CW (a child), Re

Parents apply to the Court of Appeal for permission to appeal against an order of a Circuit Judge refusing to grant them an injunction to stay implementation by a local authority of its care plan for the adoption of their daughter. The question which comes before me as the single judge on an oral application is whether I should give permission. After giving this case the anxious consideration to which every such case is entitled I have concluded that there is no basis for granting permission and I decline to do so. The parents’ application is accordingly refused.

Because the case comes before the Court of Appeal in somewhat unusual circumstances, my judgment is more than usually detailed.

IW, the father, and SW, the mother, who I will together refer to as the parents, are married. They have a daughter CW who was born on 26 December 2004. IW was previously married to TW. They had two children, a daughter, ZW, born on 21 March 1997 and a son, DW, born on 2 February 1999.

On 30 March 1999, when he was only eight weeks old, DW was taken to hospital where he was discovered to have serious injuries. He now suffers from cerebral palsy, quadriplegia affecting his lower limbs, severe physical difficulties and severe speech and language delay. On 24 September 1999 the local authority, the London Borough of Enfield, began care proceedings (CC 1594/99) in respect of both ZW and DW. There was a fact-finding hearing in the Principal Registry of the Family Division before District Judge Bradley. She had a medical report dated 18 December 1999, which I have not seen, by Dr Nelson, a consultant neuroradiologist at the General Infirmary at Leeds. He was instructed as an independent expert. His report was apparently read to the court and therefore not forensically challenged.

On 6 March 2000 District Judge Bradley gave judgment. I have read the transcript. The District Judge summarised Dr Nelson’s evidence as follows:

“[DW] at the age of about eight weeks suffered impact and shaking injuries which are overwhelmingly likely to have been caused while in his parents’ care on that very day, indeed most likely within a few hours of coming to hospital ... it is virtually impossible for that injury and his subsequent disability to have occurred on account of any pre-existing condition or spontaneously or through normal handling.”

Dr Nelson also discounted the suggestion that perhaps ZW - then aged two - might have bounced DW’s baby bouncer with such force that DW was injured by hitting his head on the bar: “that could not account for the injuries suffered.” The District Judge said that the opinion of Dr Nelson “is one on which I have to rely.”

In relation to DW the District Judge’s findings were as follows:

“the uncontested medical evidence is beyond any doubt that these injuries were caused by some human action and that can only have been by one of these parents ... it seems to me on the medical evidence that I have to find that the injury was non accidental and I find that [DW] has suffered and is suffering significant harm and that harm is attributable to the care given to him by his parents not being what it would be reasonable to expect parents to give.”

That is, of course, a reference to the statutory ‘threshold’ test in section 31(2) of the Children Act 1989, which provides that:

“A court may only make a care order or supervision order if it is satisfied –

(a)

that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)

that the harm, or likelihood of harm, is attributable to –

(i)

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)

the child’s being beyond parental control.”

The District Judge continued:

“I cannot on the evidence before me determine which of these parents caused the injuries, that is impossible, but the injuries were caused while in their care and each has failed to protect [DW] from harm so that so far as [DW] is concerned I find that the threshold criteria have been met.”

In relation to ZW the District Judge found that:

“There is no hint that her care has been anything other than excellent, but in view of the finding I have made and have had to make in relation to [DW], I do have to consider whether she is at risk herself of suffering harm. She clearly has not suffered any.”

The District Judge then considered the decision of Wall J (as he then was) in Re CB and JB (Care Proceedings: Guidelines) [1998) 2 FLR 211 (see below) before concluding:

“I have to find that there is a risk to [ZW] of harm in the care of her parents, because one or other of them has harmed [DW] and we are still no closer to an explanation of what happened, who caused the injury or how. One suspects that if the injury was caused by one of these parents as I have found, then the most likely explanation was a sudden, uncharacteristic and immediately regretted loss of control, but we do not know and it must follow therefore that there must be a risk to [ZW] and I so find.”

The District Judge gave her judgment after the Court of Appeal had given judgment (on 27 January 1999) but before the House of Lords gave judgment (on 16 March 2000) in Lancashire County Council v B [2000] 2 AC 147. Both in relation to DW and in relation to ZW she correctly applied the law as it then stood – that is, the law to be found in Wall J’s judgment in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 and in the Court of Appeal’s judgment in the Lancashire case. But her approach was also in accordance with the law as it was subsequently expounded by the House of Lords, for on this point the House affirmed the decision of the Court of Appeal in the Lancashire case.

The basic principle as declared by the House of Lords in Lancashire County Council v B [2000] 2 AC 147 and reaffirmed by the House in In re O (Minors) (Care: Preliminary Hearing), In re B (A Minor) [2003] UKHL 18, [2004] 1 AC 523, is that if a child is injured whilst in the care of both parents, but the judge cannot find which of them is the perpetrator, those findings can suffice to found threshold. As Lord Nicholls of Birkenhead put it in the Lancashire case at page 166, where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care, then threshold is nonetheless established. In such a case the phrase “care given to the child” in section 31(2)(b)(i) of the Children Act 1989 is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers.

Lord Nicholls recognised that the effect of this is that threshold may be established “when there is no more than a possibility that the parents were responsible for inflicting the injuries which the child has undoubtedly suffered” and that “parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves.”

District Judge Bradley, as we have seen, applied the decision of Wall J in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 (also reported as In re B (Minors) (Care Proceedings: Practice) [1999] 1 WLR 238). That was an ‘uncertain perpetrator’ case, where the judge was satisfied that a child CB had suffered injuries at the hands of either her father or her mother but could not say which. Threshold was therefore established in relation to CB. The father was now ‘off the scene’, serving a long sentence of imprisonment, and the question arose whether threshold was also established in relation to CB’s twin brother JB who had not been injured.

Wall J posed the question at page 220:

“Where: (a) parents have two children; (b) one child has been non-accidentally injured in the care of her parents and the other has not been injured; (c) there is no other possible perpetrator; but (d) the court is unable on the In re H standard to decide which parent inflicted the injuries; can it be argued either (i) that the threshold criteria are not met in relation to the uninjured child, alternatively (ii) that where one parent is off the scene (as here, where the father is in prison) both children can properly be returned to the other parent, because there is no factual basis upon which it can be said that either child is at risk of harm in the future?

The answer to both parts of this question, in my judgment, is an emphatic “No.” The argument to the contrary ... strikes at the whole philosophy of child protection embodied in the Children Act 1989 and seeks to import into care proceedings the unsatisfactory rule of criminal law that if a jury cannot decide which of two people is responsible for the death of a child, or serious injury to a child, each is entitled to an acquittal.”

There are two passages in his judgment which are important for present purposes. The first is at page 221:

“there must be a likelihood of JB suffering significant harm, if his twin sister has actually suffered significant harm in the form of life-threatening, non-accidental injuries at the hand of one or both of her parents. Lord Nicholls of Birkenhead in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 585 made it clear that “likely” in the context of section 31(2) does not mean more probable than not: it is used in the sense of “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.” CB has suffered life-threatening non accidental injuries at the hands of one or both of her parents; there must therefore, in my judgment, be a possibility which cannot sensibly be ignored that if JB were left in the care of his parents – or either of them – he too will suffer significant harm.

Accordingly, in my judgment, a finding of fact that a child in CB’s position has been non-accidentally injured by one or both of her parents whilst she was in their joint care is sufficient to satisfy the threshold criteria under section 31(2) of the Children Act 1989 in relation to both children, notwithstanding the fact that only one has suffered non-accidental injury and that on the available evidence the court cannot be satisfied on the balance of probabilities that it was one parent rather than the other who inflicted those injuries. To hold otherwise would in my judgment not only be illogical, but would render the statutory provisions ineffective to deal with a commonplace aspect of child protection.”

The final sentence of that passage was cited with approval by Lord Nicholls of Birkenhead in In re O (Minors) (Care: Preliminary Hearing), In re B (A Minor) [2003] UKHL 18, [2004] 1 AC 523, at para [20].

