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Re R (A Child) [2006] EWCA Civ 1638

Appeal by local authority against refusal to grant a care order where there had been serious dometic violence within the family. Appeal was granted.

The appeal was granted primarily because Thorpe LJ concluded that although the judge's 'pursuit of a rehabilitative solution reflected the spirit of the Children Act' in this case that aim was 'both idealistic and unrealistic'. He then proceeded to grant the care order but refused to endorse the care plan as that was part of the accompanying placement order application which remained undetermined.

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B4/2006/2310

Neutral Citation Number: [2006] EWCA Civ 1638

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)

Royal Courts of Justice
Strand
London, WC2

Wednesday, 15th November 2006

B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE HOOPER

IN THE MATTER OF R (A CHILD)

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MRS S BRADLEY QC and MISS E CALLAGHAM (instructed by Durham County Court) appeared on behalf of the Appellant.

MR S BELLAMY QC and MR S THORTON (instructed by Messrs Hewitts) appeared on behalf of the 1st Respondent

MISS P SCRIVEN QC and MS N SHAW (instructed by Messrs Booth & Co) appeared on behalf of the 2nd Respondent.

MR K ARMSTRONG (instructed by Messrs Meikles) appeared on behalf of the 3rd Respondent.

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

Crown copyright©
1. LORD JUSTICE THORPE: On 19 October 2006 HHJ Taylor sitting in the Middlesbrough County Court refused the application of the Durham County Council for a care order and a placement order in relation to a little girl, S, who was born on 27 October 2003 and is therefore three years of age. He reached that conclusion at the end of a three day trial. He did, however, make an interim care order with a direction that it should be renewed until a further listing before him in January.

2. Within that interim of approximately three months, he brought into the case an independent social worker in whom he had great faith and confidence and he initiated a period of rapidly increasing contact in the parental home, which the child had not entered since her removal into care in July 2005. The pace and extent of that contact regime amounted to partial rehabilitation by the beginning of next month, whereafter the child was to spend two days and two nights of each week with the mother in the family home, the father to be present only during the hours of day, he undertaking to absent himself between the hours of 6pm and 9am.

3. The precise nature of this endeavour to rehabilitate is all somewhat obscure. The mother had asserted that her relationship with the father had ended completely but the judge rejected that evidence. The parents had effectively been in some sort of relationship for four years and the history was bleak, frequently punctuated by drunkenness, angry quarrels between the parents and from time to time quite serious domestic violence.

4. So, the premise that the contact should be to the parents as a couple was, on the face of it, a questionable one and, implicitly, this seems to have been a rehabilitation primarily to the mother, given the judge's requirement of the father's undertaking and given that he made provision for additional contact to the father alone should he not be in a couple relationship. That again seems a problematic disposal, given that the judge had taken a poor view of the mother's evidence and had found her to have major behavioural problems which she had consistently sought to minimise in her oral evidence.

5. So it is hardly surprising that at the end of the trial Miss Callaghan for the local authority rose to apply for permission to appeal. Her application has been fully supported by the guardian ad litem and when the case came before Wall LJ he set up this hearing, commenting that there appeared to be considerable force in the grounds of appeal. That first impression has been fully borne out by the oral submissions that we have heard from Mrs Bradley QC, who has been brought in to lead Miss Callaghan; from Mr Armstrong, who continues to act for the guardian; from Mr Steven Bellamy QC, who has been brought in to lead for the mother; and Miss Scriven QC, who leads for the father.

6. At this stage, it is necessary to turn to look at the history in some greater detail. The mother has a child by a previous relationship. She is 17, she is named R, and she seems to be doing surprisingly well considering that she has had a far from easy upbringing. Following S's birth the mother conceived again in this relationship and it is the worrying fact that she was the victim of a violent assault from the father when she was some 19 weeks pregnant with the second conception. The judge subsequently found that the assault had no causative effect on the subsequent premature birth at 23 weeks and thereafter the death of the second child from natural causes, but it obviously was a very distressing and painful time for the parents.

7. There was a referral to social services in the following spring when the Health Visitor expressed her concerns at the level of domestic violence in the home, but there was no intervention until a serious incident of domestic violence on 14 July 2005, during the course of which the father smacked S's bottom sufficiently hard to cause bruising, despite the fact that she was dressed in a nappy. He also assaulted the mother. R was involved in the fracas, her maternal grandmother having to intervene to protect her from assault. All this came to the attention of the local authority. Initially, they thought that they had the mother's cooperation but when she became confrontational and refused the local authority access to the child and was abusive to police and social services, the police protection order came on 2 August 2005. That became an emergency protection order on 10 August and the first of a series of interim care orders was made on 17 August.

