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W (Children) [2014] EWCA Civ 810

Appeal in respect of placement orders granted following a final hearing in which the parents appeared as litigants in person. It was argued that the judgment granting the substantive orders, which pre-dated Re B-S, failed to comply with the requirements set down by Re B-S and Re B. Appeal dismissed with the Court being highly critical of the delay in the appeal hearing.

The children, S and N, were made subjects to final care orders in 2012. The care plan was for both children to remain in the care of the parents under a home placement agreement following the positive engagement and progress evidenced by the parents during the initial set of proceedings. Shortly after the conclusion of proceedings, in March 2012, S was found to have fallen from a window in the family home and, whilst the child did not sustain serious injury, the local authority concluded that the risk posed to both children by remaining at home was no longer manageable and removed the children from the care of the parents, placing them into foster care.

The local authority did not return the matter to court and, in an effort to bring the matter back to the court arena, the parents issued residence proceedings. The local authority applied for placement orders and the final hearing was heard in February 2013. The proceedings were delayed in part due to the termination of the parents' legal aid and both parents appeared as litigants in person at the final hearing.

The judge granted the local authority's application for placement orders and explained her decision to the parents in very straightforward terms (an approach endorsed by McFarlane LJ) but initially stopped short of giving a full judgment. The parents then returned before the judge later that day and stated that they wished to appeal; the judge then gave a full judgment without the presence of the other parties.

The decision was then appealed and it was argued on behalf of the mother that the judgment failed to comply with the requirements set down by the case of Re B-S. Other points put on behalf of the mother were that the court and the local authority failed to give sufficient consideration to the support which could be provided to the parents in an attempt to manage the potential risk posed to the children and that the psychologist who assessed the parents should have been called to give live evidence at the final hearing.

The appeal was dismissed with McFarlane LJ finding that, despite the judgment pre-dating the decision in Re B-S, the judgment itself and the process as a whole did not fall outside the approach endorsed by the court in Re B-S and in Re B. The judgment was found to be compatible with that approach.  McFarlane LJ was particularly critical of the delay in hearing the appeal, which came some 15 months after the final hearing of the matter.

Sullivan LJ went on to comment that despite the parents appearing at the final hearing in person, the court had made substantial efforts in order to attempt to ensure that they would be legally represented and accordingly, the court had no choice but to proceed as it did at the final hearing.    

Summary by Michael Jones, barrister, 15 Winckley Square 

Neutral Citation Number: [2014] EWCA Civ 810


Royal Courts of Justice
Strand,London WC2A 2LL
Wednesday, 14 May 2014
B e f o r e:


In the matter of W (Children) 
DAR Transcript of the Stenograph Notes of 
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Ms A Small (instructed by Hornby & Levy) appeared on behalf of the Appellant
Ms L Hendry
(instructed by Southampton City Council) appeared on behalf of the Respondent 
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1. LORD JUSTICE MCFARLANE:  This is an appeal brought by two parents against the determination made by HHJ Black sitting at the Portsmouth Crown Court on 20 February 2013. 

2. That decision, itself made well over a year ago, came at the conclusion of what was a very long process which involved evaluating whether or not two young children could be, on one basis or another, maintained in the care of their loving parents.

3. A year earlier, another judge, HHJ Marston, had concluded, in line with the advice and recommendations of the Social Services and the children's guardian that the answer was probably "Yes".  He had made a care order endorsing the plan of the local authority, which was to maintain the two children living at the home of their two parents.

4. Unfortunately, within weeks of that order an event took place which called into question the wisdom of that plan.  In the end, when the matter was looked at by HHJ Black at the hearing on 20 February 2013, that judge concluded that the answer to the question whether or not the parents can provide a safe enough and good enough home for their children was "No".  She therefore granted the application of the local authority to authorise them to place the two children for adoption.  In doing so, HHJ Black dispensed with the parents' consent.

5. Against that background, I turn to some short detail to explain the circumstances.  There is, in fact, a third child born to these parents, a girl, M, born on 17 November 2001 and therefore now 12 years of age.  At some earlier stage M had been the subject of proceedings before the court and she was not living in the care of the parents when the two younger children came to be born.  The second child, another girl, S, was born on 24 October 2009 and therefore now aged four, and finally a boy, N, born on 27 March 2011 and therefore now just three.

