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Re L (A Child) [2015] EWCA Civ 901

Mother’s appeal against care and placement orders in respect of her child (L) on the basis that the court did not have adequate assessment evidence and the Judge’s findings had been wrong.

The proceedings concerned L, the four-year old daughter of Polish parents. There had been low-level local authority involvement throughout most of L's life due to concerns around inadequate and neglectful parenting. However, in October 2013, L presented with bruising on two separate occasions and was removed into foster care for police protection. The local authority subsequently issued care proceedings.

Due to a number of difficulties, including the mother's unauthorised removal of the child at the start of the proceedings and deficits in the social worker's evidence, final judgment was not handed down until 7 November 2014. HHJ Barnett found that L had suffered pervasive neglect that was at the high end of the spectrum and, as such, the threshold criteria were met.

The mother alone appealed the Judge's decision, but her position was the same as the father's and counsel for the mother explained that he was effectively representing both of them at the hearing. Whilst the parents relied on seven grounds of appeal in their application, the oral submissions made on their behalf centred two areas: the lack of adequate assessment of the parents and the adverse findings of the judge.

Firstly, it was submitted on behalf of the parents that the Judge did not have enough assessment evidence to determine whether they would be able work with the local authority, as well as whether the father could replace the mother as the primary care giver. There were a number of deficits in the local authority social worker's parenting assessment, including an unreliable allegation that the parents had tried to pass another child off as L.

HHJ Barnett granted the father's application for a parenting assessment by an independent social worker; however, the court subsequently found that the independent social worker's report, which recommended rehabilitation with the parents, lacked objectivity and balance. The mother applied for leave to instruct a further expert, but HHJ Barnett refused her application because he considered that it was not necessary to enable the court to resolve the proceedings justly.

Whilst the Court of Appeal acknowledged that there was no formal assessment of the parents vis-à-vis their ability to work with the Local Authority, it held that the Judge had enough evidence before him in the course of the proceedings to conclude that they would be unable to do so, including the mother's removal of the child to Poland after care proceedings had been initiated and the father's persistent lying to the court about the removal. In respect of an assessment of the father's ability to function as the primary care giver, the Court of Appeal found that notwithstanding that it was unclear whether the parents were putting this forward as an option, the Judge at first instance had conducted an analysis and held that this was not a viable option.

Second, the parents challenged the Judge's findings in respect of the child's tooth decay and developmental delay. It was argued on the parents' behalf that there was little evidence that they would have been on notice concerning L's tooth pain prior to the proceedings commencing. Given the extent of the decay, which had developed over a significant period of time, their argument was rejected. Likewise, the Court of Appeal rejected the parents' submission that HHJ Barnett was wrong to rule out an organic cause of L's developmental delay. McFarlane LJ noted that the judge had expert evidence from doctors as to the possible causes of the delay, the state of the home environment, and the significant improvements that the child had made since entering into foster care. As such, the Judge was right to find on a high level of probability that the child's environment caused her developmental delay.

Having considered the above arguments, the Court of Appeal went on to query whether the case fell under the rubric of In the matter of B (A Child) [2013] UKSC 33 in whether or not the court should accommodate diverse standards of parenting in society, which had been the basis on which for permission to appeal was granted. McFarlane LJ re-iterated HHJ Barnett's finding that L had been neglected to a high degree over a significant period of time and that the parents had not only failed to acknowledge this fact, but had also acted dishonestly to avoid the impact of the proceedings.

Summary by Bianca Jackson, barrister, Coram Chambers


Neutral Citation Number: [2015] EWCA Civ 901


Royal Courts of Justice
London, WC2A 2LL

Tuesday, 30 June 2015
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Mr R Hornby (instructed by Humphrys) appeared on behalf of the Applicant
Mr A McGivern
(instructed by Bell Lamb and Johnson) appeared on behalf of L
Ms C Grundy
(instructed by Cheshire West and Chester Council) appeared on behalf of the Local Authority 

Crown copyright©

1. This is an appeal brought by the mother of a 4 year old girl following the conclusion of extensive public law proceedings in the Family Court in Chester. 

2. The girl is L, born on 16 February 2011, and therefore now aged 4 years.  Both of her parents originate from Poland. They formed a relationship in or about 2009, and around that time the mother joined the father here in the United Kingdom, where he had previously established his residence. 

