D (A Child)

LORD JUSTICE WALL: This is an application by Ms D for permission to appeal against orders made by Pauffley J on 13 March 2006 in relation to Ms D’s son, D, born on 23 December 2002. The hearing in March 2006 was the final hearing in a series which had related both to D and to his two older half siblings: a boy A, born on 16 March 1996 and M, born on 13 December 1997. There had previously been care proceedings instituted by the Bournemouth Borough Council, which had resulted in orders that the two older children should live with their father in Australia and a care order was made in relation to D with a care plan for adoption. I will come back to those proceedings in just a moment.

Permission to appeal against the care order was refused in this court and following the freeing order, which was accompanied by an order under section 34(4) of the Children Act authorising the local authority to terminate Ms D’s contact, she applied for permission to this court. I refused it on paper. It was orally renewed before a different constitution on 16 June. Up until that point, Ms D had largely been acting in person, but on 16 June Mrs Sood appeared on her behalf, very recently instructed, and sought an adjournment both I think to master the papers and to prepare a skeleton argument for the court. We granted that application and Mrs Sood has again appeared today with a very helpful skeleton argument, a short updating statement from Ms D and reliance on a decision of this court in a case called Re G, to which I will refer back in just a moment.

We are very grateful to Mrs Sood. This is a poignant case and not an easy one and it has been some consolation to me that, certainly in these very last stages of it, Ms D has had the benefit of legal advice and representation. Certainly this afternoon, Mrs Sood has put the mother’s case sympathetically and fully, in a way which I think could not be faulted or indeed bettered, and Ms D I think can feel that her case has been fully placed before this court.

In order to understand Pauffley J’s judgment, it is necessary to go back a little in history. As Mrs Sood told us earlier this afternoon the mother, who I think was born in Australia, certainly obtained a residence order in relation to the children in Australia. There were two occasions when she brought the two elder children to this country, the first without their father’s agreement. They were returned under the Hague Convention. She then obtained the permission of the Australian court to bring them to England and duly did so, but most unfortunately after she had arrived she effectively went to ground with the children. I think by that stage D had been born by a man other than the father of the other two children.

The result was proceedings, and indeed care proceedings, instituted by the local authority, the removal of the children including D from their mother’s care, and an application by the local authority for care orders. There was an interlocutory application to this court before Potter LJ, as he then was, on 17 February 2005 when he refused Ms D permission to appeal against interim arrangements, and the case came before Pauffley J as an application for care orders in October 2005.

The proceedings took a most extraordinary course and one which deeply troubled the judge, and one I suspect that Ms D now herself bitterly regrets, because at the hearing, which was plainly a full hearing, Ms D was represented by very well-known and highly respected leading and junior counsel. The case proceeded on the basis that the father wished to remove his two children to Australia and Ms D wished to care for D. She wished to care, of course, for all three but if the father were to take A and M to Australia, she would care for D.

As the judge recalls in her judgment in the freeing application, Ms D did not attend the final day saying, as may well have been the case, that she was unwell. But naturally enough her counsel wished to ensure that they had her full and very clear instructions, and as the judge recalls by 4 o’clock on 19 October, Ms D gave her counsel those very clear and unequivocal instructions and they were as follows: that if A and M were destined to Australia in the care of their father, then the mother no longer sought the relief she had previously been seeking, which was an assessment of the prospects of D’s rehabilitation with her. The judge expressed both shock and astonishment that this was the mother’s position but it was clearly advanced by leading counsel on the mother’s behalf and, accordingly, the judge really had no choice but both to accede to the father’s application and to make a care order in relation to D; the mother was simply not pursuing relief in relation to D.

Thus it was that the judge made the care order in relation to D and when Ms D applied for permission to appeal to this court I refused it, on the basis that Ms D had given the judge no alternative but to make a care order on that occasion. But I went on to say that, as the local authority’s plan was for adoption, and if Ms D repented of the instructions she had given her counsel at the conclusion of the care proceedings, she could raise in the freeing proceedings any position she wished then to adopt, particularly if she had changed her mind.

Thus it was that when Pauffley J began to hear the freeing proceedings, and indeed Ms D to recant of her previous decision, the judge welcomed the opportunity for Ms D to be re-assessed. In paragraph 8 of the judgment in relation to which permission is sought today, the judge recalls that on 14 December the freeing application was listed for a final hearing but the judge acceded readily to the application made on behalf of Ms D for further assessment. The judge recalls in her judgment:

So Pauffley J in my judgment, absolutely correctly, gave Ms D a final opportunity to demonstrate that she could co-operate with the local authority, that her previously entrenched attitude had changed, and there was a real prospect of her caring for D. The judge recalls that there had been a not unsurprisingly emotional departure for the two older children and she goes on to record a most extraordinary incident, which again did not auger well for the mother’s attitude to her older children, because in paragraph 11 she makes a specific finding that Ms D had deliberately secreted into the ear of a teddy bear that the children were taking with them to Australia the names and addresses of what she called “escape details” so that contact could be made if the children no longer wished to live with their father.

