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B (Children) [2012] EWCA Civ 1275

Appeal of refusal to make interim care orders.

The local authority applied for interim care orders in respect of two children: C, aged 7 months and D, aged 8 and a half years. The mother of D was S, aged 49. The mother of C was D's daughter, L, who was aged 25. The father of both children was CB. He had been in a relationship with L, during the course of which he developed a sexual relationship with L, his quasi-step daughter, from at least the time of her being 17. L had been removed from S's care during care proceedings in 1991 when she was aged 4 but spent considerable time with her mother from age 16 onwards.

At the time of the hearing, both mothers and both children were living together as one household. The local authority's concerns centred around (1) a sexual risk arising out of the mothers' lack of sexual boundaries and inability to protect the girls from sexual risk, (2) neglect and a chaotic household and (3) the mothers' lack of co-operation with professionals.

At first instance, after a two day hearing, the Recorder found that the threshold was not met and, in any event, that interim removal was not justified. The local authority appealed to the Court of Appeal.
Hughes LJ noted that there was some lack of clarity as to whether the Recorder had considered the interim threshold in section 38(2) or the final threshold in 31(2). In any event, the Recorder's conclusion that the threshold was not met could not be upheld. The combination of neglect, lack of stimulus and sexual risk was amply sufficient to pass the limited test set by s38(2).

However, Hughes LJ held that the Recorder had been plainly right to conclude that interim removal was not necessary or proportionate. He held the sexual risk to the children was "a good deal less than immediate" (para. 35). As C was a baby, the "risk of significant sexual damage to her between now and the final hearing [was] not significant", and in respect of C, there were strict agreements which the mother's, according to the Guardian, would probably observe in the short term. If they did not, the position may have to be revisited.

Hughes LJ concluded by rejecting the local authority's criticism of the Recorder for giving directions for a final hearing despite finding that the threshold conditions were not met. His interim decision did not preclude a final care order being made and the local authority's stance on this point, in Hughes LJ's view "might suggest … that the local authority thought it could achieve a situation in which the interim hearing was effectively pre-emptive of the final hearing" which was not what interim hearings were for" (para. 37) as was made clear by all the authorities, including Re: GR (Children) & Ors [2010] EWCA Civ 871.
Tomlinson and Toulson LLJ agreed.

Appeal dismissed.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers


Case No: B4/2012/1777
Neutral Citation Number: [2012] EWCA Civ 1275
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 16th August 2012


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(DAR Transcript of
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Mr Che Fung Choi (solicitor) (instructed by Kent County Council) appeared on behalf of the Appellant.

Miss Khan (instructed by Hatten Wyatt Solicitors) appeared on behalf of the 1st Respondent Mother, L

Mr Chippeck (instructed by Pearsons Solicitors) appeared on behalf of the 2nd Respondent Mother, S

Miss Robertson (instructed by DSD Law) appeared on behalf of the 3rd and 4th Respondent Children by their Guardian
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(As Approved by the Court)
Crown Copyright©

Lord Justice Hughes
1. The local authority has brought care proceedings in relation to two children in a somewhat complicated extended family.  The Recorder was asked to make interim care orders on a care plan for their immediate removal.  He declined to do so.  The local authority, supported by the guardian, appeals against that decision. 

2. The mothers of the two children in this case are themselves mother and daughter.  The elder mother, S, is now 49.  She has either seven or eight children in all, but the one with whom the Recorder was concerned is a daughter, D, who was born on 13 September 2003, so that she is now eight-and-a-half.  The younger mother, L, is S's daughter.  L is 25.  She has a daughter, C, who was born on 1 January 2012 this year.  She, accordingly, is seven months old. 

3. Over the years, S, the elder mother, has had a number of husbands and partners.  The first of the relevant men is a man called Clifton, who is now 52.  He was married to S, and he was the father of her first five children, including L.  All those children are now grown up.