3. The proceedings with respect to L were commenced in October 2013, but they were not concluded until the final judgment given by HHJ Kevin Barnett on 7 November 2014.  It will be necessary in fairly short terms to explain something of the cause of that extensive delay.

4. At the conclusion of the proceedings the judge, having reviewed all of the realistic options of L, concluded that the only course that would meet her welfare needs was for L to be placed in the care of the Local Authority and the Local Authority were also authorised to place her for adoption.  It is against that outcome, those two orders, that the mother now appeals. 

5. There was delay unfortunately in the appeal being lodged. The notice of appeal was not issued until the end of March 2015.  That, I accept, was entirely due to the discovery, after the hearing, that the mother (who is a young woman) had a serious health condition. 

6. I say no more about that.  She is now receiving treatment and we are told that the prognosis is better than it might otherwise have been.  Permission to appeal was granted on paper by Black LJ on 7 May 2015, and this morning we been assisted by the clear submissions of Mr Robert Hornby who has acted for the mother throughout. 

7. The father does not have Legal Aid for this appeal, but his case on the appeal is entirely on all fours with the mother and Mr Hornby explained that he was acting effectively for both of them in this hearing.  We have not, therefore, heard separately from the father. 

8. Having described the context of the appeal, it is necessary to descend to some detail.  In essence, it is a case based upon inadequate and neglectful parenting.  The Local Authority had been involved with the family for some time in a low key manner but the degree of concern felt by the Local Authority (and indeed by the health visitor) escalated in the second half of 2013. 

9. Initially that was because of bruising seen on the side of L's face in June 2013, which the GP examined and at the time he accepted the parents' explanation.  Further bruising was seen at the nursery on 3 October 2013.  Reference was made that day to the Social Services, and a child protection medical examination was undertaken and confirmed that there was indeed bruising.

10. Eight days later on 11 October 2013, once again, the nurse referred the case to Social Services because of a blister seen at the end of one of the child's fingertips.  A further child protection medical examination was undertaken, and in addition to the fingertip blister, two fresh bruises were noted.

11. As a result of those findings and, in particular, the close juxtaposition in terms of time of the two medical examinations, the Social Services concluded that L should not return to her parents' care that day.  She was placed in foster care under arrangements for police protection. 

12. On 14 October two separate events occurred.  First of all, there was a meeting with the Social Services and the parents, at which the father indicated that he and the mother would agree to co operate with assessments, provided L returned home.  The Social Services agreed to that arrangement and L was returned to the parents' care on 14 October.

13. On the same day, however, the Local Authority issued its application for a care order under section 31 of the Children Act 1989.  They asked the court to fix an urgent hearing the following day, 15 October, for an application for an interim care order. 

14. That hearing took place before Judge Barnett who, as I understand it, has been the judge who has had these proceedings before him on every occasion in the procedural history.  But by the time the case was called on, on 15 October, there was no sign of the mother.  The father explained that the mother was back at home.  The court adjourned for a short time so that a check could be made on that information.

15. The police visited.  They found the mother was not there.  The father then said that the mother had gone to a new address.  That address was given.  Again, a check was made and the mother was not there.

16. The father, at a further hearing (all during the same day on 15th October) then told the court that the mother was somewhere in France en route to Poland, and that she was returning home to L's grandparents.  The judge therefore made a recovery order under section 50 of the Children Act.

17. On 18 October, which was a Friday, the court again heard this case.  On that occasion, the father told the judge that the mother and L were now in Poland.  The judge made a passport order in relation to the father's passport to hold him in this jurisdiction. 

18. That order was executed the following day but the father told the police and the tipstaff that he did not have his passport.  They did not accept that explanation.  The father was arrested and held in custody. 

19. On the following Monday morning, the judge did not accept the father's explanation and remanded him in custody until 25 October to consider sentence in relation to his contempt with respect to the passport order.  The remand in custody produced information which led to the father's passport being seized.

20. The judge considered the case again on 28 October.  On that occasion, as his later judgment records, the father gave extensive detailed evidence about the mother's departure from England to Poland with L.  That evidence was given on oath.

21. Because of subsequent developments the judge had no hesitation in holding in his November 2014 judgment that the detailed and elaborate account given by the father was "perjury."