So the judge was not impressed by that episode and in my judgment, naturally so. But more importantly the question related to the essential assessment. What had happened historically was that Ms D had been psychologically assessed on a number of occasions by Dr Ratnam, a consultant forensic psychiatrist who had been instructed to provide opinions to the court in the past. She was re-instructed to meet Ms D again and to see whether or not there was any real change, any capacity to co-operate with the local authority and to agree to sensible questions in relation to D, such as regards immunisation and education. Whilst they had been, as it were, on the run and in hiding, Ms D had sought to educate the children at home; she had objected to D being immunised in certain respects and so on.

So Dr Ratnam saw Ms D again. She reported, and we have the report, to which Mrs Sood has referred us, and the psychiatrist also gave evidence to the judge for the freeing proceedings. The judge goes into considerable detail as to the report and as to Dr Ratnam’s conclusion. Of course, the judge had the great advantage, which we do not have, of hearing from Ms D herself. Dr Ratnam’s report was to the effect that whilst the mother intellectually accepted that a number of the things she had done in the past were inappropriate, nonetheless that acceptance was not accompanied by a real belief by Ms D that her basic tenets had changed in any way. Although she was therefore capable of making statements to the effect that she had been perhaps wrong in the past, her heart did not effectively go with her head; I paraphrase very crudely. The judge quotes Dr Ratnam as saying:

Dr Ratnam had been asked, secondly, was it possible to place any reliance on Ms D’s express willingness to co-operate with professionals? Dr Ratnam replied that in her view co-operation such as it had been was probably based more on avoiding D being placed for adoption rather than true belief in her actions having been harmful to the children in the past.

The third question was whether or not the mother understood the court’s judgment and in particular the judgment in the care proceedings. Dr Ratnam had gone through it with Ms D and was struck, she says, by Ms D’s lack of emotional reaction to it. She was also concerned about the current change in the mother’s views about the older children’s father. She had always hitherto expressed strong adverse views against him. The mother now said that she had no reaction or thoughts about him, which seemed to the psychiatrist very difficult to believe in the view of her latest comments.

The fourth area Dr Ratnam was asked to comment about was the extent about which the mother accepted the finding that the children had been caused significant emotional harm, that being of course the finding the judge had had to make in relation to the care proceedings, and in that regard Dr Ratnam said it was important to consider that Ms D remained adamant at that point that she would not visit the children in Australia or maintain contact with them, save for phone calls and letters. Dr Ratnam regarded that as an indication of Ms D being unable to consider their emotional well-being and their need for contact with her.

The fifth matter that Dr Ratnam was asked to consider was whether or not the mother was able to perceive her past grave mis-judgments, and Dr Ratnam’s view was that she thought Ms D’s understanding of the consequences of her actions upon the children remained minimal and that her perception was limited to the legal consequences.

Finally, she was asked the critical question: did Ms D have the capacity to change her behaviour in relation to D and, if so, what the likely time scale would be? Her written response was quoted by the judge in the following way:

Dr Ratnam made herself available to give evidence and did so. Her initial answers to questions asked on behalf of Ms D was that it would be of some assistance if there were to be a joint psychological and psychiatric assessment. It would provide a bigger and more accurate profile. Mrs Sood rightly reminded us of that passage in the judgment this afternoon. But it is important to note that the judge went on in recording Dr Ratnam’s evidence:

As before the judge, Mrs Sood has emphasised Ms D’s wish to care for D. She points to the fact that Ms D now is willing, finances permitting, to visit her two older children in Australia and to remain in contact with them. She expresses her willingness to co-operate with the local authority in any further assessment which needs to be undertaken, and it is argued on her behalf by Mrs Sood that given the background, given the dramatic life changes which took place, it is unsurprising that Ms D behaved as she did. It was unsurprising that the last contact was as emotional and as upsetting as it was, but there was indeed the glimmer of hope which the judge had sought and the judge should have grasped it. Mrs Sood pointed to the fact that Ms D now agreed to mainstream education for D and to immunisation, and that essentially the judge had been wrong and premature to have cut off the prospect of that work being done.

As I said earlier, I do not think the argument could have been put more attractively or persuasively than Mrs Sood did so this afternoon. But I regret that, speaking for myself, I am simply unable to accept it. This was a careful, sympathetic judgment by an extremely experienced judge who knew the case well. She of course had observed the extraordinary changes in the mother’s behaviour but she herself had gone out of her way in December 2005 to ensure that Ms D had this final opportunity. The judge herself would have been anxious above all others to see if there was any realistic prospect of rehabilitation, and the evidence given by Ms D and by Dr Ratnam persuaded her that it was, alas, too late.