4. In comparatively recent times, one of S's later partners was a man called CB.  She married him, it would appear, in about 2002.  He was the father of the elder of the children in these proceedings, D.  The relationship between CB and S seems to have oscillated somewhat.  Whatever else is clear, it is plain that from about the age of 16 onwards, L spent quite a lot of time in her mother, S's, home, where if not then quite shortly afterwards CB was S's partner.  In other words, he stood as a sort of quasi-stepfather to L.  At least by the time she was 17, L and CB developed a sexual relationship.  It remains unclear whether at any stage that was a relationship which was abusive of L or not, but whether it started like that or not, and we do not know, it certainly became an entirely consensual relationship.  Thus it was that CB, as well as being the sometime partner of S and the father of the eight-year-old D, was also the father of L's seven-month-old daughter, C.

5. In the present proceedings, S and L, mother and daughter and each of them at some stage the mother to CB's child, make common cause.   That has not always been the nature of their approach in the past.  I have spoken of CB in the past tense because sadly he died, having developed terminal cancer.  He died just before the court hearings in this case, having been ill clearly for some time before. 

6. On the material available to us, it is clear that the family has been known to the local social services for many years.  There were care proceedings in 1991 or thereabouts in relation to L, her elder sister, K, and her other younger siblings.  The principal occasion of those proceedings was allegations that S's then husband, and the father of the children, Clifton, had sexually interfered both with K and L.  That was the allegation.  The result of the care proceedings was that L and her elder sister, K, went into care and were fostered.  L would only have been about four at the time and the sister was about nine.  L remained in care.  The order was never discharged, so she was formally in care until her 18th birthday.  She lived with fosterers until she was 16, and then removed herself.  After that, she lived partly in supported accommodation and partly with other members of the family, including her grandparents, her elder sister K, who was by now married, and some of the time plainly with S and CB.  It is of course some years later that she gave birth to her only child, C, of whom the deceased CB was the father.

7. There is no sign of the social services having paid any significant attention to the family, at any rate in the years between about 2007 and 2012.  It would be going too far to say that that was the result of a decision that there was nothing to worry about, because it may well be that they simply did not have their attention drawn to it.  It is not clear.  What does seem to have happened is that the birth of L's daughter, C, in January 2012 led to renewed concern.  A care application for C was made on 5 March 2012, when she was only about eight weeks old. 

8. It is said in the local authority's skeleton to this court that, whilst investigating the case of C, the local authority became aware of D, the eight-year-old half-sister.  That may well have been because D's mother, S, the older mother, had at some stage lost her home, and the result was that she, S and D moved in to live with L and CB in the home which they were by then occupying together.  At all events, a second care application was made for D on 30 May 2012, and the two sets of proceedings were sensibly amalgamated.  As we have been told, the domestic position remains that there is a single household.  CB, of course, is no longer able to be there, so that the household consists of the two mothers, themselves mother and daughter, and the two children in this case.

9. There was some difficulty in listing the interim applications, but they came before the Recorder at rather short notice at a two-day hearing on 3 and 4 July 2012.  He heard the evidence, as we understand it, of the social worker and guardian, and he certainly heard the evidence of the two mothers.  After a commendably brief adjournment of about a day, he gave judgment two days later on Friday the same week, and as I have said he declined to make interim care orders.

10. I have to say that it is rather less than clear exactly how the local authority case was put.  The case would greatly have benefited from a single document setting out in headings the reasons why the local authority contended that there was a need not only for final care orders in due course, but for interim care orders and immediate removal.  It looks to us as if the Recorder had to extract the case from narrative witness statements, and two quite lengthy chronologies of past social services records.  Those chronologies do not exhibit, and never have exhibited, the source material.  That may be because some of it is missing, but they do not say what is missing and what is not.  Nobody made any attempt to find out whether they were agreed or not.  They seem to have been treated as prima facie evidence, and from them the Recorder was left to try to extract the case. 

11. What can, as it seems to me, be derived from the paperwork, however, is a combination of three principal strands in the case of each of these two children.  The first is a complaint of a lack of sexual inhibition, and of proper sexual boundaries on the part of both mothers; not simply affecting them alone, because as adults that is their business, but of a kind that was likely to give rise to a sexual risk to these two children and of a kind which indicates that the mothers are not able properly to protect the girls from such risk. 