22. In fact, L and the mother were staying with a relative in Halifax.  The relative contacted the authorities and on 3 November 2013, the mother and L were located there.  The father maintained that he was surprised by this turn of events and that he had genuinely thought that the mother had gone to Poland.  Indeed, the father maintained that account, as at June 2014, when he filed a statement with the court in the proceedings.

23. He repeated that this was a genuine belief on his part that the mother had gone to Poland and stated that he did not lie when he gave evidence to the court in October 2013.  As the judge records, it was only on the tenth day of the eleven days of the final hearing that the father filed a further statement and confirmed that all he had previously said had been "lies".

24. That sequence of events led the judge to hold at paragraph 74 of his judgment:

i. "I cannot trust the father: his word, in my judgment, is next to worthless."

25. Now, I have set out the detail of that sequence of events because they were important to the judge in his evaluation, and, as in many cases of this sort where the issue before the court is whether the court and the Local Authority can trust parents, a history of dishonesty, manipulation of information and subterfuge is obviously of some importance.

26. Moving back to the proceedings themselves, the case as I have indicated (and I will come to explain in greater detail) was based upon neglect and lack of stimulation.  It was said that L was significantly delayed in terms of all or nearly all of the areas of her development and that this was as a result of parental inadequacy.  As the judge records, almost (if not all) of the actual allegations made by the Local Authority were challenged and disputed within the proceedings.

27. The judge described the battle lines as being drawn and this morning Mr Hornby has explained to this court that the predominant focus of the whole eleven day hearing was the disputed factual background to the case, and a challenge to the Local Authority assertion that the threshold criteria were satisfied.

28. In addition to the complications generated by the judge's inability to trust the parents, unfortunately there were also substantial grounds for being concerned at the Local Authority case.  In short terms, the Local Authority assessment was inadequate.  The Local Authority had at least in one respect made a false allegation against the parents which despite, as the judge found, the Local Authority solicitor then acting knowing it was unreliable was persisted with to the conclusion of the hearing. There was also evidence that the Local Authority social worker had formed a premature conclusion adverse to the parents; and the Local Authority social worker, on the judge's findings, could not be relied upon even to record the number of contact sessions that she observed.

29. More generally, the context of the case was one which focused on this small family, living at a very low level of financial subsistence.  It was a case where effectively they were living in poverty despite accessing some of the benefits to which they were entitled and despite the father working long hours.

30. The judge's focus, rightly, was on the child, and in his evaluation of the case he stressed that it was important to endeavour to understand what life for L was like in the family home.

31. In undertaking that task, he identified five elements of the overall picture which caused him concern:

32. Firstly, there was evidence of no (or at least very little) stimulation between mother and child: an absence of toys, play things and other paraphernalia of the ordinary stuff of a toddler's daily life.

33. Secondly, there was evidence that the mother in particular failed to exercise any control over L, who would roam freely around the house; and indeed, for example, around the doctor's consulting room when one of the medical examinations was undertaken.

34. Thirdly, there was evidence of L's "passivity" and how for example, as the foster carer described it, if she had the option to sit down at any time she would take that option and simply go and sit.

35. Fourthly, the environment itself in the home was seen to lack ordinary stimulation.  I have already made reference to the absence of toys. 

36. The final element of the overall picture as the judge found it to be was the neglect of L's health needs.  In this regard, in particular, there was quite striking evidence as to a lack of proper dental care.  The judge describes it in some detail.  The child's teeth on reception into care were described as "black and rotten."  She was referred to a dentist and then, in November 2013, to a lead clinician in paediatric dentistry.  She was at that time described as being "in pain."

37. That lead clinician found that four of L's front upper teeth were decayed to gum level with decay also present in two of her back upper teeth.  It was a matter that escalated so that by late December the child was seen as being in the words of the guardian in "extreme pain" and "clawing" at her jaw. 

38. It was therefore necessary to consider treatment.  The recommendation was that six of her teeth (and these are obviously baby teeth) needed to be extracted but the parents did not consent to that.

39. Now although those events (a discovery of the extent of the decay) post dated the reception into care, it is plain from the judge's findings that he regarded the development of dental decay as being sufficient to support separately a finding that L had suffered significant harm in that respect.

40. Looking at the overall picture that I have described, the judge says this:

i. "(88) I completely reject the assertion that the neglect was: 'Not at the high end of the spectrum.'  In my judgment bringing all the elements together produces a clear image: this was a case of pervasive neglect."