8. Initially, there was a core assessment by the social worker in the case and it was generally intended that the final hearing should be before the justices. The local authority wanted an independent assessment and it was agreed that the independent Clinical Initiative Services should be instructed. Two principals, Dr Bainbridge and Mrs Strong, carried out the assessment and reported on 10 November 2005, concluding that the parents required relatively profound therapy to overcome their personality and behavioural difficulties. The report recommended that S, who had been in that stage in foster care for some 3 months, should be permanently removed from her biological parents and placed in an adoptive placement. The resulting care plan, filed in December 2005, was accordingly for adoption and that stark development brought into the arena an aunt and uncle who, on 23 January 2006, were joined as parties. They were then necessarily assessed and it is very important to stress that once they came into the ring, the parents made plain that they were putting their full support behind that development.

9. All this led to the loss of the fixture in the family proceedings court. The case was transferred to the county court in April and, in view of the fact that there was the outstanding assessment of aunt and uncle, the case was listed for final hearing on 16 October.

10. Quite shortly thereafter there was another serious incident of domestic violence when the father assaulted both mother and R in the home afflicting injuries; both mother and father were in drink at the time. That led to the father's conviction and sentence to a community service order with a condition that he receive treatment for alcohol abuse.

11. That took place on 15 June 2006. The independent social worker report on uncle and aunt arrived on 22 July and, unfortunately, was adverse. That led to the paternal aunt and uncle withdrawing from the proceedings on 3 August. Perhaps not unconnected with this development there is evidence, admittedly hearsay, that on 25 or 26 July the mother was encountered by a Health Visitor in the middle of the day in the street, plainly under the influence of alcohol. That information came to the social worker in the case on 21 August and regrettably was not immediately made the subject of primary evidence with a filed statement from the social worker who was directly involved, as it should have been. It was not sought to introduce it in evidence until the trial and then only in the form of double hearsay.

12. The guardian's report was filed on 8 September and the guardian fully supported the local authority's case and their care plan of adoption. On 20 September both mother and father were observed to have quite significant facial injuries; the mother two black-eyes and scratching above the nose. Obviously that raised considerable question in the mind of the professionals as to what was really going on. Again, unfortunately, that was not made the subject of an immediate supplementary statement or statements. It was not introduced into the case until Miss Callagham's opening on 16 October, but at least it was there before the judge and he had the explanation of each parent for these injuries which in themselves were highly suggestive of continuing domestic violence.

13. The case advanced by Mrs Bradley for the local authority is a very strong one. She says that although the local authority's section 31 threshold statement of 20 September was, in large part, conceded by the written responses from the parents, there were still substantial areas where either there was a direct challenge; alternatively, the concession was only in part. Accordingly, the judge had an obligation to make clear findings on the disputed areas and that was made plain to him when Miss Callaghan opened the case.

14. There was initially a dispute between counsel as to what had happened at trial. That dispute has fortunately been resolved by a meeting of counsel over the adjournment, which Miss Scriven has reported to this effect. It is agreed that Miss Callaghan told the judge that the concessions that had been made did not go far enough. She did not proceed to specifically invite the judge to make findings and that was, it is suggested, productive of misunderstanding.

15. It seems to me that once counsel had said that the concessions do not go far enough, implicitly it is the case that the balance that is denied is an issue, will be the subject of evidence, and is to be ruled on. Certainly, if a judge is in any doubt as to what is the nature of the applicant's case, he or she has a clear obligation to clarify what is the case and what is the resulting nature of the judicial responsibility.

16. Unfortunately, the judge's finding of fact is not disciplined, not approached chronologically and is largely scattered about the course of the judgment. Even Mr Bellamy, who has the task of supporting the judge, has said that the judgment may at first sight be regarded as "somewhat unusual, unstructured and unfocussed". I think that that is a necessary concession and my major criticism of the judge in this area of the case is not only his failure to make a clear statement and finding upon the history, but also his failure to state the nature of his finding in relation to the section 31 threshold. It was not in issue that S was suffering significant harm at the material date for the purposes of the section, but was it also his finding that she remains likely to suffer significant harm? All the evidence pointed that way and, accordingly, it was incumbent upon the judge, it seems to me -- and I must seek his indulgence if this seems pedantic -- to state perfectly plainly whether he was satisfied that the local authority had discharged their obligations to establish the section 31(2)(a) considerations in relation to time past, time present and time future. Had he done that, it seems to me that it would have been rationally more difficult for him to proceed to the conclusions which he ultimately adopted.

