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Re K (Children) [2012] EWCA Civ 1169

Application for permission to appeal interim care orders subsequent and Special Guardianship Orders relating to two children; permission granted.

Mr and Mrs B, were the mother and step-father of the two children subject to proceedings ("Tok", aged 15 and "Tun", aged 12). They sought permission to appeal orders of HHJ Tyzack made in the Exeter County Court making the children subject to Interim care orders ("ICOs") and subsequently, Special Guardianship orders in favour of their maternal grandparents. The proceedings had begun in 2006 as private law proceedings between Mr and Mrs B and the children's father, Dr K. For a substantial part of the proceedings the children lived with their father, but moved to live with Mr and Mrs B in April 2010 after a breakdown in the father's mental health. Two months later the mother indicated that Tok's behaviour was so bad that he could not remain in her care and he returned to his father, whilst Tun remained with Mr and Mrs B. After a further mental health breakdown by the father, Tok was placed in the care of his maternal grandmother (with whom Mr and Mrs B had a poor relationship) in Devon and Tun remained with Mr and Mrs B. On 6th December 2010 HHJ Tyzack made a s.37 direction in relation to Tok and an ICO in favour of Torbay Council. On 10th December 2010 he also made a s.37 direction in relation to Tun and an ICO in favour of Leicestershire County Council on the basis of emotional abuse. The ICO was made on the basis that if Mr and Mrs B co-operated with social services Tun would not be removed. Co-operation was not forthcoming at first and so Tun was removed into foster care. In January 2011 Mr and Mrs B began co-operating with the local authority, which then recommended that Tun should be returned to their care. The matter returned to Court on 31st January 2011 but HHJ Tyzack expressed dissatisfaction with the local authority's report in relation to Tun and made a further s37 direction. Shortly before the next hearing on 4th March 2011, the local authority changed its position and agreed to a further continuation of the ICO. On 12th April an interim residence order in relation to Tok was made in favour of the maternal grandparents. At the same hearing the judge sanctioned the new care plan for Tun, which was that he move from foster care to join his brother in the care of the maternal grandparents.

Mr and Mrs B thereafter effectively withdrew from the proceedings and final SGOs were made in favour of the maternal grandparents on 13th January 2012. The notice of appeal was filed on 3rd February 2012. The notice of appeal sought permission to appeal several orders, but McFarlane LJ characterised the appeal as being against "the entire process that has been undertaken from December 2010 onwards" when the first ICO was made.

McFarlane LJ, who gave the leading judgment, with which Ward LJ agreed, gave a number of reasons as to why he considered Mr and Mrs B's case had sufficient merit to warrant a full hearing. Firstly, the judgment of 10th December 2010 was extremely brief in the light of the fact that less than a month prior to that hearing the Local Authority had adopted the position that it did not consider the threshold crossed. Second, the original ICO had been made with the purpose of gaining Mr and Mrs B's co-operation with the assessment process. Once that had been obtained, the judge's subsequent s.37 directions and ICOs were subject to question.  Further, neither the 10th December 2010 nor the 12th April 2011 judgments made reference to the evidence prior to those dates which would establish a factual basis for holding that the interim threshold was crossed.  McFarlane LJ also held that the SGO in relation to Tun in favour of the maternal grandmother may be open to the criticism that (i) there was evidence from the expert psychiatrist, that due to the level of hostility and conflict in the maternal family, he should not be placed with any member of the maternal family and (ii) the full extent of Tun's behavioural difficulties in the care of his grandmother were not fully known to the Court at the final hearing.

The time limit for appealing was extended, the application for permission to appeal was allowed and the case therefore listed for a full hearing of the appeal.

