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O (A Child) [2009] EWCA Civ 876

Application by two prospective carers for permission to appeal, with appeal to follow, a local authority’s viability assessment. Application allowed but appeal dismissed.

The prospective carers were the child’s maternal aunt and her partner: they were already successfully looking after the child’s brother. The viability assessment concluded that the couple could not look after both children. They wished to challenge that conclusion but did not have public funding so in the original hearing, once they had been made party to the proceedings, they were acting as litigants in person but with some help from counsel for the mother who remained in court. It was the possibility of procedural unfairness arising from the lack of funding that prompted Ward LJ to allow this Court of Appeal hearing.

In this judgment, all three Court of Appeal judges contributed and each one found that the lack of public funding for the appellants was troubling. However they could not conclude that any procedural unfairness was caused by this, or any other grounds, so the appeal was dismissed.

Case No: B4/2008/2497
Neutral Citation Number: [2009] EWCA Civ 876
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 29th January 2009



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(DAR Transcript of
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Mr B Coleman appeared on behalf of the Appellants.

Ms B Morton (instructed by Tameside MBC Child Care Legal Department) appeared on behalf of the Respondent.

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(As Approved)
Crown Copyright©

Lord Justice Thorpe:
1. In September last, HHJ Hernandez in the Manchester County Court had a very difficult and finely balanced case in his list for final hearing.  He had to determine the future for JL, the younger brother of J.  JL was 11 months of age and J was three-and-a-half.  The mother of these two boys was party to the proceedings.  She had not been able to care for J, and effectively on the first day of the trial it was accepted that she could not offer a good enough future for JL.  She was represented by experienced counsel, Miss Heppenstall, who thereafter sought to advance the alternative family placement with the maternal aunt and her partner.  They had taken responsibility for J and had done extraordinarily well with him, so the most obvious possibility was to give them the opportunity to provide the same enormous benefits to JL as they were providing to J.

2. Now, that was an option that had been in the minds of all the professionals from the outset.  Indeed, the local authority had embarked upon a viability assessment in-house, which, sadly for Mr W and Miss O, resulted in a negative conclusion.  That assessment had been ordered in November 2007 and it became available in February 2008.  The assessment was disclosed to Mr W and Miss O and they were advised, at an interlocutory hearing on 12 March, to seek legal advice.  That was hardly practicable since they are not eligible for public funding on financial grounds, but they are in that trap that equally they are unable to afford private instruction.  So there was no reality in telling them to go and get legal advice.

3. However, going it alone in April at a further interlocutory hearing, they indicated to the judge that they did not accept the local authority’s in-house viability assessment and, accordingly, with the assistance of the guardian, an order was made for a second viability assessment by Miss Harris, an independent social worker.  Her report was available on 8 July but was not transmitted to Mr W and Miss O until 15 August.  They were required to digest its contents and signify their position to the court, which they did on 29 August, and the signal was that they intended to contest the evidence of Miss Harris.  All that was perilously close to the time of the hearing, listed to commence on 1 September for five days. 

4. The challenge was therefore mounted largely by Mr W, who attended throughout, Miss O being taken up with the care of J.  He did his best as a litigant in person, but of course he had very little ammunition with which to challenge the professional opinion of the social worker for J, the social worker for JL and the independent social worker, Miss Harris.  Add to that the independent expert view of the Guardian ad Litem.  However, he was not entirely unaided because once the mother at the first day effectively abandoned her case, Miss Heppenstall remained in court throughout and to some extent used her expertise to assist Mr W.  That much is very apparent from her final written submissions to the judge, which over the course of four fully reasoned pages advanced and expanded the submission that the care of JL should be committed to uncle and aunt.  The judge went the other way.  He followed the advice of the various experts, and accordingly, an application for permission to appeal was filed on 17 October by uncle and aunt and was considered by Ward LJ, who heard Mr W as a litigant in person on 27 November.  He directed an oral hearing on notice, with appeal to follow if permission granted.  It is that hearing which we conduct today.

