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R-B (A Child) [2019] EWCA Civ 1560

Successful appeal against care and placement orders made at an IRH as the judge made inappropriate comments which caused the mother to change her position and because the judge failed to give a proper, fully-reasoned judgment.

This was an appeal against care and placement orders made in respect of J, who was nearly 4 months old at the time. The appeal was brought by his mother, S, who had been only 16 years old when she gave birth to J.

S and her siblings had been categorised as children in need and also the subject of child protection plans under the category of neglect. In light of these concerns, the local authority made J the subject of a child protection plan during S's pregnancy and issued care proceedings when he was a few days old. At the first hearing, an interim care order was made on the basis of a plan that provided for S and J to be accommodated together in a mother and baby foster placement while assessments were carried out of S's capacity to care for J.

S and J moved placements on four occasions. Two of the moves were apparently necessary as the carers had pre-booked holidays and the other two were apparently because S said she was unhappy in the home. In the course of those placements, various concerns were raised about the quality of care which S was providing to J. There was also a concern about S taking J to the family home and exposing him to the risk of harm there and allegations that on a number of occasions she had left J in the care of the foster carer for several hours, contrary to the arrangements set out in the care plan. As a result of those concerns, the local authority imposed a further restriction that S would not have unsupervised contact with J.

There was a PAMS assessment of S which concluded that, despite the support she had received in the placements, she had failed to demonstrate that she had the capacity to care for J or to prioritise his needs. The local authority concluded that J should be placed for adoption and filed a care plan in these terms with an application for a placement order. The care plan for J was supported by the children's guardian.

There was a psychological assessment of S which concluded that her full-scale IQ was within borderline range. She was said to have the immaturity and inexperience of many girls of her age from deprived backgrounds. She was assessed as having the capacity to conduct proceedings and to give instructions, although the psychologist expressed a degree of caution about this, observing that

"provided her solicitor is suitably experienced in and mindful of these considerations, and provided matters are discussed patiently and in simple terms, [S] should be able to provide appropriate instructions".

The matter was listed for an IRH. In the position statement filed on S's behalf before the hearing, it was set out that she was opposed to the local authority's plan. She accepted some of the allegations relied on in support of the argument that threshold under section 31 was crossed and denied others. The main point that was raised was the fact that she and J had moved foster placements on four previous occasions, which was clearly not conducive to her learning. However, she said that she had been a lot more settled in the current placement, where she had been getting on really well with her carer.

The IRH came before HHJ Black. The following exchanges took place as set out in the appeal judgment:

7. …After the introduction, the judge addressed the mother's counsel. She referred to the mother's very young age and cognitive difficulties and to the fact that she had moved foster placements on several occasions. The judge expressed concern about the PAMS assessment and the concerns identified by the local authority. She said that:

"The PAMS assessment was really important, because that was really to reinforce all the teaching and to get your client, because she is a young parent and because she has got her own learning difficulties, to make sure that she really did give and was given the best opportunity to learn more than anything else."

The judge added:

"And that is the difficulty you have. That was your chance, really, and it does not seem to have been used in the way that I was expecting it to be."

8. Counsel then addressed the concern raised by the local authority about S absenting herself from the foster home and said that S had found it difficult when J had not been allowed to stay in her room after the restriction on unsupervised contact had been imposed. To this the judge responded:

"Yes, but it is a vicious circle, really, isn't it, because these extra restrictions were put in place because of the worries that social services had. But you should still be there caring for your child, even with those restrictions in place. If you're not, what is the point of you being there? That seems to be your client's view, in that she is not there. In fact, what I see more is your client almost having to come to terms with the fact of the reality of the situation and just waiting for a decision to be made, because her actions are not showing to me someone who is wanting to roll up her sleeves and say, 'Well, stuff the social workers, I can prove that I can do this'. It is quite the reverse."

9. A little later in the transcript the following exchange took place:

"JUDGE: She's had four months. It's a long time. What are you suggesting I do?
COUNSEL: Well, mother wishes to put her case forward.
JUDGE: Yes, but what does she want me to do with J? Where is she thinking this is all going?
COUNSEL: She wishes to be afforded a further opportunity to demonstrate that she can bridge the gap between what the PAMS assessment is saying, the understandable concerns that have generated from that, and her ability to meet his needs.
JUDGE: Yes, but your client knows she's got 26 weeks to do this in. There is no reason to go outside 26 weeks. She has four months now in a mother-and-baby foster placement. How much longer are you thinking I should give her?
COUNSEL: I would suggest another two months to be able to demonstrate a level of stability.
JUDGE: I can't. That's over six months, isn't it?"

