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W (A Child) [2012] EWCA Civ 106

Father’s appeal against the making of an interim care order in care proceedings concerning a 14-month old child, H.

The mother had previously had three children removed from her care, although   H was the father's first child.  In advance of H's birth, the parents had agreed to move to a specialised foster care placement within which they could care for H under supervision. An interim report was completed when H was about six months old, recommending that the mother should leave the placement and the father care for the child alone. The mother accepted the recommendation and moved out shortly thereafter, leaving the father to be H's primary and sole carer, albeit within the confines of the supervised placement.

In September 2010, in light of a number of concerns including accumulating evidence that the father could not adequately supervise H, the local authority sought removal of H with a view to adoption.

A hearing proceeded in the county court to determine the issue of interim removal pending final hearing. The father invited the court to hear evidence on the factual issues, but the learned judge declined, instead determining the matter on submissions.

The father appealed on the grounds of procedural irregularity, also arguing that even on the local authority's case there were no grounds for removal.

McFarlane LJ gave the lead judgment, noting from the father's statement that he had admitted failure to supervise H on two occasions. Furthermore, the father's legal team had not requested that oral evidence be heard until the hearing itself.  In focusing in on the issue of failure to supervise, which the father did not substantially dispute, the trial judge had been on solid ground; the calling of evidence would not substantially have changed the outcome.  On the facts before the court, this was a case that could have "gone either way"; the outcome was therefore within the discretion of the judge and could not be set aside.  Ryder J and the President gave short additional judgments, agreeing with McFarlane LJ.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers

_______________________

Case No: B4/2011/2851
Neutral Citation Number: [2012] EWCA Civ 106
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORTHING COUNTY COURT
(HIS HONOUR JUDGE LEVEY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 8 December 2011

Before:

PRESIDENT OF THE FAMILY DIVISON
LORD JUSTICE MCFARLANE
and
MR JUSTICE RYDER
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IN THE MATTER OF W (A Child)


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(DAR Transcript of
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Ms Cibrowoska (instructed by Howlett Clarke Solicitors) appeared on behalf of the Appellant father.

Ms Morelli (instructed by Wannop Fox Staffurth and Bray) appeared on behalf of the First Respondent, the local authority.

Ms Whelan appeared on behalf of the Second Respondent mother.

The Third Respondent, the child by his Children's Guardian, did not appear and was not represented.
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Judgment

(As Approved)

Crown Copyright ©
Lord Justice McFarlane:  
1. This is an appeal brought by the father of a young child in relation to an interim determination made in the course of ongoing care proceedings by His Honour Judge Levey on 28 October 2011.

2. The case relates to H, who was born on 2 October 2010 and therefore now just 14 months old.  H's mother is a lady who has had difficulties in caring with older children that have been born to her and the brief circumstances are that each of those older children, and I think there are three of them, was removed from her care under care proceedings and made the subject of care orders in each case as a result of findings of neglect and emotional abuse.

3. That history and the concern in relation to those three children does not in any way involve this father.  H is this father's first child and the grounds upon which in due course the local authority seek to establish the threshold criteria under section 31 of the Children Act all relate to the mother's previous care of her children and obviously this father's relationship with her and the birth of the child, H.

4. Prior to H's birth, the local authority had been in discussion with the parents and there was an agreement that, following the child's birth, both parents would move into a special foster care home in which they could live and look after their baby under the supervision of the foster carer.  That placement took place when H was three days old on 5 October.  The placement was monitored by the Social Services, but also by an independent social worker commissioned to oversee this assessment process and the development of a care plan.

5. In April of this year, the independent social worker filed her first report and the conclusion of it was that the placement of H in the home with the mother present was no longer in the child's best interests, that the mother should leave the placement but that H should remain in the care of his father there.  To her credit, the mother voluntarily accepted that recommendation and vacated the placement on 14 May.

