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W (A Child) [2013] EWCA Civ 314

Appeal against an order permitting the suspension of contact between a mother and new born baby in care proceedings.

Appeal by the mother against an order made pursuant to the Children Act 1989 s. 34(4) permitting the local authority to restrict or prevent contact between the mother and child. The local authority had commenced proceedings at birth following significant concerns about the father's violent and abusive behaviour. The father had made threats that he would remove the child from local authority care. The mother was described as submissive and pliable in the father's hands. The application for a s. 34(4) order was issued at the same time as the initial application for an interim care order. The court had granted the order at the first hearing, therefore giving permission for no contact to take place between the mother and her newborn baby. Arrangements were made for separation within an hour of the birth, rather than leaving the mother and baby in the safety of the hospital. The order was made for a period of 16 days when the court could next consider it.

The Court of Appeal dismissed the appeal. The Court recognised the pressure on county court judges in family proceedings and stated that in emergency situations such as this, a decision has to be taken there and then. It was described as unthinkable for the Court of Appeal to interfere where the judge had had regard to the relevant factors.

Summary by Jacqui Thomas, barrister, 37 Park Square Chambers 

Case No: B4/2013/0414
Neutral Citation Number: [2013] EWCA Civ 314


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday 21st February 2013





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Ms V Meachin (instructed by Rotherham & Co) appeared on behalf of the Appellant mother.
Mr A Macdonald QC (instructed by Warwickshire County Council) appeared on behalf of the First Respondent local authority.
Mr D Allen (instructed by John Mohamed & Co) appeared on behalf of the Second Respondent father.
Ms Morrison Styles (instructed by Johnson and Gaunt appeared on behalf of the Third Respondent, the Children's Guardian.
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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. This appeal is brought by EM against the order of HHJ Watson made as recently as the 12th of this month and granting the application of the local authority for power to restrict or prevent contact between Ms M and her child.  That is a strong order and it was McFarlane LJ who granted permission on reading the appellant's notice and he directed this hearing today. 

2. The father of the newborn is Mr W and he and Ms M have been in a relationship for some time.  He has a very considerable criminal record.  He arrived in the Midlands in November 2011 and there had been some involvement of the local authority and police services in the intervening period.  The impending birth led the local authority to embark upon essential assessments given the troubled history of the family.  They obtained a psychological assessment of both the appellant and Mr W and the opinion on Mr W's assessment was that he suffered from a disordered personality. So in addition to these two psychological reports there was also a social work assessment which was also a record of local authority concern as to the risks that Mr W posed to the unborn child.

3. Particularly there seems to have been an occasion, the date and place of which has not emerged from any reading of the papers, when Mr W threatened seemingly more than one social worker present with his power to assemble a mob which would assist him in kidnapping the baby from local authority care if the local authority moved to remove.  So that led to a meeting on 1 February when a multi-agency plan was developed.  The plan was for immediate removal at birth.

4. The parents were told of that intent on 5 February.  At the beginning of this month the anticipated date of birth was the 18th but in the event the baby was born by caesarean section on 9 February. 

5. The local authority had sought to impose some protective measures in advance of birth.  On the 5 February the hospital delivered a letter to Mr W making plain that he would not be permitted access to the premises.  A similar letter was served on the 7 February, the local authority making the same restriction in relation to their premises. 

6. Proceedings commenced on 11 February when the local authority issued a form C2 seeking an interim care order.  The baby was by then in the home of foster carers, having been removed under a police emergency protection order within an hour of birth.  The form C2 towards its conclusion set out in the narrative the anxieties that the local authority held in respect of Mr W and Ms M, who was seen to be submissive and pliable in his hands.

7. The local authority also issued on the same day a form C14 seeking the authority to refuse contact with a child in care.  The justification for such an order was expressed thus:

"The local authority is of the view that it would also not be safe for the baby to have contact with Ms M as again the risks could not be managed.  Mr W has made it clear that he is not violent or abusive towards Ms M due to her not inciting him.  However, if Ms M was to attend contact at a venue unknown to Mr W this would place both Ms M and the baby at risk of harm Ms M could be pressured by Mr W to disclose the location of the contact or she would refuse.  It is unlikely that Ms M would refuse to inform Mr W due to her Ms M's throat and this would place her in an extremely vulnerable situation.  It would also be likely that either Mr W or another party could follow Ms M to the contact venue.  Ms M's personality profile suggests violence also and she has previously presented as aggressive towards professionals."

