010.  The case would, therefore be ready for trial mid -- end April 2010, some 2 years after the children were accommodated. [S] will be 2 and [N] will be 3 1/4.

c. The late start for the assessment is to take into account the presence of Mr [M] within the family. It is acknowledged that this could (and the [local authority] say is highly likely to) completely change the family dynamics.

d. If Mr [M] leaves prison and goes straight into a residential placement he effectively exchanges one controlled environment for another. This weakens the effectiveness of any assessment at this stage. To provide information upon which one could confidently plan the children’s futures, any assessment would need to take place after the couple had demonstrated sustained abstinence within the community. This would further increase the delay for the children.”

22.This is a classic case where drugs have blighted the lives of the parents and the children and the path to possible recovery has only just been embarked upon. In my judgment, the judge carefully considered all the relevant issues.  He was entitled on the mass of evidence to conclude that the assessment would in the overall circumstances of the case only be of limited use, given the artificiality of it in terms of assisting him when the risk of relapse was of the central relevance.  Such a risk, as everyone knows, can only be tested over a long period of time and in the real world.

23.I think it is right to say that he found that factor, and the impact on the children, taken together as decisive, and he was in my judgment entitled to do so.  Delay is indeed a basis for refusing an assessment where the overall chances of success are weighed in the balance together with the effect of the disruption to the children’s lives in carrying out the assessment.  In the end I am not persuaded that this very experienced and careful judge carried out his function incorrectly or reached a plainly wrong conclusion, and would dismiss the appeal having allowed the application for permission.

24.Whilst in these cases the refusal of a residential assessment can sometimes effectively bring the case to an end, I do not necessarily think that is the case here.  There may be options for these children to remain with their parents, or some of them, and that is to be determined by the judge on all the evidence, one of the central issues obviously being an assessment of the parents’ ability to remain drug free in the long term.  In that respect the new evidence in particular will I am sure be fully considered by the court.

Lord Justice Wall:
25.I agree that we should give permission to appeal in this case.  I acknowledge that I have not found this an easy case on which to adjudicate.  I think that is clear from the reasons which I gave in writing when listing the matter for hearing before the full court.  Having heard argument, however -- and it is difficult, if I may say so, to see how the case could have been better argued for the mother -- I am nonetheless of the view that the judge was entitled to reach the conclusion which he did and that, were we to allow this appeal, we would in effect be simply substituting our own view for his, something which is plainly impermissible.

26.In those circumstances, paying tribute as I do to Mr Hyde’s able submissions, I too would dismiss this appeal.

Lord Justice Thorpe: 
27.I agree.  I only wish to record that Mr Hyde’s advocacy in this case was outstanding.  His written skeleton was only excelled by his oral argument. Permission is granted, the appeal is dismissed and there will be an assessment of the appellant’s costs.

Order: Application granted; appeal dismissed