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H (A Child) [2012] EWCA Civ 1700

Appeal against an interim residence order which effectively adjourned the proceedings for three months to allow an independent social work assessment of a couple who had been involved with the mother. Appeal dismissed. Piglowska applied to the evaluation of welfare factors.

Case No : B4/2012/2573
Neutral Citation Number: [2012] EWCA Civ 1700


Royal Courts of Justice
Strand, London, WC2A 2LL
Date : Friday 26th October 2012

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Mr John Vater QC and Mr Christopher Watson (instructed by the Local Authority legal department) appeared on behalf of the Appellant Local Authority
Mr Piers Pressdee QC
and Mr Lawrence Messling (instructed by Blakemores) appeared on behalf of the Respondent Mother
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(As Approved by the Court)

Crown Copyright ©

Mr Justice Hedley:
1. Every human child is born unique and retains that uniqueness throughout their lives.  Therefore every human relationship is unique and, as this case vividly illustrates, the human relationship between a mother and a child may be radically different as between the same mother and a different child. Accordingly when arrangements are made to protect the future welfare of a child, it is often necessary to craft those arrangements to take account of the unique qualities of the individuals involved, and whilst a great number of cases might lie within what have become conventional guidelines, there will be cases that fall outside as well and the question arises here as to whether the judge has gone too far or remained within the proper limits of discretion.

2. This is an appeal by permission of Munby LJ against an order made on 21 September this year by HHJ Clifford Bellamy, sitting in the county court at Coventry, on the final hearing of an application by Warwickshire County Council for a care order and a placement order in respect of a child, JP, born on 31 August 2011, so that he was some 13 months old at the time of the hearing.

3. Proceedings in relation to JP, for reasons that I shall come to in a moment, had been instituted within days of his birth and had been therefore continuing for the better part of those 13 months before the hearing, the subject of this appeal.  The local authority's case was stark.  It was that the mother had had a disastrous experience in parenting her first child.  She had undoubtedly made improvements, and improvements to the extent that it had been worth exploring whether she could care for her second child, but the evidence now demonstrated, contended the local authority, that she could not do so within the time scales that were suitable and necessary for that child.  Accordingly it was their case that the judge should at that hearing make a care order and indeed a placement order, so that the child could forthwith be placed in a new family with a view to his future being permanently secured by adoption.

4. The judge's order was in stark contrast to those submissions.  The effect of his order was to adjourn the proceedings for some three months and to direct an independent social work assessment of a couple who had been involved with the mother.  He granted an interim residence order to that couple, causing the child thereby to move from his present placement to that couple and he made an interim supervision order in favour of Warwickshire County Council. In fact all those orders have been suspended pending the hearing of this appeal, so that the child in fact remains in the foster placement where he has been for some considerable time now.

5. The appeal has been presented by Mr John Vater QC forcefully and lucidly on the basis that the learned judge exceeded the generous ambit of his discretion in that he failed properly to evaluate the potential success of the course chosen by him as against the delay and disruption which it might accord to the child.  It is right to say that there are significant questions about the potential success of the placement and it is right to say that the order will inject delay and has the potential to cause further moves.  That, of course, has to be seen in the context of the alternative which, as I have indicated, is a permanent removal with a view to adoption and the learned judge was, as it were, confronted by two starkly opposed and irreconcilable approaches to the case.

6. It is important to set this case, as indeed any other, in its proper context.  The mother is aged 22 and J is her second child.  The father has played no effective part in these proceedings.  Crucially from the local authority's point of view and importantly in the context of the case is the history of the mother's previous child, B, who was born on 2 April 2007.  It is, I fear, no overstatement to say that B's experiences of parenting were disastrous and he was, in consequence, subjected to significant emotional harm as a result of those experiences.  It is important to say that the evidence disclosed that it was not that the mother deliberately inflicted harm on him, but the nature of her care for him was sufficiently dysfunctional that serious emotional harm was a consequence of it. 

7. The importance of this was by no means lost on the judge and the perusal of paragraphs 6, 7, 8 and 9 and 10 of the judgment entailed a number of quotations from the evidence demonstrating the impact on B, and underlined the reasonableness and the reality of the concerns that the local authority entertained about the mother's ability to care for J.  The plain fact of the matter is that B has indeed been made the subject of care orders and placement orders and will be adopted in due course if that has not already happened.

8. In those circumstances it is entirely unsurprising that the local authority should have intervened in the earliest days of J's life but the intervention was a thoughtful one because it was not in any way a prejudged intervention of the sort with which one is familiar with the removal at birth and so forth.  The local authority recognised that the mother had made progress and recognised the realistic possibility that that progress might indeed now enable her to care for her second child, and so the local authority arranged for the mother to go to a therapeutic mother and baby foster placement in Kent. Although placed with an organisation, that organisation's foster parents were Mr and Mrs F and it is apparent that much good progress was made during the course of that placement.  At the end of three months, the local authority assessment was that whilst good progress had been made and further effort was merited, the mother had not yet reached the stage where she could be permitted to be further assessed on her own in the community with J.  Accordingly arrangements were made for her to move to what was believed to be a mother and baby foster placement in Warwickshire and she moved there on 3 February of this year.  J has remained there since.