6. Since that time, up until H's removal from the father's care in late October, the father was the primary and, effectively, sole carer of H in the rather artificial circumstances of the foster home.

7. The issue before Judge Levey on 28 October arose because the local authority became aware week by week, as it were, over the course of June, July and August of a series of events, each not necessarily very significant in its own right, but cumulatively indicating that the father was unable adequately and safely to supervise the ever growing and no doubt mobile H in that setting.

8. The local authority decided in early September that the placement was no longer in H's best interests and they asked the court to list the question of the interim placement for judicial determination, that request being made on 16 September.

9. The social worker filed a statement at the end of September, certainly by 30 September, setting out the list of matters of concern.  They ranged across the board in three separate categories.  One was that the relationships within the wider family and between the mother and the father had become very acrimonious and that that climate within the family was certainly distracting for the father and potentially emotionally harmful to H.  Secondly, it was alleged that on one occasion the mother had had unauthorised and unsupervised contact with H.  But thirdly, there was a list of some eight or so occasions when either the father had been asleep when H was awake and mobile in the room or that H had been asleep in bed with the father or that H and the father were sleeping on the floor of the room.  Finally on two occasions it was said that, as a result of those circumstances, H had banged his head on a piece of furniture or on the floor, happily, as I would understand it, with no significant injury, certainly not one that required medical treatment.

10. The local authority having indicated the need for an interim hearing, the matter came before District Judge Pollard on 8 October and at that hearing the local authority also announced that they had now conclusively determined the final care plan for H that they would be recommending to the court which was now no longer to keep the child with either parent, but for H to be a candidate for adoption.

11. The District Judge gave directions to set the interim issue down for hearing on 28 October.  And it was expressly agreed by the advocates present at that hearing that the 28 October hearing would not involve the calling of oral evidence, but would be determined by submissions only.

12. The father filed his own statement on these various issues on 21 October and with that background the matter came on before Judge Levey on the 28th.  The father's counsel who had not been involved in the proceedings, certainly at the earlier hearing before the District Judge, applied for oral evidence to be heard by the judge on the basis that there were factual disputes that required determination before the change of plan could be evaluated.  Insofar as the father's application for the foster parent to give oral evidence was concerned, it was common ground that if that was granted the case could not proceed on the 28th and would have to be adjourned.  The information given to the judge was that an adjourned hearing could not be put back into the court's list until December.  We understand that the final hearing of case is listed for January 2012.

13. The father, of course, was present before the judge as was the social worker who had written the overview statement and it seems the court had time to deal with the case by way of oral evidence from those two witnesses, if that was the judge's determination.  However, the learned judge refused the application, indicating that it was not for the court to make findings of fact at that stage and that it would be pointless to hear oral evidence on the interim issue.  He, therefore, continued to hear the case by way of submissions.  His conclusion at the end of that process was to endorse the local authority's plan for H's removal from the foster home.  And he did so on the basis that the local authority would use its best endeavours to facilitate supervised contact between father and child for three hours twice a week.  The final hearing was set down for 23 January.

14. The judge was asked for permission to appeal, which he refused.

15. By notice of appeal dated 4 November, the father now seeks to challenge the judge's determination.  In effect, there are two substantive grounds which have various sub grounds within them.  To summarise, Ground 1 is that the judge fell into procedural error to the extent that his procedure was unjust and irregular by refusing to hear oral evidence on the findings of fact relied upon by the local authority.  Within that, it is submitted that the judge was wrong to hold that he was not able, or that it was not permissible, to make findings of fact at that stage.  It is asserted that the evidence of lack of supervision by the father should have been allowed to be tested and it is asserted that the judge was not bound by the previous case management determination of the District Judge to the effect that the case would be dealt with by submissions only.  Finally, in this context it is said that the judge should not have relied upon the opinion of the children's guardian, given that the children's guardian herself was not available for cross examination at the hearing.

