M-H (A Child)

LORD JUSTICE WALL: The appellant, Mr F, appeals against orders made by HHJ Bloom QC in the Manchester County Court sitting at Salford on 11 August 2006.

The judge had been hearing care proceedings instituted by Tameside Metropolitan Borough Council relating to a child called K, who was born on 12 November 2003 and is thus now three. The orders made by the judge were firstly, a final care order in relation to K under section 31 of the Children Act 1989 in favour of Tameside; secondly, an order authorising Tameside to place K for adoption; thirdly, an order authorising Tameside to refuse contact between K and his mother, and fourthly, an order giving Miss M’s solicitors permission to disclose a psychiatric report made in the case to her general practitioner and any treating therapist. The judge also directed that a transcript of his judgment be prepared at public expense and distributed to the parties. We are not in this appeal concerned with the last two orders made by the judge.

Mr F's application for permission to appeal and for an extension of time for filing his appellant’s notice came to me on paper only on 30 November 2006, more than three months after the judge’s order. I directed that it should be listed on notice to Tameside and to K’s guardian in the proceedings. I ordered that the hearing should be expedited and it duly came before this court yesterday, 20 December 2006. At the outset of the argument, we granted permission to appeal and extended the time for filing of the appellant’s notice. At the conclusion of the argument yesterday afternoon we announced our decision but reserved our reasons to this morning.

K’s mother did not appear and was not represented in this court. She put in only a brief appearance before the judge and did not give evidence to him. There is no question of her caring for K. She is, sadly, a confirmed alcoholic and wholly incapable of caring for her child. She is, however, by no means irrelevant to the outcome of these proceedings.

Mr F is not K’s father. However, he is the father of an older child born to Miss M. That child is D, who was born on 12 March 1999, and is thus now seven rising eight. D is living with Mr F pursuant to a residence order made in the Manchester County Court by HHJ Caulfield on 4 July 2003. He has in fact been living permanently with his father since April 2001, when he was two, and came to do so in circumstances which I shall set out in just a moment.

Mr F’s case in the care proceedings relating to K was that he should be formally assessed as potential carer for the boy. The two boys, K and D, were half brothers and if K could not live with his mother, as plainly he could not, he should be brought up with D in Mr F’s care. The local authority’s case was that K should be subject to a placement order and adopted outside his natural family. As will be apparent, the judge followed the latter course. Mr F’s application for what is described as an “independent viability assessment” was refused by the judge both at the pre-hearing review on 14 July 2006 and at the final hearing in August. Mr F’s case in this appeal is in my view aptly summarised by ground 1 in his appellant’s notice which reads as follows:

In his appellant’s notice, Mr F invites this court to set aside the judge’s care and placement orders. In their place he expresses the aspiration to seek either a residence or a special guardianship order in relation to K. On any view, however, an application for any such order (even if it has a proper evidential foundation) is some considerable way down the line and may indeed never be reached. Mr Rowley’s clear and cogent submissions were accordingly limited to inviting this court to set aside the final care order and the placement order made by the judge and to direct the independent assessment of Mr F’s capacity to care for K which the judge had declined to order. Mr Rowley assured us that such an assessment could be completed dependent on the person commissioned to undertake it by the end of either January or February 2007. Although the County Court listing office in Manchester indicated on initial enquiry that a further substantive hearing could not take place until July, it is to be anticipated that if the outcome of the assessment was negative that might well be the end of the case. Alternatively, if it was positive and no agreement could be reached between the parties then any further hearing could be advanced, dependent on the state of the lists and the identity of the tribunal allocated to the case.

The delay Mr Rowley acknowledged was to be regretted but the decision was one of the utmost importance to K. Furthermore, K was currently living with foster parents with whom it was anticipated that he would stay until moved into his final placement elsewhere. Prospective adopters had not been found and the ongoing nature of the proceedings was an obvious deterrent to a permanent adoptive placement being achieved in the short term.

There is a very helpful case summary prepared by Mr F’s solicitors from which I take the essential facts. In the light of the conclusion which I have reached, which is that the assessment sought by Mr F should take place, I propose to say only as much as is strictly necessary about the case for the resolution of this appeal. Furthermore, nothing in this judgment should be taken as in any way giving any indication of my view as to its likely outcome. It may be that the result of the assessment will be to vindicate the judge’s view; it may be the opposite. My concern in this case is essentially about process.