6. Because of the difficulties that the parents had had in caring for the elder child, M, which involved concern over neglect, cleanliness, hygiene and the general regime of the ordinary stuff of family life, when it was known that the mother was expecting the birth of the child who, in the event, was S, Social Services began to plan for an assessment process. 

7. Shortly following S's birth, she and the mother were placed in a single foster home in November 2009.  A month later they moved to a residential assessment centre in Birmingham, Dudley Lodge, where they were joined by the father.  The placement in Dudley Lodge initially led the local authority to form a negative view of the parents and to seek to remove S from their care.  However, it was agreed that further attempts to maintain the child in the care of the parents should be attempted and so they went to live with young S at the maternal grandmother's home.

8. Matters continued to move positively in favour of maintaining S in her parents' care and, of course, within the compass of the proceedings that I have described, in due time N was born and added to the family.  I am not going to list the full range of interventions, but by the time the case came on for final hearing before HHJ Marston the parents had been living in their own home with the children, initially with very intensive support with social work support workers visiting on six out of every seven days and the maternal grandmother agreeing to be present on the seventh, the Sunday.  That regime came to be relaxed to a degree in the autumn of 2011 and switched to the parents going to the support workers in terms of visiting a Sure Start centre rather than the workers coming into the house.

9. Matters proceeded relatively well at that stage and so it was that there was unity amongst the parties before HHJ Marston, sufficient to enable him to make a full care order on the basis that both of the children should remain at home.  No judgment was given by the judge on that occasion, we have been informed, but he readily endorsed the plan which had been developing in a cooperative way through a series of court hearings.

10. There had not been, of course, a complete subsidence of professional concern about these parents and their ability to look after the children safely.  Indeed, there were a number of matters that were ongoing issues of concern around the children's care.  But it was felt to be safe enough and secure enough for the children to be in the care of their parents under the umbrella of a full care order.  The fact that a full care order was made indicates, certainly to my eyes, that this was a balanced decision in which, whilst the children were in the parents' care, the level of professional concern remained relatively high.

11. It is impossible, having recited in short summary what had taken place between the birth of N in October 2009 and the final care order made in 2012, not to feel a great deal of sympathy and respect for the mother, for the father, for the wider family, particularly the maternal grandparents and for the professionals involved in travelling a very long and intensive course designed to achieve the outcome that was endorsed by HHJ Marston.  That this was so is, to my mind, a mark of the one hundred per cent commitment that the parents showed to wanting to parent their children, despite each of the two parents having fairly significant difficulties within their own personal makeup.

12. It is not necessary in this judgment to go into detail about that.  Suffice it to say that, frustratingly, it is the case that both parents have been assessed as having a level of IQ which is effectively at or very close to the national average, but each of them has other aspects in their makeup which makes it difficult for them to understand in ordinary terms communication, instructions, and the everyday stuff of life.  In particular, the mother has been assessed by an expert clinical psychologist, Dr Brown, who is based at the Autism Diagnostic Research Centre in Southampton.  He advised in the original proceedings and also in the final proceedings that came before HHJ Black:

"5. On formal measures, [W's] general cognitive capacity appears adequate.  She does not have a Learning Disability in the conventional sense, but does have learning and literacy difficulties.  These difficulties per se would not be enough of a total bar to her parenting her own or any other children adequately.

6.  A Pervasive Developmental Disorder per se would not in itself be enough to make her inherently unsafe or incapable of safely supervising her two children.

7.  Taken together without appropriate support [W's] Pervasive Developmental Disorder and her learning and literacy difficulties are likely to impact on her ability to adequately parent her children."

13. It is plain from Dr Brown's advice that no one aspect of the mother's difficulties rules her out per se as being a parent of young children, although the cocktail of difficulties that she has is likely to have an impact on her ability adequately to parent any child in her care.  But it was with eyes wide open to that situation that the plan for the children to be at home went ahead.

14. Tragically, that plan had only been in effect under the full care order for a matter of a month or so or before, on 19 March 2012, young S was found to have fallen from a first floor window in the parents' home.  The judge's judgment goes into some detail about this and I will turn to some of that detail in due course, but the basic circumstances were that by that stage of mid March the parents had received a letter indicating that the process of evicting them from their home was being commenced.  The parents, no doubt unsettled by receipt of that letter and wanting to plan and prepare themselves, were apparently focusing on packing up the property and their belongings during the course of the day.  The mother had left the two children in the first floor living area which the family used.  It was a warm day, the window was open, there were some toys stacked just underneath the window sill.  It is apparent that young S must have climbed up, no doubt using those toys for support, on to the window ledge and then toppled out of the window.