12. The second strand of concern is in each case of a rather chaotic and disorganised household, in which the children's needs are neglected.  Included in that is a single incident of assault alleged by S on D; chastisement, in effect.  The third strand of the local authority's case relates to concern that neither of the mothers was prepared sufficiently to co-operate with professional advice, and in particular that they would not comply with agreements which had been made requiring them to keep the local authority informed of visitors to the household, particularly of course male visitors who might pose a sexual threat. 

13. It seems to me that, in order to deal with the local authority's appeal, it is necessary to look, however briefly, at each of those three strands.  As to the sexual risk, the local authority appears to have relied principally on a risk from Clifton, who has been away from the domestic scene for some years now, although one or other of the mothers is plainly in touch with him, and L had expressed the view that he ought to come to her daughter C's baptism.

14. As to Clifton, it needs to be noted that, as far as I can see at least, the allegations against him were never proved, and both S and L now say that the abuse alleged against him all those years ago never happened.  Quite how the allegations came to be made (if that is so) neither of them says, nor is it at all clear how S came to support them to the extent, indeed, of cooperating with a criminal injuries compensation application for L on the basis of abuse, which resulted in a payment to her which was handed to her in the usual way when she got to 18.  So the position is mysterious as to Clifton's activity.

15. It is right to say that in the case of L, there was no physical damage to her, even though the allegations which were being made, and which she seems to have endorsed, were of a kind which would have been likely to cause visible damage.  On the other hand, there was identifiable damage to K.  It is also important to observe that at the time when these allegations against Clifton were made, L seems to have been no more than four and possibly only three.  It is therefore at least possible, as far as I can see, that so far as L was concerned at least, the allegation might have been a copycat one following her elder sister K's lead, whether encouraged by mother S or not; it might have been as a result of some domestic strife between S and Clifton; or for that matter, it might simply have been the result of uninhibited sexual behaviour in the household which, on the limited material available, seems to have included access by the children, including L, to substantial quantities of pornography.  That was the rather uncertain position which confronted the Recorder as to Clifton, and any sexual risk arising from him.  He held that it would not be surprising if L now really could not remember whether abuse which was alleged to have happened when she was three or four had ever actually happened or not, and that may well be so, although he is right that, over the years and subsequently, L seems to have repeated the complaint on a number of occasions.  The other possibility is that she is now denying them because she thinks it might help her in the present dispute.  That may be more likely than that she is "in denial".  The Recorder also observed that Clifton does not appear to have made any significant appearance in the household for a number of years, and it is certainly true that there is no sign of any complaint that he had anything untoward to do with D, now eight, over the preceding four or five years before these proceedings were launched.

16. Clifton aside, however, there seems to me to be ample other material suggesting a marked lack of sexual boundaries in both mothers, and moreover of a kind which give rise to the risk that they are unable to protect a daughter.  The Recorder hardly referred to these matters, perhaps because they were not significantly relied on by the local authority.  One aspect of it is the sharing of CB between mother and daughter, S and L, at a time when CB stood in relation to L in the position of quasi-stepfather.  Admittedly, she was by then in her mid to late teens, but it was a lax and uninhibited relationship which does demonstrate a lack of ordinary protective boundaries.  The sharing of CB reached the stage latterly of L telling the social worker that the three of them, L, S and CB, had arrived at a plan under which L would carry children for CB, one by artificial insemination for her mother, S, and a second for herself, so that both ladies would have further children which he had fathered.  It is also right to observe that in the past both S and L have complained that CB had raped them.  Subsequently L said that it was not true, and that she had been put up to it by S.  But that is another feature of the background.

17. L, if the chronology is to be taken at face value, appears to have demonstrated from a very early age a long history of disinhibited sexual behaviour.  S, for her part, has had a long succession of partners, to which I have briefly referred.  Quite apart from the complaint that CB had raped her, L has also in the past complained that another of her mother's partners had raped her; and by the look of it, one of her brothers was sentenced to a reasonably substantial term of imprisonment for stabbing that partner, though why he came to do that is not revealed in the papers.