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


Neutral Citation Number: [2012] EWCA Civ 1169
Case No: B4/2012/0430

His Honour Judge Tyzack

Royal Courts of Justice
Strand, London, WC2A 2LL


B e f o r e :
Re: K (Children) 
The applicants Mr and Mrs B attended in person
Hearing dates : 20th April, 9th July 2012
Crown Copyright ©

Lord Justice McFarlane :
1. By a notice of appeal dated 3rd February 2012 Mr and Mrs B seek to appeal a range of orders made between December 2010 and January 2012 in the Exeter County Court by His Honour Judge Tyzack QC. The orders relate to two boys. I shall refer to the boys as "Tok" and "Tun". Tok was born on [a date in] 1997 and is therefore aged fifteen years and Tun was born on [a date in] 2000 and is now twelve and a half years old. Mrs B is the mother of both boys and their father is Dr K. Mrs B and Dr K separated many years ago and Mrs B is now married to Mr B, who is therefore the boys' stepfather.

2. Both boys have been the subject of private law proceedings between their two parents since 2006. For a substantial period of time the boys resided with their father in Devon and there were ongoing entrenched difficulties over the arrangements for contact to their mother who lives in the Midlands. As time has gone on, two children have been born to Mr and Mrs B, a girl, I, who is now aged six and a boy, W, who is aged four.

3. Matters have been complicated by periodic collapses in Dr K's mental health. In particular, in April 2010 Dr K suffered a mental breakdown and both boys moved to live with Mr and Mrs B in Leicestershire. From the start Toc's behaviour was extremely challenging and a stage was reached after some two months which resulted in Mrs B writing to the court on 7th June 2010 saying that Toc's behaviour was such that he could not stay any longer in her home with the other children. Dr K's mental equilibrium had apparently been re-established and in July 2010 Toc returned to his care in Devon, leaving Tun in the care of Mr and Mrs B.

4. The private law proceedings continued in Exeter and it is clear that during the second half of 2010 the rule 9.5 children's Guardian appointed to represent their interest in the proceedings was asking judges (HHJ Robertshaw and HHJ Wildblood QC) to make a direction under CA l989, s37 requiring the social services in Leicestershire to undertake an assessment of Tun's welfare in the home of Mr and Mrs B. The judges declined that invitation and, by position statements dated 24th August and 19th November, Leicestershire County Council, who had knowledge of the family, stated that there were no issues that would lead that local authority to apply for a public law order to enable Tun to be removed from Mr and Mrs B's care.

5. Matters came to a head in early December 2010. On 3rd December Dr K suffered a further mental breakdown. Toc was removed from his care by the police and placed with the maternal grandparents, who also live in Devon. On 6th December HHJ Tyzack QC made a section 37 direction in relation to Toc and granted an interim care order with respect to him in favour of Torbay Council.

6. On 10th December Tun's case came before Judge Tyzack. Mrs B was represented, but not apparently in attendance. On that occasion the judge made a section 37 direction to Leicester County Council, he held that the criteria necessary to establish jurisdiction to make an interim care order under CA 1989, s38 were established on the basis of emotional abuse in the home of Mr and Mrs B as a result of Mr B's alleged bullying and intimidating behaviour. On that basis the judge made an interim care order with respect to Tun in favour of Leicestershire County Council.

7. Mr and Mrs B take serious issue with the hearing on 10th December 2010 and the orders that were made. Whilst these orders were not subject to appeal at the time, it is Mr and Mrs B's case that from that date onwards their ability to have a fair hearing was fundamentally compromised. The interim care order was made on the basis that if Mr and Mrs B co-operated with the social services, Tun would not be removed from their care. Mr and Mrs B profoundly disagreed with the making of an interim care order and therefore refused to co-operate with the social services with the result that Tun was indeed removed from their care five days later on 15th December.

8. Matters apparently cooled down around the turn of the year and by mid-January Mr and Mrs B were prepared to co-operate with the social workers and in a position statement dated 28th January 2011 Leicestershire CC stated that, following an assessment, their conclusion was that Tun could be returned to Mr and Mrs B's care after the next hearing, which was on 31st January. At that hearing, however, HHJ Tyzack expressed dissatisfaction with the local authority report. He made a further Section 37 direction, and renewed the interim care order on the basis that he did not sanction Tun's return to Mr and Mrs B's home.

9. Records that this court has now seen, but which were not available to HHJ Tyzack, indicate that in early February (see pages A131 and 132) social workers and a probation officer who was supporting Mr B, continued to express the view that Tun should be returned to Mr and Mrs B's care on the basis that there were no substantial concerns.

