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C (Children) [2011] EWCA Civ 1774

Appeal against orders under Children Act 1989 s 34(4) excusing the local authority from making further contact provisions in respect of two children, and against their mother under s 91(14) of the Act. Appeal dismissed.

This an appeal by the mother against an order of HHJ Rundell pursuant to ss34(4) and 91(14) of the Children Act 1989. The two boys who were the subject of care proceedings were aged 13 ½ and nearly 12 years old. It was asserted on the mother's behalf that the judge had been plainly wrong in making the orders and had erred in the exercise of his discretion. The appeal was dismissed.

The Court of Appeal considered two matters which are of particular interest: firstly the conclusions of the judge in respect of the boys' wishes and feelings, having met boys face to face during the proceedings; and secondly a challenge to the judge's case management of the matter when he refused twice to give permission for a psychological assessment of the children and the appellant had not taken full opportunity to appeal the decisions.

The background to the appeal is that the LA issued care proceedings in respect of the children in May 2007 when the mother alleged that her then partner had smacked one of the boys. A psychological assessment of the mother concluded that she had personality difficulties. It was agreed that the children should remain in the mother's care subject to a number of safeguards, one of which was that the boys should not have any contact with her then partner. Despite this agreement the LA found the partner at the mother's home during an unannounced visit and the children were removed from the mother's care in January 2008.

In October 2008, following a deterioration of the mother's behaviour, a care order was made which provided for limited contact between the mother and the children [four times a year with each boy separately for two hours per session]. Although the children had previously had a good relationship with the mother, the children were indicating that they no longer wished to see the mother and contact did not take place.

The mother made an application to the county court for contact and sought permission to instruct a psychologist to assess the children. Permission for the assessment was refused. The mother issued a notice of appeal and permission to appeal was refused on paper. The mother did not pursue this application any further.

The matter came before HHJ Rundell in December 2010 and the parties came to an agreement to reinstate contact. However, the boys' response to the plans was hostile. Contact did not get off the ground and in May 2011 the judge made s34(4) and s91(14) orders. In his judgment, the judge said that he was 'impressed with the strength of [the boys'] views'.

On appeal, it was argued on behalf of the mother that the judge had placed too much weight on the wrong factors, in particular: the mother's behaviour prior to making the care orders in 2008; the psychiatric report on the mother; and the boys' wishes and feelings in expressing the view that they did not want to see their mother. It was also argued that too little weight was placed on the fact that the boys had both absconded from their foster placement at the time of the May 2011 hearing.

Counsel for the mother asserted that it was impermissible for the judge to use the meeting with the boys to assess the strength of their feelings. Baron J commented that the judge was indicating that he had been able to assess the strength of feeling having met with the boys. This was not evidence gathering but simply an inevitable consequence of having seen the boys [paragraph 28].

The second ground of the appeal was that the judge had erred in the exercise of his discretion in the management of the case by twice refusing permission for a psychological assessment of the boys. The mother had appealed the first decision and permission was refused on paper and an oral application was not pursued. A renewed application was made which was refused. This decision was not challenged. Baron J said that where there is an opportunity to appeal matters and that opportunity is not taken [or fully taken] it is not a matter for the court to seek to put it right.

The challenge to the s91(4) order fell away as the court found that there was no error in respect of the contact order made by the court.

Summary by Mai-Ling Savage, barrister, 14 Gray's In  Square


Case No: B4/2011/1480
Neutral Citation Number: [2011] EWCA Civ 1774
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 13th October 2011

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(DAR Transcript of
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Ms Ruth Kirby and Mr Edwards (instructed by Gillian Radford & Co) appeared on behalf of the Appellant.

Mr Weston QC and Ms Nina Bache (instructed by Worcester County Council Legal Services) appeared on behalf of the First Respondent, the local authority.

Mr Alistair Macdonald QC (instructed by Thursfield Child Care LLP) appeared on behalf of the Second and Third Respondents, the children through their Children's Guardian..

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(As Approved by the Court)

Crown Copyright©

Mrs Justice Baron:
1. This is an appeal by DC, who is the mother of two boys: V, who was born on 19 March 1998 so he is 13 and a half years old; and E, who was born on 27 November 1999 so he is almost 12.

2. The appeal is brought against the rulings of HHJ Rundell made on 13 May 2011.  On that occasion, his Lordship made two orders.  The first was an order under s34(4) of the Children Act 1989, whereby he excused the local authority from making any further contact provisions in this case.  The second was under s91(14) of the Act whereby he made provision that the mother be not entitled to make any further application for contact save with permission.

