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E (A Child) [2012] EWCA Civ 537

Appeal by mother against placement order in case linked to proceedings concerning her partner's children.

This was an appeal by the mother of LM against a decision that LM should be adopted.  The appellant had had three older children, all of whom had been adopted.  However, earlier in the proceedings the prospects of LM being cared for long-term by his mother had been good.  This was largely due to her new relationship with a new partner, T, who was able to provide her with considerable assistance and input.

However, the partner had two children of his own, C and L, from a previous relationship.  They were the subject of a joint residence order to both of their parents.  Her Honour Judge Swindells had been involved in both the case of LM and the case of C and L.

In November 2011, T, concerned by the care that C and L were receiving from his former partner, did not return them to her care after contact but placed them in the care of his mother, their paternal grandmother.  This came to the attention of HHJ Swindells on 1 December 2011 at a directions hearing in LM's case.  Although there was no criticism of T for deciding not to return the girls to their mother, the judge expressed anxiety about their placement with his mother instead of with him, it having been previously agreed that if their mother could not care for them, T would assume responsibility for their care.

The judge adjourned the hearing in LM's case to the following day when there was also a directions hearing in the case relating to C and L.  On this occasion, the parties agreed that the girls should remain with their paternal grandmother pending a s.37 report but HHJ Swindells refused to support such a plan.  She put what was described by the appellant mother in this case as 'extreme and unjustifiable pressure' on T to assume primary care for his daughters which he subsequently agreed to do.

This led to the appellant in this appeal moving out of her home to allow T to care for C and L.

The issue in this appeal was the complaint that HHJ Swindells should have looked at the future of all three children together in the round, that in failing to do so she erroneously took the decision with the inevitable consequence that LM would not be able to grow up in his mother's care.  The appellant argued that this could only be achieved by consolidation as this was the only way for the expert in the case to have access to the vital information in the private law proceedings for the purposes of the assessment in the public law proceedings.  The judge was also criticised for the 'pressure' that she put on T.

The Court of Appeal refused the appeal.  Counsel for the appellant at first instance had urged the judge against consolidation of the two matters and the judge had ensured that she heard both cases on the same day.  It was therefore 'impossible' to criticise her case management decision.

As for the criticism that the judge had applied improper pressure on T, there had been no such criticism from T in the private law proceedings; indeed, he had expressed gratitude to the judge for showing him where his priorities should lie.  Her experience of the T case gave her legitimate grounds for querying the arrangements that T had made.  It was important to note that nobody had sought to appeal in the T case.  The appeal therefore failed on all grounds.

Summary by Sally Gore, barrister, 14 Gray's Inn Square

Case No: B4/2012/0431

Neutral Citation Number: [2012] EWCA Civ 537
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 15 March 2012



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(DAR Transcript of
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Mr F Feehan QC and Mr B Roche (instructed by Yvonne Clarke Ltd) appeared on behalf of the Appellant mother.

Mr N Sleight (instructed by Hertfordshire County Court) appeared on behalf of the First Respondent local authority.

Ms J Claxton and (instructed by Bridge McFarland Solicitors) appeared on behalf of the Second Respondent, the child via her Children's Guardian.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. It is often said that the outcome in public law proceedings is sad for a parent but I do not think I have ever seen a case in which the outcome for the mother in this appeal, ordained by the judge below, is as tragic and poignant.  In order to explain that it is necessary to unfold quite a complex story.  The appellant mother challenges the order of HHJ Swindells QC sitting in the Lincoln County Court on 2 February at the conclusion of a three-day public law final hearing to determine the future of her child, LM, born on 25 January 2011.  The appeal is brought with permission of McFarlane LJ, his order being of 29 February and providing for this hearing on 15 March.

2. Going back to the history, the mother is 26 years of age and suffers from a borderline personality disorder which is itself the product of abuse that she suffered as a child.  She has given birth to previous children aged ten, seven and two, all three of whom have been adopted.  So very naturally she focused upon her determination to care for her fourth born child, LM, and her prospects of so doing were real given that she entered into a relationship with T, who is 35 years of age and a man of very sound worth.  He is himself the father of two children, C, born in 2001, and L, born in 2004.  At the date that the mother and T entered into a relationship these two girls were in the daily care of their mother but as a result of huge vulnerability in their mother there had been an order, reflective of a parental meeting and agreement, that gave T status as the holder of a joint residence order.  As the future of LM fell for consideration within public law proceedings, an expert, Dr Levy, investigated the case and reported very favourably, very positively, very supportively for the prospect of rehabilitation.  LM had not been in the appellant's care and was fostered.  Dr Levy's opinion was that provided the mother undertook appropriate cognitive therapy her prospects of providing a secure future for LM were good, given the support she received from T and their mutual insight into her condition and the safeguards that they have mutually agreed to meet the eventuality of occasional blips in the mother's well being.

