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W (A Child) [2010] EWCA Civ 321

Application by mother for permission to appeal, with appeal to follow, an interim care order. Application refused.

The interim care order had been made two days after the birth of the child while she was still in hospital with the mother.  The mother had three other children who were already subject to interim care orders after the eldest daughter alleged that her step-father, the father of the child subject to this appeal, had sexually and physically abused her. Both the mother and father had become the subject of criminal proceedings arising out of these allegations and their bail conditions prevented them from associating with each other. The family history also included a suspicious fracture suffered by the eldest daughter, post-natal depression and dirty living conditions. Before the circuit judge, the mother had argued that she should be allowed to care for her new-born child at home under intense supervision, or even under the supervision of foster parents.

In the Court of Appeal counsel for the mother argued that the case of the new-born child was different as this was a crucial stage in the development of the mother and child relationship and that the circuit judge had not sufficiently considered this factor. However Wilson LJ states that the question is not what order would best enable a relationship between mother and baby but whether the safety of the baby demanded her immediate removal. He reviews the reasoning of the circuit judge and concludes that she was right to take into account the hygiene issue in rejecting the supervision route and to find that no foster parents could provide adequate protection to the baby, given the mother's history of post-natal depression. He therefore refused permission to appeal.

Case No: B4/2010/0392
Neutral Citation Number: [2010] EWCA Civ 321

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 25th February 2010



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( DAR Transcript of
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Miss Susan Campbell QC ( instructed by Messrs Graham Evans and Partners, Swansea) appeared on behalf of the Applicant mother.

Mr Matthew Rees (instructed by City & County of Swansea) appeared on behalf of the First Respondent, the local authority.

Miss Frances Judd QC and Mr Philip Harris-Jenkins (instructed by Avery Naylor Ltd, Swansea) appeared on behalf of the Second Respondent, the Children's Guardian.
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(As Approved by the Court)
Crown Copyright©

Lord Justice Wilson:
1. A mother applies for  permission to appeal against an order made in care proceedings by HHJ Parry in the Swansea County Court on 19 February 2010, namely last Friday.  The order was that the mother's daughter, a girl, ME, who had been born only two days earlier, namely on 17 February, should be placed into the interim care of the City and County of Swansea ("the local authority") for a period of eight weeks upon a plan that she should be placed in short-term foster care and should have supervised contact with the mother for one hour five days each week.

2. At the time of the judge's order the mother and ME remained in hospital.  The judge was told that they were due to be discharged on Monday of this week, namely 22 February.  Although she refused permission to the mother to appeal to this court, the judge stayed the interim care order until 2 pm on that Monday.  On the morning of that day it fell to me to consider, on paper, the mother's application for permission to appeal and in particular, of course, for a stay of execution of the order due to take effect at 2 pm on that day.  My determination on paper was to set up today's hearing, on notice to the local authority and to the child's guardian, and on the basis that, were permission to be granted, the substantive appeal would be heard forthwith.  But I declined to grant a stay of execution of the order.  I noted that there was no relevant status quo which it would be in ME's interest to maintain and that, were a stay granted, I knew little about the arrangements which the mother would make for her.  I observed that separation of the mother and ME for only three days, until today's hearing, would not significantly damage their relationship or attachment or prejudice the viability of any ultimate conclusion that on an interim basis ME should reside with the mother.

3. Thus it is that today the mother, by Miss Campbell QC, advances her application for permission and, if granted, her appeal.  The application and the contingent appeal are opposed both by the local authority, who appears by Mr Rees, and by M's Children's Guardian, who appears by Miss Judd QC.  M's father, for reasons which I will explain, took no part in the hearing before the judge and takes no part in this proposed appeal.

4. The background to which I am about to refer inevitably led Miss Campbell, when appearing before the judge, to concede that the threshold, set by the conjunction of s.38(2) and s.31(2) of the Children Act 1989 to the making of an interim care order, was crossed.  Thus the decision under proposed appeal was a decision relating to "outcome" and was a discretionary decision.