18. Lastly, L and S had set about an explicit sexual conversation with the social worker about the sexual risk, and their views of the various old allegations, and had insisted on doing that in front of the no doubt attentive eight-year-old, D.  All efforts by the social worker to make them desist and talk about it away from the child were ignored. 

19. It is right to say that, in the interim care order hearing, the local authority had insisted on both mothers entering strict agreements with them which contain promises by the mother to report the identity of every adult who entered, or was likely to enter, the home.  For some reason, it was not limited to men, or to those who might produce a risk, but required the reporting of every single adult.  But however that may be, there was certainly some evidence that L had failed to comply with it, and in particular she failed to identify a man called Barry, who visited CB fairly regularly when he was ill and may have had some other role in the household.  He apparently was either to be or actually became the godfather of C.  There also seems to have been a more recent visitor called Keith whom D at least described as her mother's boyfriend and whom she said had shared a bed with S; S's explanation for that was that it was a purely convenient arrangement one night when there was not anywhere else for him to sleep.  When L was asked about Keith, she became angry.

20. I will come in due course to how this sexual risk bears on the interim question, but insofar as the threshold considerations go, it seems to that there is the plainest possible case for saying that there were reasonable grounds for thinking that the threshold conditions of significant harm would be made out.  Whether in the end it was would require investigation.

21. The Recorder dealt with the allegations of neglect.  He worked steadily through them.  There was some substance to them, and it is clearly correct that they need to be considered cumulatively, both as it were amongst themselves and with the sexual risk.  I, for my part, do not accept the submission that because he worked through them seriatim that means he has not considered their combined effect; it does not follow at all.  His conclusion, in effect, was that they amounted to evidence of an unsatisfactory household, but not one which called for removal.  What they amounted to was this.  First, in the case of D: (a) D was said to have been left in charge of C from time to time.  The Recorder was correct to say that that may have created a risk to C; it might or might not have been terribly good for D, but it did not give rise to a risk of significant harm to D.  (b) There were occasions when D was out unsupervised, and at times S did not know where she was.  The Recorder was no doubt entitled to say that that sometimes happen with an eight-year-old, but in the context of the other evidence, it was at least an indication that S was less than sufficiently careful with D's supervision.  (c) There was a complaint that there was too much moving of house; there was nothing in that, and the Recorder rightly said so.  More importantly, (d) D was regularly missing school.  She was attending only about three-quarters of the time; that is nowhere near good enough.  The Recorder perhaps tended to underestimate the possible significance of that.  (e) There was evidence of a lack of stimulus at home, which included the evidence of D's own reaction to enquiry.  There was (f) some evidence of a lack of warmth on the part of S.  And (g) there was an occasion when D was found to have a nit infestation in her hair.  The Recorder was right to say that that can happen in the best regulated families.  But the sting of the complaint was not that she got the nits, but that S declined to do anything about it, saying she could not afford the lotion.  Lastly, there was a single incident of assault by S on D.  The Recorder evaluated that, and whilst it should not have happened, he was quite entitled to say that it would not by itself give rise to a risk of significant harm.  There was, however, definite evidence of general unkempt appearance of the child; there were no toys or books, and a number of matters of that kind which will in due course need examination.

22. As to C, the evidence was a good deal less extensive.  There was a suggestion that L was less than fully competent in some respects.  She had fed the child inappropriate adult convenience food, rather than planning a sensible weaning progress.  She had left C on one or two occasions in the charge of the eight-year-old, D.  There was an incident of rashes under the arms, and the like.  As against that, the child was meeting her milestones, and was generally reported to be thriving.

23. Next, there was a complaint which emanated from the child, D, that Barry, one of the visitors to the household, had a habit of throwing the child, C, into the air and catching her.  There seems to be no evidence of that apart from what D had said. D made absolutely clear that, for whatever reason, good or bad, she did not care for Barry.  The complaint was not really of any significant substance. 

