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F (Children) [2007] EWCA Civ 516

Appeal by local authority against orders in proceedings concerning suspected physical abuse against the children. Appeal dismissed

The local authority argued that the judge did not give reasons for his refusal to make a care order, instead making an interim care order, and that he was wrong to reject the evidence of the expert witness in the case. Ward LJ firmly rejected these arguments, agreeing with the trial judge that he did not have sufficient evidence to justify a care order.


Case No: B4 2007/0243 & B4 2007/0244

Neutral Citation Number: [2007] EWCA Civ 516

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 14 May 2007


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(DAR Transcript of
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MS J ROWE QC (instructed by North Tyneside Borough Council) appeared on behalf of the Appellant local authority.

MS E HAMILTON QC & MR J GRAY (instructed by Messrs Kidd and Spoor) appeared on behalf of the First Respondent (mother).

MR D ROWLANDS (instructed by Messrs Hindle Campbell) appeared on behalf of the Second Respondent (father).

MS P MOULDER (instructed by Messrs Swinburne and Jackson) appeared on behalf of the Third Respondent (guardian).

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Judgment (As Approved by the Court)

Lord Justice Ward:
1. This is a case in which there should be reporting restrictions and I give the judgment accordingly. It concerns the future of two of the three children of the parties before the court: C, a girl who was born on 30 September 2002, and L, her brother, who was born on 23 August 2003. They have an elder brother, R, who was born on 18 November 2000. So the first stark fact to note in this case is that there were three children under the age of three years born to this mother and father. For reasons I will explain, the children were accommodated by the local authority voluntarily and not under any care order way back on 28 July 2005, so for what is nearly two years, a distressingly long time in their short lives, that they have been in the "care" of the local authority. The concerns arose because on 7 June 2005 R disclosed to a nursery school teacher that his father had hit him on the bottom with a belt because he would not stay in bed. The boy indeed was badly bruised. A month later on 28 July bruising was seen on L's body. He had bruising to his bottom consistent with the admission immediately made by mother that she smacked him hard. He had small bruises on his ribs and shoulder and abdomen consistent with finger tip bruising strongly consistent with mother's explanation of grabbing him to restrain him when she explained he was trying to run away.

2. There were no bruises to C, but the mother has admitted that she too was subjected to unreasonable chastisement. That led to these proceedings being launched. Somehow, and I confess jurisprudentially I am not sure how absent care proceedings, there was a fact-finding enquiry, once aborted, but finally disposed of on 6 July 2006, when HHJ Carr sitting in the Newcastle-upon-Tyne County Court made findings of fact in respect of the injuries of those children. He found that the father had indeed struck R with a belt. He found that the mother had seen the bruising and he was of the view that she must have heard the screams of the little boy and had not intervened. But he took into account the fact that she was suffering from depression and the fact that father could be aggressive and confrontational. He confirmed that the injuries to L were consistent with the mother's explanation of smacking him too hard and he accepted generally that she subjected all three to that unreasonable chastisement, as a result of which she had indeed been cautioned by the police for an assault upon L. He found that she was unable to cope with the children when they exhibited challenging behaviour. I mentioned, I do not know upon what basis the judge embarked upon that fact-finding exercise, because according to the chronology I have care proceedings were only instituted thereafter and an interim care order made on 4 August 2006. But I may be wrong about that. I am not going to be bothered too much about it because those are the facts, whatever the law.

3. Following that fact-finding and that interim care order, there was a further hearing which took place over five days in December 2006 which resulted in the orders now under appeal. The judge reserved his judgment which he handed down on 4 January 2007 and the formal order made then was simply to list the matter for review on 23 January before him. On that date he made orders that the unfortunate little R should be placed in the care of the local authority and placed for adoption. I say unfortunate because one necessarily feels extremely sad that he is to be separated from his siblings. The local authority sought permission to appeal, which was refused. That was renewed to Wall LJ, who directed that it be listed before us on notice to the respondents with the appeal to follow if permission is granted. In deference mainly to the fact that everybody is here, I would for my part grant that permission to appeal and I deal with the appeal on that basis.