3. The background facts of this case are that the children lived with their mother without social services' intervention until May 2007.  At that time the family came to the attention of the authorities because the mother informed the police that her then partner had smacked one of the boys.  Care proceedings resulted.  In the context of those proceedings, a full psychological assessment of the boys and their mother took place whilst they were still living together.  It concluded that the mother had personality difficulties.  Despite that, it was agreed that the children should remain in her care subject to a number of safeguards, one of them being that she should not bring the children into contact with her then partner.

4. The mother asserts that there were no difficulties in relation to the children's presentation at school or otherwise, and that their behaviour was of no concern.  Therapy was suggested for the mother and urgent therapy for the children.  Despite the agreement that she had reached, the mother brought her then partner into her home.  As a result of a surprise visit by the social services, he was found in the premises and the children were removed from her care on 1 January 2008.

5. Since the boys have been removed from her care, perhaps unsurprisingly, her behaviour has deteriorated.  It is not in any doubt in this case that this mother loves her children.

6. Between January 2008 and the final care order made in October 2008, there was professional concern about the mother's behaviour and there were numerous incidents – all elicited in the first judgment -- of examples of extraordinary and in some cases bizarre behaviour. 

7. I mention but one.  In April 2008 E ran from school to his mother's home and she barricaded herself and the child in that property for some time.  The police were involved.  I mention this incident because in June 2008, contact was suspended and provision was made that contact should be to each boy separately.  I have no doubt that this incident and similar incidents have their effect on the boys and their perception of their safety in their mother's care.

8. The suggestion is that everything was going tolerably well but in October 2008, HHJ Rundell gave a lengthy judgment after a five day hearing.  He made a care order.  In the context of that judgment, he had to decide what contact should take place between mother and children.  At paragraph 87 he said:

"The local authority proposes four sessions a year of direct contact with each boy separately -- each session to be of two hours; to be closely supervised and subject to a detailed written agreement … Obviously this is far less generous than father's contact, but in my judgment entirely justified by mother's behaviour over the past 12 months." 

At paragraph 88 he said:

If necessary, [the local authority] are prepared to seek an order under section 34(4) if they are of the view that contact would not be in the boys' best interests.  That will be a matter for mother."

He specifically said:

"If she mends her ways, no doubt contact will be increased -- perhaps even substantially – but, if not, she knows the consequences."

9. So the message was clear.  It is suggested on her behalf that from January 2009 to July 2010 the mother's behaviour improved and it is true that no specific incidents are set out in the papers.  Not surprisingly, the mother was distressed by the order of HHJ Rundell and she chose to make an application to the Court of Appeal seeking permission to overturn it.  She had acted in person throughout the trial and she continued to act in person in the Court of Appeal.  The matter came before Ward LJ on 19 February 2009.  I have seen a transcript of that hearing.  It is clear that Ward LJ was concerned about several matters, having heard from the mother.  He was particularly concerned about the amount of contact she was having to her boys.

10. It is fair to say that since the hearing in October, the mother has had no contact.  The visits which had been organised for December 2008 had to be aborted, the first one because one of the children was unwilling to attend, the second visit because of the social workers' perception of the mother's reaction to the previous non visit or because of the child himself.

11. Ward LJ gave her permission to appeal and there was a full hearing in front of Bodey J, Toulson and Sedley LJJ.  All the judges were critical of the local authority and it is fair to point out that this local authority accepts that they did not act in the way they should have done towards this mother on several occasions.  I need to do little more than to set out Sedley LJ's comments.  In paragraph 63, he said:

"…a disturbing tally of damaging inaccuracies identified by Ms Kirby was initially put before the court below in a social worker's affidavit.  Although none of these found its way into HHJ Rundell's careful judgment, they indicate a deplorably casual and inappropriately hostile approach to a sensitive and responsible task on which the fate of families can depend." 

This was a very severe criticism in judicial terms.  I think the criticisms and the failure of the local authority have to some extent bedevilled this case. 

12. The Lords Justices were concerned about the mother's contact.  They pointed out to her counsel that that was not a matter for them and if the mother wished to pursue the quantity of contact, she had to do so in the context of a further application to the county court.  She did so and in about July 2009, shortly after the Court of Appeal hearing, an application was made by her to have her contact reconsidered.

13. In the context of that application, she sought permission to the learned judge to instruct a Dr Carcani-Rathwell to carry out an assessment of the children.  This was a psychological assessment.  On 9 February 2010 the learned judge refused that application.  The mother issued a notice of appeal and permission to appeal was refused on paper.  It was dealt with by Ward LJ.  In that context he stated that there were, in reality, "good factual reasons why the children had refused to see the mother."  By that stage, although the children had had obviously a good relationship with their mother, they were indicating that they no longer wished to see her.

14. It is at the heart of this appeal that Ms Kirby submits that there is no reasoned explanation from her client's perspective, as to why children who were involved with and supportive of their mother before they were separated from her have come to a conclusion (which has strengthened over time) that they do not wish to see her.  She asserts it is the duty of a local authority to promote contact and that they have been woefully inadequate in so doing. 