In all, Miss M has had four children by different fathers: the two oldest, both girls, are now aged 16 and 14, respectively. D and K, whose births I have already recorded as 7 and 3. None of the children’s fathers, apart from Mr F, has played any meaningful part in the children’s lives.

The case summary records that on 2 September 1999 Manchester City Council applied for emergency protection orders in relation to the three elder children; K of course had not been born at that stage. Interim Care Orders were granted four days later and the case transferred to the County Court. A number of assessments were ordered including a report from a chartered psychologist called Rosalyn Randall, who assessed both parents. In the event, there was agreement amongst the professionals that the children should be rehabilitated to their mother and to Mr F, with whom she was at the time living, following the birth of D. In pursuance of that plan the three children returned to live with their mother and Mr F in June and July 2000.

The concerns expressed by the professionals at the time were: (1) heavy drinking by both parties; (2) domestic violence within the relationship; and (3) Mr F’s criminal record for violence. Miss M and Mr F separated in October 2000 when he left. The children however remained with their mother and the care proceedings concluded with the final Care Order made by HHJ Wilkinson on 6 November 2000.

Unfortunately by April 2001 it was plain that Miss M was again drinking to excess and Manchester removed the children from her care. D was placed with Mr F for assessment. He has remained with his father ever since, and on 30 September 2002, Manchester invited Mr F to apply for a residence order in relation to D, which was duly made by HHJ Caulfield on 4 July 2003, when it was combined with a supervision order in favour of Manchester for a period of twelve months. That order expired in July 2004 and was not renewed.

In July 2002, Mr F had been convicted on a public order offence and given a community rehabilitation order. Manchester had also ongoing concerns about the relationship between Mr F and Miss M. An independent social worker assessment was ordered by a District Judge in November 2002 and the final hearing postponed until July. At that hearing, however, it was apparent that D was thriving in his father’s care; he was settled and had made friends in his area and in school. He enjoyed contact with his mother and half siblings, both of whom remained in care, and who have remained the subjects of care orders ever since.

K was of course born in November 2003, the same month as Mr F completed his community rehabilitation order, which had included an anger management course. K’s father is a man called DH. Their relationship did not long survive K’s birth and by the time Tameside began the current proceedings Miss M was living with another, different man. The current care proceedings were commenced on 28 November 2005. K initially remained in his mother’s care under a Schedule 2 placement at home agreement. Mr F was not made a party to the proceedings and it is said on Mr F’s behalf that there was not a great deal of communication between Tameside and Manchester about the family.

The case was transferred to the Manchester County Court on 2 December 2005. Various reports were ordered. A paediatrician reported on K. A psychiatrist specialising in alcohol dependency, Dr Weir, reported on Miss M. On 23 May 2006 there was a professionals meeting. Dr Weir expressed justified pessimism about Miss M’s capacity to care for K given her alcohol dependency and on 12 June 2006, there was indeed a crisis which resulted in K being removed into foster care where he has remained.

During the course of the proceedings Mr F put himself forward as a potential carer for K in the event that the placement with Miss M broke down, as of course it did. He sought a viability assessment from the local authority as early as 17 March 2006. The report, which was unfavourable to him, was written on 28 April 2006 but Mr F says he was not sent a copy. By letter dated 9 June 2006, received some days later, he learned that Tameside was not prepared to consider him as a prospective carer for K. He then learnt that Tameside’s plan for K was for adoption. This led him to see solicitors on 7 July 2006. He was granted legal aid as an emergency on the morning of the pre-hearing review before HHJ Bloom on 14 July.

On that day his solicitor made an application to the judge for an independent viability assessment. The judge refused it but granted Mr F party status and ordered him to file a statement. The case summary recalls that at this initial hearing Mr F’s solicitors were wholly without papers. Mr F was given a full legal aid certificate on 24 July and on 26 July he filed a statement. His solicitors received the court bundle on 28 July and on 31 July the local authority served a court bundle from the 2003 proceedings. The final hearing was brought forward by the judge and started on 8 August. K’s father took no part. Miss M attended on the first day but did not reappear after that. She did not give evidence and there was no opportunity to cross-examine her.