41. That finding by the judge (effectively that this was neglect towards the high end of the spectrum and was pervasive) is one that he relied upon when subsequently holding that the threshold criteria were met and, more importantly, in determining the outcome of the welfare evaluation. 

42. So far as developmental delay is concerned, the judge had evidence: it was evidence that came in terms of an overall summary in the report of a paediatrician, Dr Du Bois, who had seen L on three occasions, once not within the proceedings, and twice within the court process.  There was also evidence from a second paediatrician who gave expert evidence in the case.

43. The judge reproduces at paragraph 107 a table prepared by counsel for the Local Authority, which takes each of the various component parts that are evaluated for the purposes of assessing developmental delay and indicates that in relation to three of them, "hearing and language", "speech and language", and "social development" that at the age of 33 months, on reception into care, L was some 21 months behind.  Slightly less striking but nonetheless of note was her performance in relation to "manipulative" and, separately, "visual skills" which were some 15 months behind.

44. In the final assessment of Dr Du Bois, conducted 8 months later, the figures had improved.  So far as social development, L had caught up to the age appropriate level.  So far as speech and language was concerned, she was 16 months behind.  So far as hearing and language, she was now only 10 months behind.  So far as visual acuity, she had gone to being ahead of her age by 8 months, and manipulative skills had dropped from being 15 months behind to only 4 months behind.

45. The judge's finding in the light of this evidence is recorded in his judgment:

i. "(111)  Both Mr Hornby and Mr Povoas devoted considerable space within their Closing Submissions to this issue.  However, I have no hesitation in finding that:

ii. "a) L was significantly developmentally delayed when taken into care and there has been a significant improvement since she has been in foster care.

iii. b) The cause of the delay was neglect and lack of stimulation.  Indeed given the neglect I have previously described with so little communication between L and the Mother it would perhaps be surprising if she had not been developmentally delayed."

46. The court understands from Mr Hornby that in his submissions made he drew attention to the report of Dr Du Bois in February 2014, in which, having recorded the extent of the delay, that expert was questioning whether at that stage there was an organic cause for the child's poor performance.  The submissions therefore made to the judge it seems to me were on that point and the judge rejects them.

47. So far as the bruising and blistering injuries in June and October were concerned, the judge takes considerable time in his judgment to evaluate each of these and in particular to look at the accounts given by the parents. 

48. It is fair to say that largely he accepts the parents' account: either for a slip, a fall, an accident that occurred to the child, or a simple inability to offer an explanation.  The judge accepts that account.  So far as the bruising is concerned, he holds the following:

i. "(123) In summary, I find that none of the injuries L suffered was deliberately inflicted.  However, I am entirely satisfied that L suffered significant harm in the form of a burn, bruising to her chest, bruising to her arm and a fluctuant haematoma to he right temple as a result of inadequate supervision.  The very fact that she suffered three sets of injuries over such a short period speaks, in my judgment, to the lack of supervision which, in turn, was a product or manifestation of the neglect previously described."

49. Each episode of bruising recorded in June, and the two occasions in October and the blistering to the finger are held by the judge to be the result of inadequate supervision by the parents.

50. In the light of all those findings, the judge expressed himself entirely satisfied that the threshold criteria were met, and he says this:

i. "(112) I have already found that L's care whilst living with her parents was neglectfully(sic).  The neglect was pervasive affecting many areas of L's life and development.  As a result L suffered significant harm in the form, firstly, of significant developmental delay and secondly, tooth decay with the associated problems I have already described."

51. There we have the judge's finding that this was pervasive neglect.  He had found that, in addition to the physical aspects, the teeth, the bruising, more worryingly, as I would read it, there was significant developmental delay caused by neglect and lack of stimulation, as I have already recorded at the text of his paragraph 111.

52. The judge then moved on to consider the welfare outcome for L.  He did so, having reminded himself of the legal context within which his decision fell to be taken.  In my view, this was an impeccable self direction by the judge on the law and Mr Hornby takes no point in relation to it.

53. The judge listed six realistic options for L, starting with a return home to her parents' care, which is the outcome that the parents argued for; moving through alternative placements with relatives, either in this jurisdiction or in Poland, and ending up with the Local Authority case for adoption.