16. Ground 2 is more widely based and goes to the core of the issue for determination and it is that the judge's conclusion, namely that it was necessary for the child to be removed, was plainly wrong.  And within that submission it is argued that the incidents of poor supervision were not themselves sufficient to justify immediate separation and that whilst the judge correctly directed himself as to the law, he applied it incorrectly and came to a conclusion which in effect was outside the range of reasonable conclusions to which he could have come.

17. Finally, in this regard, it is said that as a matter of fact by the time the judge came to hear this case at the end of October, there had been no reported incident of concern as to the father's supervision from the very beginning of September, therefore a period measured in terms of nearly two months.

18. Finally, and almost in parenthesis but not without weight, father's counsel argues that there must be some cognisance taken of the fact that the threshold criteria in this case, and the reason why there are care proceedings in the first place, arise solely from the mother's past care of her children and not as a result of anything done or not done by this father, and that whilst the matters of supervision which are raised may indicate a potential for harm, there is no basis for finding that, even on the local authority's case, H was at risk of significant harm as a result of the father's actions and a distinction must therefore be drawn between the case of a culpable father in terms of the threshold and one who is at a lower level of involvement as is submitted this father is.

19. Having considered the papers, I granted permission to appeal on 16 November and it is therefore this appeal that we now hear.  I propose to deal with the two grounds in turn.

20. Firstly, looking at the judge's decision not to hear any oral evidence, I have summarised the range of issues that the local authority relied upon.  In my view, the judge rightly focused upon the child's immediate safety and therefore the allegations of lack of supervision in the foster home by the father.  There was, looking at the size and scale of the statements, much more dispute on the part of the father as to the toing and froing of the relationships between the adults and the family and the question of whether unauthorised contact had taken place to the mother than was apparent in relation to what was said against him regarding supervision.
 
21. Looking at what occurred at the hearing and what was available in relation to the supervision allegations and the question of oral evidence, the following is of note:

(1) the social worker's statement of 30 September listed the allegations that were relied upon.

(2) the hearing on 10 October was conducted in the light of that statement and, therefore, in the context of supervision, that list of allegations.  Nothing occurred after that and they therefore represented the list that the father faced.

22. Also, at the hearing on 10 October, the father, and more particularly his legal team, will have heard the local authority say that the long term care plan was now adoption.  And so his advisers will have been in no state of uncertainty as to the significance of the stage in the case that had by then been reached.

23. Against that background, ten days later on 21 October they filed the father's statement.  What does it say about these issues of supervision?  At page B68 of the bundle that we have, paragraphs 3 and 4 are to be found and I propose to make short quotations from each.  In paragraph 3 the father says this:

"I admit that on occasions I have fallen asleep whilst [H] and I are in our room at the foster carer's home."

He then goes on to describe the difficulties, both practical and otherwise, that he faces in the circumstances of looking after a young child in this restricted environment.  He then  concludes paragraph 3 by saying:

"I confirm that I have at time brought [H] into my bed to cuddle and comfort him, especially when he is sleepy, but would not settle.  I admit that on the 22 June, I fell asleep whilst [H] was in my bed and [H], I can only presume, must have crawled over me and slipped out of my bed and banged his head."

In paragraph 4 he says:

"After that incident, I spoke to Ms Hughes [the social worker] who confirmed to me that it would be fine for me to play with H on the floor and for us to sleep together on the floor as H could not hurt himself."

Then later:

"I admit that I have fallen asleep on a couple of occasions after the 22 June."

Then, finally:

"These incidents occurred during the week of 25 August when it is recorded by the foster carer that [H] was suffering disturbed nights."

24. The only material in those two paragraphs, and they are the only two paragraphs dealing with this issue, that the father takes direct issue with in terms of the account of the foster carer, is that on one occasion when H was recorded to have been screaming the father does not accept that the baby was screaming at that time.

25. The only other challenge, given that the social worker takes a different view, is to whether or not he was advised by the social worker to sleep with the child on the floor.