15. Although the mother reported hearing crying, she did not know that S had vacated the room through the window or that anything was, in fact, amiss with her two children until two passing Police Community Support Officers had seen S outside the premises and knocked on the door to alert the parents.

16. Very fortunately, S was not seriously injured by the fall, although she had a nasty bump on her head, and it is clear to me that the mother and the father did everything that any sensible parent would do to ensure that S achieved immediate medical attention and that the Social Services were informed.  But the event had happened and its circumstances led the local authority to conclude that it was no longer a viable risk for them to maintain the children in the parents' home.  So both children were removed to foster care and it is in foster care that they have remained.

17. Unfortunately, the local authority did not return the case to court at that stage.  They had, no doubt relatively swiftly, formed the view that the children could not return to the parents' care and they did not need to go back to court to maintain that position because they had a full care order.  But there was a need to achieve a permanent placement for the children and it was not until some months later that an application for a placement for adoption order was made.  Equally, the parents sought to bring matters to a head and they issued a residence order application.  It was those proceedings that came before HHJ Black nearly a year after the trigger event, the fall from the window, in February 2013.

18. Initially the parents had the benefit of legal representation in those proceedings but that representation was lost, as I understand it, on the basis that the father was by then back in employment and his means took him outside the scope of legal aid.  Be that as it may, attempts seem to have been made either to achieve some other form of legal aid or some form of pro bono or other modestly funded representation for the children.  One proposed final hearing date for the case was adjourned in the hope that that could be achieved.  In the event it was not and the parents were therefore acting as litigants in person before HHJ Black on 20 February.

19. This court has seen the transcript of that hearing.  At the hearing the court had available to it not only an addendum report by Dr Brown, the psychologist to whom I have referred, but physically he was in the building and available to give evidence.  Having spoken to him, the parents indicated they did not wish to ask him any questions and they did not do so.  Dr Brown's addendum report repeats and underlines the earlier diagnosis that he had made in relation to the parents, but of course by then he knew about the incident of S' fall from the window.  The report, therefore, describes how he interviewed both parents and discussed with them various strategies and scenarios designed to protect their children and ensure their safety.  In reply to a question asked of him in his instructions, which is in the terms: "Whether there is any instruction or assistance which could be given to the parents to ensure that they maintain the safety of the children in their care," he lists some steps that could be undertaken which, to my eyes, number something of the order of 18 to 20 steps to allow professionals who are working with the parents, in particular the mother, to have matters explained to them in a way that may allow them to understand what might be required in any given situation.  That was work to be done and it is a substantial list of different strategies and approaches that could be applied.

20. In the event, Dr Brown was not called and one of the criticisms made by Ms Small, who represents the mother in the appeal before this court today, is that, irrespective of the view of the parties, the judge should have taken the initiative and required Dr Brown to come to give evidence and she could and should have questioned him in order to ensure that every option for these children was properly assessed and analysed within the context of the court proceedings.  There was also an adoption social worker who could advise the court on the availability of a placement or placements for the children and that worker was not called. 

21. The judge heard evidence from the social worker in the case, from the children's guardian and, shortly, from each of the two parents.  It is plain from a reading of the transcript that the parents had some success in raising particular topics, particularly about the level of support they were given and that, once raised, the judge assisted by taking on the questioning of the witnesses in order to get to the bottom of the particular point that the parents wished to raise.

22. Having gone through that process, the judge plainly formed a clear view as to the outcome.  She took the step (which may be unusual but is not one that I would criticise; rather I would endorse it) of explaining to the parents in very straightforward terms and in terms that they would understand that she had heard the evidence but, despite her knowledge of the importance of the issue to them, she had concluded that the placement for adoption order should be made.

23. In the course of a very short judgment, she said this:

"2. I have to say that what I think happened on the 19th March was very serious. It made Social Services, and I think it has made me think, from reading all of these papers   and of course until a few weeks ago I had not met you   that really there were so many difficulties here with you caring for the children.  So that despite everything that you have done, and would try and do in the future, from your children's point of view I do not think you would be able to keep them safely and be able to bring them up in the way they need to be brought up.