54. Unfortunately, the judge was not assisted by high quality assessment evidence in the proceedings.  The social worker in the case had filed a parenting assessment on 4 April 2014.  As the judge came to hold, that was an inadequate professional process for three basic reasons:

55. First of all, the social worker in compiling the report had simply extracted, by cut and paste, passages from a family support worker's report as to contact.  That report had been filed by the family support worker in March 2014, and it was largely negative.  However, the same family support worker had filed an earlier report in January 2014, which had been largely positive. 

56. The support worker gave evidence before the judge and accepted that the material that she was relying upon in compiling the two reports was effectively the same: there had not been a deterioration between January and March, and she had simply been selective in only recording negative matters in the March report; and that the social worker, in turn, had been selective by ignoring the positive and accentuating the negative in her extracting of that material.

57. Secondly, the parenting report on this child included a section to do with a totally different child: that the social worker simply had either cut and paste into the report, or had left from an earlier template used in a different case.  The judge agreed with the guardian that that practice fell well short of good professional standards.  

58. Thirdly, by the time the social worker gave evidence, the court had notes from the file of the housing officer dealing with this family, which recorded the social worker on two occasions early in the process, before the parenting report had been undertaken, stating that the Social Services had concluded that the child would not be going home to the parents.

59. A further difficulty in the case was that the Social Services asserted that on one visit to the housing officer after the proceedings had started, and at a time when L was living in foster care, her parents had sought to pass off a different child as theirs and say that that child was living with them.

60. The judge heard evidence of this and found not only that the allegation was not substantiated but, more importantly, that the housing officer had never suggested that the parents were trying to pass off a different child: there simply were a number of families in the waiting room and he was not clear when he first met the parents whether one or other of the children in the waiting room was with them.

61. The Local Authority, upon the judge's finding, persisted with that allegation notwithstanding that the Local Authority solicitor then acting (who had notice of what the housing officer was going to say some weeks before the allegation) eventually accepted that the allegation was not reliable. 

62. The final matter of concern was that the social worker asserted that she had been present at some four or five of the contact sessions and yet there was no record of her being present on more than one.  The parents said that she had only been there on one occasion; and in relation to one of the contacts at which the social worker asserted being present, the guardian was there for part of the visit and confirmed that the social worker was not present.  So the ordinary expectation of a Family Court judge of being able to rely generally upon the bona fides and professionalism of the social worker was lacking in this case.

63. Wisely, as it turned out, and at a time when the deficits in the social worker's parenting assessment were not as apparent as they are now, the judge granted the father's application of the 16 April 2014 to instruct an independent social worker to undertake a parenting assessment.  Unfortunately, that report was also found by the judge to be unreliable.  He held that it lacked objectivity and balance and that the author was almost "an apologist" for the parents. 

64. The recommendation of the independent social worker report was that L should be rehabilitated to her parents' care.  In evidence, the author of the report apparently held on to that recommendation on the basis that it would hold whatever the court's findings as to past parental inadequacy might be.  The judge concluded that that report was unsatisfactory and Mr Hornby does not suggest otherwise in the course of the appeal mounted before us today.

65. The question therefore arose as to whether there should be yet a further parenting assessment.  Mother applied for leave to instruct a further expert.  The judge adjourned that until the conclusion of the hearing but in his judgment he refused that application. 

66. He did so, having explained the test which is now well known, that he would only be able to grant the instruction of a further expert if to do so was necessary to enable the court to resolve the proceedings justly.  Having reviewed the evidence, he concluded that it was not, and he said this:

i. "(170) I have naturally considered the application for a further assessment with care.  I hold to the view that decisions in respect of children should be taken on the basis of the best evidence.  However, my conclusion is clear: bearing in mind the totality of the evidence available to me a further assessment is not necessary.  I have more than sufficient evidence available to me to enable me to evaluate the welfare issues and the options available for L's future."

67. That conclusion is attacked by Mr Hornby in the course of the appeal that we heard today.

68. Moving on, the judge looked extensively at the option of L returning to the parents' care.  In doing so, he opened up his consideration of this part of the analysis by stressing that the findings that he had made about the threshold criteria were "of considerable importance", as were the findings of the parents' honesty.

69. In the course of his review of the material, he drew a distinction between the aptitude of each of the two parents.  That was a distinction which he found arose from the evidence and again is not significantly challenged in the context of the appeal. 

70. One finding the judge made was that the parents had some basic knowledge of parenting skills, albeit that they had not deployed that knowledge in action in all of the care that they had provided to L.