10. The case was once again before HHJ Tyzack on 4th March. Contrary to their apparent earlier intention, Leicestershire CC had changed its stance two days before the hearing and before the judge agreed to a further adjournment and a continuation of the interim care order. This court has now seen LCC counsel's note of that hearing (page C1).

11. This change of stance by the local authority had the consequence that Mr and Mrs B once again withdrew their co-operation with the social services in Leicester and, indeed, stated their intention to take judicial review proceedings against them (see probation officer's log for 9th March at A134).

12. So far as Toc is concerned, he had continued to reside with the maternal grandparents and, on 12th April 2011, a residence order was made in their favour supported by an interim supervision order to Torbay.

13. In Tun's case, following its change of stance, Leicestershire CC issued care proceedings in the Exeter County Court. At a contested hearing on 12th April 2011 HHJ Tyzack made a further interim care order with respect to Tun and sanctioned Leicestershire's plan which was for Tun to move from his foster carers to be placed, with Toc, in the home of the maternal grandparents. Mrs B was represented at that hearing and attended for part of the day, but following the luncheon adjournment did not return to court. As a result of the judge's order Tun moved to live with his grandparents and has continued to remain in their care since that time.

14. By their notice of appeal Mr and Mrs B seek to challenge the orders made on 12th April 2011.

15. Following the April hearing Mr and Mrs B seem to have withdrawn from engagement in the court and social work process but, by an e.mail dated 24th October 2011 (C29), Mrs B indicated that she was "now resuming my involvement in the case" but stated "I am not available for a final hearing in January 2012". Following that the local authority filed their final documents and in early December Mrs B filed detailed responses to the local authority case. However in an e.mail to the court dated 16th December 2011 Mrs B stated that she "is not seeking residence or contact with Tun" (page C90). In a further e.mail dated 28th December, following an occasion where Mrs B had in fact spoken to Tun over the telephone during the Christmas period, she stated that she had no intention of attending the hearing, which was booked for January, as she could predict what HHJ Tyzack would do and she would, instead, concentrate on appealing (page C96).

16. At the final hearing on 13th January 2012 HH Judge Tyzack secured the placement of Tun with the maternal grandparents by making a special guardianship order in their favour. This final order is the third of the three orders that Mr and Mrs B seek to challenge in their proposed appeal.

17. As I have indicated, the notice of appeal was filed on 3rd February 2012. Whilst it specifies the three orders to which I have made reference, the appeal is in fact against the entire process that has been undertaken from December 2010 onwards. Mr and Mrs B seek a complete re-hearing of all the issues in the case. In addition to raising matters in relation to the court process and the orders made, they also express extreme concern for Tun's welfare in the care of his grandparents both before and, more particularly, since the special guardianship order was made in January.

18. The grounds of appeal are detailed but may be summarised as follows:

a) Neither the interim threshold criteria in s 38 nor the full threshold criteria in s 31 could be established on the evidence in relation to their care of Tun.

b) In any event, placement with the maternal grandparents was not in Tun's best interests.

c) A "no contact" order was not justified.

d) The judge abused the s 37 process by making a series of interim care orders which were not justified by the evidence and not supported by the local authority.

e) The children's guardian failed to carry out a proper assessment.

f) Torbay Council failed to carry out a proper assessment.

g) The four separate assessments conducted by Leicestershire CC all concluded that there was no evidence of significant harm. The judge's conclusions went against the weight of this evidence.

h) The judge has never given reasons for holding that the threshold criteria were established.

i) Any alleged bad behaviour by Mr and Mrs B towards professionals was not witnessed by the children and should not have been given weight.

j) Tun's behaviour, and the grandparent's ability to control it, is a real cause for concern. HHJ Tyzack was not given a full and correct account of this and/or chose to downplay or ignore it to the extent that his decision to make a special guardianship order was plainly wrong.

k) The judge was in error in proceeding with the January hearing rather than granting Mrs B's request for an adjournment so that she could be present on a later date.

19. It is also to be noted that in a letter to the Court of Appeal Mrs B seeks to appeal an order made on 17th April 2012 regarding contact. No Notice of Appeal has been filed with regard to this order and no leave has been given to amend the current Notice of Appeal in this regard. It is not therefore a matter that is currently before this court.