17. The second criticism is that the judge did not have sufficient regard to the boundary between the function and responsibility of the judge and the local authority. It is trite that if a local authority establishes the section 31 threshold, and further its entitlement to a care order, then the manner in which it manages the case thereafter is for its discretion alone. There are sadly cases in which a judge accepts the obligation to make a care order but baulks at the care plan, and how the judge should manage that dilemma has been clearly considered and established in judgments both given by Wall J in 1994 and 1996. It is very difficult territory and I am by no means clear that the judge was sufficiently alive to the inhibitions upon him as a judge imposing on a local authority a future management with which it on strong evidence felt unable to support.

18. Thirdly, Mrs Bradley criticises the judge for giving very slender explanation for his rejection of the expert evidence of Dr Bainbridge. He seems to criticise him because he had not heard of the organisation ICIS; and because Dr Bainbridge had not given evidence before him before; and because the report was over-long; and because it used technical expressions which would not have been comprehensible to the parents.

19. None of those considerations is sufficient. It is immaterial whether the judge has or has not heard of ICIS, it is immaterial whether Dr Bainbridge has or has not given evidence before him before. The report, as has been pointed out by Mrs Bradley, although long, had a perfectly concise summary at its conclusion and as to its language, it must be remembered that it was written on instructions of professionals essentially for the guidance of professionals.

20. Mrs Bradley's fourth point is that the judge really offers no explanation for his rejection of the recommendation of the guardian.

21. Fifthly, she criticises the aftermath. The judge seems to have brought in his preferred independent social worker on the basis that he could not look backwards but could only, as it were, facilitate the rehabilitation or partial rehabilitation upon which the judge pinned such hopes. Sixthly, she says in the same area that there was a complete lack of clarity as to what sort of rehabilitation the judge was attempting, and to which parent. Was it indeed to the parent who had less impressed him? How did he think that the child would be safe, given his adverse findings against the mother?

22. Mr Armstrong has added his own additional grounds, which are independently impressive. The judge, during the course of the hearing, said that the incident in July 2005 should not have resulted in the child's removal. In relation to a direct assault on the child, and subsequently in relation to the exposure of the child to domestic violence, the judge, in a way that I find worrying, suggests that neither was of very great significance because the child would have grown older and forgotten all about it.

23. It is important to record that the local authority's intervention in the case was, at all stages, subject to judicial consideration and approval. At no stage was there any contest either as to the making or the continuation of interim care orders, nor as to the contact arrangements, either as to whether they should be joint or several, or as to the extent to which they were restricted. So, for the judge to be critical was implicitly a criticism of the prior judicial management, which had not been the subject of any prior challenge from the parents.

24. Mr Armstrong then makes the point that the judge in his trenchant criticisms of delay and the 15 months that the case had taken in coming to trial seems to have completely ignored the highly significant intervention of aunt and uncle, their full assessment and their subsequent withdrawal in August 2006. It receives not even a bare mention in his judgment. It may be that he had not sufficiently understood that element of the history of proceedings.

25. Mr Armstrong also criticises the judge for excluding a police report relating to the July 2005 assault with, he suggests, the consequence that the judge had not sufficiently understood the gravity of the incident. I find it very hard to understand why that police report was excluded from evidence. It seems to me that it was an extremely material record to any assessment of the significance of past domestic violence.

26. There is also a criticism from Mr Armstrong of the judge refusing to admit in evidence the statement of the Health Visitor reporting on 21 August of the incident on 25 or 26 July when the mother was found drunk in the street. Again, although every criticism of the local authority for the manner in which they had handled that additional evidence must be acknowledged, a judge has the paramount task of protecting children, and that does mean investigating and accepting evidence which has not been properly prepared or introduced with due expedition.

27. Mr Armstrong points to the fact that the judge's observations during counsel's submissions seem to be unbalanced. The mother's submissions, in as far as the record before us is concerned, seem to be largely statements by the judge in her favour, with very little from counsel. By contrast, when Mr Armstrong rose to make his submissions, he was hardly reassured by the judge informing him that as far as he was concerned Mr Armstrong was knocking on a closed door.

28. In the end, Mr Armstrong says this is the plainest case of clear adverse findings against the mother conflicting with the judge's conclusion to move rapidly to partial rehabilitation to her.