71. The second was that the father presented as a parent who was far more natural and confident around his daughter than the mother was, and that when the two parents were together with L, L appeared naturally to gravitate towards her father rather than her mother.

72. The judge accepted the description of the guardian which was that the father is:

i. "Very intuitive: he has insight and a good ability to develop rapport (with L) and that the same could not be said for the mother."

73. The judge then deals at paragraph 174 with the possibility that the child care arrangements might change and that the father would become the primary carer if rehabilitation took place.

74. The judge with respect to that suggestion says this:

i. "I confess to being unsure how strongly the parents pursue that idea."

75. But the judge considers it.  He concluded that the arrangement would be "unworkable", partly because of the father's pride in his work record and the priority that he put upon his ability to provide for the family by hard work.  This led the judge to observe that this switching of parental roles would "completely cut across the cultural grain".

76. Further, the judge accepted the summary offered by the guardian of the parents' respective parenting abilities which was, in one short sentence: "She can't; he can, but doesn't."

77. Then, the rhetorical question: "Why on earth didn't he do it?'"

78. The judge concluded that the father had "conspicuously failed to intervene in the past".  On that basis, the judge did not uphold the option of the father becoming the primary carer as being a realistic outcome for the case.

79. The judge was concerned further about the risk of flight if the child were returned to the parents' care.  His observations in that regard were plainly grounded upon what had actually happened in the 12 hours or so, that L in fact had been returned to the parents' care on 14 October 2013 and upon the overall lack of honesty on the part of the parents. 

80. The judge concluded that there was no ability for the court to rely upon the parents working openly and honestly with the Local Authority and he concluded separately that they would not co operate with the Local Authority unless they perceived that things were working well in their favour.

81. Finally in this regard, looking at the factors with respect to rehabilitation, the judge was plainly struck by the evidence which indicated that there was a lack of an attachment between the mother and L.  The evidence was that the father had an attachment with L (but that aspects of it were insecure) but that the mother did not. 

82. What is of note about that evidence (and that finding by the judge because he accepted it) is that of course the mother was the primary carer during the years that L lived in the family before her removal, whereas the father was out of the house for much of the day.

83. The judge moved on to look at the other options, each of which were not pursued and Mr Hornby does not suggest should have been pursued, before coming to look at adoption and conducting the overall welfare balance and making the ultimate choice between rehabilitation and adoption. 

84. Again, the judge did that having reminded himself correctly of the legal context and his conclusion is expressed in these terms:

i. "(219) In my judgment the evidence is clear: L cannot safely be returned to the care of her parents.  Although, as I have previously identified, there would be very real positives from such a scheme those matters do not outweigh the risks, which cannot be properly or adequately managed, should L return to live with her parents.  That would be so even if it were to be assumed that there was proper and secure attachment between L and her parents.  Regretfully, L cannot go home."

85. So it was on that basis that the judge made the order.

86. On behalf of the parents, Mr Hornby relies upon seven grounds of appeal.  In short terms, they are as follows:

87. Firstly, looking at the case generally, that the judge failed to have adequate regard to the impact of the adverse behaviour of the Local Authority upon the evidence in the case and upon the parents' reaction to the Local Authority's stance.

88. Secondly, the judge failed to take proper regard of the context of abject poverty in which the family lived. 

89. Thirdly, that the judge did not take into account the significant number of positives about this couple and their potential to care for their child.

90. Drilling down to more specific points, the second ground of appeal relates to developmental delay.  Mr Hornby submits that the evidence about the developmental delay was inadequate; that it partly came from the GP's short contact with L during the child protection medicals, which themselves were conducted in less than benign circumstances with the child roaming free in the surgery. 

91. Secondly, based upon accounts given by the foster carer rather than direct clinical observation by Dr Du Bois, again, in the context of developmental delay, Mr Hornby submits that the judge put too much emphasis upon the alleged improvement once the child had been moved to foster care. 

92. The third ground of appeal relates to the judge's finding that the parents could not work effectively with the Local Authority.  Again, reference is rightly made there to the Local Authority's behaviour and the impact that had on that aspect of the case. 

93. The submission is made that the judge failed to take into account evidence of how the parents did get on with other professionals.  For example, the support workers and those professionals who had been involved with the family before the crises that took place in October 2013.