20. The case came before me for an oral permission to appeal hearing on 20th April 2012. At that stage the paperwork that Mr and Mrs B had been able to supply to the court was almost non-existent. It was plain that there was a substantial history to the proceedings. In particular, the watershed hearing on 10th December 2010 was plainly of importance, yet there was no transcript before the court. Mr and Mrs B made a general complaint that, despite, they said, many requests, the parties and the court had failed to give them copies of many relevant documents. It was therefore impossible for me to conduct any informed assessment of the merits of the proposed appeal. I therefore adjourned the application and directed that the entire court file from Exeter should be delivered to the Court of Appeal so that I might extract a clip of particularly relevant documents which would be copied to Mr and Mrs B. Finally, in view of the unusual course of the proceedings and the scale of proposed appeal, I directed that the adjourned oral hearing should be listed before two members of the court.

21. The adjourned hearing took place on 9th July 2012. In accordance with my direction two large boxes containing files from Exeter County Court had been received and I had provided copies of the key material to Mr and Mrs B. For their part Mr and Mrs B had provided an additional bundle of material for the court. Unfortunately the Court of Appeal office had assumed that that was a replacement for the original appeal bundle, and my Lord, Lord Justice Ward, and I were only provided with the original appeal bundle during the course of the hearing.

22. We heard extensive oral submissions from Mr and Mrs B over a video link. It is right to record that much of the early part of the hearing was dominated by Mr B who allowed his anger and frustration to manifest itself to the extent that it was difficult for us to focus on the substantive points that the couple wished to make. Mr B sought to prevent Mrs B from addressing us at all. It was only when Mr B was persuaded to subside and Mrs B was permitted to address the court in more measured tones that we came to see more clearly the potential merits of their case. At the conclusion of the hearing my Lord, with characteristic bluntness and charm, advised Mr B in no uncertain terms to control his anger and frustration at any subsequent hearing and to allow Mrs B, who is after all the mother of these children, to be the principal advocate of their case.

23. Having considered all of the matters that were placed before us we concluded that there was sufficient merit in the points raised to justify the entire process that has been undertaken since December 2010 being examined by the full court. We therefore extended the time for appealing and gave permission to Mr and Mrs B to appeal the orders of December 2010, April 2011 and January 2012. The purpose of this judgment is in part to set out an orderly chronological history, which I have already attempted to do and to summarise the reasons that have led us to grant permission to appeal.

24. Without expressing any concluded view as to the ultimate merit or otherwise of these matters, the points that particularly justify a full hearing are as follows:

a) Given the importance of the decision made on 10th December 2010 to make an interim care order in private law proceedings, where the local authority had on at least two previous occasions, one less than a month prior to the hearing, indicated that there were no grounds for seeking a public law order, the judgment given on that day is extremely brief and amounts to little more than an assertion that there is "really no doubt at all" that the interim threshold criteria in s 38 are met on the basis of emotional abuse, principally arising from Mr B's bullying and intimidating behaviour. The contrary stance of the local authority indicates ground for questioning if the s 38 threshold criteria were actually met.

b) The judge's stated justification for making an interim care order in December 2010 was to gain Mr and Mrs B's co-operation with the local authority assessment process. Once that had been achieved in January 2011 and in the light of the local authority's sustained assertion that there were no grounds for a further interim care order, the judge's decision to make two subsequent fresh s 37 directions, thereby maintaining the court's jurisdiction to make interim care orders, must be open to question.

c) In his judgment of 12th April 2011, HHJ Tyzack give a detailed account of the history to date. It is of note that, at paragraph 9, the judge summarises the social work evidence as follows:

"…up until quite recently professionals from Leicestershire County Council have been able to work with Mr and Mrs B so far as the care of Tun is concerned. Indeed Ms S's first two statements, which are comprehensive and thorough, attest to that fact, that, despite the difficulties that Leicester have had with Mr and Mrs B in achieving their co-operation, they have been able, up until recently, to work with them so far as Tun is concerned."