As so often happens in these cases, it is a commonplace of them that parents do come to a realisation too late for any prospect of rehabilitation to occur, and in my judgment the judge was not only entitled but, on the professional evidence of Dr Ratnam and the guardian, bound to find that there was no realistic prospect of rehabilitation between D and his mother, and that therefore the care order will have to stand and no further assessment would assist; indeed, it would simply delay outcome and make D’s life more difficult.

The judge therefore turned to the question of whether D should be freed for adoption. There were two hurdles in the way of that. The first was, of course, that adoption had to be the means to safeguard or promote the welfare of D throughout his childhood. The second was Ms D had to be withholding her agreement unreasonably; that was the law as it was at the time the judge heard the case. The judge went very carefully through her reasons for coming to the conclusion that Ms D was, indeed, withholding her agreement unreasonably. As to the first of the limbs inevitably with a care order, in relation to which permission had been refused, a care plan for adoption, it was plain that adoption would safeguard or promote D’s welfare throughout his childhood. The crucial question, therefore, was one of withholding of agreement. The judge, in passages which I will not read but which carry over several pages of the judgment, gives I think in total some seven very clear and well articulated reasons as to why it was in her view that Ms D was unreasonably withholding her agreement.

She directed herself in that respect, it seems to me, impeccably as to the law. The factors which she weighed were all plainly appropriate factors, and in my judgment her exercise of discretion in deciding as a matter of fact and law that agreement was being unreasonably withheld is impeccable and incapable of being challenged. Mrs Sood is, however, critical of the judge’s decision to permit the local authority to terminate contact with D, and it does appear from what we are told that the local authority has not behaved well in that it has indeed terminated contact but has not replied to letters written to it by Ms D’s solicitors, and appears to be adopting a somewhat arrogant attitude even if it is waiting for the outcome of this motion application.

Mrs Sood points to modern thinking that contact in the context of adoption is now accepted as being in the interests of many children. The old idea that once a child was adopted he or she became the sole prerogative of the adoptive parents, without any cross-reference to his or her former life, is no longer valid. What is more, D is plainly going to remain in some form of contact with his half-siblings in Australia, and in those circumstances Mrs Sood argues that it was premature, to say the least, for the court to make the section 34 order, and indeed she goes further and argues that the judge did not reason her section 34 decision in the same way that she had reasoned her decision that the mother was withholding her agreement unreasonably.

I have some sympathy for this latter argument but in my judgment it cannot ultimately succeed. Given the history of the mother’s behaviour over the years, her ambivalence in relation to D demonstrated by the decision she made in December 2005, and the likely disruption to D’s life by a continuing order or proposed regime of contact between D and his mother, in my judgment the judge was fully entitled to allow the local authority to terminate contact in the context that D was likely to be placed shortly for adoption. We are told he has not yet been placed, and in my view it is unacceptable as a matter of good practice that Ms D is not being kept in the picture about what is happening to D, even if she is not being allowed to participate in it. But as an exercise of discretion on the facts before her, it seems to me that the judge was well within the limits of that discretion in making the order that she did.

We were referred to a decision of this court in the case of Re G in a constitution comprising Ward LJ and Sir Martin Nourse. It is a recent decision in which the judge, Ward LJ, giving the leading judgment discusses the value of ongoing contact to children in adoptive placement and the inappropriateness of terminating that contact on the facts of the particular case.

But the facts were highly unusual. The question was where two sets of twins should be placed. It was plain that there was going to be ongoing relationships between the wider family. Indeed, the judge at first instance had specifically refused to make an order freeing the children for adoption and therefore, in my judgment, the facts are wholly different.

These cases despite the underlying principles are fact-sensitive and this judge, who had a very long knowledge of Ms D, had seen her on a number of occasions and knew the case intimately, and was not unsympathetic to Ms D, as I think I hope I have shown in the course of the judgment she gave, taking all those factors together in my judgment was perfectly entitled to make an order under section 34(4).

So when I come to review the case once again as I have done, after having initially refused permission on paper, I am left I fear in the same position despite the very persuasive arguments put before us this afternoon. I have not dealt with the question of D’s paternity. It does not seem to me of the greatest moment in this equation but nonetheless it is a factor which the judge weighed and the judge was entitled to weigh.

So in all those circumstances, it seems to me that painful as it is for Ms D and deeply distressing as it must be, the judge was right and that if we were to grant permission to appeal, the appeal would have no realistic prospect of success and indeed I fear it would simply buoy up unrealistic hopes in Ms D, which would be bound to be dashed when the court came to give its final judgment.

For all those reasons I would refuse permission to appeal.

LORD JUSTICE THORPE: I agree and there is nothing that I can add to my Lord, Lord Justice Wall’s careful judgment.