5. Ward LJ gave his reasons in a judgment which should have been promptly transcribed and made available to the parties.  Unfortunately it did not reach Mr W until mid-January and did not reach the local authority until perhaps this week.  So the local authority, in preparing their response, have been handicapped by ignorance of the point that had moved Ward LJ.  And they have prudently obtained transcripts of the evidence of the principal authors of viability reports and have submitted them to this court. 

6. The point that really troubled Ward LJ was the procedural unfairness.  Obviously uncle and aunt had a very substantial case, but they did not achieve party status until the first day of the hearing and then had to present their case as litigants in person. 

7. Their application in this court has been extremely skilfully advanced by Mr Bruce Coleman.  He asserts that the viability assessments drew heavily on the opinion of a Dr Mecrow, a community paediatrician, who had made his assessment and opined in the summer of 2007, so, says Mr Coleman with force, his opinion was plainly outdated.  It was very circumscribed because he is a paediatrician and was being asked to advise on behaviour and development that would ordinarily be assessed by a mental health professional.  So, says Mr Coleman, the authors of the viability assessments ended up by expressing opinions on things that were plainly well outside their expertise, such as attachment and ADHD issues.  Mr Coleman has made the powerful point that, given uncle and aunt were litigants in person, the judge had an inquisitorial duty to conduct profounder investigation and inquiry himself; he should have seen the limitations in the expertise of the social workers.  He should himself have, at minimum, demanded an update from Dr Mecrow and/or a mental health expert assessment.  He had an obligation to the litigants in person, who were handicapped within the adversarial process by not having representation.

8. Mr Coleman advances another attractive argument: that all who were involved in the case in the court below looked at only one choice: either immediate and permanent placement with uncle and aunt; alternatively care order and adoption.  What should have been looked at, says Mr Coleman, is a very carefully managed trial so that all these fears and anxieties expressed by the social workers could have been tested out in reality and the trial could have been by way of gradually developed contact between the siblings, day contact extending to overnight stay, and by that means something more valuable than speculation would have been there to guide the future management of the case.

9. Miss Morton has replied for the local authority with the benefit of having held the brief in the court below and obviously knowing the case intimately.  She rejects the criticisms of the viability assessors.  She says that everything was done to test the highly desirable option of placing JL with J.  The local authority had been entirely supportive of an independent assessment for uncle and aunt but when that also arrived at a negative conclusion it was clearly a road end and there was no obligation on the local authority or on the judge to introduce yet another assessment, this time by a different sort of expert.  She indicates that any sort of trial was not considered by anybody.  It would either have been regarded as fanciful or dangerous, and she emphasises that any suggestion of procedural unfairness collapses when tested against the interlocutory history. 

10. So we have to arrive at a principled conclusion on these rival submissions.  I say at once that I have the greatest sympathy with the appellants and with the case that Mr Coleman has advanced.  It is always easy to seem to see the right approach, or the wise approach, from the Court of Appeal bench months after the case has concluded.  It is important, though, to remember that we have to ask always the question: was the judge correct, or was the judge entitled to order as he did on the day that he made the order on the evidence that was before him?  I have reached the reluctant conclusion that it would be unprincipled to set aside an order that resulted from careful consideration of all available evidence, an order that was explained in a full and careful judgment.  I think it would be extending the obligations on the trial judge, who has before him litigants in person, to support them beyond the point that he did support them, particularly given the availability of Miss Heppenstall to aid them.  I think it would be stretching the bounds of judicial responsibility to say that the judge should himself have directed a mental health assessment following the completion of Miss Harris’s report.  If the case had developed differently, a different conclusion might have resulted but it developed as it did, and that development does not in my view illustrate any fundamental procedural unfairness.  The conclusion that the judge reached was by no means an inevitable conclusion, but the case being, as everybody concedes, finely balanced, it is all the more difficult to say that the option which he preferred was not within the ambit of his discretion.