5. ME has a half sister and two brothers.  The half sister, C, thus born to the mother by a man other than ME's father, was born in December 1998 and is now aged 11.  ME's two full siblings are, as I have indicated, boys, namely L, who was born in August 2006 and who is thus  now aged three, and MA, who was born in July 2008 and is thus now aged 19 months.  Care proceedings are actively on foot in relation to the three older children.  Indeed they themselves are also all in care under interim orders of the court.  Over four or five interlocutory hearings HHJ Parry has been managing those proceedings and has developed a close acquaintanceship not so much with the facts (for many are in issue and none is yet established) but at any rate with the issues raised in them.

6. The removal of the three older children into care was precipitated by allegations made by C to a teacher at school in June 2009.  To the teacher, and since then to the police and others, C has made detailed allegations of sexual and physical abuse on the part of the father of the boys and of ME.  It will be convenient for me from now onwards to describe him as the father but, in relation to C, he is of course a step-father.  The sexual allegations include attempted anal rape and forcing C to perform acts of oral sex upon him. Although the allegations of sexual abuse mainly surround C, she has alleged that both the father and indeed the mother allowed not only her but also L to watch pornographic films; and one of the sets of foster carers of the boys has reported sexualised behaviour as between them.  C also alleges that the mother was to some extent complicit in the father's alleged physical abuse of her and the boys.

7. Let me hasten to stress that these serious allegations made primarily against the father but also against the mother are entirely unproven.  The judge has arranged to conduct a fact-finding hearing into them in July next, over three working weeks.  But the parents have also been made the subject of criminal charges.  The father faces two counts of rape of C.  The mother is charged with neglect of C in allowing her to be exposed to pornography.  There are also criminal charges against both of them of causing or permitting the boys to suffer neglect; these charges, so we are told, relate to the conditions in the home prior to June 2009, to which I will shortly make reference.  The criminal trial is unlikely to take place before the fact-finding hearing to which I have referred.  Currently the parents are on bail, subject to conditions which prevent them from associating with each other and having unsupervised contact with a child under the age of 16.  There is no suggestion that either of them has broken those conditions of bail.  Were ME to be allowed in the care proceedings to live with the mother or to have any degree of unsupervised contact with her, the criminal court would be asked, and would presumably agree, to relax the conditions of bail referable to the  mother in that regard.

8. The mother's case before the judge was that either she should be allowed, with intensive supervision on the part of the local authority, to care for ME alone in her home or at least that the local authority should identify a short-term foster placement able to take both her and ME together and that she should care for ME there under the de facto supervision of the foster parents.  Miss Campbell tells us that she indicated to the judge that, had the local authority been prepared to amend their interim care plan to provide for arrangements along either of those lines, the mother would have accepted that an interim care order referable to ME should be made.  In her judgment the judge said that she was "less concerned", i.e. apparently not gravely concerned, about the risk of sexual harm being suffered by ME in the event that she was placed in either of those environments.  Speaking for myself, however, the fact, if ultimately established, that the mother was to any extent complicit in the exposure of the older three children, but particularly of course of C, to sexual abuse or to inappropriate sexual material creates real doubt about the normal development within her of the basic instinct of a mother to protect her children from harm. 

9. Another important feature of the history is that in 1999, long before the mother had developed a relationship with the father, C, when in her care, suffered a fractured arm.  The mother has always maintained that the fracture was accidental but at that time professionals were highly suspicious that it was non-accidental and, although no court proceedings were then taken in relation to C, it seems that, in effect, the mother was then considered to be one of four possible perpetrators of the injury.  Again, irrespective of any perpetration on her part of the fracture and even of whether it was non-accidental, the incident raises substantial concerns about the ability -- at any rate at that time -- of the mother, as C's primary carer, to protect her; and, for present purposes, it is particularly important to remember that, when she suffered the fracture, C was only about 10 months old.  The judge in the present proceedings has arranged that, following her fact-finding inquiry into the allegation of sexual abuse and neglect, she will -- or may -- conduct a similar inquiry in relation to C's fracture notwithstanding the temporal distance from when it occurred. Miss Campbell was, however, able to point out, both to the judge and to us  today, and in my view with some force, that there is no evidence of physical injury to the boys or of any other physical injury to C. 