The judge then goes on to record that "all that has fallen away" following the withdrawal of co-operation pursuant to the order of 4th March. Given the judge's conclusion that the previous social work reports were favourable to Mr and Mrs B and were "comprehensive and thorough", the court's grounds for nevertheless making s 37 directions at earlier hearings, in part on the basis that the social work assessment was incomplete, falls to be questioned.

d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm. At paragraph 18 the judge simply says "I should say that I find the threshold criteria met, so far as this application is concerned, on a s 38 basis…."

e) In the judge's written reasons underpinning the order made 13th January 2012 more detail of the threshold criteria is given at paragraph 25 to 37. Put shortly, the judge found the threshold was crossed on two bases, firstly that "at the time Tun was removed he found himself living in a home where he was caught up in the bitter and hostile atmosphere which had by then developed and which was causing him emotional harm" and, secondly, that Mr and Mrs B would only co-operate with the social services on their terms and that was an unacceptable basis. Part of Mr and Mrs B's criticism of the judge's decision is that by making a special guardianship order to the maternal grandparents he had moved Tun from one home in this polarised dysfunctional family to another. The short background to this point is that there is apparently total antipathy between Mrs B and her parents. For example the judge at paragraph 43 quotes Mrs B describing the grandparents as "evil minded people who have for the past six years manipulated Dr K in order to eventually lay claim to the children". Mr and Mrs B's submissions, as I understand them, are that if the judge's motivation was to save Tun from exposure to the emotional fall-out within this family, placing him in another part of the family could not be justified and, on that basis, it would be better for him to be placed in a totally neutral environment. In this context it is of note that the expert psychiatrist, Dr Judith Freedman, upon whose opinion the judge relied in December 2010 in sanctioning the removal of Tun from Mr and Mrs B's home stated (page 62 of November 2010 report):

"We think that it is time to address this chronic and worsening situation by moving the boys from the care of their respective parents. We do not recommend that they live with members of the maternal family, since in such placement the boys would continue to feel the pressure of the conflict between their parents."

f) Mr and Mrs B point to documentary evidence relating to Tun's behaviour at the grandparent's home and at school prior to the January hearing. The records that we have now seen show that this, then eleven year old, boy had already been excluded from school on no fewer than eleven occasions prior to January 2012. He had been in trouble with the police on a number of occasions. Whilst this topic is referred to in the special guardianship report supporting placement with the grandparents (for example internal page 22), it is Mr and Mrs B's case that the court was not given anything like the full picture of the extent of Tun's troubled behaviour. The report speaks (again at page 22) of the "hope that Tun's behaviour will settle down once the pressure of the current proceedings has ended and Tun is clear about where he is to live". Mr and Mrs B's case on appeal is that the opposite has occurred. They assert that Tun has continued to be the subject of police intervention, he is now engaged with the Youth Offending Team, he attends a YMCA facility on two days a week instead of attending school and the family are said to be in receipt of a social services "intensive family support package". It is Mr and Mrs B's case that if the full extent of Tun's difficult behaviour had been known to the court in January 2012, a special guardianship order would not at that stage have been justified as being in the boy's best interests (at least without further assessment) and, in any event, the matter now requires re-opening in view of the significant deterioration in his behaviour since that time.

25. Having considered all of these matters we were sufficiently concerned as to the process adopted in the course of the proceedings in Exeter to grant permission to appeal. In addition to the matters which I have now summarised, Mr and Mrs B seek to make a range of other points. My summary is not intended to limit the appeal to the matters to which I have made reference and, if the case is now to be looked at by the full court, all of Mr and Mrs B's arguments will be considered, but the court, no doubt, will direct the focus of the hearing as it sees fit.

26. Before concluding this judgment it is right to record that that files received from Exeter are plainly deficient in that (a) they do not contain very much material at all relating to the private law proceedings between 2008 and the end of 2010 and (b) they do not contain all of the documents that will have been filed for the December 2010 to January 2012 process (for example reports from the children's guardian). It will be necessary for the parties to the proceedings to ensure that the Court of Appeal has all of the key documents available to it in a core bundle for the appeal hearing.

Lord Justice Ward
27. I agree.