4. One must put this case in its perspective. This couple, who have never married, lived from November 2003 essentially in separate homes. The father did not move with the mother when she was re-housed. This is a young mother faced with very real and very considerable problems which demand anybody's sympathy. To deal with R, he has, perhaps since the events which I have described, been found to be suffering from what Dr Morrell, consultant paediatrician, describes as evidence of attention deficit hyperactivity disorder, significantly impairing his day-to-day functioning. As the judge eloquently put it, in what is probably the most understated way, "He is clearly more than a handful". He was the eldest of three children under three. As if that was not enough of a difficulty for this young mother, she had C born with a cleft palate which needed surgical attention and continuing review over many months. In addition she, and I think L, both had difficult ear problems which required medical treatment. In December 2004 C was admitted to hospital with pneumonia. In June 2004 L was re-admitted to hospital, his first entry having been a year previously, because he had been observed to be shaking and jerking as if having seizures. Indeed in July 2004 medication was prescribed for those seizures and it has been concluded by an examination on 25 July 2005, which is contemporaneous with the events with which we are concerned, that he was suffering probably from primary generalised epilepsy.

5. In those circumstances one can again only regard as an understatement the judge's conclusion in paragraph 5 of his judgment that:

"The three children are clearly a handful, and that I could understand how the mother not having had the full support of the father crumbled under pressure."

6. What is also significant against that background is that the mother was not blind to her difficulties. She reported to the health visitor in May 2005 the problems she had with R and his occasional violence, and she reported her concern that she simply was not coping, and I ask rhetorically: is that any surprise? The answer is of course no. This must have been an overwhelming burden for her at the time and unless this case is seen with that firmly as part of its history, a perhaps false impression will be gained of it. Yet when it came for disposal the care plan was for care orders and placement for adoption and this was based upon the physical chastisement that the children had suffered.

7. HHJ Carr heard over those five days evidence from the social work team manager, Fiona Gallagher, and from the family support worker, Carol Dodds, who had carried out a parental skills assessment observed over a period of some 12 weeks early on in these proceedings, that is to say as I understand it at the latter end of 2005 and early into 2006. He heard from the present social worker and from Dr Kennedy, a consultant psychologist. He heard the parents of course. He heard the guardian. He read other medical reports. He gave an admirably short judgment, which I fear I may not quite be emulating though I intend to do my best to keep this short.

8. He made a full review of the evidence, especially the evidence from Dr Kennedy, which he set out in some detail in paragraph 9 of his judgment. He pointed out the finding that this was a mother of average intellectual ability; generally open and honest; co-operative with a mild level of anxiety and a mild amount of depressive symptomology. Father, on the other hand, was a man who was capable of expressing anger, at times with little self-control and with the clear adverse comment that he had real difficulty with the social services department, "whom he hated". The conclusion of Dr Kennedy was quoted by the judge. It was this (page 181 of bundle 2 of the trial bundle):

"In the absence of the accepted and adhered to framework of care and support to mother and father being accepted I would conclude that a significant profile of risk can be evinced at this time […] namely of unintentional harm and/or neglect when in the care of this couple or individual at this time."

9. He elaborated upon that in a passage not cited by the judge which appears on page 182 in these terms:

"The critical factor in my opinion would not [I emphasise as Miss Hamilton QC for the mother emphasised the word "not"] be that mother or father would willingly neglect or cause harm to their children but for reasons outlined earlier that they may not be able to adequately, safely and effectively support each other and to prioritise and promote their children's social and emotional development within a supportive framework consistently above meeting their own needs. For this reason I would conclude that the children could be exposed to a significant risk of unintentional harm and/or neglect when in the care of the couple or individual at this time."

10. In another passage when he was addressing the mother's ability to protect the children, and one bears in mind that he was postulating that all three children were to be returned to her, not just two as has happened, he again observed at page 187:

"The critical factor in my opinion would not be that mother would willingly neglect, cause or place her children at risk of harm for reasons outlined earlier that she may [again Miss Hamilton emphasises the word] not be able to adequately recognise and act upon known risk factors in others that would enable her to safely and effectively manage risk."

11. So to some extent the case has moved from one essentially concerned with physical chastisement to emotional neglect, a point picked up no doubt by the guardian for the judge in addressing the risk of future harm commented at paragraph 19 of his judgment:

"The guardian is firmly of the opinion that all three children are at risk of physical harm from their parents particularly if their behaviour is challenging. The guardian is also concerned as to the risk of emotional harm for all three children but I believe this concern relates primarily to Mr F."

12. Having dealt with Dr Kennedy the judge went on to deal with the position of the parents as a couple or individually, and he said this:

"Dr Kennedy did not consider one party to be more dominant than the other or of the other in fact either party impressed as more keen for the other to express their point of view."