3. There was a dramatic development in November 2011 when T decided not to return his two girls to their mother's home at the conclusion of a contact visit because he had reached the conviction that to return them would be to return them to an abusive household.  He took the decision to place them with his own mother.  That would have involved a change of school for the children because the distance between his mother's home and the children's school was too great.  However, his own grandmother was a retired teacher and was in the short term providing home tutoring.  When the judge on 1 December had a directions hearing in the public law case concerning LM's future, she was alerted to the relevance and now the interweaving of issues concerning T's two daughters and the appellant's baby child, so she had called for the files in the T private law proceedings, of which she had considerable knowledge given that she was the judge who had made the order that emerged from the parental agreement.  She made it absolutely plain that the basis of the order she had made in the T private law proceedings was that in the event of a breakdown in the mother's care then there was a plan that T would be central to the provision of alternative care.  There was nothing in the plan to suggest that his mother would be the fallback carer.  The judge expressed her anxiety at the developments and dealt with the practical question to what extent should the two sets of proceedings – the private law proceedings in the T case and the public law proceedings in relation to LM – be interrelated.  Should there be consolidation of the two cases?  Or should they be run in parallel?  She effectively ensured a degree of integration by adjourning the public law proceedings relating to LM to the following day and bringing into her list a directions appointment in the T case which would otherwise have gone to a district judge.  When she sat on the following day she had before her the adjourned hearing in relation to LM and the hearing in relation to the T girls. 

4. Whilst we have transcripts of the proceedings on 1 December, we have no transcript of the proceedings of the second day in the private law case.  That is because that case is not directly before this court.  It would have been helpful had we had the transcript but we do at least have a note which was taken by someone sitting behind Mr Wood, the solicitor who appeared for T on 2 September.  Mr Feehan first of all sets the scene by saying that there was a consensus amongst all parties in the private law proceedings that the placement with the paternal grandmother should be confirmed whilst a section 37 report was obtained.  That envisaged that T would be continuing to support the appellant in her quest for rehabilitation.  The judge refused to endorse that agreed presentation and, in Mr Feehan's words, put extreme and unjustifiable pressure on T to assume primary care for his two daughters.  The note that Mr Feehan relies upon states:

"HHJ Swindells said that she had already made it perfectly clear who should care for C and L.  She has already made it clear who has parental responsibility and who it was anticipated in these circumstances to step forward and exercise parental responsibility and not to abdicate to the paternal grandmother.  T is in serious risk of making very gross errors of judgment.  T is at risk of this court making findings that he has failed to prioritise the welfare of his own children.  T  needs to be aware that if the court makes that finding, that is a finding that will carry into the other case and will involve a lack of trust and confidence in this court in his commitment in general."

The outcome was that the local authority formally applied for an interim care order in relation to C and L and accordingly brought about a situation when on 3 December the appellant moved out of her home to allow T to assume primary care for C and L at his address. 

5. The two cases were before the judge again on 8 December.  The judge had on the second had LM's case before her, but adjourned it over from the second to the eighth.  The order that emerges on 8 December is the full and detailed order for the further conduct of the proceedings concerning LM.  After a number of recitals there was a direction for the filing of statements, a direction for a placement order application to come on at the same time as the care order application, the appointment of the guardian in the care proceedings as guardian in the placement proceedings and a final hearing on 30 January with a two-day time estimate and with specific arrangements for the evidence of Dr Levy to be taken either directly, or by telephone or by video-link. 

6. The T case was back in court shortly before 30 January and we have been told that it is set for conclusion on a date in June.  But of course our focus is on the final hearing that commenced on 30 January.  It resulted in an extempore judgment on 2 February which explained the judge's decision against rehabilitation and in favour of adoption, given that it was practically possible to place LM in the same family as her two-year-old sibling N.  The outcome was a huge and devastating blow for the appellant and no doubt also to T who is very committed to support. 

7. An application for permission was refused by the judge but, as I have already recorded, was understandably granted by McFarlane LJ on the reading of a very powerful skeleton written by Mr Feehan QC and his junior, Mr Roche, who appeared below.  Mr Feehan's point is many-faceted but essentially what he is saying is that the judge ought to have recognised that an inevitable consequence of rejecting the consensus that C and L should reside with their grandmother was that the appellant's prospects of achieving rehabilitation were effectively destroyed.  So long as she had the undivided support of T her prospects were excellent, but once his available strength was as it were requisitioned for the care of his own two children her case for rehabilitation rested in ruins. 