24. Thirdly, however, in relation to C, there was a worrying episode shortly after the death of CB.  L reported to the social worker that she had experienced an hallucination which apparently involved the reappearance in her mind of CB and his giving his instruction to her to take a knife and do some damage to the child, C.  That is, no doubt, a worrying occurrence, but it is right to say that it emerged because L herself disclosed it to the social worker.  She did not disclose it because she might do what she had imagined she was being told to do, and she had not in fact shown the slightest sign of injuring C; in other words, this was a worrying episode in the aftermath of a no doubt harrowing period of terminal illness and death.  It is isolated, and it was revealed.  The only other complaint that could be made was that L did not go to her general practitioner until encouraged to do so, but there was not much substance in that.

25. The Recorder expressed his conclusions in terms which it is suggested demonstrate that he did not sufficiently separate the issue which arises on an interim hearing from the issue which would arise on a final hearing.  He began by directing himself entirely correctly as to the terms of the conditions for making an interim order, which are set out in section 38(2) of the Children Act: that is to say, are there reasonable grounds for believing that the threshold conditions under section 31(2) are made out?  He rightly said that he was not concerned to make findings of fact, but he went on to say:

"What has to be shown is that either of the children is suffering or is likely to suffer significant harm."

However, as he then worked through the allegations in relation to neglect, it is right to say that he appears to have treated each of them as falling to be considered as either a risk of significant harm or not; that is to say, as if one was dealing with a final hearing.  Up to a point, that is entirely understandable: if one is asking oneself whether there are reasonable grounds for believing that significant harm is likely, en route to that it makes perfect sense to ask whether the harm complained of is significant or not.

26. However, when he returned at the end of his survey of the evidence to the general question, the Recorder went on to refer to cases which are not interim cases at all, but rather cases in which what was under consideration was whether a final care order ought not to have been made.  For the avoidance of doubt, the position at the interim stage is well set out by Black LJ in Re: GR (Children) & Ors [2010] EWCA Civ 871 at paragraphs 31 onwards.   First, the test provided by section 38(2) is, are there reasonable grounds for thinking that the threshold conditions under section 31(2) are satisfied?  There is no need to prove that they are satisfied.  In the present case, it is a risk of future physical, sexual and/or emotional harm.

27. It is right to say that, when it comes to the final hearing, the exercise that is very well described by Hedley J in Re: L (Care: Threshold Criteria) [2007] 1 FLR 2050 will have to be carried out.  It will then be necessary to weigh up such deficiencies of the mothers as are shown to be present.  The general principle is that one does not rupture a birth relationship unless it is necessary for the welfare of the child, and in particular the harm of which there is risk is significant.  It is not enough that someone else might care for the child better.  However, at this stage the test is simply the existence of reasonable grounds.

28. The second question at the interim stage is: if the answer to the first question is "yes", is an interim care order called for or not?  That brings into play the use that the local authority proposes to make of the interim care order if it is granted.  In this case, the local authority proposes, if an interim care order is granted, to remove the children immediately.  At this stage, on this question the test is the normal one of the paramountcy of the welfare of the child.

29. The third proposition extracted from GR is that the interim hearing is not a substitute for the final trial.  An interim hearing should be limited to issues which cannot wait for a trial.  Lastly and importantly, at an interim stage separation is justified if, but only if, the welfare and the safety of the child, including any risk of emotional harm, demand it. 

30. It follows that there are two separate questions in this case, and two separate questions independently in relation to each of the children.  The first question is whether there are reasonable grounds for thinking that the threshold criteria will be met.  That is the test in section 38(2).  The second and quite separate question is whether, if yes, there is or is not a justification for an immediate removal.  Those two questions had to be addressed separately for each child.  The Recorder concluded that the threshold criteria, as he put it, were not met.  I make the assumption that that was shorthand for saying that the test in section 38(2) was not met, although it is not entirely clear, and there is some substance in the suggestion that there might have crept in a degree of ellipsis between the section 38(2) question at the interim stage and the ultimate section 31(2) question which would arise at the final hearing stage. 