The other passage in Wall J’s judgment in Re CB and JB is at page 223:

"the absence of a finding that it was one parent rather than the other does not eliminate the risk if one of the parents is forcibly removed from the scene, as here, and the child is left with the other parent. The finding of fact is that the child was injured by either or both of her parents. The risk to the child from each parent must therefore be substantial. In my judgment the fallacy in counsel’s argument ... is twofold. First, the absence of a positive finding that it was the mother rather than the father who caused the injuries does not equate to a finding that the case against the mother is not proven. On this argument it would have to be asserted that the case against the father is not proven either. Does this mean that the child is not at risk from either parent? Clearly not. A finding that it must have been either father or mother means, in my judgment, that the child is at risk from both. Secondly, the suggestion that the removal of the father from the scene eliminates the risk is plainly fallacious. If the court cannot tell which parent it was, and if it is the case that the mother is as likely as the father to have inflicted the injuries, the removal of the father cannot eliminate the risk.

As I have already indicated, counsel’s argument seems to me equivalent to importing into care proceedings the principle of criminal law by which if two parents are accused of the serious injury or murder of a child in their care, but a jury cannot be satisfied beyond reasonable doubt which parent struck the blow which killed or injured the child then each is entitled to be acquitted. Whilst there are many who find the criminal law in this respect unsatisfactory, there is clearly a logical basis for it. Criminal law is concerned with punishment for criminal behaviour. A person can only be punished if found guilty beyond reasonable doubt of the crime of which he is accused. Care proceedings are concerned with child protection. You cannot protect a child by exposing him to risk. Assessment of risk has to be based on findings of fact sufficient to give rise to the risk.

A finding of fact that a child has been injured by one of his two parents and that each is as likely to have done it as the other means that he is at risk from each. In these circumstances, you clearly cannot protect a child from risk by leaving him with one parent.”

That passage was cited with approval by Robert Walker LJ (as he then was) giving the judgment of the Court of Appeal in Lancashire County Council v B [2000] 2 AC 147 at page 154.

So District Judge Bradley’s judgment, both in relation to DW and in relation to ZW, was firmly founded on the relevant legal principles.

I return to the narrative. A final ‘disposal’ hearing took place on 3 October 2000. The father and TW continued to co-operate fully with professionals. The local authority and the children’s guardian recommended that there be no order. DW and ZW remained with their parents. But within a few months the father’s relationship with the social workers and eventually with TW deteriorated. The marriage broke down and was dissolved. DW and ZW remain with their mother, TW. The father continued, and as I understand it still continues, to have contact with them.

In December 2003 the father married SW. A year later, on 26 December 2004, CW was born. On 30 December 2004 CW was taken into police protection. On 31 December 2004 the local authority obtained an emergency protection order. Care proceedings followed (FD05C000022). CW was allowed to remain with her mother, SW, on the basis that she and SW lived with SW’s parents and that the father was banned from attending at the premises. On 26 April 2005 CW was removed from the maternal grandparents’ home and placed with foster parents where, so far as I am aware, she remains.

On 14 September 2005 the local authority served a document setting out its case on threshold, correctly asserting that in the circumstances the relevant date for the determination of threshold was 30 December 2004. That document was amended in certain respects following lengthy discussions between the parties and their legal representatives at court on 22 March 2006. The father and mother were separately represented, both by counsel. The resulting ‘Threshold Criteria’ document dated 22 March 2006 was placed before His Honour Judge Horowitz QC, as he put it in his judgment dated 23 October 2006 (see below), “in the presence of all parties and their advisers [as] an agreed document.” The same day (22 March 2006) Judge Horowitz made an order reciting that the court had found threshold to be met in accordance with that document.

The Threshold Criteria document dated 22 March 2006 is central to the issues before me, so I must summarise its contents in some detail. Paragraph 3 set out that at the relevant date (30 December 2004) CW was likely to suffer significant physical and emotional harm that was attributable to the care she was likely to receive not being reasonable parental care. Paragraph 3 continued with the statement that both the father and the mother denied that CW was likely to suffer significant harm attributable to their care.

Paragraph 4 set out the facts relied upon by the local authority in eleven numbered sub-paragraphs. Paragraphs (i) and (ii) summarised succinctly and accurately District Judge Bradley’s findings as set out in her judgment of 6 March 2000. Paragraph (iii) read as follows:

“As a result of paragraphs (i) and (ii) above the “threshold criteria” are met in relation to [CW].”

I should add that paragraphs (i)-(iii) had remained unchanged since the original draft dated 14 September 2005. Responses to that document had been served by the mother on 2 November 2005 and by the father on 15 December 2005. Neither challenged the factual accuracy of paragraphs (i)-(ii) insofar as they purported to set out District Judge Bradley’s findings, though the father denied that he himself caused DW any injury and “continues to have doubts as to whether [DW] in fact suffered an injury or whether there might be some other as yet unknown medical cause.” Both accepted paragraph (iii), the father “agree[ing] that as a result of those findings, the Threshold Criteria must be considered by this point to have been met in relation to [CW].”

Paragraph (iv) was as follows:

“[IW] continues to deny that [DW] suffered an injury. Further he continues to strongly deny the factual accuracy of the findings of the Court in the earlier proceedings ... This denial is current as at the date the Court considered the threshold criteria, namely the 22^nd March 2006.”

Paragraph (v) set out that it had been the plan of the parents for the father to play a substantial role in the day-to-day care of CW, with the assistance of others.

Paragraph (vi) set out that:

“[IW] has a problem with self control and management of frustration. Given the nature of the injuries (which [IW] vehemently denies) sustained by [DW], this problem is relevant to the assessment [of] the likelihood of harm to [CW]. The pattern of behaviour is a violent outburst followed by contrition and apology. The evidence relating to his absence of self control is as follows … ”

There were then set out seven sub-paragraphs of particulars, (a)-(g). Paragraph (vii) set out that it was the opinion of a multi-disciplinary team at Legard House (the centre which IW and SW had attended for a viability assessment) as expressed in a report dated 19 April 2005, that:

“the combination in [IW] of a loss of self control, threatening behaviour, denial of injury to [DW] and perception of himself as victim presents a “very high risk situation” to [CW] and means that she is “likely” to suffer significant harm.”

I have read the report and that is indeed what it says.

Paragraph (viii) set out that on or about 26 April 2005 the father and the mother “conspired to keep [CW] away from the local authority in the knowledge that the plan had changed to involve a removal of [CW] from the care of [her] parents.”

Paragraph (ix) set out that “[SW] and [IW] present as a couple. [SW] is unable to protect [CW] from [IW]” and then set out particulars of that matter in seven numbered sub-paragraphs, (a)-(g). Sub-paragraph (a) merely repeated the matters in paragraph (v). Sub-paragraph (b) set out that the mother refused to believe the history as recounted to her by social services, sub-paragraph (c) that she refused to speak with social services, and sub-paragraph (d) that during all of the father's outbursts she had never tried to manage or succeeded in managing his behaviour (though she asserted that she tried to do so in private). Sub-paragraph (e) repeated paragraph (viii). Sub-paragraph (f) set out that on 15 February the mother did not feed C although she was obviously distressed. Sub-paragraph (g) set out that although the mother accepts that the local authority has a legitimate concern given the history of injury, “her aspiration is for the family to be reunited as [IW] is “innocent” of the injuries caused to [DW].”

During the course of the proceedings steps were taken to assess the parents. As Judge Horowitz pointed out in his judgment of 23 October 2006, the assessment process got off to an unpromising start when Legard House declined to accept the parents for assessment. There followed what the judge called a “very preliminary” assessment at Moorfields Family Centre. A full residential assessment at the Breslaff Centre began on 27 February 2006 when the parents moved in. Initially CW was delivered there for contact twice weekly for three hours at a time. The view of the Breslaff Centre was that much of the parents’ work was positive but that further assessment was required. A meeting was fixed at the Breslaff Centre on 29 March 2006 to discuss whether CW was to join her parents, thus, as the judge put it, “upgrading” the assessment.

The meeting on 29 March 2006 took place in two parts: first, there was a professionals meeting and then the parents were invited in for further discussion. The judge records the professionals as having been “quite taken aback” by what had happened at the hearing the week before on 22 March 2006 when the Threshold Criteria document had been agreed. The collective view was that the father had taken a more rigid and rejectionist stance than previously towards even the possibility that DW had been injured. The minutes of the professionals meeting record CW’s children’s guardian as saying, and the local authority agreeing, that it was not appropriate for CW to move in to the Breslaff Centre until the father had been “challenged” and his views had “moved forward.”