10. There followed a discussion as to the precise length of the proceedings and when precisely the statutory 26 weeks would expire. The exchange between the judge and S's counsel then continued as follows:

"COUNSEL: I explained to mum of course the view the court would be giving today, and of course she may need to reflect upon that, but her primary position is she wants to be able to demonstrate either through the course of having the further two months or through the course of her giving evidence, perhaps to test her.
JUDGE: But what does she then expect the court to do? Where would she go, and what would happen with her and her baby?
COUNSEL: Of course, she is 16, so the opportunities could be for her potentially, if deemed safe, and of course the local authority could say it would be assumed safe, to go to her parents' home.
JUDGE: Can I tell you, I have read the section 37 report. I have read an awful lot of those reports as final statements in care proceedings. I can tell you now, the one place that your client will never go with that baby is to the family home, okay? You can rule that out absolutely one hundred per cent. I'm on the cusp of thinking that those children shouldn't be living there, okay?
COUNSEL: Then the alternative course is that she can be accommodated voluntarily by the local authority given she is 16, of course, and they will accommodate her and [J] together. So that's the --
JUDGE: Well, given the level of restrictions on her being able to care, she is way, way off anyone having the confidence of giving her 24/7 care of this baby. I just can't us getting to a point in a month's time or two months' time or three or four or five months' time, given what I have read, of thinking that I'd have the confidence of her being somewhere on her own with this baby 24 hours a day, seven days a week, and if I can't see that, I've got to see what the outcome is, which is why … it seems to me to be the reality of the situation.
COUNSEL: Your Honour, I have advanced the mother's position.
JUDGE: What I would like you to do, please, Mr Hughes, is to go outside and just talk to her about it. I think she's probably done her best. I think she has probably done what she can to be able to show to everyone, but I need to have someone who is going to be able to do that every day, every moment of every day, and not just on occasions, because that is what being a parent is about. I wouldn't have wanted to think about being a parent when I was 16, and most of us in court wouldn't want to be doing that. So I recognise it is really difficult, and the rules that we expect for a parent are possibly quite unfair, but that is what this child needs. So, if you want to be a parent, however old you are, those are the rules that you are going to have to be able to comply with, and they're just basic.
COUNSEL: If I could just have some time outside to --
JUDGE: Yes, okay."

11. The hearing was then adjourned and resumed 29 minutes later. S's counsel indicated that his client wished to be excused for the rest of the hearing. There followed this exchange between counsel and the judge:

"COUNSEL: We had a conversation. Of course, given her cognitive functioning and her age --
JUDGE: I think that's probably the only concern that I have as to whether, if you like, it's appropriate to deal with today, so I will be interested to hear your views about that.
COUNSEL: I oscillated between being quite concerned but ultimately satisfied that the instructions she has given me that she understands my breakdown of your assessment of the case and she understands the advice that I have given her, she understands the options open to her, and I made it clear to her that it will be for her to try to persuade yourself or another judge, if she had the opportunity to care for [J], that the way to persuade will be via means potentially of a final hearing being listed with evidence being given, and she understood what that meant. I explained to her and she understood and appreciated your Honour's comments about her trying her best for [J]. I think she has tried her best for J.
COUNSEL: She says to me that she loves him dearly …
JUDGE: Yes, I'm sure she does.
COUNSEL: … that she would desperately want to care for him. She understands the window with which decisions need to be made for him, and she understood and recognised that there was a long period for her to have demonstrated changes in parenting but the case may potentially have ended up different, but, of course, given the fact that we are where we are, we're four months down the line. She acknowledges that she is not in a position to care for him today. She understands that, and she recognises she is not in a position to demonstrate change in the time afforded. So I went round several times explaining the options to her and the potential decisions. I felt she understood what was being said and the options before her, and I have asked her several times what the outcome would be if she doesn't oppose the making of orders, and she understood the outcome, that the outcome would be of course [J] being placed for adoption. She recognised that. So, on that basis, she tells me, she does not oppose not consent to the making of the order sought, and of course I would seek perhaps the usual recital in the order --
JUDGE: Yes, of course.
COUNSEL: -- as to her decision.
JUDGE: I am very happy for you to put whatever you want. She's obviously filed a position statement today, so she's seen her solicitor."

12. The judge then asked counsel whether the mother had had similar conversations with her solicitor, to which counsel replied that they had taken place. Counsel then continued with this observation:

"I have to be honest. When I was talking with her, like I said, I was oscillating between how much she was understanding. It may well have been the way I was describing things, so I changed and then came back at it from different angles. But I was satisfied at the end of that conversation that she understood the decisions being made and indeed the advice being given, the possible options to her, and I am satisfied that she gave me sensible instructions on the back of that."