I pause at this point to note Mr F’s determination to participate in the proceedings and to care for K, and to express my admiration for Mr F’s solicitor, who in an extremely tight timescale managed to obtain public funding, master the documents and conduct Mr F’s case. The same solicitor was equally proactive in making an application for permission to appeal and, although the application was out of time, we had no difficulty in extending Mr F’s time for filing his appellant’s notice.

We have now, however, reached the point at which in my view Mr F’s primary point of complaint in this appeal can be addressed. I go at once to the judge’s judgment and the reasons he gave for refusing an independent social worker assessment of Mr F’s capacity to care properly for K. In the judgment, which he gave on 11 August, at the conclusion of the hearing, the judge was highly critical of the assessment of Mr F made in the proceedings by the local authority. Paragraph 62 of the judgment is headed “Viability Assessment”:

So far, I find myself in complete agreement with the judge. However, in paragraph 64 of the judgment the judge continued as follows:

From this latter paragraph, it is clear that the judge relied to a substantial extent on the guardian to remedy the defects in the local authority’s flawed assessment. She, in effect, was to carry out the assessment which the local authority had failed to provide. However, when we were taken yesterday to the guardian’s report by counsel instructed on her behalf, it was immediately apparent that the guardian had been opposed to a full assessment and had not carried one out. Paragraph 67 of her report, which is dated 11 July 2006, is headed “Mr F” and the following paragraphs read as follows:

I do not wish it to be thought that I am being critical of the guardian for the stance which she adopted. I have no doubt that it represented her professional judgment at the time, but at the same time it is immediately apparent to me that the judge was under a serious misapprehension if he believed that the guardian had carried out or was going to carry out the further assessment to which he referred in paragraph 63, or that she had indeed conducted a full or proper viability assessment. Her own evidence in the report was unequivocal:

When Mr F’s permission application came to me on paper, I expressed myself in the following way:

The reference to the incident on 19 April 2006 is a reference to a fight in the street in which Mr F became involved. He is a keen follower of football and supports Manchester City. He became involved in a fight following Manchester City’s victory over Manchester United in the local Manchester derby. The guardian and the judge both saw this as a recent example of the type of unacceptable behaviour which would render K liable to long-term emotional damage if cared for by Mr F.

That is a conclusion which Mr F disputes. However, on any view this was a very serious incident and the judge was entitled to make findings about it and give it weight. In my judgment, however, neither the incident itself nor the judge’s well-expressed and legitimate anxieties about both Mr F’s propensity to violence and the nature of his ongoing emotional involvement with the mother is determinative of the issues raised by this appeal. The sense of unease which I felt when reading the papers for the first time refused to go away during the course of the able submissions deployed by counsel yesterday and crystallised during submissions made on behalf of the guardian.

In the event, therefore, I have reached the clear conclusion that the judge was plainly wrong to deny Mr F the independent viability assessment he sought. He was also plainly wrong to think that the gap could and would be plugged by the guardian. The judge was thus left to decide the case with an important piece of evidence missing. Given the significance of the decision for K (it will after all be determinative of the entire pattern of his future life) this gap in my judgment vitiates the judge’s decision and mars the exercise of his discretion.

The interests of this child, in my judgment, required an exhaustive investigation of his welfare needs and the options open to fulfil them. The judge in my view cut that investigation inappropriately short. He was moreover in my judgment wrong to assert as he did in paragraph 64 of his judgment that:

I wish to make it quite clear that a judge of HHJ Bloom’s experience is plainly entitled to make robust findings of fact and to assess witness credibility. I would equally accept that a judge of HHJ Bloom’s ability does not need an expert to tell him things which are properly within the judicial competence.

However, in my judgment, Mr Rowley is right when he submits that the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject. The production of these assessments however is not the province of the judge. Accordingly, in my judgment, to do proper justice to K’s interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which Mr F had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it. As I have already stated, his reliance on the guardian to do so was in my judgment misplaced and the result, as I see it, is a flawed exercise of judicial discretion. In my judgment and for this reason alone, Mr Rowley is entitled to succeed in this appeal. Ground 1 of the appellant’s notice is in my view made out.

In these circumstances it does not seem to me either necessary or desirable to examine Mr Rowley’s other grounds, particularly as Mr F’s capacity to care for K falls to be re-examined in the context of an independent viability assessment. I need to make it quite clear, however, that the content of that assessment is wholly a matter for the professional judgment of the individual commissioned to perform the task. As I have already indicated the outcome may agree with the judge’s conclusions or it may not. Either way, it is in my judgment a piece of work which has to be undertaken if K’s welfare is to be fully and properly considered.