By April 2006 what the judge called some form of deadlock had been reached. A long – three hour – meeting on 12 April 2006 between the social worker and the father was not productive.

In accordance with directions included by Judge Horowitz in the order he had made on 22 March 2006, the question of whether CW should join her parents in the Breslaff Centre was to be decided at a further directions hearing on 19 April 2006. In the upshot CW did not join her parents and the assessment at the Breslaff Centre came to an end. Applications by the parents for further residential assessments failed, but they were permitted to put in a report by an independent social worker, Ms Ware.

The final ‘disposal’ hearing commenced on 16 October 2006 before Judge Horowitz. It lasted five days. Judge Horowitz gave judgment on 23 October 2006. The local authority, supported by CW’s guardian, had been seeking a care order with a plan for adoption. The parents contended that there should be no order, alternatively a joint residence order with a supervision order, alternatively an interim order to enable the further assessment of various other family members. Judge Horowitz made a care order.

Judge Horowitz gave a careful and detailed judgment. It runs to some 26 pages. He summarised the local authority’s case as being that the orders it was seeking were “necessary on full examination of the past history of [IW]’s parenting of his older children in his first marriage and the responses of both the father and the mother to the concerns that, it is said, are appropriately and seriously raised in the light of that history.” He went through the history of the earlier care proceedings – he had, which I have not, the full file from those proceedings or as near as made no matter – and said that District Judge Bradley had come to an “impeccable conclusion,” correctly applying the principles laid down by the Court of Appeal (and subsequently endorsed by the House of Lords) in Lancashire County Council v B [2000] 2 AC 147. He then went through the history leading up to the current care proceedings and described how threshold had been conceded at the hearing on 22 March 2006.

Judge Horowitz then described the evidence he had read and heard. The written evidence, none of which, it is important to note, was challenged, consisted in particular of a report by Mr Dowsett, a consultant clinical psychologist, who had interviewed both parents, reports by Dr Boast, a consultant forensic psychiatrist, on the father’s mental/psychiatric state, a report by Dr Jackson, a consultant general physician, seeking to assess the validity or otherwise of the several chronic conditions which the father said he suffered from, a report by Dr Luder, a consultant paediatrician, on CW’s development and possible future developmental delay, and a report by Ms Ware, the independent social worker instructed by the parents. Judge Horowitz also placed considerable reliance, as we shall see, on a report dated 25 May 2000 which Mr Gumbleton of Resolutions had prepared for the previous care proceedings.

Judge Horowitz heard oral evidence from various local authority social workers, from professionals at Moorfields Family Centre and the Breslaff Centre, from Ms Thurlow-Pick, who had conducted the preliminary kinship assessment of three sets of family members (the maternal uncle and aunt, the mother’s great uncle and the maternal grandparents), from the father and the mother and finally from CW’s guardian.

Judge Horowitz was critical (and it would seem with some justification) of the work carried out by Ms Thurlow-Pick. (She confessed herself to be unfamiliar with material that described the mother as a good or very good mother and was not aware that DW had been returned to the care of both his parents and not just his mother.) He described the assessment process as not particularly profound. But as his analysis of the evidence demonstrated, the suitability or otherwise of the various family members was not, in the final analysis, dependent upon Ms Thurlow-Pick’s opinions. His conclusion, which he justified by careful reference to the evidence, was that “none of these three households present ... a viable starting point for further assessment.”

Judge Horowitz correctly directed himself that his paramount consideration was CW’s welfare. He reminded himself that “children are in general better off with their parents provided that they meet a good enough standard” and that the local authority’s plan for adoption represented an interference by the State with family life “in its most drastic form.” He correctly directed himself that such a step can only be justified, if at all, if “fully proportionate to the necessity to protect the child.” He recorded that the mother’s counsel had made it a “fundamental basis” of his submissions that on the evidence the local authority’s care plan represented a “disproportionate intervention.” He also recorded how both the mother’s counsel and the father’s counsel had emphasised the positive view formed of both parents during the most recent assessment. He commented: “The full run of records are very positive.” Likewise he recorded counsel’s emphasis on the fact that at the end of the previous proceedings the court had released both children back to the parents, notwithstanding that both of them “remained in the frame,” as also on the fact that there was nothing to suggest that the line then being taken by the father and his first wife was substantially different from that now being taken by the father and his second wife.

Judge Horowitz described the case as presenting a number of difficult and interlinked questions:

“what is the effect on my welfare consideration of the father’s now committed and entrenched view that [DW]’s cerebral palsy was caused not by a physical act but by some organic disease with or without a genetic component? Coupled with that question, what is the relevance of the fact that [SW] has come firmly to support him in that view? In giving the appropriate weight to the parental view as to the causation of [DW]’s present condition, has the father reached that view today after fluctuating or hovering over the possibility at least that the analysis and conclusion of District Judge Bradley represents the truth? Has the assessment process conducted by and on behalf of the local authority reached a fair and objective conclusion or, alternatively, has it been overhasty and/or skewed by a change of direction in the assessment targets around March-April 2006? Last, and importantly, to what extent is any concern, conceded to be legitimate, grounded upon the parents’ denial of the causation of [DW]’s present state, to be offset and outweighed by the admitted positive picture of the mother’s love and capacity to care and of the father’s own undoubtedly sincere expression of love and his wish to parent successfully?”

Judge Horowitz observed, correctly, that in paragraphs 4(iv) and 4(vi) of the Threshold Criteria document, what was being relied upon by the local authority was the fact of the father’s denial. He recalled that during the hearing on 22 March 2006 he had pointed out to the father that he was “making a case against himself worse” by insisting, as it was accepted he did, on the insertion of the adverbs “strongly” (in paragraph 4(iv)) and “vehemently” (in paragraph 4(vi)).

The judge considered carefully whether the stance adopted by the father in the Threshold Criteria document evinced a change of attitude on his part. The local authority’s position was that the events of 22 March 2006 and their impact on the meeting on 29 March 2006 marked a watershed. The current social worker described the hearing on 22 March 2006 as “pivotal.” Prior to then the local authority’s perception was that the father had been making hesitant steps towards an acceptance of District Judge Bradley’s findings. Now he was adopting a position of entrenched rejection. This, in the view of the local authority, needed to be dealt with. In this situation both the local authority and the guardian were looking for acceptance – not an admission of guilt but an acceptance by the father that DW had been injured. And that, in their view, was simply not forthcoming.

The father’s evidence was, as the judge put it, that he had never fluctuated or had a different view of the medical issue. Judge Horowitz carefully examined that assertion, concluding that it was a little difficult to reconcile with what the father himself had said in his statement of 15 February 2005 and pointing out that there was material suggesting that in the assessment process “there have been distinct signs of movement from time to time.” He expressed his conclusion on this point as follows:

“I am satisfied that there was a new emphasis in his attitude towards the previous findings from about March onwards. That stance was and again for the first time wholeheartedly supported by his wife as she in turn confirmed in her evidence to me. Further, in my judgment, that change of direction or emphasis called for a corresponding adjustment of tack by those carrying out the assessment process.”

Addressing the submissions put forward by counsel on behalf of the parents Judge Horowitz said that he needed to have careful regard both to the history in the previous proceedings and to the evidence he had of the current state of mind and interaction between the parents. He pointed out that whereas in the previous proceedings the father and his then wife had been positively assessed as cooperative in working together with the local authority, the recent presentation of the parents and the joint parental rejection of the previous findings could not be other than a matter of concern. A number of aspects of this he described as “very worrying.”

First, their rejection of the previous findings was poorly reasoned. The father’s suggestions ranged from the genetic to birth trauma (entanglement of the umbilical cord at birth) to what the judge described as a general assertion that the medical evidence had been misrepresented by the doctors. There was, said the judge, nothing sustained or coherent in the father’s rejection of the findings (he did not, for example, refer to the Geddes challenge) and despite being invited to do so was unable to produce any documentary material to support his position.