I think he probably had in mind a passage in Dr Kennedy's report appearing at page 188 in which he said this:

"From my limited observations I feel it fair to suggest that Mr F impressed as a far more assertively confident individual in his interpersonal style than Ms C in the formal interview context, who impressed as quite a quiet and timid individual, yet I did not observe this to complicate the dynamic during assessment and despite her quiet and gentle tones Miss C was well able to make her points and challenge Mr F appropriately which he seemed to readily accept and respect."

So the judge continued:

"Dr Kennedy is of the opinion that Miss C, in isolation, is likely to find effective multi-tasking immensely difficult and stressful. He further feared that a return to the established patterns of behaviour, at times of low resolve, isolation and stress would be resorted to unless she were appropriate assisted by supportive infrastructures. He did say he had found her to be open and co-operative and he gained the impression she was willing to engage with Social Services."

13. He turned to describe the children. I need say no more about R. Of C he said, summarising paragraphs 11 and 15, that she was a happy little girl. She had attachment to her parents. She was less demanding of them than her brothers. She was more self-sufficient and her development appeared within normal limits. At times she could be wilful or bossy but appears to be calming down. L was a robust little boy, as the guardian described him, emotionally and physically; took things in his stride; was calmer than he had been; also had attachments to his parents and enjoyed seeing them in contact. I interpolate that there is nothing in that profile of either of the children which suggests a child who has been emotionally harmed. They are children no doubt with some difficulties, not surprisingly, but who are coping well enough as not to be children in need of great concern for fear of their emotional harm.

14. The judge addressed the checklist. They were hardly old enough to express any wish that was at all meaningful. Their needs I have described. The likely effect of changes was dealt with by the judge and the harm was dealt with by the judge in these terms; their past harm I have sufficiently outlined. But as to the risk of future harm, the judge found that both parents were capable of dealing with their ordinary needs, and he addressed physical and emotionally harm in the terms I have already summarised.

15. He expressed his conclusions in one paragraph, paragraph 21 of his judgment. He was satisfied that R's individual needs were too great for either parent jointly or severally. But so far as C and L were concerned, he explained why he was making the order he had expressed at the beginning of his judgment in paragraph 1 to be that further assessment of the mother's ability to care for them was required bearing in mind the change of circumstances, and his reasoning was this:

"that I will continue the interim care orders in order to see whether the positive parenting shown by the mother can be continued in the more demanding routine of these two children being with her on a more full-time basis. This will necessitate the father not being present in the house whilst the children are there. I do not anticipate that the parents need to formally separate but that the father, for the time being, will have contact with the children on a supervised basis. I could exclude the father from the mother's home but I would be prepared to accept a formal undertaking from him covering this situation."

16. So that was the way he dealt with the father's position in the future. He then acknowledged that to make an interim care order was unusual and he explained then why he was doing it. He said:

"I am not yet persuaded that the mother does not have the ability to care for the two younger children in a proper manner. The parenting assessment on the mother was positive. It is the evidence of that assessment, together with the particular circumstances in which [C] and [L] were subject to over chastisement, which legally at this time differ from the guardian. I accept that Dr Kennedy did express significant reservations about the mother's ability to control the risk of harm to her children. He did, however, say that his express concerns were in the absence of robust child protection strategies. Although the guardian does highlight that Dr Kennedy said a significant profile of risk can be evidenced at this time, he did qualify that by saying, "…in the absence of an accepted and adhered to framework of care and support to [Miss C]". I appreciate that the Local Authority had found a matching couple for [C] and [L] with a view to adoption. I also accept that the delay usually is not in the best interests of children. [C] and [L], however, are still quite young and if it becomes clear that the mother has not had the ability to care for these children safely then I do not foresee any difficulties in obtaining an adoptive placement for them. The optimism shown by the Local Authority in its ability to obtain an adoptive placement for R who would present as a much more difficult case, gives me encouragement in this."

So he summarised in his orders, anticipating that the matter would come back to him in three months' time to see what kind of progress, if any, the mother had made with regard to the younger children.

17. On behalf of the local authority Miss Rowe QC, who now appears for them, no longer challenges the judge's ability to make an interim care order in the circumstances of the case as the judge found it. It is now accepted that that is a permissible order even if an exceptional one. The local authority's essential challenge is to the judge's refusal to make the care order. I remind myself that the judge said in the paragraph as I have already read out:

"I am not yet persuaded that the mother does not have the ability to care for the two younger children in a proper manner."