We listened yesterday afternoon to an extremely interesting argument from Mr Rowley based on this court’s decision in the case of Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 and the subsequent dicta of Lord Nicholls in the case of Re O and Re N, Re B [2001] 1 FLR 1169 as explained by Ryder J in a A County Court v A Mother, A Father and X, Y and Z (By Their Guardian) [2005] 2 Family Law Reports 129. In essence the point was whether or not the judge had been entitled when applying the welfare checklist under section 1(3) of the Children Act 1989 and in particular when assessing “any harm which [K] had suffered was at risk of suffering” under Section 1(3)(e) to take into account incidents and events which the judge was unable to find proved on the balance of probabilities. Mr Rowley took us through the judgment and pointed to a significant number of instances in which the judge, whilst making it clear that he was not in a position to make findings of fact, nonetheless stated that these unproved matters were such that he could not ignore them. Mr Rowley submitted, accordingly, that there was a clear inference that the judge had indeed taken these matters into account in relation to K. That, Mr Rowley submitted, amounted to an error of law.

Had the appeal turned on this point, I would have felt obliged to address it. Despite the response by Mr Lugsten on behalf of Tameside, and whilst I would I think be of the opinion that the judge’s conclusion on the two principal aspects of the case (that is the father’s propensity to violence and the nature of his relationship with K’s mother) were properly open to him as an exercise of judicial fact finding and assessment, my sense of unease at the judge’s overall conclusion was not, I have to say, assuaged by his heavy reliance in particular on the historical assessment by Rosalyn Randall in February 2000. I suspect however that if this had been the only point in the appeal I would in all probability have sided with the judge. In the event, however, it does not in my judgment fall to this court to resolve the subtleties and the interaction between Re N and Re R and Re O and Re N . That exercise can await a case in which the point is central to the appeal. In my judgment here, it is plainly not.

Whilst it is equally unnecessary to decide the remaining grounds of appeal, I think it only fair to the judge to say that in my judgment the critical flaw is the failure to permit the independent viability assessment. It was the need for that assessment and the judge’s failure to permit it which in my judgment alone vitiates the judgment. I am, speaking for myself, unimpressed by the argument that the judge otherwise denied Mr F a fair hearing. I have already expressed my admiration for the manner in which Mr F’s solicitor grappled with and mastered the available material within a very short time. The hearing was in my judgment only unfair in the particular aspect which I have identified, but that is sufficient to require the order to be set aside.

In my judgment, therefore, the independent viability assessment which the judge refused must take place. It should, if possible, be on a joint instruction. It is important that all the parties have confidence in the ability of the individual chosen to undertake it. Fortunately, there are a substantial number of competent practitioners in the north-west who are capable of undertaking the task. The sooner the letter of instruction goes out the better. The delay is regrettable but in my judgment is proportionate when one considers the fundamental nature of the decision and the fact that K will remain in his current foster place until the matter is resolved. He will then, we hope, only have one move either to adopters or to Mr F.

I agree with Mr Rowley that if further judicial input is required to resolve any contested issue the matter should not go back to HHJ Bloom. If the assessment supports the judge’s conclusion, Mr F will have to consider his position very carefully and will I am confident receive able advice from Mr Rowley and those instructing him. No doubt a hearing should be arranged in any event. In case of need, it can always be vacated. If the case cannot be accommodated in the County Court, it may be necessary either to assign it to a recorder or to a standby High Court judge to be allocated by the Family Division Liaison Judge for the Northern Circuit in consultation with the President. This ultimately is a matter which I would be content to leave for Ryder J, the Family Division Liaison Judge.

I would accordingly and for the reasons I have given allow this appeal. I would set aside the Care Order and replace it with an Interim Care Order. I would further set aside or suspend the placement order. I would direct an independent viability assessment of Mr F’s capacity to care for K. I would set a time frame for the identification and instruction of the independent social worker carrying out the assessment and in which he or she is due to report. I would fix a hearing for consideration of the report before a judge other than HHJ Bloom QC to be allocated by agreement or by Ryder J. I suggest that we invite counsel to draft the necessary directions and should hear them to the extent that it is necessary for that purpose.

LORD JUSTICE CARNWATH: I agree

LORD JUSTICE THORPE: I also agree.