26. The next matter of note is that there was no request for oral evidence made by the father's legal team prior to the day of the hearing on 28 October.  The position statement filed on the part of the father by his counsel is at page A83 of the bundle and at A88, sub paragraphs m, n and o deal with the question of supervision.  Those paragraphs simply cross refer to the father's statement and summarise its contents.  The position statement later seeks for the court to hear oral evidence.

27. At the hearing itself, the matter is raised with the judge by counsel for the father at page 3 of the transcript.  And again as it is short it is easier for me to read the section out: 

"JUDGE LEVEY: I have got of the rest of the day free.  I do not know whether that, if evidence was to be heard, whether that might be a way of dealing with it?

MISS JABROWSKA: Your Honour, I would certainly be prepared to have the evidence cross examined.   The issue that I think we may need to consider is that the foster carer is clearly involved in a number of the disputed areas of fact.  The foster carer hasn't provided notes that I'm aware of in, since June of this year, the bundle that have any notes.  So obviously, the incidents surrounding the supervision, my client challenges the way that's been interpreted.  So it may actually be necessary for the foster carer to be present to give evidence."

Then a short time later, counsel says:

"But if the court could be assisted from hearing some oral evidence by the social worker and my client, then clearly I would be content for that to take place."

Pausing there, it is no criticism and indeed it is a compliment to say that  where counsel indicates that she would certainly be prepared to have the evidence cross examined or would be content for that to take place it is in polite terms.  It is not in terms, as I read it, where it is plainly being put before the judge that this is a clear and express application for oral evidence to be heard on those disputed areas of fact.  The judge deals with the application for oral evidence at page 6 of the transcript:

"JUDGE LEVEY: Yes.  Okay.  Thank you very much.  Well, I think the central point really is that it is not for the court to make findings of fact on interim hearings.  So in those circumstances, it would really most be pointless to hear oral evidence because the purpose of that is to enable findings to be made.  It seems to me it is a matter I can deal with properly on submissions.  That is the way it was set up and whilst I take the points that are made on behalf of the second respondent, those points can equally be well made on the basis of submissions and those are matters that I will simply have to take into account and weigh in the balance. 

I will take into account the fact that the allegations are disputed, but that will be a matter for the trial judge not for me.  So in those circumstances, I will deal with it as was originally envisaged by hearing submissions from the parties." 

In effect the judge declines to hear oral evidence for the reasons that I have already summarised.  In so far as the application was made on behalf of the father because of the interpretation that was put on the events by the social worker, the judge indicated that that could be dealt with by way of comments during the course of submissions.

28. The supervision aspect of the case was dealt with in submissions and page 12 of the transcript at around line 6 to page 13 around line 20 encompasses counsel's submissions.  A reading of that part of the transcript again shows there was no direct challenge to the factual reports that the foster carer had made.  The submissions were focused instead upon giving the court an understanding of the difficulties that the father faced in the foster home and explaining why in relation to each of the incidents or more generally events occurred as they did.  When he comes to deal with these matters in the judgment, it is important to see what the judge says about whether he considered the factual background was indeed disputed on the supervision issues.  At paragraph 26, he says:

"However, the real point and the central issue, it seems to me, in relation to separation is the question about supervision which is not, in fairness to [father], disputed in the same way as he has disputed the other matters."

Then, in paragraph 27:

"I look then to see what [father's] response was to those matters.  His position in relation to them, whilst, as I say, not appearing particularly to dispute that they happened, his response relates to the fact that he is in a room, that he has difficulty for reasons which relate to the circumstances of the foster family in going out of the room and he says it is very difficult for him."