29. Mr Bellamy and Miss Scriven, as I would expect, have made the most of what are very difficult professional tasks. Mr Bellamy has pointed to a number of passages in the judgment which could rightly be labelled findings. He has made fulsome criticism of the social worker's assessment, the guardian's report, and of Dr Bainbridge's report. He says that the judge's reasons for rejecting the guardian can be discerned from odd comments and passages here and there. In the end he says that if the court be against him then at least there must be a retrial, and that position is fully supported by Miss Scriven. She says that this was a judge of great experience who plainly felt that he needed more information before he could write these parents off, and that he was plainly impressed by the father's evidence and the achievements that he had made in seeking anger management treatment and also treatment for alcoholism. She emphasised the fact that the guardian had had very little contact with the family since she commenced maternity leave in April 2006. Plainly, there were gaps that needed to be filled and the judge, in seeking to fill them, had as his guiding light the premise that wherever possible children are to be brought up by their natural family.

30. Mrs Bradley, in a reply which went beyond the ordinary bounds, said that not only should there be no retrial, but that this court in allowing the appeal should not only grant the care order but should also grant the placement order that the judge did not. The judge did not because, of course, if he was not going to make the care order it did not fall to him to consider the placement order application.

31. So, at the end, I am perfectly satisfied that the submissions of Mrs Bradley are generally well founded. Although I would be the first to acknowledge that HHJ Taylor is a very experienced judge in this field, although he has rightly a reputation for strength and for direct speaking on the bench, although he is properly sensitive to the emotions in these difficult cases and properly observant of the need for fairness, I reach the conclusion that on this occasion his judgment was more ruled by his heart than his head. I would accept Mrs Bradley's characterisation that the judge's pursuit of a rehabilitative solution reflected the spirit of the Children Act, but in the context of the facts of this case was both idealistic and unrealistic.

32. I would further accept the characterisation to like effect which I take from paragraph 7.7 of her skeleton that, in this case, HHJ Taylor erred significantly and fatally by ignoring the fact that the scales were so heavily weighted against placing S in the unsupervised care of her parents.

33. So, for all those reasons, I would allow the appeal. I would also make the care order that the judge refused to make, for the simple reason that it seems to me that it would be completely disproportionate to order a retrial. A retrial would involve additional delay, additional costs and additional stress to the family, and all to what avail? On the evidence, the prospects of any other order emerging are simply too remote.

34. Let it be remembered that this is a case properly initiated by the local authority in reaction to a very serious incident of domestic violence. The local authority had sought an independent assessment on joint instructions; that assessment was filed almost a year prior to trial and there was no subsequent application from the parents for any second referral. The stance adopted by the local authority and the expert was independently and fully supported by the guardian ad litem. The parents had, through a crucial stage of the interlocutory proceedings, thrown their weight behind the application mounted by the aunt and uncle. Once that was withdrawn, I ask rhetorically: what were their prospects, without a single expert voice to support them and with many of the fundamental facts conceded? Of course, a trial of this sort is never formalistic: there is no question of rubber-stamping applications by local authorities. But the reality of the situation in my judgment is that there was really only one order that HHJ Taylor could have made. There is only one order that could result were the matter returned, and for all those reasons I would make the care order that was sought below.

35. I would not go so far as Mrs Bradley invites; I would not make a placement order. I simply do know enough. It would be a travesty for me to propose a placement order when I have seen none of the papers in relation to it, I have not heard the parent's evidence or seen a record of their evidence in opposition. Mrs Bradley says that if we make a care order we are automatically endorsing the care plan; well, I do not see that. The care plan is inextricably entwined with the placement order application and that will simply have to go through the normal processes. It remains undetermined. The judge did not mention the placement application in the order that he drew; implicitly he adjourned it. It needs to be listed on another occasion before another judge in the court, in my view.

36. LORD JUSTICE HOOPER: I agree. I only have this to add. The judge made an interim order by virtue of section 38.2. The court shall not make an interim order unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31.2. Section 31.2 provides that insofar as a care order is concerned, the court may only make a court care order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm, and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to the child if the order were not made.

37. In this case it seems to me that the judge must have been satisfied that there were reasonable grounds for believing that the child was likely to suffer significant harm. If that be right, I find it difficult to understand how he could have made an order which within just over 5 weeks from his decision would have led to that young child spending two full days and an overnight session with the mother, even though the father had given an undertaking not to be present from 6pm to 9am.

Order: Appeal allowed.