3.  For all of those reasons I am afraid that the only decision I can come to today is that the placement order that Social Services are asking me to make is the right order to make.  I know that is a really tough decision for me to make because I deal with so many cases where parents have behaved really badly to their children and it is really easy for me to make a decision.  In your case that is just not the case at all."

24. That, so far as the court process for the day, as I read the transcript, was thought by the parties and the judge to be the end of the matter.  No formal judgment had been given but the transcript shows that later in the court day the parents once again appeared before the judge, the other parties having departed.  They indicated to the judge that they wished to appeal her decision and they did not accept her conclusion.  The judge, therefore, rightly indicated that that would require a full judgment, which, it seems, she then went on immediately to give.  So the judgment that we have before us seems to me to be an ex tempore judgment in the full sense, namely one given by the judge there and then without having any pre prepared narrative notes to read from. 

25. It is a judgment which, despite those practical difficulties, indicates that HHJ Black had a full understanding of the background of the matter, which she rehearses in detail.  She summarises the evidence of Dr Brown at paragraph 15 of the judgment, not only what he had said in his original report of October 2010, but in the latter stages of that paragraph summarising the various interventions that would be required and which are mentioned in his more recent report in order to significantly lessen the weaknesses in the parents' ability to care.

26. The judge then moves on to describe the outcome of the hearing before HHJ Marston and stresses in particular not only that the children went home at the end of that process, which is obviously the headline point, but stresses just the amount of time that the whole process had taken.  At paragraph 24 she says this:

"It should be noted of course that by the time that those care proceedings came to an end in February 2012 [S] was two years and four months old, and had been the subject of care proceedings for every day of her life; [N] also had been subject to the proceedings for the entirety of his life, he having been born on the 27th March 2011."

27. That point is important because the judge took as a primary driver for her ultimate decision the need to settle the arrangements for these children once and for all so that they could achieve their final and secure place for the difficult task of getting on with growing up as soon as possible.

28. The judge moved to describe the events of 19 March and S' fall from the window.  She describes the circumstances in similar terms to those that I have deployed, but in more detail.  At paragraph 33 she says this:

"It is not the fact that the child fell out of the window which is the reason why the Local Authority are so concerned about this, it is the fact that this series of circumstances were allowed to happen.  Even now the parents really do not seem to understand why this should be held against them as being the reason why in reality they lose their children.  They see it just as being an accident that has happened and that they cannot be responsible.  In my judgement it is an accident that should have been prevented from happening.  The lack of awareness that such an accident might happen, and the lack of acceptance of responsibility for it, or how things might be better managed in the future are of particular concern."

29. After that, the judge points out that S was described as being "a climber", that the window had been left open, that S was two and a half, that the toys had not been moved so that she effectively had a "climbing frame", to take the judge's words, to get on to and out of the window and that the mother had expressly drawn attention to the window by telling S not to go near it.

30. Having summarised those factors and others, the judge describes the situation as "dangerous" and as demonstrating:

" . . . a complete lack of insight on behalf of the parents in having any understanding of what the safety issues were, of what their responsibilities towards the children were, or what might happen.  A huge amount of parenting is about having that almost sixth sense of anticipating danger and making sure that children are not placed in dangerous situations.  Everything about that situation was dangerous and it is of concern that the parents did not see that then or now."

31. The reference to "then or now" is to the fact that both at the time of the event and subsequently and in particular at the hearing before the judge, the parents' case was that this was an accident and the sort of accident that could happen to anybody.  The judge's conclusion was expressly to reject that approach because there were a number of basic steps that a safe parent, the judge concluded, would take which would have avoided or very substantially lessened the prospect of such an accident taking place.

32. Having summarised matters in that way, the judge moved on to express the following conclusions at paragraphs 40 and 41:
"Given their ages, therefore, the care plan that the Local Authority puts

before the Court through their placement application is now an adoption care plan.  It seems to me that that has to be the right care plan for these children because of these parents' own lack of abilities to provide the safe parenting every day of the week, every minute of the day, for these children.

I have considered the Welfare Check List which is set out in the Guardian's report and I would adopt that.  Of course I cannot make a placement application without being satisfied that the welfare of the children require that the parents' consent is dispensed with and it is clear from everything that I have said so far that the overwhelming need for these children is for their futures to now be secure.  They have waited in the care system for the entirety of their lives for that future to become secure.  Therefore, the parents' consent needs to be dispensed with."