29. Having looked at what was said and what happened in relation to these factual issues and focusing on the criticism in Ground 1, which is that the judge should have heard oral evidence, I do that not by looking at the case as it was widely drawn before the hearing start, but on the basis that the judge, rightly in my view, focused in on the supervision aspect.  On that issue, the judge held that the allegations were not essentially disputed and that the events themselves had by and large occurred.  In coming to that view, he was in my perspective on solid ground, based as it was on the father's own statements, on the position statement and on the local authority's factual account.

30. I also consider that it is fair to say, and I hope not unfair to say, that the need for oral evidence was not pressed upon the judge by the father's counsel in the way that it is now pressed upon us as part of this appeal.  The father's case was not that the events had not occurred, but that there were substantial practical difficulties.  And, insofar as it relates to late August, difficulty related to H's health that rendered his lapses in supervision in some way understandable or explicable.  It is plain to me that the judge took on board those points because he refers to them.  The issue of sleeping on the floor might have been dealt with by discrete evidence because there was dispute there, but that in the end was not a matter that weighed heavily with the judge in his overall conclusions.

31. The purpose of the exercise that I have been involved in in the course of the last ten minutes in this judgment is to see whether what went on was unfair and whether the judge fell into error in declining the politely worded invitation to have the hearing of oral evidence.  I cannot for my part see that there was any procedural unfairness here or that the judge was in error in adopting the course that he did.  I cannot see that if the foster carer had been called, the judge would have gained any radically different insight on to these matters than the insight he was able to gain, supported as it was by the father's own admissions.  I therefore would not allow the appeal on the basis of Ground 1.

32. Turning to Ground 2, namely that the judge was plainly wrong, the first thing to note is that rightly it is conceded on behalf of the father that the judge adopted the correct legal test.  That is set out most conveniently in the Court of Appeal decision of Re GR [2010] EWCA Civ 871.  There in the course of her judgment at paragraph 39, Black LJ having referred to the previous case law endorses a formulation in the following terms:

"... that separation is only to be ordered if the child's safety demands immediate separation."

She notes that the test for a local authority making such an assertion is of a "very high standard" and then she also endorses a similarly worded summary of the test which is that an interim removal is "not to be sanctioned unless the child's safety requires interim protection".

33. The judge received clear submissions about the law and at paragraph 19 of his judgment sets out a perfectly adequate summary of it.
 
34. The criticism brought to this court on behalf of the father is as to the conclusion that the judge came to having sought to apply that test.  The points in support of this ground are the ones that I summarised at the beginning of the judgment and, in addition, in the skeleton argument reference is made to the failure of the judge to consider Article 8 of the European Convention on Human Rights.  I can deal with that latter point first.  It seems to me that Article 8 is at the very heart of the legal test which I have just described.  Given that the judge has that test correctly summarised, in my view an Article 8 argument adds nothing to the essential question of whether or not the judge applied the test correctly.
 
35. Moving on, I do have in my mind the distinction that counsel seeks to draw in relation to this father and the fact that against him nothing is said that would amount to the establishment of the section 31 threshold, all of which focuses on the mother.  In addition, I also have in mind that within the documents we have seen there is much positive that is said about the father and it is very much to his credit that at the watershed moment when the social worker considered that the mother should leave the placement a distinction was made that the father was able to care for the child in a safer and better way and that all of the evidence that supported that conclusion and, indeed, that conclusion itself is positive about the father and will no doubt be available to him to rely upon at the final hearing.
 
36. The issue before the judge was not whether or not the section 31 significant harm threshold could be proved against this father as at 28 October, it was a straightforward welfare test to determine the interim arrangements for the child and for that test to be applied in the context of the legal framework that I have already described.  The core of the father's criticism relates to the judge's approach to the father's explanations in relation to the difficulties he had within the foster home.  Those explanations would in a criminal context be called his mitigation.  It is what he said to explain what had happened.  The judge met this point head on and at paragraph 27 of the judgment, having summarised the difficulties, he says this:

"He simply explains the difficulties that he faces which, and this is the point it seems to me, that it is [H's] welfare that is paramount here as opposed to the court focussing on the difficulties that father faces."