Secondly, Judge Horowitz concluded that the father’s stance was rooted in his personality. Mr Dowsett had assessed him as behaving in an unnecessarily antagonistic and self-destructive manner. (Acknowledging the force of that comment the judge observed that it never seemed to have occurred to the father to pay “tactical acknowledgement” to the local authority to secure the greater goal of CW’s return.) Dr Boast considered that the father’s interaction with social services was characterised by egocentricity and narcissism, something which the judge thought plausibly explained why the father took a position which denied him what he claimed to seek, namely the return of CW to his joint care.

Thirdly, the judge described the father’s self perception as a multiple invalid as being “detached from reality.” Rehearsing Dr Jackson’s evidence, Judge Horowitz said that the doctor did not find frank malingering but did consider that there was a major psychological component to the father’s physical symptoms.

Fourthly, Judge Horowitz described as “particularly troubling” what he referred to as the father’s “propensity to flashpoints of abusive and threatening anger.” He referred to the “sad fact” that the record of the father’s aggressive reactions was “somewhat extensive” and that his words and behaviour made it difficult for social services and other professional agencies to contemplate working with him in conditions of safety. (By way of example: The father had assaulted DW’s children’s guardian. In April 2005 he told Legard House that the only good social worker was a dead social worker. In May 2006 he threw something at the judge who had granted leave to advertise for adoptive parents. In September 2006 he told the social worker in the course of a telephone conversation that he wished her a horrible death. At the outset of the final hearing, while waiting in the court corridor for the case to be called on, he insulted the same social worker by calling her a fucking bitch.) The judge commented, having considered Dr Luder’s evidence, that in CW’s particular case, even more so than in others, an inability to work with social service agencies was “inconsistent with her welfare.”

Fifthly, the judge said that the father’s expressed willingness to work with social workers was hedged with qualifications.

Finally, Judge Horowitz said that he could not put out of his mind the unchallenged finding that either the father or his first wife had inflicted an injury on a vulnerable child:

“It follows that I have to consider whether there is a risk from anger to [CW]. On all the material that I have I cannot safely exclude it from consideration.”

Judge Horowitz then turned to consider the mother. He recognised her qualities and acknowledged that she had been positive in contact. But he found that she had a dependent and admiring and wholly supportive relationship with her husband, that she had now completely aligned herself with his medical views, which she believed to be right without question, and that she would not be able to find it in herself to disagree with him on fundamental issues and, even if she were to do so, to defy him. He considered Mr Gumbleton’s stress on the need to identify a safe carer, particularly where there is non-acceptance of previous history, as “sound and highly relevant.”

“It is the tragedy of this case that I cannot envisage [SW] playing that role.”

At the end of the day, if with some considerable regret, Judge Horowitz reached what he called “the clear conclusion” that he had to exercise his discretion by making a care order as sought by the local authority and supported by the guardian. He described that step as “proportionate and necessary to secure [CW]’s welfare.”

It is clear from his judgment that Judge Horowitz was not unquestioning or uncritical of the local authority’s case. I have already referred to his criticism of Ms Thurlow- Pick’s work. But in addition he commented that the guardian had mis-stated the position at the meeting with the parents on 29 March 2006 and that the preceding professionals meeting had come “pretty close” to moving from a permissible preliminary discussion to enable the professionals to share ideas to impermissibly taking final decisions. More importantly, he confessed that he was “troubled” by the “starkness” of the local authority’s “underlying proposition” that “acceptance or admission was a necessary entrance ticket to the next stage of assessment or, even more substantially, to a safe rehabilitation.” In fact, as we have seen, he preferred to adopt the more nuanced approach which had been expressed by Mr Gumbleton.

The parents sought permission to appeal against the care order. Judge Horowitz refused permission to appeal. The parents did not renew their application to the Court of Appeal. Subsequently, Judge Horowitz made a placement order. Again there was no application to this court.

The parents have had no contact with CW since 30 November 2006 when, so the local authority alleges, the father attacked the contact supervisor. The contact service then withdrew its agreement to provide supervision and, as I understand it, no other service is willing to do so.

On 30 October 2006 the parents, by then acting in person, submitted an application to the European Court of Human Rights at Strasbourg. It was received by the Court on 2 November 2006.

The application alleged breaches of Articles 3, 5, 6, 8, 9, 10, 11, 12 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by “The London Borough of Enfield, The Royal Courts of Justice (The Highest Court in Our Country) and the system Of The United Kingdom as a whole.”

The application stated the object of the application was “the return of our lovely daughter and compensation for heartache & loss.”

On 13 November 2006 the Strasbourg Court wrote to the parents acknowledging receipt of their application and telling them that the Court would deal with the case as soon as practicable.

On 21 December 2006 an article about the case by Camilla Cavendish appeared in the Times newspaper under the title Family courts are the B-side of the Law. Because it encapsulates an important strand in the parents' complaints I set it out in full:

“What a strange, fumbling kind of justice system it is that condemns a woman as an unfit mother for the heinous crime of trusting her husband. Yet this is what seems to have happened in a recent case that I feel compelled to write about, even though legal restrictions force me to leave out much of the detail.

The nub of the case is this. A woman, let us call her Janie, gave birth to her first and only child a year ago. That baby was taken away from her and subsequently put up for adoption. Not because of her own failure to care for the baby – her own love and care never seem to have been in question. No. She has lost her baby because of a suspicion that her husband John may have injured another child in his previous marriage almost ten years ago.

The suspicion was no more than that. John was never charged with anything, let alone convicted. Social workers were never sufficiently worried to take that first child into care. Since his divorce John has shared custody of that child perfectly amicably with his ex-wife. Yet the same local authority which left the first child with him has forbidden him to see this new baby. And his new wife, despite having nothing to do with the first case, may never see her baby again.

Unless this case is overruled in the European Court of Human Rights (ECHR) in Strasbourg, where it is now heading, it will set a peculiar precedent. For it implies that any British mother could be penalised for choosing a partner to whom the State has taken a dislike: penalised with the loss of the thing that is most precious to her in the world.

It cannot be this simple, you are thinking. Well, not quite. The child of the first marriage is disabled, and did seem to have suffered an injury – I am not permitted to say more. But no one knows how. Both John and his first wife have always protested their innocence. They had a second child who came to no harm. No court will ever truly know whether John was innocent. But the fact is that he was never found guilty. For the local authority to leave him alone with a child that it thought he had harmed, and to take away another that had not been harmed is utterly hypocritical. No court should be able to punish you for a crime you may commit, when there is no evidence.

It should, surely, be a crime to remove a newborn baby from a mother who has never harmed it.

For that in itself is a form of abuse. Yet the secret State often chooses to abuse the children itself, rather than let them run the risk of staying put. They are at least alive, it calculates, even if it is a diminished kind of alive, deprived of the mother bond. And too often, it strikes the wrong balance. In 2002, the ECHR ruled against the British Government for removing a new baby from its mother in hospital and refusing even to let her cuddle it under supervision, when there was no evidence that the baby faced a serious risk at that time. The judgment came too late, though. The baby had already been adopted.”

I interpret that as a reference to the decision of the Strasbourg Court on 16 July 2002 in P C and S v United Kingdom (Application 56547/00) – a case which is reported at (2002) 35 EHRR 1075 and [2002] 2 FLR 631. The article continues:

“This is what Janie fears. The ECHR has agreed to hear her appeal and to consider whether the English court ruling breached Janie and John's right to family life, to freedom of opinion and to freedom of expression. That is quite a ticket. But even if the ECHR finds in Janie’s favour, it may be too late. The local authority is already seeking families to adopt her baby. Her only hope is that prospective adopters will be put off by knowing of her appeal.

Any lawyer will tell you that family courts are the B-side of the legal system. The majority of judgments will never be read outside the courtroom. Perhaps judges fear the consequences if they do not support social services and social services are later proved right. They seem to start from the assumption that children are de facto wards of court who need protection from their parents.