31. It seems to me that, on analysis of the evidence which was available, in the case of D it is really impossible to uphold the finding that there were no reasonable grounds for believing that the threshold criteria were met.  The combination of neglect, lack of stimulus and sexual risk was, as it seems to me at least, amply sufficient to pass the limited test set by section 38(2).  Indeed the Recorder went on to give directions for progress to a final hearing, correctly.

32. Insofar as C is concerned, the evidence is a good deal less clear.  If the Recorder had been considering C entirely alone, without D being before him at all, I for my part would find it extremely difficult to say that his conclusion that the section 38(2) test was not passed in relation to her was plainly wrong.  He never had the opportunity to consider the impact on his approach to the section 38(2) question in relation to C of a finding that that test was passed for D, in a situation in which the two children were living in the same household together. 

33. As will become clear, it is not necessary to resolve the present appeal to decide whether, independently in relation to C, the section 38(2) test was passed or not.  That is for this reason: the Recorder made clear that he had considered, independently of the threshold question, whether removal was or was not necessary in the interests of the welfare of the children at this interim stage.  He said this:

"Had I concluded that the threshold was passed, I would not have thought that this is a case where removal was necessary or proportionate ..."

34. For my part, far from being persuaded that he was plainly wrong, I am satisfied that he was plainly right.  There may well be risks to these children for the future.  They call for a careful examination at a final hearing; they do not justify immediate removal.  The neglect of which complaint is made is not something which is going to inflict significant harm on either of these children in the short term. 

35. The sexual risk is itself a good deal less than immediate.  So far as C is concerned, she is a babe in arms, and the risk of any significant sexual damage to her between now and the final hearing is not significant.  D, of course, is older, but there are in place a number of measures to control the sexual risk.  There are the very strict agreements which the mothers are simply going to have to comply with.  If they do not, the situation may have to be revisited.  There is an injunction in force in relation to Clifton.  Both the Guardian ad Litem and Mr Recorder McCarthy, before whom the case of C came at an earlier stage, independently formed the view that, whilst mother's prospects of keeping to these agreements in the long term might be doubtful, they probably would observe them in the short-term.  The Recorder was entitled to rely on that.  I hope that the guardian and Mr Recorder McCarthy and the Recorder were right.  If they are proved to be wrong, somebody may have to look at the case again.  This case will go forward to a final hearing, which is necessary.  The Recorder gave directions for it in any event.

36. I ought to add that the local authority's written skeleton complains that it was inconsistent of the Recorder to give further directions for a final trial if he had found that the threshold conditions were not met.  Given the conclusion that I have come to, it is not really necessary to pass detailed comment on that.  It might be better to make clear what the position is.  There was nothing remotely inconsistent in the order that the Recorder made.  An interim hearing is not a hearing at which a decision is made as to whether the threshold conditions are met or not.  It goes no further than asking whether at that stage, and on the evidence then available, there are reasonable grounds for believing that they will be.  It is perfectly likely that the evidence may be different by the time of a final hearing.

37. The Recorder's conclusion did not in any sense preclude a final care order application, and the submission that it did is simply wrong.  What it might suggest is the local authority thought that it could achieve a situation in which the interim hearing was effectively pre-emptive of the final hearing.  That is not what interim hearings are for, as all the authorities including GR, which I have cited, make clear. 

38. It follows that the conclusion to which I come is that the challenge to the Recorder's reasoning and conclusion succeeds only to the limited extent that he was wrong to find that the section 38(2) in respect of D was not passed.  However, since he was plainly right to find that immediate removal, as distinct from the possibility of future removal, was not called for, he was right to refuse to make interim care orders on the care plans that the local authority relied upon.

39. It follows that, for those reasons, I would dismiss the local authority's appeal.

Lord Justice Toulson:
40. I agree.

Lord Justice Tomlinson:
41. I also agree

Order:  Appeal dismissed.