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W (A Child) [2007] EWCA Civ 1255

Appeal against care and related placement orders. Appeal allowed and matter sent for retrial.

The case was heard on appeal as a consequence of the unusual circumstances. The child in question, S, was born out of an adulterous relationship between a Mr J and JW, the natural mother. S was made the subject of a care application immediately at birth because JW's long-term partner was potentially dangerous; two previous children had been removed from JW's care. Mr J's wife, C, opposed the care order and sought to have the child brought up with them, as Mr J is the natural father.

The trial judge had rejected that position largely because it emerged at the trial, through the guardian, that JW had threatened to attack the J's home and abduct S. In the appeal Thorpe LJ looked again at the evidential basis of these threats and concluded that they had not been tested in court and that the trial judge had elevated them beyond their importance. Although the local authority's case was strong without mention of these threats, it was felt that the matter should be reheard as there was a "fundamental risk of injustice" if the appeal was simply dismissed.


Case No: B4/2007/1875
Neutral Citation Number: [2007] EWCA Civ 1255
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 8th November 2007



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(DAR Transcript of
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Mr D Barrett (instructed by Messrs Kerseys) appeared on behalf of the Appellant.

Ms A Thain (instructed by Messrs Fisher Jones Greenwood) appeared on behalf of the Respondent Mother; Ms A Courtney (instructed by Essex County Council) appeared on behalf of the Respondent Local Authority; Ms C Parry-Jones (instructed by Messrs Graeme Carmichael) appeared on behalf of the Respondent Child Guardian.
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Judgment As Approved by the Court
Crown copyright©

Lord Justice Thorpe:
1. This is an appeal from the order of HHJ Gypps in the Chelmsford County Court, committing the care of S, born on 18 August 2006, to the local authority and granting a linked application for a placement order.

2. The appeal is brought by Mr Barrett for the J's, whom he represented in the court below. The appeal was directed by my Lord, Wall LJ on 4 October. He in his reasons emphasised the difficulty of challenging a care order made by an experienced judge, supported as the order was by professional opinion; but he continued:

"The facts are sufficiently unusual to make it appropriate for the matter to be listed for hearing."

3. In particular it may be arguable that the judge did not give sufficient weight to the desirability of the child being brought up in her natural father's household. The unusual facts to which Wall LJ referred are these. Mr and Mrs J live as a family with their three children aged 15, 9 and 6. S results from an adulterous relationship between Mr J and S's mother, JW. The relationship was of relatively brief duration, between November 2005 and February 2006. At S's birth she was the immediate subject of a care order application, because her mother JW had lost two previous children as a result of the dangerousness of her partner. That history was of great continuing relevance, since the relationship between JW and her dangerous partner was a continuing one, and following S's birth JW asserted that her partner was the biological father. There were doubts and DNA testing resulted. Science proved that in fact Mr J was the natural father and accordingly he was joined in the pre-existing care proceedings, together with his wife C.

4. Another very unusual feature of the case is that the initiative for an application to permit S to be brought up in the J family came from C. It was fully supported by her husband; and that constitutes this case, as Mr Barrett submits in his skeleton, as an extraordinary case, one not previously encountered by any of the large number of professionals involved.

5. At the trial the battle line was drawn between the claim, passionately advanced by the J's, to offer S a permanent home with them, opposed by the local authority's care order application, supported by JW and also by the guardian. Now, there had been a degree of expert assessment. Joint instructions had been given to a clinical psychologist, Dr Bisbey, who had filed a report which was initially equivocal in its conclusion. However, the person who had greatest involvement with the J's was Miss Macken, from a local assessment centre. She too, in her report, was equivocal in conclusion. Final assessment was of course the assessment of the guardian.

6. In accordance with the protocol, an experts' meeting was fixed for 6 June and the discussions enabled the three experts to concur in a clear conclusion that the local authority's application for care and placement should succeed. It seems that that conclusion was held more firmly by Dr Bisbey and the guardian than by Miss Macken. So obviously when the case came for trial before Judge Gypps, the odds were stacked against the J's, with three experts rejecting their proposal and no contrary expert opinion available.

7. The judge heard evidence over the course of three days and delivered a succinct and well-expressed judgment on the fourth day. In that judgment he at once, having commended the J's as "…plainly thoroughly decent, honest people, who have kept their marriage and family together after a very difficult period and have come forward, very honourably, to offer a home for S within their family", went on to express his clear conclusion that on the whole of the evidence:

"I am satisfied that that generosity of spirit is not enough and as a matter of fact, not fault, I am satisfied on the evidence that they cannot, in fact, meet her needs."

8. The judge went on to identify threats which JW had made, particularly to burn the J's home. The judge recorded that in paragraph 13 of his judgment and in paragraph 29 added this substance:

"What I also learned from the Guardian, and indeed from Mr Jack [counsel for J], is that she has made threats to burn the Js' home, and that she has said recently that if they get residence, she will not only seek contact but she will also try to abduct S."

The judge referred to this factor in these terms:

"Of most concern is the risk, on the face of it a most immediate risk, posed to S by JW and the Js' failure to recognise it or alternatively that their minimisation of that risk. I look at the problem of JW, the mother, and their response to it, as something of a litmus test and I do it for two reasons. Firstly, because it enables me, as to what is really a pretty obvious problem, to consider the rightness of the experts' view as to denial and minimisation, and secondly, because it does provide a clear example of whether the J's can anticipate and recognise a problem and S's needs, and protect her from the risk of harm, particularly emotional harm."