15. The matter meandered its way through the court system during 2010.  It came before HHJ Rundell on 1 December of that year.  It was due to be the final hearing but at His Honour's instigation, the parties were sent outside court in the hope that they could come to some agreement and attempt to reinstate contact.  A detailed written agreement was entered into whereby, as a first step, the mother would write a letter to the children apologising for some of the past events.  She was to give them presents which were to be delivered to the boys.  There was then a clear schedule set out about what steps were to be taken, not only by the local authority but by the children's guardian, in an attempt for contact to be reinstated.

16. The first steps were taken but they were met by a very hostile reaction from the boys.  With the result that the actual performance of the contact fell by the wayside.  On 18 February 2011 the mother sought directions from HHJ Rundell and a final hearing was fixed for May with a time estimate of two days.  Ms Kirby stated that the learned judge did not deal with the failure of the particular agreement and failed to take into account why it was that the boys seemed to have set their face against contact.

17. The hearing took place over two days and the judge produced a detailed judgment.  Complaint is made about several aspects of it.  But the grounds of appeal are, in reality, quite narrow.  Ground 1 is that HHJ Rundell erred in law in making the orders which he did, because he failed to exercise his broad discretion and attributed too much weight, or attributed far too much weight, to a number of factors.  Specifically, he took too much account of the mother's behaviour prior to the making of the care orders in October 2008, further he put too much weight on a report by a Dr Elizabeth McDonald.  She was a psychiatric witness expert (who he had given permission to report at the application of the mother).  I will deal with the detail of her report in a moment. 

18. Ms Kirby complains that the reported wishes and feelings of the two boys took too predominant a role in the case.  It was important, she considers, that the judge took into account not only the expressed feelings of the boys but looked to the underlying reasons as to why it was that they were saying they did not wish to see their mother, particularly in the context of V telling an independent police officer that he had run away from his foster placement and wished to see his mother.  Ms Kirby also complains of the ongoing failure of the local authority to do any effective social work as to contact or otherwise.

19. Ms Kirby also complains that HHJ Rundell attributed too little weight to the fact that by the date of the hearing in May 2011 each of the boys had absconded from their foster placement.  Accordingly, she submits, he failed to pay any attention or sufficient attention to the underlying reason thereof.  Ms Kirby submits that since his judgment, there have been further difficulties so far as the boys were concerned.  However, that argument is of no weight because a judge cannot be expected to deal with anything other than the evidence which is before him.  He is not a soothsayer as to the future.

20. Ms Kirby also states that the local authority admitted in December 2010 that it had not done effective social work with the boys and that for the two years subsequent to the care order, the case has simply been left to lie fallow.  The expressions of the boys' fear of their mother has not been taken seriously and dealt with in a therapeutic way.  Ms Kirby further complains that the local authority were remiss in failing to take account fully of the December agreement.

21. The essence of her complaint is that the judge failed to consider what was in the children's best interests, concentrating only on their expressed wishes and feelings and ignoring their long term interests.  Here is a wholesale assault on the judgment which, in reality, simply asserts that "the judge got it wrong".  The question, however, is can she point, as she has to, to the facts which demonstrate that the judge failed to take into account matters which he should have done or took into account matters which he should not have done and therefore got it plainly wrong?

22.  When asked to go through evidence which the judge had assessed as it were incorrectly, Ms Kirby was unable so to do.  Her argument was, in essence, that she did not agree with the conclusions that the judge had reached but she could not point to the manner in which his reasoning was unreasonable or plainly wrong.  The learned judge dealt with all the issues in this case very carefully.  He criticised the local authority as he was bound to do in paragraphs 8 to 10 of his judgment.  He took into account that the local authority had made a number of mistakes in this case.  He also took into account the evidence of Dr McDonald, who I remind myself was the mother's expert.  In paragraph 14 of his judgment he found that, according to Dr McDonald, Mrs C, who was not called for cross-examination, demonstrated features of paranoid personality disorder and dissocial personality disorder.  That is explained as:

"…a severe disturbance in the character logical condition and behavioural tendencies of the individual, usually involving several areas of the personality, and nearly always associated with considerable personal and social disruption."

His specific finding was:

"She is clearly extremely sensitive to any negative comments regarding her or her children's behaviour.  She has demonstrated a capacity to bear grudges in the long term.  This is demonstrated by her continuous harassment of C children's services and her renewed allegations in relation to [Mr C's] [her first husband] behaviour while they were married.  She views the actions of others as being hostile and as a result has been uncooperative with the children's social care.  She has been dismissive and minimising of their concerns and has felt constantly threatened by them.  She has continued to place herself at the centre of events, finding it difficult to consider the needs of her children and placing those needs ahead of her own."