11. So, sad as it is for the appellants, I would myself grant permission but refuse the consequential appeal.

Lord Justice Wall:
12. I agree.  Like my Lord I would like to express my admiration for the way Miss O and Mr W are bringing up J.  The case has never been put on the basis that they are not suitable to care for him; indeed they are admirably suited to doing so.  The dilemma which was faced by the judge was what was perceived to be the real risk of effectively both children losing the placement, if it was to be put in place, with Miss O and Mr W (because Miss O and Mr W could not cope with both), as opposed to one child, J, being successfully placed, and JL going elsewhere.  On the other side of the coin was the equally attractive proposition -- possibly the more attractive proposition -- that both children should be brought up together as brothers and live together as brothers, and that of course would be the norm.  But, in my judgment, the first point that has to be made is that the judge faced that dilemma fair and square.  It is a careful, well-structured, thoughtful judgment.  All the professional evidence was one way and, having balanced the various factors carefully in his mind in what was a reserved judgment, he expressed himself, in my view, clearly and appropriately and, like my Lord, I find it impossible to say that the conclusion that he reached in the circumstances was plainly wrong.

13. There are, however, other features of the case which, like my Lord, I find troubling.  We have been shown some of the interlocutory orders.  One of the good practices that plainly applies in Manchester is that the orders themselves contain recitals as to the positions of the parties and who was actually present.  It is quite clear from the evidence, and from the judgment indeed, that as early as February 2008 Miss O and Mr W had made it clear that they wished to care for JL.  The first viability report from the local authority was hostile to them and, when the case came before the judge on 9 April 2008, Mr W was there, although he was not a party.  He made it clear, and it was recorded by the court, that he and Miss O confirmed they wished to challenge the local authority’s viability assessment of them as carers for JL.  The result of that was that the guardian, or the guardian’s solicitor, was given permission to show the documents to Jane Harris, a second, and wholly independent, social worker. 

14. My Lord has dealt with the chronology.  Miss Harris duly reported.  That report also was antagonistic towards the concept of both boys being placed together.  Miss Harris gave evidence at the hearing.  Speaking for myself, I do not think that the questions which were posed to Miss Harris, as recorded by her in her report, and the answers that she gave to them were outwith the area of her expertise, and I part company with Mr Coleman in that respect.  She outlined her remit (para 4) as follows:

“4. I have been asked to address the following specific issues within my assessment:

(i) Please additionally focus upon the pressures on [Ms O] and [Mr W] from the mother and the maternal grandparents, and their ability to withstand any pressure and the impact of any pressure upon them.

(ii) The impact upon the couple, and their parenting, of [Mr W’s] work commitments in London and his absences upon the family home.

(iii) The level of care required by [J], their capacity to meet the needs of both [JL] and another child.

(iv) The possible impact upon [J] of having [JL] placed within the family unit.  Please highlight any risks, whether these could be supported and if so what support is required.

(v) The conclusions of the assessment of Glenda Clayton, 16th August 2007, and Ann Burrows-Dey and Louise McCarthy are that [Ms O] and [Mr W] could only parent [J] and not both children.  Please confirm whether or not you agree with these conclusions, providing a detailed analysis to support your view.

(vi)[Ms O’s] and [Mr W’s] plans and timescales to have their own children, the impact of these plans upon their capacity to meet the global needs of [J] and [JL] if both children were placed in their care.

(vii) [Ms O’s] and [Mr W’s] support network, analysing the strength and reliability of their support.”

Her “conclusions and recommendations” were as follows:

“1. The assessment concludes that [Ms O] and [Mr W] are providing good standards of care to [J], and that [J] is making good progress in his placement.

2. [J’s] attachment to his primary carers is developing well but is not yet complete.  He is coping with threats to his emotional security with increasing confidence, but he struggles to accept change and retains some demanding behaviours.

3. [J] faces further challenges to his security when he starts school in September.  If placement of [JL] were prioritised within a timescale compatible with his needs, then the coincidence of timing would be potentially disastrous to the emotional security of both boys. 

4. The assessment has revealed a lack of insight on the part of this couple and a level of naivety as to how [JL] would fit into their family unit.  There is an overwhelming sense that [JL] would be regarded as capable of being absorbed into this family.

5. The couple have plans of their own which in my view would further compromise the likelihood of a successful outcome for both boys. 

6. I have been mindful of the potential benefits to both boys of their future placement together throughout the assessment process.  However, the assessment concludes that such benefits are outweighed by the risks associated with placement of [JL].”