9. It is important in the context of this case to note that the local authority genuinely believed that she was going to a placement which was an experienced foster placement and experienced in the field of mother and babies.  In fact, that was not the case and indeed the evidence suggested that this may well have been the first foster placement that these foster parents had had.  Be that as it may, the mother went there.  The foster placement was altogether less satisfactory than that with Mr and Mrs F. The learned judge explains this in paragraph 47 of his judgment and he recognises that the one foster placement was perceived by the mother and others as warm and the other was perceived by the mother and others as cool, and the mother flourished in one and did not flourish in the other. 

10. The mother misbehaved to the extent of getting herself drunk and failing to come home on one occasion and was required to leave that placement on 19 April 2012.  This is not the time or place to investigate the propriety or otherwise of how the mother was treated on that occasion, but certainly the learned judge in paragraph 65 of his judgment was of the opinion that summary removal in those circumstances was, as he described it, neither appropriate nor proportionate. 

11. The position then was that the child remained in that foster placement and the mother has lived apart from the child ever since.  It is important to factor into this, however, that all were agreed that the mother has been committed to the contact that has been offered to her and that that contact has generally been of a good quality. 

12. The relationship between the mother and Mr and Mrs F developed into something more than that between mother and respective foster parents and became one of warm friendship which was marked in particular by the agreement of Mr and Mrs F to become godparents to J, as indeed they now are, and they have sustained the commitment that they undertook then by supporting the mother in the hearings before HHJ Bellamy and indeed before this court today and by effectively making offers which provided the foundation for the judge's order, because what was contemplated as a result of the judge's order was that JP should move from his present foster care into Mr and Mrs F's home with his mother and there they should live for at least three months, whilst the therapeutic work which had earlier been begun was carried further on.

13. The learned judge envisaged that after some three months an assessment could be made as to whether the mother was a  potentially serious carer or not and, if she had failed to take advantage of that, she could expect to be summarily ruled out at that stage.  The learned judge envisaged, however, that, if in fact she had taken advantage of it and shown the ability to care, it might be appropriate for her to move into independent accommodation so long as it was near to Mr and Mrs F, although he provided that she should not do that without the consent of the court.  Mr and Mrs F had committed both to that and to a role in the subsequent oversight of the mother, because she would be expected to live near them, and Mrs F would be expected to have a significant input into the mother's life, care and home and then matters would develop from there.  In the event that the mother ceased to care for the child for whatever reason, the learned judge envisaged that the child could remain with Mr and Mrs F.

14. Now Mr and Mrs F are in their sixties and JP is not much beyond one and so the obvious issue as to age arises.  I think in evidence Mrs F herself expressed the view that it might be difficult for an 18-year-old to have a mother of 80, and indeed the original view of Mr and Mrs F was that they would not be able to do that. That was a view that had changed by the time the matter came before the learned judge on 21 September, and of course the learned judge was working on the basis that if Mr and Mrs F could not care then their extended family might well be able to step in.

15. It is important therefore to remind myself of what the judge knew about that extended family.  Mr and Mrs F had had seven children of their own, all of whom had grown up entirely satisfactorily and were making their way in life. They also had enormous experience as foster parents and their home was clearly one of those child-orientated homes that are the dream of every local authority with needy children that they wish to place. 

16. The learned judge therefore had that information in mind when he came to consider the proper order to make in respect of JP.  The learned judge heard evidence at the trial from the social work team, represented by the manager I think in fact in oral evidence, who were clearly of the opinion that the timescales of this child required a final decision to be taken there and then, that the mother, although she had made significant progress, had not made sufficient progress and ought to be ruled out, and whilst they had profound regard and respect for the commitment of Mr and Mrs F, they were not seriously in a position to take up the care of this child and that accordingly the only order that was truly consistent with the welfare of JP was the care order and placement order.  That was a view that was confirmed by the guardian.

17. The learned judge also had expert evidence from a clinical psychologist, Dr Shortland.  That evidence was unusual in this sense, that Dr Shortland had given very serious consideration to the idea, which in fact almost came about, of the mother being placed with Mr and Mrs F and that kind of mutually supportive arrangement being responsible for the future welfare of JP.  She was manifestly anxious about that proposal.  She assessed its chances of success as no better than evens. She acknowledged that she had never made such a proposal before, though qualified that by saying all her work before it was presented was peer-reviewed and that this clearly was not some eccentric whim of her own.  And that was the evidence she gave and it is apparent that in her evidence she never sought to over-blow the prospects of success in this case or her anxiety about her proposal, but at the same time neither did she ever withdraw it and it remained as an option to be considered by the learned judge as he came to give his judgment.

18. The learned judge heard evidence from the mother and expressed himself surprised at how good an impression she had made on him.  It was not what he was expecting from having read the papers and, in the light of what he read about the story of B, that is probably not at all surprising.  He also was very impressed with the evidence of Mrs F, and it may well be that it was his impression of Mrs F that finally clinched the way ahead for him. 