8. Mr Feehan submits that the judge should have looked at the future of all three children together and in the round.  Had she seen the case in that light she would not have taken a decision with the inevitable consequence of which was to deny LM a childhood and upbringing with her natural mother which otherwise would have been her experience.  He presses the point that the judge could only achieve justice by consolidation.  Only by consolidation would the appellant and the expert, Dr Levy, have access to vital material in the private law proceedings which translated into public law proceedings on 2 December and without that vital information the mother was handicapped in advancing her case, and Dr Levy was handicapped in being unable to make an assessment of well being and for the needs of C and L in their grandmother's care.  He most strongly criticised the judge for the pressure that she put upon T, effectively to forsake the appellant and her aspirations for rehabilitation and to prioritise his two children when perfectly acceptable alternative arrangements were there in the household of the paternal grandmother.

9. The case has been extremely skilfully argued by Mr Feehan and he quite rightly emphasises the devastation to the appellant and the inherent unfairness to the appellant in the developments in early December which led inexorably to the judicial decision that we review.  Taking his points: first of all consolidation.  The judge seems to me to be proof against any criticism.  There was a general debate on 1 December as to how the two cases should be conducted given the inter-relationship between them.  Significantly Mr Roche for the appellant cautioned the judge against consolidation.  The judge says at mid-way through 773:

"JUDGE SWINDELLS:  Yes, is it A consolidation or …

MR ROCHE:  Well, I would be very worried about some information passing from one …

JUDGE SWINDELLS:  Absolutely.  I mean, consolidation, it seems to me, raises all sorts of disclosure issues, but if somehow I can case manage it, with them in parallel, because they need to be together because they are so closely tied?

MR ROCHE:  The move made by T not to return the other two girls after contact, albeit with the support, I believe, of the local authority, has been regarded as inflammatory by the mother.

JUDGE SWINDELLS:  It will be a fully contested hearing.

MR ROCHE:  I understand that one of the criticisms made of her care is her association with various violent people.  The court should be aware that there is a suggestion -- I am not saying it has been proved, there is a suggestion that one of her associates has a conviction for attempted murder.  So, simply, the court should be aware that we will need to be very careful about marshalling these various parties.

JUDGE SWINDELLS:  Yes, that certainly convinces me it should be in parallel and we must be very careful as to what is disclosed.  Yes."

10. It seems to me that in the light of those exchanges it is impossible to criticise the judge for her case management decision.  She ensured that the two cases were before her on the following day and they were before her on 8 December.  At that stage they took their separate paths.  I see no sustainable ground for criticising the judge in that respect.

11. I come now to Mr Feehan's strongest criticism, namely that the judge applied improper pressure, particularly given that the foreseeable consequence of the application of the pressure would be the destruction of the mother's case for rehabilitation.  There is no doubt at all in my mind that Judge Swindells acted forcefully but always in pursuit of the welfare of the children with whom she was severally and separately concerned.  She did have the accumulated experience of the T case, which gave her legitimate grounds for querying the wisdom of the arrangements that T had made.  It was legitimate for her to question in her mind whether T had held a proper balance between his responsibilities to his own children and his commitment to support for the appellant. 

12. The real answer to Mr Feehan's submission in my judgment is that the consequence of the applied pressure was a choice made by T which he did not then regret and has never since regretted.  He has described the judge's intervention as being something of an electric shock which led him to see his error and to appreciate that he had not prioritised C and L as he should have done.  In forensic terms it is important to emphasise that nobody sought to appeal the outcome in the T case on 2 December.  It is not T who has complained that he was put under pressure.  Far from criticising the judge he implicitly acknowledges his debt to her for having brought him to a more balanced course.  The judge's intervention has been accepted by the parties in that case as being beneficial and, as I understand it, there is nobody within the ongoing T case asserting that for the future C and L should return to their grandmother's care. 

13. Whilst recognising that the consequence of the judge's decision was to plainly promote the interests of C and L with very dire consequences on choice for LM, it was for the judge to uphold the needs of L and C when they were at a crisis point in their lives and where that crisis point had been anticipated and where preparations had been made for that crisis point, and where those preparations had then been abandoned. 

14. Whilst seeing that this is a highly unusual case and that at first blush the conduct of the proceedings is open to question, the extempore judgment which Judge Swindells delivered on 2 February completely and convincingly explains what she did and why she did it.  The judgment is a model of lucidity and clear expression and I would dismiss this appeal against it, only emphasising the quality of the work done by Judge Swindells in a very, very difficult situation.

Lord Justice Etherton:
15. I agree.

Lord Justice Ryder:
16. I also agree.

Order: Appeal dismissed