Even then, Janie’s case seems extraordinary. Certainly the parents are not the brightest people in the world. They are not perfect. But the more I learn about it, the more I believe that Janie and John’s biggest mistakes were emotional. Janie seems to have been very co-operative. However, John has been irritable, even aggressive, which would support the view that he has a violent nature. But can you really convict on that basis? Which of us could control our temper if faced with losing a child to a bunch of hypocrites? In a Hollywood movie, anger is a natural reaction to injustice. In an English suburb, defiance makes you guilty. The legal system wants “remorse”. But how can you show remorse for something you haven’t done?

Until this case I had tended to be sceptical about the claims that the Government’s targets for adoption were leading to miscarriages of justice. I still feel that ministers were right to want to speed up adoption and to release more children more quickly from the hell of care. But I have now started to take more seriously the argument that these targets have created a perverse incentive for local authorities to take more babies into care. Babies are, after all, more attractive to prospective adopters than older children and therefore an easy way to reach those targets. In Janie and John’s case, you do have to wonder why the authorities have rushed to take away a healthy baby, when they did not take away a disabled one.

Janie’s case seems to me to make a strong argument for introducing juries. Why is a burglar facing six months in jail allowed to ask for a jury trial, but a mother facing the irretrievable loss of her only child is not? Mistakes will always be made when the ordinary, imperfect citizen is judged by the imperfect and powerful. Personally, I would rather face 12 men good and true.”

On 4 January 2007 the parents, again acting in person, issued an application in the Principal Registry seeking an interim injunction by way of “stay of action” and to prevent the local authority proceeding with any placement of CW for adoption until the Strasbourg Court had given its decision. The application came before His Honour Judge Curl on 18 January 2007, when it was re-formulated as an application to stay the implementation of the care plan. Judge Curl apparently took the view that the application should be heard by the trial judge, Judge Horowitz. Although he was sitting at Milton Keynes, a hearing was arranged before Judge Horowitz on 2 February 2007. In the meantime the parents had filed a joint statement dated 22 January 2007 in support of the application, accompanied by twelve documents.

Because of the importance which the patents attach to these documents (see below) I think I should list them. They were copies of:

The parents’ statement set out to establish three propositions.

First, “The vital importance of this case not just for my family but for parents generally in the UK ... This case is of great importance as it sets a precedent.” Support for this assertion was said to be given by the article in the Times.

Secondly, “The necessity for an injunction at this stage.” That was said to be best illustrated by what had happened in P C and S v United Kingdom (Application 56547/00). The parents had succeeded before the Strasbourg Court and been awarded damages “but unfortunately the Social Services had rushed through the adoption before the Court gave its verdict and despite that verdict the adoption could not be reversed. It is therefore vital that an injunction be granted to stop a repetition of these events for the sake of [CW], us as her parents, and any potential adopters.”

Thirdly, “The justification for taking our case to STRASBOURG due to the great injustice we have suffered.” This was said to be supported by “new evidence now available that reinforces the truth of that assertion.”

Since this is the heart of the parents’ case I should set out in some detail how they put it in their statement. They say that:

“The main obstacle to the return of [CW] to us as her parents has been, according to the judgment twofold. Firstly our unwavering belief in the innocence of my ex wife [TW] and myself in the causes of the cerebral palsy suffered by our son [DW], despite a court finding that one of us had shaken [DW]. Secondly, my aggressive dislike of the social services and their employees who took away our baby, in my belief purely to help meet their adoption targets set by the government to all local authorities.”

In relation to the first of these two matters, the parents point to the Attorney General’s Review of Infant Death Cases – Addendum to Report: Shaken Baby Syndrome and in particular to paragraph 14.2 which, as they correctly point out, acknowledges that “In cases where the triad [subdural haemorrhaging, retinal haemorrhaging and encephalopathy] alone is present, that is, in the absence of any other supporting evidence such as bruising, broken ribs or history of abuse, the triad alone “ … cannot automatically or necessarily ... ” lead to a conclusion that the infant has been shaken.” Their statement continues, with the recognition that the Review “does not in itself prove our innocence:

“What it does do, I submit is to prove that our own belief in our innocence is a not unreasonable stance to take and that this belief does not make of myself or my wife, persons of such unreasonable character as to be unfit to care for a child! The urge of social workers and the family courts for their “clients” to “confess and repent” whether they are innocent or guilty is, according to Stuart Wavell in the Times “reminiscent of the courts of the old Soviet Union” and I respectfully suggest it should have no place here.

In paragraph 63, of the judgement (which is attached) it was said “that my attempts to prove our innocence were poorly reasoned” this is correct because at that time I was legally represented and actively discouraged from doing any research myself and I apologise. However I do claim now that the attorney general’s report is sufficient at least to justify the opinion that I hold as reasonable.

In paragraph 64, of the judgement (which is attached) the judge stated “it never seems to have occurred to him to pay tactical acknowledgement to the local authority to secure the greater goal of the return of [CW].” I must admit that it never occurred to me that a judge would ask me to commit perjury in the family court, I am still amazed that a judge would reproach me for not having lied to obtain the right verdict!

Quite apart from that, any acknowledgement that one of us was guilty would have put me in the position of accusing my ex wife [TW] and this was what social workers were urging me to do. I am still on friendly terms with her and have frequent unsupervised contact with both [DW] and [ZW] which does seem to indicate that neither she nor even the social services consider that I am in any way a danger to them or any other child. It is simply what I believe, that condemns me in their eyes.”

In relation to the second matter, the parents said this:

“my hostility to and dislike of social workers is rooted in the fact, that they ruthlessly confiscated our baby [CW], not because they believed that either of us were a danger to her or other children. They would not have left [DW] and [ZW] in the completely unsupervised care of [TW] and myself. Quite simply as any normal father I was angry because the only reason I could credit was a scarcely concealed ambition to seize [CW] who was “good adoption material” as opposed to [DW] and [ZW] who were not!

I was naturally angry at a previous hearing that was said to be secret so as not to identify the child. When the judge gave permission for our baby to be openly advertised for adoption in magazines like a pedigree dog, but illogically secrecy still stopped me from protesting to the media! I also was angry when contacts were cancelled without notice and without reason and our baby [CW] is now no longer allowed any contact with either of us at all!

What parent would not be angry at such inhumane treatment? Only a parent that did not love his child! Unfortunately the reputation of social workers working in “child protection” is the same all over the country. The word social worker conjures up rightly or wrongly the image of ruthless babysnatchers and secret courts. Countless distinguished journalists, frequent TV programmes and tales passed from one deprived parent to another have reinforced this view. I only bring this matter up myself to emphasise this. Like so many other parents, I share this view and because I am furious with those who in my opinion have simply kidnapped my baby daughter. Any involved parent holding such views is nearly always accused of mental problems by social workers who cannot understand why anyone should dislike them! My opinion does not mean that I suffer from a personality disorder, does not mean I am paranoiac, and does not mean I need “anger management courses”. It merely means that I share the indignation of countless thousands up and down the country and am in no way eccentric or deranged for doing so!

Neither I or my wife have any problems with drugs or alcohol, and we have no learning difficulties. I am verbally aggressive towards kidnappers, but would never and have never struck or hurt any child. I share full care and custody of [DW] and [ZW] so must not be considered a danger to [CW] or any other child. We have been punished by the “thought police” for what we believe. We believe in the innocence of [TW] and myself as far as Danny’s illness is concerned and we believe that Social Workers take babies (including our own) often for no good reason other than to meet adoption targets.

Whether these beliefs are right or wrong. Our [CW] and our selves have been punished for holding them contrary to our human rights, to enjoy a family life undisturbed by interference from the local authority.”

When the matter came on for hearing before him on 2 February 2007, Judge Horowitz also had written submissions dated 1 February 2007 prepared on behalf of the local authority by Mr Oliver Jones of counsel, inviting the court to dismiss the application forthwith. I can summarise Mr Jones’s submissions as follows:

Judge Horowitz heard the parents in person and counsel for the local authority. As appears from his judgment (see below) the parents relied upon both the Strasbourg Court’s reasoning and its decision in the admissibility decision in P C and S v United Kingdom (Application 56547/00) as demonstrating that the omission to take their case to the Court of Appeal was not fatal. In that case C had withdrawn from the care proceedings though his wife, P, remained a party and, indeed, sought permission to appeal from the Court of Appeal. The Strasbourg Court said:

“Article 35(1) must be applied with some degree of flexibility and without excessive formalism; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case.”