15. In my judgment these were proper social work questions.  Could this couple cope with these two children?  Was it in the interests of these two children to be placed together with this couple?  Those were the critical questions.  They were doing very well with [J]; could they cope with both?  Although in an ideal world it would have been helpful to have had advice from a mental health professional at an early stage, I myself think this was essentially a social work question.  And so it seems to me, therefore, that if the judge accepted the available evidence which was properly before him and gave a careful judgment, the principal argument to be advanced has to be a procedural one: this was not fair; the uncle and aunt, Miss O and Mr W, were not given a fair crack of the whip; they did not have equality of arms; and of course I would be the first to say that in an ideal world where funds were freely available the Legal Services Commission should grant public funding to people in the position of Mr W and Miss O. 

16. However, like my Lord, I am reassured by the fact that at the trial, first of all, the judge made them parties and, secondly, the first thing he did, it seems, was to hear an application by the mother for the immediate return of the children to her care, or for the immediate return of JL to her care, and when that was refused the mother made it clear that she supported Miss O and Mr W’s application.  It is quite clear from the documents we have that Miss Heppenstall, although instructed by the mother, powerfully advanced the case for Mr W and Miss O and certainly in her closing submissions, which we have in our documents over a number of pages, as my Lord has pointed out, she carefully advanced the case on behalf of the uncle and aunt.

17. It does sometimes happen in these cases that people in the position of Mr W and Miss O are called on behalf on one party as witnesses and are not parties to the proceedings at all.  I do not regard the situation as entirely satisfactory but I am reassured, in Article 6 terms, by Mr W’s appearance at the interlocutory hearings; by the production of the second viability assessment, and by his attendance at trial where he gave evidence and where his case was very forcefully put across in closing submissions by Miss Heppenstall.  In my judgment, he was properly heard and therefore the judge fully had before him all the available options and was entitled to come to the conclusion which he did.

18. In those circumstances it seems to me that the case was procedurally fair and the conclusion, albeit one which Mr W and Miss O find difficult to accept is one which was properly open to the judge and I cannot say he was plainly wrong to reach it. 

19. In those circumstances, like my Lord, I would grant permission but dismiss the appeal.

Lord Justice Aikens: 
20. I have had considerable concerns about this case.  I have been impressed by the arguments so ably put forward by Mr Coleman on behalf of the appellants, as they must now be called.  I am particularly impressed with these arguments because he was only instructed last Tuesday evening and now it is lunchtime on Thursday when we are concluding this hearing.

21. Two points in particular have concerned me.  The first is the fact that Mr W and Miss O, the appellants, were not legally represented at any stage of the hearing or beforehand despite the fact that they were the most closely interested parties who wished to be carers of JL if the mother could not be.  In my view the lack of public funding for them is a lamentable state of affairs.  We were told by Mr Coleman this morning that Mr W and Miss O used savings that were otherwise going to be used for their wedding in order that he could be instructed today.  However, I have concluded that it cannot be said that that is a procedural failing which invalidates the proceedings before the judge.  That is for the reasons that have been given by my Lords.  The fact is that, at the all-important final hearing, once it was clear that the mother could not be the carer of JL, counsel for the mother did give assistance to Mr W and Miss O in advancing their case, and there was no procedural invalidity therefore as a result. 

22. The second area which has given me concern is the point raised by Mr Coleman that the judge should have had assistance from an up-to-date report from a specialist mental health professional or perhaps an educational psychologist on the question of J’s possible or probable future behaviour if JL were also to be placed with the appellants.  That has troubled me, but in the end I have come to the view that that was not something which was essential for the judge to arrive at a balanced and proper view of the arrangements.

23. The reserved judgment of the judge is both meticulous and measured.  He had to deal with a very difficult case and he had to make a difficult decision which will have far-reaching consequences for all concerned.  Although, as I have said, I have had misgivings, I have finally concluded that there are neither any procedural problems nor are there any issues in the judge’s reasoning or assessment, or the material that was before him, that can lead in any way to a successful challenge of his conclusions.  Accordingly, I agree with my Lords that permission should be granted but that this appeal must be dismissed.

Order: Application granted; appeal dismissed