10. It seems that, at the time when C sustained her fracture, the mother was suffering from an episode of postnatal depression; and that she suffered similar episodes following the birth of each of the boys.  The father has alleged -- and the mother has admitted -- that during these episodes there were several occasions when the mother was violent towards him.  So the judge was entitled to be concerned that now, following ME's birth, the mother might be subject to another episode.  In judgment the judge expressed real concerns about the mother's insight into her propensity to suffer postnatal depression and into her need in that event to access treatment and take prescribed medication in order to mitigate its effects and thus lessen the danger to any child for whom she might then be caring.  Miss Campbell complains that there was powerful evidence to allay those concerns but she has not submitted to us that there was no evidence entitling the judge to express them. 

11. Another feature of the history which caused the judge substantial concern was the matter to which I have already referred, namely evidence of dirty conditions in the home and of at times a dirty presentation of the boys.  Indeed the local authority's evidence is that, even following the removal of the children from the home in June 2009, cleanliness there has only slightly improved.  The guardian has spoken of evidence that, when the boys were removed, they were showing signs of profound physical and emotional neglect as well (and this of course may represent no adverse reflection on their parenting at all) as of delayed motor and speech development.  The judge said that she had no confidence that, unsupported, the mother would be able to maintain safe and hygienic conditions for a small baby; and again Miss Campbell does not contend that it was otherwise than open to the judge on the evidence to make that important observation relevant to risk. 

12. Clearly, at a superficial level, it might be regarded as paradoxical if the court were on the one hand to rule -- as it has and as is unchallenged -- that the safety of the two boys requires them to be in short-term foster care but on the other hand to rule that the safety of ME does not give rise to an analogous requirement that she be taken into such care.  But, wisely, the judge did not make that probably rather naive observation.  The crucial difference, strongly urged by Miss Campbell both before the judge and before us today, is that, whereas in relation to the boys the mother has an existing relationship, maintained by contact, the early months of a baby's life represent a crucial stage for the very development of the baby's bond with her (or his) mother or other person. 

13. Miss Campbell is right to stress the crucial nature of a decision to remove a tiny baby from the care of her parent in terms of its likely impact upon their future relationship; and she is entitled to raise the spectre of the baby's bonding, instead, with the short-term foster mother in circumstances which may very well -- and to put it at its lowest -- complicate her emotional development in the longer term. This is the feature which brings Miss Campbell to the Court of Appeal.  Her complaint is that the removal of a baby from her mother at birth is so draconian that any legalistic attempt to parade it as a short-term disposal belies the reality of its likely long-term ramifications.  In effect Miss Campbell complains that, in any proper exercise of the judge's discretion, this should have been, if not the overarching factor, at any rate one of the greatest importance, which should have figured much more prominently in the judge's judgment than it did. 

14. In this regard it is important to remember the circumstances in which the hearing before the judge last Friday proceeded.  ME had been born two days earlier.  The hospital was proposing to discharge the mother and baby on the following Monday.  It was agreed that the application should be considered by way only of submissions.  They were concluded by about 3.30pm and, having risen for about half an hour, the judge embarked on an ex tempore judgment at about 4:00pm.  As noted by counsel, and it is a good note which the judge has since approved, the substantive judgment proceeds for 36 paragraphs.  It is not particularly short.  At an early stage, in a paragraph which counsel have numbered 10, the judge said:

"Recognising that I have to balance risks of direct physical and emotional harm with risk of lack of opportunity to develop maternal attachment diminished to a very significant extent by an hour contact on five days per week, I am urged that [the mother's] position is severely prejudiced if separated from [ME].  I make this observation; no door closes completely even at an early stage and I accept there is some potential prejudice if she and [ME] are separated now."

This passage enables Mr Rees and Miss Judd to contend that the judge had well in mind the effect of her decision on the development of maternal attachment.  There has been some debate before us, which might have been resolved had there been time to obtain an official transcript of the judgment, about the words in the first sentence beginning "diminished ... ".  The consensus seems to be that the judge was indicating that the preclusion of the development of maternal attachment would be diminished by the local authority's proposals that, albeit only for one hour, ME should -- under supervision -- be able to be seen by, and no doubt hugged and cuddled by, and perhaps even given her bottle by, the mother on most days each week.  In the course of argument, however, my Lord raised with Mr Rees whether the judge had not significantly understated the damage to the attachment consequent upon separation by having described it, in the passage quoted, only as "potential".  Mr Rees was constrained to agree with my Lord's criticism of that -- no doubt largely unconsidered -- choice of adjective.