It continued:

“while formally C was not a party to the conclusion of the care proceedings or in the appeal proceedings concerning the freeing for adoption order, his claims were in substance brought to the attention of the courts. In this particular case, P and C are making the same claims before the Court, and to hold that C had failed to exhaust would in the circumstances be artificial.”

Judge Horowitz made no order on the parents’ application – in other words he dismissed the application – and transferred the case back to the Principal Registry. On 8 February 2007 he handed down a written judgment explaining why he had made no order.

Having summarised the background, Judge Horowitz turned to consider Mr Jones’s submission that the parents had failed to exhaust their domestic remedies. He explained why, in his judgment, the admissibility decision in P C and S v United Kingdom (Application 56547/00) could be distinguished. But as he made clear, Judge Horowitz decided the application not on the basis of any consideration of the procedural or substantive merits of the parents’ application to the Strasbourg Court but rather because he took the view that he had no jurisdiction to order a stay.

Referring to the decision of the House of Lords in Re S (Minors) (Care Order: Implementation of Care Plan), Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815, Judge Horowitz said:

“The scheme of the Children Act [1989] is that the power of the Judge is at an end when a care order is made. There is no supervisory or residual jurisdiction ... I cannot interfere with adoption process over which I have no jurisdiction save to make an Order on appropriate application to the Court.”

He came to a similar conclusion in relation to the Adoption and Children Act 2002, relying for this purpose on the decision of Hedley J in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483. He said:

“I do not consider that [the 2002 Act] would provide any power for me to intervene by way of the stay sought. I have no role to direct the local authority’s matching process.”

Judge Horowitz made the point that when giving judgment in October 2006 he had, as we have seen, taken into account both Article 8 of the Convention and the Convention concept of proportionality. As he correctly observed, referring to the decision of the Court of Appeal in Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FLR 944, this was something he had been bound to do when exercising his jurisdiction under the Children Act 1989.

Referring to my judgment in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160, Judge Horowitz drew attention to the jurisdiction exercisable by way of free-standing application under section 7(1) of the Human Rights Act 1998 after the conclusion of care proceedings. But he observed that no such application was before him and remarked that any such application would have required fuller argument and citation of authority than he had had. He concluded:

“the parents are not precluded from making such a free standing application to a High Court Judge. That is not to say that I am recommending or encouraging them to do so. On the material before me, it is difficult to make out the basis or merits of any such application.”

On 16 February 2007 the parents filed an appellants’ notice seeking permission to appeal against the orders Judge Horowitz had made on 2 February 2007, a stay of execution and an order for a new trial. They identified as the “evidence” in support of their application the twelve documents which had been referred to in their statement of 22 January 2007 together with four other documents:

The application was supported by an undated skeleton argument received by the Court of Appeal on 21 February 2007. It is succinct and to the point. I set it out in full:

“1

The original application was made on the 3^rd January 2007 and listed for the 18^th January 2007 at the Royal Courts of Justice.

2

At the short hearing we were told that Judge Curl could not make a decision because he did not make the original Judgement, and only the Judge that made the original Judgement could.

3

Judge Curl sent us to Milton Keynes County Court to be heard in front of Judge Horowitz.

4

We were told in the afternoon of the 1^st February 2007 that the hearing was listed for the 2^nd February 2007 at l0am, this put us at an extreme unfair disadvantage.

5

The fact that the same Judge that made the original decision in October 2006 and the fact he was to make this decision, put us at an even more extreme unfair disadvantage.

6

The fact that Judge Horowitz refused leave to appeal on 23^rd October 2006, means we were entitled to take the case to the European Court of Human Rights, Under the article 35 of the convention.

7

The proof of refusal of leave to Appeal is in his written judgement dated 8^th February 2007 (Paragraph 2, Section A).

8

We produced 12 pieces of evidence at the hearing of the 2^nd February 2007, the Judge disregarded the evidence and went on to say “That he would not stop the Local Authority in the adoption process.

9

The 12 pieces of evidence, along with submissions by the Local Authority & Judge Horowitz Of the 8^th February 2007 are attached to this argument.

10

Judge Curl Of the Royal Court’s of Justice sent us to Milton Keynes County Court which was in fact the wrong court for us to be sent, because Judge Horowitz said “It was not his Jurisdiction” but he still made an order which should be void because it was made out of Jurisdiction.

11

We ask the court to make a “Stay Of Action” so as the European Court of Human Rights becomes fully involved, in the interest of justice.”

The application came before me as a single judge sitting in the Court of Appeal on 27 March 2007 – the very day that Panel was to consider matching CW with the adoptive family which had been found for her and the day before there was due to be heard in the Principal Registry an application by the local authority for permission to change CW’s surname. (In the event, as I understand it, no decision was taken by the Panel and Hedley J, before whom the local authority’s application came, did not make the order that had been sought.)

Both parents were accompanied by McKenzie friends, Mr John Hemming MP for the father and Mr Ian Josephs for the mother. In the particular circumstances I permitted the McKenzie friends to speak on behalf of the parents as well as hearing what the parents themselves had to say.

I was faced with the immediate difficulty that there was no proper bundle – the Court of Appeal staff had had to do their best to put together a bundle from the papers lodged by the parents. Many of the most important documents in the case were not available. For example, I did not have copies of District Judge Bradley’s judgment of 6 March 2000 or of the Threshold Criteria document dated 22 March 2006 or of the application to the Strasbourg Court. These were obtained and brought to court together with various other documents.

These included a paper Inflicted Childhood Neurotrauma (Shaken Baby Syndrome) by Mr Bill Newman, a Consultant Paediatric Ophthalmologist at Alder Hey Hospital, published by the Royal College of Ophthalmologists in the Spring 2005 (thirty third) issue of Focus; various documents relating to the local authority’s adoption targets (a progress report under the local authority’s local public service agreement, prepared for the meeting of the Social Services Scrutiny Panel on 20 September 2005; the minutes of the meeting of that Panel held on 9 February 2006; and the minutes of the local authority's Best Value Cabinet Sub Committee held on 20 February 2007); and an extract from Adoption: messages from inspections of adoption agencies, a report by the Commission for Social Care Inspection dated November 2006.

I heard further submissions and reserved judgment in order to enable me properly to study the documents which had only just arrived. I now (30 April 2007) hand down judgment.

The Court of Appeal cannot interfere merely because it differs from the judge in his evaluation of a case. The Court of Appeal can interfere only if the litigant was denied a fair hearing or if the judge erred – was wrong – in law or principle; if his findings of fact were not based on or were contrary to the weight of the evidence; if he failed to take into account some relevant factor or took into account some irrelevant factor; or if he was “plainly wrong,” either in his evaluation of some factor or in his overall conclusion.

At this stage I am concerned only with the question whether the Court of Appeal should give permission to appeal. That is regulated by CPR 52.3(6) which provides that:

“Permission to appeal may be given only where –

(a)

the court considers that the appeal would have a real prospect of success; or

(b)

there is some other compelling reason why the appeal should be heard.”

So the first question I have to consider is whether the parents have a “real prospect” of succeeding in persuading the Court of Appeal that Judge Horowitz was wrong in one or more of the ways referred to in paragraph [81] above. I have then to consider whether there is any other “compelling reason” why the Court of Appeal should hear the parents’ appeal.

Strictly speaking, all that is before me is an application by the parents for permission to appeal against the orders made by Judge Horowitz on 2 February 2007. But it is apparent from the facts as I have set them out, as indeed it was apparent from the written and oral submissions that were addressed to me, that the real grounds of challenge extend much wider and embrace both District Judge Bradley’s findings in the first care proceedings in 2000 and the care and placement orders made by Judge Horowitz in the second care proceedings in 2006. In the particular circumstances of this case, and making it clear that the course I am about to adopt is wholly exceptional, I propose to consider all the parents’ complaints.

I cannot blind myself to the reality: the parents are facing perpetual separation from their daughter, and she from them. They will all have to live with the outcome of these proceedings for the rest of their lives – in all probability for many, many decades. A decision against them at this stage will in all probability be the end of the road. The stakes could not be higher. They are all – both the parents and CW – entitled to the most anxious judicial scrutiny of their case.