19. The learned judge reserved judgment and he delivered in due course a very long and careful judgment in which he rejected the approach contended for by the local authority and the guardian and offered the approach which in fact is the subject of the order and the appeal.  It is quite apparent from any reading of this judgment that the learned judge knew, if one may use a colloquialism, that he was sticking his neck out in this case, he was clearly conscious that he was following an unusual course and was therefore at some pains to indicate the issues that he had taken into account. 

20. That is now the subject of an appeal.  The approach of Mr Vater QC on behalf of the local authority is to focus his attack on this judgment on the failure of the learned judge, as he puts it, to take full account of the limited prospects of success of this placement and to take full account of the impact of delay and, one might add, potential change of placement and that in particular he failed to acknowledge the impact of the combination of those two things upon the welfare of this child.  There is no doubt that the learned judge has exposed this child to a degree of risk and the question is whether that is justified in the generous ambit of discretion afforded to him in making a welfare assessment so far as the child is concerned.

21. There is no doubt that the route chosen by the learned judge was opposed by most of the professional evidence and the support offered by Dr Shortland could not properly be described as a ringing endorsement.  It most certainly opened the door to a serious consideration of the possibility but it is fair to say that the learned judge nevertheless, in deciding as he did, was venturing towards the limits of his discretion.  It is worth spelling out what the learned judge must have had in mind one way or the other.  Clearly if he acceded to the local authority's case this child would lose the prospect forever of being able to live within his own family but would gain the prospect of a family forever without the need for more than one move in the future, and in fairness it is highly likely that JP would not actually be a very difficult child to place. 

22. On the other hand the learned judge envisaged the child being given a further opportunity to remain with his mother and his mother being given a further opportunity to be able to parent him by the use of the good offices, most unusually offered in this case, of Mr and Mrs F, as it were, to provide the network of support and safety within which JP could be allowed to settle into his mother's care and where she could develop the necessary skills to parent him in a good enough manner. 

23. Of course the learned judge had in mind that that might indeed go wrong and it is apparent from at least two aspects of his order that he had that in mind. First of all, he made it very clear to the mother that, if she did not take this opportunity, she would be ruled out, and if that does not contemplate something going wrong, I do not know what does. He also effectively said she could not move out from Mr and Mrs F without the court's permission.  He also recognised that there might be issues with Mr and Mrs F in respect of which he wanted an independent social work assessment, and it is apparent that there would be a number of issues partly to do with their age, partly to do with what relationship they would have with the mother if the mother was ruled out and partly no doubt to do with what was the true nature of the support available within the extended family if in fact JP was to stay there on a long term basis. 

24. Moreover the judge would clearly have had in mind that in directing the move to Mr and Mrs F he was certainly imposing one move on the child.  If it all went wrong, he would certainly be imposing two and potentially three or four; he was clearly contemplating some delay which might be as little as three months but could easily be longer than that and so that, if things developed unsatisfactorily so far as the judge was concerned, JP could be in the position of a further not insignificant delay in terms of making arrangements for his permanent future, and that in the context of something for which at best the professional support was tentative.  And so one can see why the attack that is mounted on the judgment is mounted.

25. But that of course is only half the story.  The other half is that we are dealing with a learned judge who has immense experience in this area and who has decided, as it were, with his eyes wide open to do something that others would regard as rather out of the ordinary. It would be quite wrong if the law developed into a position where judges were not free to deal with individual cases on an individual basis, so long as they remain within the generous limits of discretion that are afforded them.  It is also difficult in cases like this for an appellate court always to know precisely what it is that so influenced a judge or caused him to say or do what he did.  Speaking for myself, I find valuable the words of caution offered by Lord Hoffmann in the case of Piglowska [1999] 2 FLR 763 where Lord Hoffmann, in quoting something he had said in an earlier case, says this :

"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

26. If that be true in terms of the finding of facts, it is even more true in terms of the judge's evaluation of welfare.  There are so many factors to be fed into a decision about welfare that it is unreal to expect all of them to be articulated in even the most careful judgment. It is quite apparent in this case that decisive in the judge's approach was the impression that he formed of the mother and of Mr and Mrs F.  Of course it is possible for judges to form over-optimistic views of witnesses, but the fact of the matter is that this judge, having heard all the evidence, came to the conclusion that this was a route that could properly be adopted in order to advance the welfare of this child.  In my judgment the judge was well aware of the tentative professional support that his proposal aroused, and was well aware of the potential adverse consequences for this child if it all went wrong, but in the context of the options that faced him at the time, his judgment as to the way forward as best promoting the welfare of JP is in my judgment one that he was well entitled to take. 

27. It may or may not be significant that the guardian has chosen not to support this appeal, not of course to oppose it but not to support and not to wish to make any particular representations at it.  In my judgment the learned judge here, although he may have made the most unusual order, although he may have begun to approach the limits of a generous discretion, has made an order which is logical, humane, and very carefully thought out and is based essentially in the personal qualities of those in whom he reposes his trust and that decision involves a judgment and can only be a judgment for the trial judge himself.

28. For all those reasons, in my judgment this decision should be upheld and the appeal should be dismissed.

Lord Justice Thorpe:
29. I agree.

Lord Justice Lewison:
30. I also agree.

Order: Appeal dismissed