8. Those two applications came before HHJ Watson on the following day and she had only an hour in her list to dispose of all disputed issues.  The guardian had only come into the case that morning.  Ms M had only acquired a solicitor to represent her on that day.  Clearly not only had Ms M and her advisers to digest the basis of the local authority's case as set out in the C14 but they also had to digest the content of a 15-page care plan which had also been signed up on 11 February.  Within the care plan the local authority recorded the basis of all their anxieties, saying:

"Multi agency discussions were held surrounding how professionals would ensure the baby's safety once he was born.  This was following continued threats by Mr W that he would have an army of people waiting outside the hospital."

9. Later in the care plan under the section headed 'Contact Arrangements' the local authority set out at some length their concerns in the first paragraph relating to Mr W and in the penultimate paragraph their concerns relating to Ms M. 

10. In the event at the hearing on the 12th the parties were before the court and as I understand it they were represented.  No oral evidence was given but submissions were made by counsel.  That seems to me an inevitable process given that the court had only an hour to devote to the issues. 

11. The application, the major application for an interim care order, was not opposed and the order sought was duly made by the judge so the area of contention reduced to the application for section 34.4 authority.  The judge was at the outset of the hearing extremely concerned at the prospect of denial of contact of the birth mother even over a comparatively brief period before the court could find the time for profounder investigation.  The time span was clear because the court was able to list the case again on 28 February, so the judge was considering only an interim of 16 days.  She gave an indication at the outset, as I have said, that surely the birth mother should have some safeguard in contact, supervised or otherwise protected, during that brief interim, but ultimately she was persuaded against that initial view on fuller consideration of the local authority's anxieties and the foundation of those anxieties. She also explored possible protective measures.  She considered offers made by Mr W, who was prepared to put his own interests behind the interests of Ms M, and she considered alternatives to direct contact such as Skype. 

12. The issue was resolved by an appropriately brief judgment that has not yet been transcribed but it has been made available to us in a very clear note taken by Ms M's solicitor and amended by Mr Allen who was counsel for Mr W.  So we can see clearly the judge setting out the background, noting the pros for some interim contact arrangements, then noting the risks and anxieties and, striking a balance, concluding that she was not satisfied that there were trustworthy arrangements to safeguard the child. She made plain that she would revisit the situation on 28 February. 

13. Ms Meachin, who has this morning made oral submissions in support of the skeleton argument settled by Ms Moseley, says essentially that the judge got the balance wrong.  The risks were not so great, the safeguards offered by Mr W were sufficient and the importance of establishing bonding contact between mother and newborn were underestimated by the judge.  She particularly stressed the severity of the separation mechanism adopted by the local authority, putting the police in within an hour of birth rather than leaving the mother and child in the secure surroundings of the maternity hospital whilst putting their interim care order application before the court.  Mr Allen supports her submissions to the full.  He emphasises that his client's threats were manifestly no more than bluster and that since the restrictions were requested of him prior to the birth he had behaved with complete responsibility, so too in his willingness to take exceptional steps to reassure the local authority that contact between mother and baby could take place.

14. Mr McDonald QC for the local authority predictably but tellingly says that this judge balanced all the proper factors and the decision which she took was well within the bounds of her discretion.  He emphasised that the case had been fully assessed prior to the issue of any proceedings.  There was available to the judge the psychological reports of each and the social worker assessment.  The local authority had been put in the position of acting well before they had expected in the fact that the baby arrived over a week before the anticipated date of delivery.  Mr McDonald is supported in his submission by the guardian, the same guardian who appeared below.  The guardian at both levels has supported the local authority, expressing independent concerns as to the risk to the child posed by Mr W's record and his admitted threats.  Mr Allen has told us today that the father was unable to recall when, where and to whom he made threats, nevertheless is perfectly ready to accept that he did issue such threats, saying that he could muster 200 skinheads to act as his foot soldiers.

15. So I am perfectly clear in my mind that Mr McDonald succeeds in his submission.  The pressure on specialist judges in the county court in family proceedings, and public law proceedings in particular, is very great.  There are emergency situations such as this which do not allow the luxury of adjournment to enable parties to file evidence, to prepare positions statements, a decision has to be taken there and then and it is unthinkable to my mind that this court should interfere where the judge has had regard to the relevant factors.  It would be quite impossible to say that the judge's conclusion was plainly wrong.  She was urged in that direction by the guardian for a start so despite the excellent submissions made by Ms Meachin on behalf of the appellant and equally excellent submissions from Mr Allen for the father, I would simply dismiss this appeal.

Lord Justice Pitchford:
16. I agree.

Lord Justice Kitchin:
17. I also agree.

Order: Appeal dismissed