M (Children)

LORD JUSTICE THORPE: The local authority issued public law care proceedings in relation to six children in May of this year. The children are all the children of their married parents. They are respectively J, 15; LA, 14; LE, 12; LU 11; P, 9 and R, 2. There was a hearing in the Family Proceedings Court on 25th May. The parents did not attend and have since asserted that they had not been notified of the hearing. That is very much in dispute and neither the judge in the County Court nor this court today can take a position on that dispute.

What is not in dispute is that the Family Proceedings Court, in the absence of the parents, made interim care orders in respect of the four youngest children on a care plan for immediate removal. I am not sufficiently familiar with the practice in the Family Proceedings Court, but I would have thought that in such circumstances, with the parents absent from the court, it would have been safer to make, what I regard as a more conventional interim care order, namely a 28-day order.

The local authority implemented the care plan in respect of R who was removed to foster parents, but they were unable to implement the care plan in relation to the other three children. Although they did their best, it proved impossible to separate these three from the home. Two refused to go and one, having been removed, absconded home.

The parents had found and instructed solicitors on the day following the hearing. There is some issue as to whether the solicitors instructed notified the local authority of the parents' intention to challenge the removal of R at the earliest opportunity open to them. The 8-week order was to expire on 20th July and on the 19th, as a result of administrative error, a letter was written by the local authority to the court saying that this was a case in which, at the Family Proceedings Court hearing, an agreement had been reached for automatic paper renewal. Accordingly the court renewed on the 20th, an error which emerged at a directions hearing on 26th July.

The case was, on that day, before HHJ Elly in the Reading County Court, there having been an upward transfer on the grounds of complexity. He took immediate steps to find two days to hear the parents' challenge. That two-day hearing took place on 2nd/3rd August. The form of the hearing is of some significance. It is recorded by the judge, in paragraph 20 of his judgment. He had a statement from two social workers and that was supplemented by oral evidence from two other social workers. He also had oral evidence from both parents and finally from the guardian.

On the morning of the hearing the guardian had filed a position statement which expressed, in very general terms, his reasons for opposing the parents' endeavours to get R back. He says that his opposition, without full assessments being completed, rested on, "... historical concerns, the parents' previous failure to cooperate with professionals and their minimisation of domestic violence and of deficiencies in their parenting skills."

In his oral evidence the guardian referred to a number of specific concerns which, in his professional judgment, justified continuing R's removal from her home. The judge, in his judgment, subsequently founded himself on those concerns expressed by the guardian for the first time in his oral evidence, and although the parents had the opportunity of cross-examination of course, they had had no notice of the points advanced and did not seek any opportunity to rebut them.

To that extent there is, in my judgment, an aspect of the two-day trial that falls somewhere short of the standard of fairness which is so important when there is at stake the removal or the retention of a child of such a young age from the family home, from parents and from siblings.

The judge's decision to continue R's retention in foster care was taken in the knowledge that, because a professional assessment was to be undertaken by the Maudsley Hospital, it would be impossible to fix the final hearing until March 2006. So he was validating an arrangement that would extend R's absence from the family from 25th May 2005, through to, at the earliest trial, March 2006. In the life of a two-year-old that is a very significant period and would inevitably impact adversely on the parents' prospects of securing R's return at the conclusion of the final hearing.

So it is not surprising to me that a notice of application for permission was filed with the court on 12th August. Unfortunately the determination of permission applications in family appeals in the long vacation is not as consistent as it would be in term time and it was not until 20th September that the papers were referred to me. I ordered an on notice hearing with appeal to follow and that is the stage that we reach today.

At the outset we gave permission to Miss Reardon, who is the front challenger to the judge's order. She represents the mother. Father is separately represented and his counsel supports the mother's appeal and adopts all her arguments. Since the hearing before the judge, the guardian has taken a view that J should be separately represented and arrangements have been made for his file to be transferred to another local firm. Miss Cudby has been instructed to put his point of view at this appeal. So, the critics of the judge are three in number: his supporters, two in number, Miss Foster for the local authority and Miss Posner for the guardian.

The mother's case has been very skilfully argued by Miss Reardon. She says that, essentially, there was insufficient evidence of risk of harm to satisfy the statutory test. The judge, in determining an application for an interim care order, applies section 38 of the Children Act 1989 which, in subsection (2) states:

Section 31(2) is, of course, the subsection that establishes the harm or risk of harm threshold. Miss Foster, for the local authority, emphasises that the judge requires only reasonable grounds.

Miss Reardon has not found it necessary to seek a transcript of any of the evidence to make good her submission that it was insufficient, since the evidence on which the judge founded himself seems to have been principally, if not exclusively, the evidence of the guardian. Miss Reardon accepts that the judge has accurately summarised that evidence in his judgment.