23. The learned judge was critical that the mother had failed to deal with what Dr McDonald had held was an essential prerequisite to her making progress.  Dr McDonald opined that as an individual gets older, some of the behaviours become less problematic and she considered that Mrs C had to engage in some form of psychological therapy so as to enhance her level of maturity and guide her into becoming a person more in tune with both her, the children, and other adults' needs.

24. It was clear what the mother was expected to do.  She was expected to take Dr McDonald's report to her general practitioner in the hope and expectation that he would provide therapeutic services through the National Health Service.  She did not do so and the judge was highly critical of her failure in that regard.  Ms Kirby informed this court that the mother's behaviour was good (for a period of time) until about July 2010.  But it was accepted that thereafter there were a number of difficulties.  On 23 July 2010 the mother visited E's school wearing a black wig in an attempt to meet him, and the police were involved.  Shortly before the trial, in about April 2011, there was another scene where the mother had effectively caused the children distress, particularly E, when she had offered him toys and money.

25. There was an explanation of her intercepting the child on the road, which the judge found unacceptable.  He found that she acted in defiance of the child's long standing express wishes not to see her.  Despite this Mrs C confronted E and then gave an explanation that was untruthful.  All of these findings are important to show that the mother's behaviour was having an effect on the child.

26. The judge also commented on the failure of the agreement in December to get the boys to interact with their mother.  He said:

"Sadly the children remained adamant that they did not want to see her, notwithstanding her efforts, and that placed the social worker and the guardian in an acute dilemma.  The local authority has a duty to promote contact and therefore Mrs F, the social worker, has to attempt to persuade the boys to agree to see their mother.  At the LAC reviews, the issue was raised regularly.  The result is that the boys say that they are losing faith in their social worker who is not, they say, listening to them.  The guardian finds herself in a similar position.  She told me that, the boys do not want to see her because, 'every time I see them I talk about contact.'"

27. There was an application for the judge to see the boys and he acceded to that application.  He says, in paragraph 35 of his judgment:

"I had been asked to see the boys – that application was opposed by the mother – not to receive their wishes and feelings, which by now had been very clearly expressed, but to assess their strength of feeling and to provide them with an opportunity to meet me, the decision maker in their case, and to view the court.  I welcomed the opportunity to explain directly to the boys the process and how I would reach my decision.  They had of course the services of highly experienced children's solicitors, who accompanied them on their visit."

He then continues:

"I was impressed with the strength of their views."

This was a matter of complaint by Ms Kirby.  She submits that it is impermissible for a judge to use his visit with children to assess the strength of their feeling.

28. I am wholly unconvinced by this submission.  It seems to me that any individual meeting another cannot help but gain a perception from what he/she is hearing.  The judge was only indicating nothing more than that he had been able to assess the strength of feeling, having had a meeting with the boys.  It was not evidence gathering; it was an inevitable consequence to having seen the boys.

29. The judge was impressed by their strength of views, as the social workers, theguardian and the LAC independent reviewing officer have been.  Accordingly there was clear evidence from a number of sources that the boys were expressing a clear view.

30. Ms Kirby's assault on the judge's findings in that regard is that the judge misunderstood his job.  She submits his job was not to make findings on the weight of the evidence that was before him and assess the underlying reasons why the boys were making such statements.  She had asked for a psychological review and this should have been permitted.  It is true that her application was refused but that issue was put before the Court of Appeal, permission was refused on paper and an oral application was not pursued.

31. A renewed application was made in relation to a psychological assessment, but the learned judge again refused.  This result was not challenged in any way.  Consequently it would seem to me that no complaint can be made at this stage that the judge took that view.  Thus it is that Ground 2 of the grounds of appeal fails, for that ground is essentially that HHJ Rundell erred in the exercise of his discretion (in the case management of the case) which led to errors in the final order because he refused two applications for a psychological report.  Where there is an opportunity to appeal matters and that opportunity is not taken (or fully taken) it is not a matter for this court to seek to put it right in the way that is sought in this case.  Ground 2 has no substance.

32. Ms Kirby accepted that her third ground of appeal, that the learned judge erred in law in making an order pursuant to s91(14) of the Children Act essentially fell away if this court found no judicial error in respect of Ground 1.  A judge is entitled, and indeed it is his job, to weigh the evidence and come to conclusions.  The fact that one or more litigants does not agree with that conclusion is not a matter to found a successful appeal.  The extensive and passionate submissions that have been made by Ms Kirby have not demonstrated that this judge was plainly wrong, or that his conclusions were in any way flawed.

33. For that reason, I would dismiss this appeal.

Lord Justice Thorpe:
34. I agree.

Lord Justice Gross:
35. I also agree.

Order:  Appeal dismissed.