In paragraph 34 he acknowledged Mr Barrett's point:

"…that it is very easy for the mother, who is not daft, to make threats so as to damage his clients' case. I have to say that the risks of confrontation or emotional outburst over time are, to my mind, real and obvious, whether at their door, at school, on the street or elsewhere, and that any reasonable potential carer would have demonstrated at least that they had thought it through. But here, instead, the reality of a problem is denied. Now, that being so, I cannot accept that they are in a position to protect this little girl from emotional harm as a result of behaviours which are not at all improbable from her mother."

9. He then went on to say that, given his finding of this very obvious area of denial or minimisation, he was bound to accept the advice of the experts that this characteristic was general; and he went on to endorse the views of the experts that to introduce into the J household a fourth and very recently born child would be to introduce with her stresses and strains that would overwhelm the family.

10. At my first reading of the judgment and the skeletons prepared by Mr Barrett and Ms Courtney for the local authority, I, like Wall LJ, thought that the challenge to the care order made by this very experienced judge was one that was very difficult to advance, given that he had seen and heard the experts and that the very conclusion which he adopted was that which all of them recommended. He had carefully considered the welfare checklist. He had given careful consideration to the Human Rights Act and the interference with the right of father and daughter to family life, but had concluded that that interference was justified in law, pursued a legitimate aim and was proportionate.

11. However, in the course of the argument today I have become increasingly concerned at the evidential foundation for the mothers threat of either violence to the J's or of the abduction of the child, which the judge chose to take as the litmus test.

12. The concerns develop from the chronology. When the case opened on 23rd, the mother was represented by counsel and solicitors but elected not to attend. At the end of the day, the local authority and the mother's own counsel asked the guardian to make contact with the mother, in order to ask her to clarify her views. Mr Barrett for the J's did not join the party; indeed he objected informally to this course and to a suggestion that the guardian should bring the mother to court the next day. He made the obvious point that it would prejudice the guardian's impartiality or appearance of impartiality. He made the point that if anybody needed to ask the mother to clarify her views, it should be her own litigation team.

13. However, his objection was not heeded and the guardian did telephone mother on Monday evening and asked her to clarify her views regarding S's adoption. During the course of the discussion, and particularly the question as to how she would react to a residence order in favour of the J's, the mother:

"…initially made some serious threats to the J household such as firebombing it. She then retracted this…"

Subsequently the guardian reported the mother stating:

"…she would seek to abduct S at the first opportunity and would continue to do so, until she felt that she had been heard, and in her view S was safe."

14. This information was reported to all the lawyers on the following morning and Mr Barrett, I think, requested that it be reduced to writing. Accordingly on day two the guardian prepared a supplemental report, which was distributed on the third day prior to her oral evidence. It is from that written report that I have already quoted.

15. It is to be noted that there is nothing in the report other than a bare record of the conversation, without any assessment as to what weight should be attached to these wild words. The only other report of threats from the mother came from her own counsel, Mr Jack, who, at the commencement of each day, rose to tell the judge that he was disappointed that his client had once again elected not to attend, but then went on to tell the judge that she was threatening both, I think, the intention to burn and also the intention to abduct.

16. Submissions today have revealed that what in the judgment became a very significant aspect of the case had no evidential foundation, other than hearsay from the guardian and the mother's own counsel. It is in my judgment very significant that the threats emerged for the first time during the course of the trial, and there must be the most obvious possibility that they were either an emotional reaction to her involvement, or her inability to involve herself, in the process; alternatively, that they were purely strategic, designed to damage the J's case.

17. Mr Barrett had no opportunity to test this in cross-examination. The judge had no opportunity to assess the mother and to make his independent judgment of whether this was just wild talk or a notice of dangerous intent. Accordingly, I am left with the anxiety that there is a fundamental risk of injustice if this appeal were simply dismissed. I think that it is unfortunate that this ingredient, emerging as it did during the course of a trial that the mother was boycotting, was elevated by the guardian in fortification of a case that was already well reasoned. In a sense the case for the local authority did not need this addition, but it was understandably added as an illustration of general emotional lability, noted by Dr Bisbey, and so came to play a central role in the expression of the judge's conclusion. For those reasons I think it would be unsafe to allow this order to go confirmed by this court. Plainly we are not in a position to substitute any alternative order. The only course open to us is to direct a re-trial. This case is extremely urgent, as recognised by Wall LJ. All we can do is to refer the re-listing to the liaison judge for the region and ask him (or her as the case may be) to ensure the earliest possible listing before a judge of suitable experience and in a court convenient to the parties. I imagine it does not necessarily have to be Chelmsford. I imagine it could be listed alternatively in Ipswich or Colchester. Priority is important; expedition is important. That is the order that I would propose.

Lord Justice Lawrence Collins:
18. I agree; but of course I add that the J's ought to understand that another judge may well come to the same conclusion and that they may be disappointed in the end.

Lord Justice Thorpe:
19. Yes, of course I associate myself entirely with that point. The case against them remains a strong one, even if the element of threat is removed altogether.

Order: Appeal allowed.