I am sorry that my decision has been somewhat delayed but I needed proper time – which was not available until term had finished – to consider the various aspects of the parents’ case.

I start, as I must, with the fact that Part IV of the Children Act 1989 – the part which regulates care proceedings – is fully Convention compliant.

That is the effect of the decision of the House of Lords in Re S (Minors) (Care Order: Implementation of Care Plan), Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815: see the judgment of Wall LJ in Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] I FLR 944, at paras [115]-[116]. In Re V itself the Court of Appeal made clear, as Wall LJ put it at para [116], that the 1989 Act is compliant with the Convention in its operation both pre and post the making of a care order.

The parents did not seek to argue otherwise.

Accordingly, so far as this case involves the Convention the only question is whether Judge Horowitz has properly applied the Convention in the particular circumstances of the case. (District Judge Bradley gave her judgment before the Human Rights Act 1998 came into force.)

I can take this very shortly. It is quite clear that on the basis of the material put before the court by the parents there is no remotely arguable basis of challenge to District Judge Bradley’s findings of fact or conclusions of law.

In the first place, the parents have, even now, produced not a shred of evidence which even begins to cast any doubt on District Judge Bradley’s findings. The only material adduced – the Attorney General’s Review and Mr Newman’s paper in Focus – do not, even if taken in conjunction, provide any proper basis for challenging Judge Bradley’s findings. Indeed, as we have seen, the father accepts that this material, as he puts it, “does not in itself prove our innocence.” Nor, even now, have the parents, or the father in particular, mounted any reasoned basis of challenge either to Dr Nelson’s report or to the conclusions Judge Bradley drew from it or, indeed, to any part of Judge Bradley’s reasoning and conclusions. I note, as Judge Horowitz records, that they were given every opportunity to do so as recently as during the hearing in October 2006. But they were unable to provide anything to support their contentions. Bare assertions, bare denials, however genuinely felt and however vehemently expressed, provide no basis for a challenge now to Judge Bradley’s findings.

Secondly, as I have already pointed out, Judge Bradley correctly applied the law and her judgment, both in relation to DW and in relation to ZW, was firmly founded on the relevant legal principles.

It follows that I have to proceed on the basis that Judge Bradley’s findings were correct.

Subject to one point, which I deal with below, there is no arguable basis for any challenge to the threshold findings set out in the Threshold Criteria document dated 22 March 2006. Again, I can take this quite shortly.

I propose to leave out of account for present purposes, as being of little significance or weight, the matter referred to in paragraph 4(ix)(f). On that basis there were in essence four threshold findings:

There is simply no arguable basis of challenge to any of these findings.

First, it is to be noted that the Threshold Criteria document was agreed by both the parents.

Secondly, and as we have seen, each of the four key matters forming the basis of the threshold findings was in the event further explored by Judge Horowitz during the final hearing in October 2006. Far from throwing any doubt on the threshold findings, his careful examination and analysis of the evidence, served only to confirm and reinforce the earlier findings. In particular, he examined very carefully the father’s stance in relation to District Judge Bradley’s findings, finding it to be a position of entrenched rejection. He examined equally carefully and came to clear and evidence-based findings about what he called the father’s “propensity to flashpoints of abusive and threatening anger.” He was fully entitled, in the light of all the evidence, to describe this as “particularly troubling.” Likewise, and after careful examination of the evidence, he came to equally clear and evidence-based findings that the mother had completely aligned herself with the father’s views, wholeheartedly supported his stance and could not be envisaged as a safe carer for CW.

Thirdly, the parents have not produced a shred of evidence which even begins to cast any doubt on the threshold findings. Nor, indeed, have they mounted any reasoned basis of challenge to any of the threshold findings.

This is, as I have said, subject to one point. It is a point of law which, perhaps, arises on paragraph 4(iii) of the Threshold Criteria document. That, as will be recalled, contains the bald assertion that “as a result of” District Judge Bradley’s findings the threshold criteria are met. Properly understood this seems to me to contain an assertion of law which, although it may well be correct, perhaps requires further exploration and which, if it was capable of affecting the outcome, I would have been minded to permit the parents to explore further, even though it is not a point that they have ever taken and even though the Threshold Criteria document was agreed. (This could perhaps have been done by listing the permission application for an inter partes hearing so that the court could have the benefit of argument from the local authority.)

In order to explain the point of law which, perhaps, arises on paragraph 4(iii) it is necessary to return to the authorities, and in particular to Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211. I can summarise the principle seemingly established by that case as follows: If child C1 has been injured whilst in the care of F and Ml, but the judge cannot find which of them is the perpetrator, those findings suffice to found threshold in relation to another child C2 (or a future child C3) even if C2 or C3 is in the sole care of Ml. (And likewise, of course, if C2 or C3 is in the sole care of F.) To repeat what Wall J said in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 at page 223:

“A finding that it must have been either father or mother means, in my judgment, that the child is at risk from both ... If the court cannot tell which parent it was, and if it is the case that the mother is as likely as the father to have inflicted the injuries, the removal of the father cannot eliminate the risk .. A finding of fact that a child has been injured by one of his two parents and that each is as likely to have done it as the other means that he is at risk from each. In these circumstances, you clearly cannot protect a child from risk by leaving him with one parent.”

So far so good.

On this basis, it might be thought, equally, that C2 and C3 remain at the same risk from F even if F subsequently acquires a new partner M2 – subject, perhaps, to a finding that M2 (in contrast to Ml) is able to protect them. And it was, no doubt, on this basis that paragraph 4(iii) of the Threshold Criteria document was drafted as it was.

But at this point it is necessary to turn to Lancashire County Council v B [2000] 2 AC 147. I can summarise the facts as follows. Child A (whose parents were AF and AM) was found to have been injured whilst in the care of one or more of AF, AM and BM, but the judge was unable to say which of them had caused the injury. Care proceedings were brought both in relation to A and in relation to B, the child of BM and her partner BF (who had been exonerated by the judge as a possible perpetrator of A’s injuries). The Court of Appeal held that threshold was established in relation to A, and the House of Lords dismissed an appeal against that ruling by AM and AF.

What is important for present purposes is why the Court of Appeal, upholding the trial judge, held that threshold was not established in relation to B. Robert Walker LJ explained why at page 155:

“In our judgment the judge was clearly right in the conclusion which he reached in relation to child B (although we too reach that conclusion with no enthusiasm). There is no allegation or evidence that B has been harmed in any way. In relation to B the first relevant threshold condition is risk of future harm, which can be established only on the basis of proven facts, not just suspicion. It has not been proved to the requisite standard of proof that BM was the perpetrator of A’s injuries. Any notion that AM, AF and BM should for the future be regarded as a group can be dismissed without any need for close examination, because it is quite clear from what counsel told us that (whatever the future holds for A and B) BM will not in future participate in any way in A’s care, and AM and AF will not participate in any way in B’s care.”

There was no appeal to the House of Lords in relation child B, only in relation child A. So far as concerns child B Lord Nicholls of Birkenhead merely observed at page 164:

“The Court of Appeal’s decision regarding B is not the subject of an appeal to this House. Accordingly, the correctness of the latter decision is not a matter before your Lordships.”

It is not perhaps immediately obvious how the decision of the Court of Appeal in Lancashire County Council v B [2000] 2 AC 147 in relation to child B is to be accommodated to the analysis in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 which it appears to have endorsed.

However, this point, even if it had substance (and I do not say that it has) would not avail the parents. For the simple fact is that the threshold findings were not solely dependent upon this point. There were, in addition, District Judge Bradley’s findings themselves (paragraphs 4(i)-(ii) of the Threshold Criteria document), the father’s denial of the accuracy of her findings (paragraphs 4(iv) and (vi)), the father’s problems with self-control (paragraphs 4(vi)-(vii)) and the mother’s inability to protect CW (paragraphs 4(v), (vii) and (ix)). These other matters were quite plainly more than sufficient themselves to establish threshold.

Accordingly, there is, in the present case, nothing in this possible point of law which requires to be further explored. I do not therefore propose to direct an inter partes hearing on the point.

There is simply no arguable basis of challenge either to the findings of fact made by Judge Horowitz or to his overall conclusion and decision.