94. Fourthly, in relation to future harm, Mr Hornby submits that the judge really failed to identify what led him to conclude that there would be future harm to L were she to be returned to her parents' care.  Again, he is critical of the judge's dismissal in short terms of the proposal that the father would be the primary carer.

95. Fifthly, criticism was made of the judge's conclusion as to the risk of flight. 

96. Sixthly, Mr Hornby submits that the court should have looked at other long term alternative care arrangements.  For example, long term foster care, which would have kept the cultural aspect of the case prominent with some continuing relationship between L and her parents.

97. Seventhly, with respect to the judge's refusal to adjourn for a further assessment, the submission is made that, without such an assessment, it was impossible for the judge to hold that "nothing else will do" before concluding that adoption was in L's best interests.

98. This morning, Mr Hornby has carefully focused his submissions on two areas.  The first concerns the lack of adequate assessment evidence and the second relates to findings.

99. So far as assessments are concerned, the basis of the case for the parents is made out by the judge's findings. Most unfortunately, neither of the two assessments provided to the court were reliable or adequate.

100. Mr Hornby therefore submits that there was no proper analysis, firstly of whether the parents would work with the Local Authority and, secondly, whether the father could be the primary carer in the place of the mother.

101. He submits that when one is looking at the drastic step of moving a child who has lived for 3 years in parental care to adoption, the evidence simply was not good enough for such a decision to be taken.  He is also critical of that the judge seemingly took a point as to the Polish cultural and racial origin of the parents and adopted a stereotypical view of the father's ability give up his priority as being the breadwinner of the family.

102. In relation to those submissions, Mr Hornby has to accept that before the court could grant a further assessment that the judge had to be satisfied that to do so was necessary to resolve the case justly.  Mr Hornby also accepts that much of the proceedings were not focused on this aspect of the case but on whether or not the threshold criteria were proved.

103. In relation to the two points that he makes, first of all the parents' ability work with the Local Authority, as I have demonstrated in the summary of the judge's judgment, the judge did have evidence as to the parents' ability to work with the Local Authority, albeit that it did not come in the form of a formal assessment. 

104. He had been exposed to these parents for eleven days of the final hearing.  A battle royal had been conducted with the parents disputing each and every element of the case against them.  The parents were disputing that the threshold criteria were established.  There was no indication of acceptance on the part of the parents of the Local Authority case.

105. The judge also heard the evidence of the disappearance of the mother with L and the dogged and entrenched dishonesty of the father in persistently lying to the court about that. 

106. That evidence was important.  It laid the ground, unfortunately for the parents, for the unfavourable conclusion that the judge reached but it was evidence in the case and it is difficult to understand what further information about the parents' ability to work with the Local Authority could be gleaned if a further independent social worker was brought in for a six week assessment. 

107. The proof of the pudding, as it were, was in the eating and the judge had ample evidence of how the parents had behaved in the past and during the hearing in the way that they approached the issues in the case.

108. It is correct that the judge does not rehearse earlier evidence of better working relationships that the parents had with support workers before the proceedings started, but an awful lot of water had gone under the bridge by the time in November 2014 the judge was considering these matters.  In my view, the judge was entirely justified on the evidence before him in concluding that the parents could not work with the Local Authority in a way that would meet L's needs.

109. The second aspect of assessment that Mr Hornby submits was lacking related to whether the father could be a primary carer.  In this regard, I take particular note of the fact that this highly experienced and astute Family Judge expressed himself as to be unsure of how strongly the parents pursued that idea. 

110. We have not seen the written closing submissions filed on behalf of the parties.  It was not a point that Mr Hornby says was part of the mother's case, it was part of the father's case. 

111. Be that as it may, the judge does conduct an analysis of that aspect and he comes to the conclusions that I have described.  For this court to conclude that the judge was so in error in coming to that finding, or was not justified in coming to it, the evidence would have to be striking and strong.  It is not. 

112. The judge was well used to these parents and had seen them at what seems to me to be something approaching of a dozen hearings before the final hearing and formed his own view as to whether this was a viable option and he concluded that it was not.  He was the judge at court with the ability to conduct that assessment and it seems to me nothing that I have read or heard on behalf of the appellants indicates that he was wrong in that.

113. But, stepping back from that detail and stepping back from the two points that Mr Hornby makes, it is important not to lose sight of the full picture here.  It was the "picture", and that is the judge's word, that he described by highlighting the five aspects of life, so far as L would have experienced it, that were lacking.  It is a picture of pervasive and significant developmental delay as a result of poor parental care over a sustained period. 