37. The judge had the point on this and took it into account.  Rather than being plainly wrong in his approach, which was in my view focused squarely upon the boy rather than the difficulties that the father or for that matter the foster home or the social workers or others had in caring for him, in my view the judge was plainly right.  Any attack on a judge's determination based on a welfare evaluation, albeit within the tighter legal structure of this interim decision, has to be assessed by the appellate court on the basis of the well known decision in G v G (Minors: Custody Appeal) [1985] 1 WLR 647.  The judge had a discretion in the matter.  On the facts before him, the determination that was open to any judge hearing this case could in my view have gone either way.  Another judge might reasonably have come to the conclusion that it was safe, or safe enough, for H to remain in the care of the father at the foster home, maybe on some slightly enhanced basis of supervision.  Such a conclusion by a judge the other way would in my view have been difficult to appeal had the local authority sought to do so.  It is impossible to say that the outcome that the judge arrived at, supported as it was by the children's guardian, was outside the range of reasonable determinations.  I, therefore, would not allow the appeal and would dismiss it on this basis as well.

38. But I say this: it is important to stress that the exercise in this court today has simply been to audit the process in the court below on 28 October and to look carefully at the judge's determination of this narrow albeit important interim issue.  This was an interim decision taken to protect H in the short period before the final hearing.  My analysis of it should be seen in that narrow compass and not in any manner as something containing any indication at all as to the outcome of the final hearing.
 
39. For those reasons I would dismiss the appeal.
 
Mr Justice Ryder:
40. I agree and would also dismiss the appeal.
 
41. I would add an important word, if I may, about case management in light of the fact that father has spent a prolonged period living with his child H in a room in a foster care-supported placement during these proceedings.  The papers in this appeal disclose little compliance with the Family Procedure Rules 2010 and in particular Practice Direction 12A, the public law outline.  Having heard the local authority on the point, we are told that there are earlier papers which do set out case management requirements, but that seems to have lapsed at the recent hearings and it is necessary to remind parties that Rule 1.3 of the 2010 Rules imposes a duty on parties to help the court to further the overriding objective and the court's duty to manage cases is then set out in some detail at Rule 1.4, not least the identification of issues and fixing a timetable in respect of which there is an obligation at Rule 12.23 to set a timetable for the proceedings in accordance with the timetable for the child.
 
42. Turning then to Practice Direction 12A.   On the papers before this court, there is no up-to-date or reviewed timetable for the child in accordance with paragraph 3.1(1).  There is no document identifying key issues in relation to the father in accordance to paragraph 5.10(3) and the recent case management orders are not a detailed record of what has happened as they should be in accordance with paragraphs 5.10 and 26.12 of the Practice Direction.  That is not helpful because it tends to permit of unacceptable delay.
 
President of the Family Division:
43. I agree with both judgments and like my Lords would dismiss this appeal.
 
44.  The judge was making an Interim Order and the question he had to ask himself under section 38 of the Act was whether or not there were reasonable grounds for believing that threshold criteria under section 31.2(2) were met.  In this context that must mean whether there was a likelihood of significant harm.  Were there grounds for believing there was a likelihood of significant harm?  In my judgment, it was open to the judge to find that there were.  In my judgment "likely" in this context is to be read as interpreted by Lord Nicholls in re H [1996] AC 563, namely a possibility that cannot sensibly be ignored in relation to the nature and gravity of the feared harm in a particular case, a real possibility, and in my judgment the judge was inclined to find there was a real possibility this child would come to significant harm if unsupervised.  That in my judgment was sufficient on (inaudible) basis to enable him to make an Interim Care Order removing the child from the father's care.
 
45. Like my Lord, it seems to me that the matter is entirely open at the final hearing and nothing I have said in this judgment should be interpreted as meaning in any way this father is incapable in the longer term of caring for the child.
 
Order: Appeal dismissed