33. As a result, the judge concluded in those words that it was not possible to contemplate these children being safe in the care of the parents because of the need for that parenting to be available within the parents' own internal approach to parenting every day of the week, every minute of every day for the children and so the orders followed.

34. The parents sought to appeal the judge's decision.  The appeal process itself has been one that has been characterised by a lack of pace.  The Notice of Appeal was issued on 30 July 2013.  The application for permission was heard orally by Arden LJ.  Permission was granted on 31 October.  On that occasion, Arden LJ directed that the hearing of the appeal should be "expedited".  However, the hearing date offered by the system on that expedited basis was not until 17 February 2014.  Almost on the eve of that hearing, the mother obtained legal funding and, sensibly, an application to adjourn that hearing was made, supported by the local authority, so that this court had the benefit, as it has had, of the clear and cogent arguments put forward by Miss Arlene Small on behalf of the mother.

35. But it follows that we are hearing this appeal 15 months after HHJ Black made the order that is the subject of appeal and that hearing itself was 11 months after the trigger event of S falling from the window.  Although the local authority had been able to undertake some planning and research for an adoptive placement for the two children in the ensuing time, it cannot be in anybody's interest, let alone the children's, for a period measured now as more than two years since S' fall for the appeal hearing to be taking place.  Such a timescale is completely unsustainable in the modern context now required by the Children and Families Act 2014.

36. Be that as it may, we have not enquired into the causes of the delay and I, for my part, have ignored the delay in hearing Ms Small's submissions on the merits of the appeal.

37. The appeal is put on the basis that the requirement on the local authority and the court was to look at all of the available options for these children and only to choose the most interventionist, namely the route to adoption, if no other alternative was available.  Ms Small is aided very considerably in making those submissions by a number of authorities, not at least the decision of the Supreme Court in Re B (a Child) [2013] UKSC 33 and the more widely based judgment, Re B S (Children) [2013] EWCA Civ 1146, in which the President, Sir James Munby, giving the judgment of the court, drew on the case law existing by that time to highlight a number of requirements, which are now to be regarded as "essential" in any case such as this where a plan for children to be adopted is being considered.

38. Of course, the process before HHJ Black took place some months before the Supreme Court judgment was available and Re B S was handed down by this court.  But the fact that the clarification given in Re B and Re B S came subsequent to HHJ Black's judgment does not mean that we should not apply it and audit her approach and the approach of the local authority with the guidance from Re B S firmly in mind.  It is not necessary for me to burden this judgment by quoting extensively from Re B S, which is now widely reported and well known to those who practise in this field.  But, sensibly, Ms Small takes our focus to paragraphs 26, 27 and 28, where three important areas emphasised by Lord Neuberger in the Supreme Court decision are highlighted.  First of all, that it is in the interests of a child to be brought up by the natural family and ideally by natural parents, unless the overriding requirements of the child's welfare make that not possible.  Secondly, that the court must consider all options before coming to a decision and, thirdly, in looking at options, the court must take into account the assistance and support which the local authority or other supporting services could offer.  I have those matters very much in mind when looking at this case.

39. Ms Small does not seek to make detailed submissions about the structure of the judge's judgment or the judge's analysis in the judgment.  The focus of her attack on behalf of the mother and, in effect, on behalf of the father, who adopts her submissions, is not on the process at all.  This is not a "reasons" appeal based on an inadequacy of the judge's stated process of analysis in her judgment, it is an attack at the substance of the decision itself. 

40. In making good her points Ms Small indicates that the local authority's process and the judge's process arriving, as it did, at an adverse conclusion to that of the parents was plainly wrong and unjust.  In particular she raises two points: first of all, as I have indicated, that there had been a more intensive level of support for the parents in the period leading up to the autumn of 2011 and that that had also been further reduced in some way in January 2012 and that the parents were questioning the wisdom of that, the submission being that that reduction in support was too great and that left the parents vulnerable to the sort of event that, in fact, happened.  The hearing before the judge did include some analysis of that factor.  That was one of the topics that the father raised in cross examination of the social worker and was given assistance in that task by the judge. 