13. The father's counsel then indicated that her client would support whatever S wanted to do. The judge then asked of the guardian's legal representative if the guardian felt that the process was right for her to make the orders today. The local authority indicated that they were content to amend the threshold document on the basis of the mother's admissions, and the judge said that she would find the threshold proved on the basis of that document.

14. The judge then gave a judgment. It is very short and, in fairness to all sides, I propose to recite it in its entirety:

"1. I made a lot of comments about this case before, and I am not going to repeat those. I know everyone took a careful note of them. I recognise both parents have made incredibly difficult childhood decisions and, as I have said, very adult decisions for parents who are so young, and I understand how difficult that has been for them to make.

2. My main concern, I have to say, having heard the change of position of the mother, was whether or not, given her age and her cognitive abilities, it was appropriate still to make final orders today. But I have been reassured by the fact that I know that the guardian (and she deals with it in her position statement) has been to see her and discuss the case with her, so she was aware of the guardian's position, aware of, if you like, what was probably the reality of the case; and knowing the solicitor who instructs and the fact that a position statement was served and advice and support would have been given to her in preparation of that; and knowing Mr Hughes as I do, and he has given a detailed account to the court of the process that he has gone through today and that he is satisfied that this is a decision that she has made and that she understands the decision she has made and what the impact of that will be.

3. Therefore, on balance, I am satisfied that it is appropriate and I can deal with this case by making final orders today. It is obvious from that I have said that I really could not see a way in which this mother could care for her son given the evidence against her.

4. So I make the care order sought by the local authority, I dispense with the consent of the parents, and the child's welfare requires it, and I make the placement order sought. I am content for appropriate recitals to go in to record the love and the care that both parents have for their child and their expressions of wishing that there could have been a different outcome."

The whole hearing lasted only 55 minutes and this included the time allowed for discussions between S and her counsel.

Some months later (for reasons explained in the judgment), S made an application to appeal the decision.  The local authority had already placed J with prospective adopters. S was granted permission to appeal and argued that:

1. The judge did not provide adequate reasons for the making of a care and placement order, thereby failing to comply with the requirements of the statutory framework and case law.

2. The appellant neither consented to nor opposed the making of care and placement orders, which the court regarded as consent and, as a result, there was no contested hearing.

3. The judge placed unreasonable pressure on S to change her position and denied her the opportunity of a contested final hearing.

The court, after carefully considering the well-known law relating to placement order applications, concluded that the judge had crossed the line between robust case management and unfairness. The court determined that the judge came into court with a clear view of the merits of the case and she indicated, in the clearest possible terms, that she did not think that S had a chance of keeping J. She then told S's counsel that she would like him to go outside and talk to S about it.

The court considered that the judge was not merely indicating the likely outcome of a contested hearing, but indicating that she had reached a firm conclusion and that this was plainly going too far, particularly given S's young age and cognitive limitations. To do this, was to place undue pressure on S and in the circumstances, it was hardly surprising that S changed her instructions during her brief conversation with counsel and then declined to remain in court. Further, S's counsel's comments that he had "oscillated" as to whether S understood things should have alerted the judge and everyone else in court as to the dangers of concluding the proceedings.

The appeal was allowed on the third ground; it was inappropriate for the court to make any final order at that case management hearing given the significant issue between the parties. Lord Justice Baker stated:

"In my view, the change in the mother's position only came about because of the inappropriate comments made by the judge. In the alternative it was incumbent on the judge to give a proper, fully-reasoned judgment. In this case, the judge conspicuously failed to do so. The judgment in truth does not contain or purport to contain any analysis of the reasons why the order was made. It is rather merely a recapitulation of what had happened at the hearing. The deficiencies in the judgment are to my mind on a scale that could not possibly be corrected by seeking further reasons, as suggested by Ms Hambleton, nor excused by reliance on the dicta of Lord Hoffmann in Piglowska."

It was held that the applications for care and placement orders must be reheard by another judge and the matter was relisted to be heard within seven days before Roberts J, the Family Division Liaison Judge for the Western Circuit, with appropriate case management directions.

Finally, the court warned S that "she still faces the very formidable difficulties in recovering the care of her baby son. He has been living with the prospective adopters for six months and is, we have been told, well settled with them. There has been no contact between S and J for several months. It may well be that a rehearing of these applications leads to the same result, namely the making of care and placement orders" but added that the law is clear that such orders can only be made after due process, a principle that was manifestly infringed in this case.

Summary by Sophie Smith-Holland, barrister, St. Johns Chambers.
You can read the full judgment of R-B (A CHILD) [2019] EWCA Civ 1560 on BAILII