15. It is Miss Campbell's submission that the damage to the development of the relationship should have been weighed much more prominently and explicitly by the judge than is demonstrated in the sentences which I have quoted. 

16. Ultimately, however, the question is not what order would best enable the relationship between the mother and ME to develop but whether ME's safety demanded immediate removal.  The judge cited the leading authority in this area, namely now L-A (Children) [2009] EWCA Civ 822; and Miss Campbell cannot dispute that the judge articulated the correct test in saying first that "the issue is whether the evidence discloses a need for immediate separation on grounds of ME's safety" and later that "the court is concerned with immediate risk to safety as the key consideration".

17. It did seem to me, on first perusal of the judgment, that the judge, having dismissed the significance of the possible complicity of the mother in the exposure of C to sexual material, ultimately relied, to a greater and perhaps again a surprising extent, upon the evidence of lack of hygiene in the home and upon the evidence as to the way in which the mother cared for the boys.  But I am now clear that such was too cursory an analysis of the judgment.  The judge was invited by Miss Campbell to consider two possibilities, first the return home of ME with the mother so that they might live there under intensive supervision to be arranged by the local authority and, second, a mother and baby foster placement.  I am now clear that the judge was logically considering, first, Miss Campbell's first proposal.  In that regard the evidence of lack of hygiene, particularly in relation to the needs of a neonate, was very significant.  Thus, so it seems to me, the judge was fully entitled to consider the evidence referable to the lack of hygiene along with the mother's predisposition to postnatal depression in order to reject Miss Campbell's first suggestion as insufficiently safe for ME.  Then, and only then, the judge moved to consider Miss Campbell's second suggestion.  In this regard there was, of course, no reiteration by the judge of concerns about hygiene but, rather, an elaboration of her concern about the mother's not unlikely, and if so perhaps ill-contained, postnatal depression.  The fact was that another of her children had, as a baby, suffered a fracture when in the primary care of the mother albeit in circumstances yet to be established, and that during episodes of postnatal depression the mother had been violent towards the father on several occasions.  This led the judge to conclude that it would be unrealistic to consider that foster parents, however assiduous, could afford sufficient protection for ME against a sudden snapping on the part of the mother in the light of all the pressures to which, unfortunately, she is presently, and would then be, subject. 

18. I for my part do not see how this court could seriously consider ruling that on the evidence before her the judge was not entitled to appraise the risk as she did. 

19. I have already foreshadowed that it in my view it would be too glib for us this afternoon to refuse this application merely on the basis that the order is of a very short-term character.  I do not flinch from accepting that it may prove to have significant long-term consequences adverse to the mother's aspiration to care for ME.  Such, however, is by no means inevitable.  The judge authorised the mother's lawyers to release the court documents to two resources which provide residential assessments of the capacities of parents to care for children; and, like the guardian through Miss Judd today, the judge went out of her way to assert that nothing said in her judgment should be taken to be pre emptive of the outcome of any application which the mother might make under s.38(6) of the Act of 1989 for a direction for assessment.  Indeed we are told that the judge indicated that any such application should be listed, albeit at risk, before her as a matter of some urgency.

20. In summary, therefore, I do not consider it arguable that the judge's failure to elaborate further upon the gravity of a baby's removal from her mother could lead this court to conclude that her determination was flawed.  At the interim stage of the hearing before her nothing was, or could be, established.  She was in the business of assessing risk and she needed to find a very high level of immediate risk in order to justify the order which she made.  The matters to which I have referred, when considered cumulatively, clearly entitled her to conclude, on the evidence as it stood and without -- as yet -- professional appraisal suggestive of the validity of some contrary conclusion, that the risks were such as to mandate the drastic solution.

21. I would refuse permission to appeal.

Lord Justice Rix : 
22. I agree.

Order: Application refused