41. In the event, following the submissions made by Ms Small in the transcript, as I did this morning, I cannot see that there is a great deal in that point.  The situation that was achieved in terms of the level of support was well known to everybody as at the date that the care order was made in February 2012.  There was no further reduction in that level of support thereafter and before the accident on 19 March.  There is some reference to further work being put in but we are told by Ms Hendry on behalf of the local authority that that was some longer term therapeutic work for the parents to enhance their repertoire of play and other interactions with the children designed to improve their parenting in that regard and it was not related to safety.  I therefore, whilst understanding the point made by Ms Small, do not consider that that was going to go to the root of the case.

42. Secondly, and this is the second limb of the submissions made on behalf of the mother, Ms Small submits that Dr Brown should have played a much more prominent part in the hearing, he being present and able to be called.  I have summarised the input that Dr Brown had had on paper.  Again, for my part I cannot see what difference that intervention would have made if Dr Brown had undertaken the task of stepping into the witness box.  His report is very detailed.  He describes a range of strategies that could be introduced into this case by professionals working with the parents, principally the mother, and it is describing work over a period of time.  The judge makes reference to it but, as I have said, the driver of her decision was that the plan for these children needed to be crystallised now and that the period of assessment had been closed and had been undertaken over an extensive period.

43. The final submission    and I think Ms Small would regard this as her overarching submission    is that the process was not compliant with what is required by Re B S and basically not a sound process because it focused on the fall from the window in March 2012 to the exclusion of any proper, balanced global assessment of all of the issues.  The criticism is (to use my words, not Ms Small's) that the judge turned this into a one point case and decided the case solely upon her appraisal of the parents' actions or inactions on 19 March 2012.

44. Again, whilst I understand that submission, I do not accept it.  It is the case, as Ms Small reminded us, that there were a significant number of positives identified in the various assessment reports that were before the court in February 2012.  That that is so is underlined by the order that the court made endorsing the plan for the parents to carry on caring for the children.  Ms Small says that those positives required a greater degree of analysis than the judge in February 2013 gave.  However, HHJ Black's judgment shows that she did have access to the five lever arch files containing all of that material and her ex tempore judgment shows that she was well familiar with that material. 

45. In my view, it is artificial to separate out the hearing in February 2013 and submit in some way that that was solely focused on the fall from the window and was undertaken without acknowledgement of the positives that were already established and banked, as it were, by the decision made a year earlier.  Certainly the right approach for the judge in February 2013 and the right approach for this court is to look at the matter as a whole. 

46. During the course of submissions I asked rhetorically what would have been the situation if, by chance, the fall from the window had occurred shortly before HHJ Marston made his order, or was called upon to make his order.  If that had been the case, then, in my view, the fall would have been seen against the landscape of all of the positives that had already been identified in the earlier assessments.  But an outcome which went against the parents and favoured adoption would not have been disproportionate.  This was a finely balanced case and the event that happened on 19 March was a very significant event.  It may have lifted the scales from the eyes of the social workers, the guardian and the judge as to just what the risks were if one was forced to rely upon, as one would be, these parents for a lot of the time as being the sole carers of the children and relying upon them, despite their disabilities, to do the right thing and intuitively act safely when looking after the children. 

47. In my view, even when you look at the fall from the window against all the positives in the case, an outcome such as the one chosen by HHJ Black is not out of proportion and, indeed, in my view it is impossible to say that outcome is wrong.

48. So I do not agree that HHJ Black proceeded just by looking at the fall from the window.  It seems to me that she had well in mind the positives that were identified, but even when you undertake the exercise, as I have tried to do, at arm's length, as this court has to do on an appeal, in my view the submission made by Ms Small is simply not made out.

49. Again, looking at matters in a different way, although technically the court had the option of granting the parents there and then in February 2013 the residence order that they sought, that was not a realistic application.  It was a sensible, tactical application to make to get the issue before the court, but the realistic options, as Ms Small accepts, were either for the court to maintain the care order in place with the local authority that was not intending to rehabilitation the children once again to the parents or to move towards adoption.  But Ms Small submits that the judge needed to grasp that option, namely maintaining the care order in place and analyse whether that was going to meet the children' needs and whether the more intensive step of adoption was justified.

50. The plan for the children under a care order would be long term fostering and Ms Small submits that, in the light of the fact that this is the plan for the older child, M, and there is some premium attached by the authority to keeping these two children in touch through contact with M, long term fostering should have been given more consideration than it was.  It is referred to in the guardian's report, the judge endorses the guardian's report, the guardian's report rejects it as an option but it is not given a great deal of air time, as it were, in the guardian's analysis and is not part of the analysis of the judge.