The guardian, in the judge's recording of his concerns at paragraph 37, emphasised that when the professionals had arrived on 25th May to remove the four children there was predictable mayhem in the household:

In relation to that, Miss Reardon makes the telling point that the guardian himself was not present, that all he was doing was repeating a concern apparently expressed by an unidentified social worker who did not give evidence at the hearing. Furthermore, whatever those concerns may have been, they formed no part of the local authority's case. That seems to me to be a very powerful criticism of any reliance on that episode.

The guardian's second concern was recorded in paragraph 38. Essentially what he was saying is that this is a volatile and intermittently violent household. R is therefore at risk of the effects of violence, physical and verbal: "There is a volatile atmosphere in that house and [R] cannot protect herself."

Since the trial below there has been a change of guardian. Miss Posner, who has represented the guardian throughout, on behalf of the newly appointed guardian, emphasises that this is her real concern. The concern is, to me, perfectly understandable in terms of the long-term effect of volatility and violence in a home on a very young child, but it is hard to see the risk of short-term harm unless it be expressed in terms of the possibility of R being caught in some physical crossfire. There is no evidence of anything of that sort having occurred in the past. It seems to me to be a relatively insignificant risk in relation to a future period of approximately four months.

The guardian's next concern was that there was a status quo that should be maintained; he said that R had adjusted to her placement. Reliance on that feature of the case seems to me insecure. The status had been achieved in circumstances that were certainly under question and in dispute. In the measured view of the case the eight or nine weeks that R had been parted from her family had to be balanced against the much longer period that would result from the continuation of the interim care order.

In paragraph 40 the judge records the guardian's observation of R's muted reaction to the family at contact, from which he drew an opinion that there was a real risk to R in the short term.

Miss Reardon makes the valid point that the guardian had only observed contact on one occasion. Social workers who had had much more experience of contact had not expressed any concerns, and even if R's reaction had been muted on the single occasion observed by the guardian, the interpretation of that observation was by no means straightforward and thus was flimsy foundation for the conclusion drawn by the guardian of a real risk of harm in the short-term.

All in all, the submission from Miss Reardon is that the guardian was expressing speculative concerns, "may suffer", "might suffer", and nowhere is there any concrete evidence that a risk of harm from return was established. She makes the point that the guardian, in his oral evidence, had taken as his compass direction that there should be, if any error, an error on the side of caution. Although the judge does not himself adopt that approach, insofar as it was the guardian's stand point, the judge should have been careful to recognise that speculative concerns expressed by the guardian were, or might be, tainted by an unprincipled approach.

Miss Reardon's separate and powerful attack on the judge is that although he has had regard to what everybody agrees to be the relevant authority, the case of Re H (a child)(interim care order) [2003] 1 FCR 350, he has failed to deliver a balanced judgment. He has simply regarded the risk of harm as a one-sided coin: what is the risk to R of returning her? He has not seen it as a two-sided coin, the other side being, what is the risk of short-term emotional harm to R in continuing her deprivation from parents, siblings and home.

The judge has delivered an extremely careful and skilful judgment, but it seems to me that Miss Reardon is right in this criticism. The judge acknowledges, in paragraph 18, that the whole family feels the loss of R. Again he acknowledges, in paragraph 36, a submission from the parents that R is missed by all the family, particularly J, and the effect of her absence is suffered by them all. That is only a record of a submission and the judge does not seem to me to bring that consideration into the balancing exercise, nor to extend it to include consideration of the effects on R of missing all her family and particularly her brother, J.

The case is undoubtedly an unusual one. Its singular feature is that the local authority have failed to remove from the volatile family the three children most at risk of harm given the full history. But the failure to remove those children inevitably diminishes the strength of the local authority's case for extending the removal of R. The judge effectively was approving care plans allowing the older children, about whom the concerns were much more serious, to remain at home, whilst approving the continued separation of R, about whom concerns were far more speculative.

Although I respect the care that the judge brought to this difficult case, I have reached the clear conclusion that Miss Reardon's attack on his approach and judgment, fully supported by a persuasive skeleton argument from Miss Cudby, is entitled to succeed and nothing that Miss Foster or Miss Posner has said has persuaded me otherwise.

Although I appreciate that it is comparatively unusual for this court to interfere with a careful judicial investigation extended over two days of trial, nonetheless there is a clear message to be taken from the case of Re H and I do not believe that the very high standards that must be established to justify the continuing removal of a child from home were made good in this case simply on the basis of the somewhat speculative evidence of the guardian. Nor was the potential risk to R of extended separation sufficiently reflected in judgment. For those two reasons I would allow the appeal.

LORD JUSTICE RICHARDS: I agree.