114. The father had been part of the family but for whatever reason had chosen not to intervene in what was occuring during the period prior to proceedings being taken. 

115. The overall picture went further than that.  There was a risk of flight here.  There was clear evidence of that, and therefore any contemplation of rehabilitation had to accept that as a risk that had either to be neutralised or protected against.

116. In the end, the decision whether or not to instruct a further expert was a case management decision for the judge to take.  This court will be reluctant to interfere with such a category of decision unless there are clear grounds for doing so.

117. The judge was hearing a case which had already taken over a year to reach a conclusion.  To contemplate yet a further adjournment, unless it was indeed established to be necessary to adjourn, was something that he would have been keen, and rightly keen, to avoid.

118. That area of the case (and in my view Mr Hornby is right to put this question of further assessment right at the top of his agenda) is not one that I am persuaded causes me concern about the judge's approach, and does not, in my mind, succeed as a ground of appeal.

119. The second aspect Mr Hornby has taken us to this morning is to look to challenge areas of the judge's findings, first of all in relation to the tooth decay.  I am bound to say that I found Mr Hornby's submissions of this point surprising. 

120. The kernel of them was that there seemed to be little evidence that the parents would have been on notice in terms of discomfort displayed by the child before proceedings were taken; that the child protection medical did not identify problems with her teeth; that the health visitor had not identified problems with her teeth; and that these were only brought to any prominence once the guardian became involved and the child was in hospital.

121. Be that as it may, it is plain and obviously accepted by Mr Hornby that a child's teeth cannot get to the state of decay that L's were found to be in, in a matter of a day, a week or a month.  This was an established state of affairs developing over a significant period. 

122. Although the grounds of appeal suggest that the judge did not make findings in relation to tooth decay, in my view, he did.  They were expressly spelled out as a separate element in the threshold finding under section 31 establishing significant harm caused by neglect.  Therefore, it seems to me unarguable that the judge was entitled to make those findings and they are not open to challenge on appeal.

123. Secondly, separately, Mr Hornby takes us to the findings in relation to developmental delay.  His submission here is that the judge was wrong to rule out an organic cause as opposed to an environmental cause.  Again, in this regard, it seems to me that the judge was entirely justified in those conclusions. 

124. The judge not only had evidence from the doctors to the possible causes for a child to be delayed in her development to this degree, but he had evidence of the home environment.  He had evidence about the lack of stimulation, about the lack of attachment between the mother and child; and also, obviously depressingly, he had the evidence of overall neglect and lack of supervision. 

125. The two go together: the environment in which the child was living was well established on the judge's findings and the degree of developmental delay was recorded in the assessments.

126. It seems to me that the judge was able to find on a high level of probability that the one caused the other, that the child's degree of delay was caused by lack of adequate parenting and to submit that the judge was wrong to come to that conclusion again, in my view, is not arguable.

127. Although Mr Hornby did not rehearse any of the other grounds of appeal in his oral submissions, in the course of making those submissions he effectively drew the case together. 

128. Having looked carefully at all of the matters raised, and in particular, having regard to the reasons shortly given by Black LJ for granting permission to appeal which, in summary, were to question whether this case was similar to the case of In the matter of B (A Child) [2013] UKSC 33 in whether or not the approach of the court should accommodate diverse standards of parenting in society, I am satisfied that none of the grounds of appeal are such as to cause me concern as to the judge's approach.  This was not a case where the court was choosing between one or more tolerable, acceptable, adequate, good enough models of parenting. 

129. On the judge's findings the parenting that had been provided to this young girl by these parents had fallen very far short of being safe.  She was being neglected to a high degree over a substantial period of time.  The evidence was there and the judge relied upon it.

130. If the parents had approached the case in a way that accepted that they had problems; accepted that they needed help; accepted that their parenting had fallen short and if they had been in that frame of mind from the beginning the outcome may have been different.  But faced with findings of that level and with parents who had avoided the impact of the proceedings at the start of the case, who had been dishonest to a high degree, and who had challenged the Local Authority's assertions at every turn it seems to me that the judge had little alternative but to come to the conclusion that he did. 

131. So for all of those reasons that I have variously given, I am afraid I am very clear that this appeal must be dismissed.


133. LORD JUSTICE KITCHIN:  I also agree.