51. Of course, long term fostering was not something that was being put before the judge by any of the parties at the hearing.  What the parents wanted and, no doubt, still want was the children to return to their care.  But, given the ages of these children and applying the basic approach of family courts and social workers to care planning for children of this age, long term fostering is a difficult outcome to contemplate and the judge choosing adoption is, in my view, a choice that is not open to criticism in this court.

52. Having heard the submissions by Ms Small, we invited Ms Hendry on behalf of the local authority to assist the court and in the course of effective, clear and attractively brief submissions, Ms Hendry did so.  She indicated that the core of the local authority case was that these parents lacked intuitive parenting skills.  There was a lack of insight, demonstrated not only by the event on 19 March itself but, more significantly, by the parents' reaction to it.  She took us to part of the transcript at page B57:

"Q. You say the risk was unmanageable because of what happened.  Can the Local Authority think now outside the box as to whether there is any service or support that could be put in, given obviously what was put in, now with the benefit of hindsight, was not enough to protect on that particular occasion? Was there anything the Local Authority could do that would make this, if you like, the risk manageable for these children to return to their parents' care?

A. I don't think so.  I don't think   it's not about identified risk   this is the risk (inaudible).  There are times when parents are not able to focus on their children and those times (inaudible).  They are unpredictable.  So you cannot say that (inaudible) there will not be a problem because everything may be all right (inaudible).  When they are being observed they are observed to be capable and able to respond to the children.  The difficulty is when they are not being observed it is difficult to be able to know what their perception of the care is and how the children are (inaudible)."

53. That seems to me to be a correct pinpointing of a very significant matter in the case.  It was also the case before the judge that the mother did not accept, did not apparently understand and maybe was unable to understand because of the difficulties she has, that what occurred on 19 March was avoidable.  She did not have that insight in 2012 and she did not demonstrate it at the hearing before the judge.  Therefore the potential for the parents to, on a future occasion, once again fail to deploy what the judge described as the "sixth sense" of parenting was one that was rightly and readily to be contemplated by the local authority and by the court.

54. Having looked at matters in the way that I have described, I return to the great feeling of sympathy and respect that I have for the mother, the father, the family and the professionals.  Despite the fact that Re B S was still to be handed down by the court a year or so after the event, this was a case where all of the available options were considered by the local authority and by the court.  This was a case that did put a premium upon these two children being brought up, if they possibly could, in the care of their parents within the wider family. 

55. Tragically, despite the attempt to achieve that, clarity as to the level of risks was achieved by the fall on 19 March and despite the short process before HHJ Black on 20 February, in my view, looking at the process as a whole, not only her hearing but the whole process measured in years, this case does not fall outside the approach endorsed by the judges in Re B S and applying the Supreme Court judgment in Re B.  Conversely, I consider that it was entirely compatible with that approach.

56. In the end, this is a case which could only have ended one way or the other; the children would either go back home or go elsewhere.  These are very hard decisions but, in my view, it is not possible to hold that the judge was in error or, for that matter, that the local authority was in error and, despite being very grateful to Ms Small for the way in which she has presented the case to us today, I am very clear that the appeal must be dismissed. 


58. LORD JUSTICE SULLIVAN:  I also agree that the appeal should be dismissed for the reasons given by my Lord McFarlane LJ.

59. For the sake of completeness I would simply add this.  The grounds of appeal contend that the Appellants were denied the right to a fair trial before the judge because they had no legal representation.  It is plain, in my judgment, that the court made every possible effort to assist the Appellants in their quest for public funding.  In an earlier order in the proceedings, the court had sought to persuade the Legal Services Commission to review its decision that public funding would not be available.  When that was not forthcoming, the court subsequently granted the Appellants an adjournment to enable them to explore the possibility of obtaining pro bono representation.  Sadly, that was not available.  In those circumstances, it seems to me that the court had no option but to proceed as it did on 20 February 2013.

54. Reading both the transcript and the judgment, it is plain that the judge had the Appellants' difficulties very well in mind. As McFarlane LJ has mentioned, when issues were raised by the Appellant the judge herself took up those issues and probed the relevant matters with the local authority's witness. 

55. In those circumstances, it is not possible in my judgment to conclude that the Appellants did not receive a fair trial.  So for that additional reason, I, too, would dismiss this appeal.