18. That could be translated into the legal language of, "I am not satisfied that the local authority has discharged the burden of proof which rests upon it". That finding would have justified him in refusing to make a care order and if driven in the extreme circumstances to make no order or a residence order, that may have been his option. But he elected a safety-first approach which is now otherwise acknowledged to be correct. So the challenge to his judgment is not so much as was suggested to him and repeated on paper, that he did not give adequate reasons for differing from the expert Dr Kennedy, or the guardian. I think that Miss Rowe accepts that on a reading of the judgment it is perfectly obvious why he differed and that he explained his different view adequately.

19. The essence of the attack upon the judgment is that he was wrong, that he came to the wrong conclusion and necessarily the local authority have to satisfy the court that he was plainly wrong in his conclusions. There was a sustained attack upon his rejecting the view of Dr Kennedy. But I have read enough of his judgment to satisfy myself that he correctly understood what Dr Kennedy was saying and did not fail to address all the pessimism in that report, but to come to his own conclusion that it was too early to be certain that this mother could not cope with the two younger children. It was a matter for him having heard the evidence, and I would find it impossible to interfere. It is as short and simple a point as that.

20. When it comes to his failure to deal with the father's involvement, the position is that the judge was keeping all of those options open. He was wishing for there to be an assessment to be conducted in the light of the undertaking he had received from the father to absent himself from the home and to have supervised contact. In my judgment he did not need at this stage to rule definitively on whether this couple had or had not in fact separated and whether they were intent upon separation or reconciled to their living apart. They had been equivocal about this but that was a fact of the case which the judge had to grapple with at -- I was going to say stage two -- but in this case at stage three at the next assessment of this couple. One must bear in mind, moreover, that there is evidence of but one isolated incident of extreme violence by this father towards his children and that to the older boy R with the peculiar difficulties he faced -- and one must bear in mind, moreover, the way in which Dr Kennedy was assessing the risks, not so much physical chastisement as future emotional harm.

21. The order made by the judge took the local authority somewhat by surprise. They sought time to consider their position and the matter was for that reason stood over to 23 January for further review and on that occasion permission was sought to appeal on various grounds; noticeably absent from them the particular position of the father, which was a lynchpin of Miss Rowe's argument.

22. The judge significantly on page 6 of the transcript of that hearing towards the end of it made these observations. Firstly he said this:

"Can I raise the question on which you say that I failed to distinguish my conclusions from those of Dr Kennedy? I thought I had and I think in fact it did expand them a bit. I took the view that if there had been robust intervention as Dr Kennedy was speaking about then he in fact or his conclusions fitted in with my own."

23. So that is how he saw Dr Kennedy. In other words, if the local authority did put in place some form of monitoring or inspection, that would be sufficient to contain the risk of harm. Then he went on, and this seems to me to encapsulate how he saw the case, and I venture to say, how correctly he saw the case. He said this:

"I do recollect saying in my judgment afterwards that first of all [R] created significant problems within the home and it was [R] who received the most serious physical chastisement and that from his father. Insofar as the other two children were concerned [L] had a bruised bottom which the mother admitted over chastising and [C] was slapped excessively on the hands on a number of occasions. That was the mother. This is the level of over chastisement of the two younger children. Now I am not condoning it for one moment but if a child was taken into care and adopted because of that then I rather think that in each of those cases a significant number of children would be at risk which the local authority never get involved in. Slapping a child's hand on a number of occasions and slapping a child's bottom with such force that it is bruised, those are factors I took into account for the two younger children. But parting from the recommendation of the children's guardian yes I did. I heard and saw these two parents for a period of ten days both giving evidence and in fact during the court hearings themselves."

24. There, in a nutshell, is this case. It is a case of physical chastisement of these two which cannot be condoned but which cannot be classified by any stretch of the imagination is of a severity and seriousness or persistent enough to justify the disproportionate remedy of removing the children from the family where they belong and placing them in care and placing them for adoption. The judge did not address this in the human right terms of proportionality but had he done so he could have come to only one conclusion, which is the conclusion he arrived at: namely, that this is not on the evidence presented before him at that stage a case requiring the making of a care order.

25. In my judgment he was totally right in his assessment of the case, and for my part I would therefore dismiss this appeal.

Lord Justice Tuckey:
26. I agree that we should grant permission to appeal and for the reasons given by my Lord, Lord Justice Ward, the appeal should be dismissed.

Order: Application granted. Appeal dismissed.