In the first place, as I have already pointed out, Judge Horowitz carefully explored each of the four key matters forming the basis of the threshold findings. His careful examination and analysis of the evidence served only to confirm and reinforce his earlier findings.

Secondly, he examined very carefully and came to clear findings, in each case adverse to the parents, in relation to the father’s position of entrenched rejection, his propensity to abusive and threatening anger, and the mother’s alignment of herself with the father’s position and the fact that she would not be a safe carer for CW. Judge Horowitz gave clear reasons for his conclusions in relation to each of these matters. In each case they were conclusions which he was plainly entitled to reach on the evidence before him.

Those findings entitled Judge Horowitz to conclude, as he did, that he had to exercise his discretion by making the care order sought by the local authority, because that was “necessary” to secure CW’s welfare.

There is no even arguable error of law or principle in the approach adopted by Judge Horowitz. He correctly directed himself that his paramount consideration was CW’s welfare, but was equally at pains to remind himself that children are in general better off with their parents, that the local authority’s plan for adoption was interference by the State with the life of this family in its most drastic form, and that such a step could be justified only if it was proportionate to the necessity to protect the child. His final conclusion, as we have seen, was expressly, and as a matter of law correctly, articulated on the basis that it was “proportionate and necessary” to secure CW’s welfare.

It is to be noted that Judge Horowitz said that he had come to a “clear conclusion.” I can understand why he should have said that. Given his findings of fact, there was a very clear basis for deciding as he did. It is quite impossible to contend that he was plainly wrong. On the contrary he gave cogent and compelling reasons for arriving at a conclusion which, however distressing for the parents, is, in my judgment, convincing and which carries conviction.

Finally, it is to be noted that the parents have produced not a shred of evidence which even begins to cast any doubt on the findings of fact made by Judge Horowitz. Nor, as I have mentioned, did they seek at the time to challenge by application to this court either his findings or even his decision.

Judge Horowitz was plainly correct to refuse the stay and for the reasons he gave. The contrary is simply not arguable. For the reasons he gave, and by reference to the authorities I have already mentioned, he was correct to conclude that he lacked jurisdiction to make the order sought. By that stage in the process, having made the final care order, and there being no other application of any kind before the court, Judge Horowitz was functus officio. He had no further role to play.

There is, therefore, no arguable basis for the main attack mounted by the parents on the refusal of Judge Horowitz to order a stay. I should add, however, that there is, in my judgment, equally no arguable basis for their complaints that they were not treated fairly. Judge Curl was right to take the view that the application should be made to the trial judge, and the mere fact that Judge Horowitz had found against the parents in October 2006 and refused them permission to appeal did not in any way disqualify him from hearing their application. Nor is there any foundation for the complaint that they were treated unfairly because of the shortness of the notice they were given of the hearing before Judge Horowitz. The parents had set out their case very fully in writing, they were able to address Judge Horowitz orally, and it is quite fanciful to suggest that anything additional they might have said could possible have affected the outcome – an outcome determined, correctly in my judgment, by the fact that, as a matter of law, Judge Horowitz lacked jurisdiction to grant them the relief they sought.

Finally, although I am conscious that I have heard no argument on these matters, I should add the following observations.

I find it hard to conceive of any circumstances in which it could be ever be appropriate for a judge at first instance to stay the implementation of a care order pending a determination by the Strasbourg Court. That is a function, I should have thought, for the Court of Appeal. The most that the judge at first instance should do, in an appropriate case, would be to grant a stay – probably a short stay – pending consideration of the matter by the Court of Appeal.

In a case such as this I find it equally hard to conceive of any circumstances in which it could be ever be appropriate for a judge to grant such a stay in exercise of the free-standing jurisdiction under section 7 of the Human Rights Act 1998. That jurisdiction enables a judge – and as Judge Horowitz recognised such applications in family cases are usually made to a judge of the High Court – to intervene if, for example, a local authority is seeking to implement a care plan, previously approved by a judge in care proceedings, in an inappropriate and non Convention compliant manner or if, for example, a local authority is seeking to depart inappropriately and in a non Convention compliant manner from such a care plan. But that is not this case. The local authority is not seeking to depart from the care plan approved by Judge Horowitz or to implement it in an inappropriate manner. On the contrary, and the parents have not suggested otherwise, the local authority is merely seeking to implement, in the manner envisaged by Judge Horowitz, the very care plan he approved following the hearing in October 2006. A disgruntled parent cannot in this situation, by invoking the Human Rights Act 1998, seek what is, in effect, simply a review of one judge’s decision by another first instance judge. The parent’s remedy is, again, an application to the Court of Appeal.

It will probably be a rare case where the Court of Appeal would think it appropriate to direct a stay of a care order pending a determination by the Strasbourg Court. In the first place, as I have already mentioned, the relevant legislation is Convention compliant. Moreover, and as I have also mentioned, it is the duty of the court – both the court at first instance and the Court of Appeal – to exercise its jurisdiction in a Convention compliant manner. If the Court of Appeal thinks that its decision on appeal ought to be reviewed, then it can always give permission to appeal to the House of Lords, and if the Court of Appeal refuses permission following a substantive appeal a further application for permission can be made to the House of Lords itself. In these circumstances there are likely to be few if any cases where the Court of Appeal would think it right to grant a stay pending a determination by the Strasbourg Court.

I cannot help thinking that if a stay pending a determination of the Strasbourg Court is to be sought, then the more appropriate mechanism for achieving this is likely to be an invitation to the Strasbourg Court to adopt suitable interim measures in accordance with Rule 39 of the Rules of Court of the European Court of Human Rights. That has not been done in the present case.

For all these reasons I have concluded that the parents cannot show any even arguable basis of challenge to either:

Nor in all the circumstances is there any other compelling reason why the Court of Appeal should hear the parents’ appeal. On the contrary, if there is no arguable basis of challenge to the various orders then there is a compelling reason why the Court of Appeal should not entertain an appeal – the compelling need to avoid further delay for CW and the compelling need to achieve finality for her.

In this court, though not before Judge Horowitz, the parents have laid particular stress upon what they suggest is the distorting effect on the process in cases such as this of government inspired adoption targets. I can deal with this quite briefly.

So far as relevant for present purposes the various materials provided by the parents demonstrate that:

I am prepared to accept that, in an appropriate case, it might be necessary to investigate whether a particular local authority’s local PSA has had any effect upon the decision in a particular case to propose a care plan for adoption. But there is simply no arguable basis for any such investigation or challenge in the present case.

In the first place, this is not a matter that was canvassed or investigated before Judge Horowitz. It is far too late to be raising the matter now for the first time in the Court of Appeal.

Secondly, the material produced by the parents simply does not begin to support the case being made by them.

Thirdly, and despite what was pressed upon me by Mr Hemming in the course of his submissions on behalf of the father, I cannot accept that the mere fact that a local authority which, like the London Borough of Enfield, has a local PSA under which it stands to benefit financially if it meets its adoption target is thereby ipso facto in a situation of such conflict between its duty and its financial interests as to invalidate its decision to propose a care plan for adoption in some particular case.

Finally, and most importantly, it must be remembered that the decision to place a child for adoption is ultimately one for the court and not for the local authority. Whatever a local authority may propose in its applications to the court or in its care plan, only a court can make a care order, only a court can make a placement order and only a court can make an adoption order. No child can be adopted unless a court is satisfied that adoption is in that child’s best interests. And it must also be remembered that at every stage in this process the court has the assistance of an independent children’s guardian – independent, in particular, of the local authority – whose sole function is to investigate and make recommendations as to what is in the child’s best interests. In the present case it was Judge Horowitz, not the local authority, who made the crucial decisions – and for the reasons I have already given there is no even arguable basis of challenge to any of his decisions.

In short, CW is being adopted because Judge Horowitz concluded – and he was entitled to conclude – that adoption was in her best interests.

I have, I believe, analysed each of the various decisions about which the parents seek to complain and explained why, in my judgment, there is no even arguable basis of challenge to any of those decisions. In the course of this judgment I have accordingly explained why the parents’ various complaints must be rejected.

It may be helpful, however, if I stand back and, in conclusion, explain in more general terms why there is no substance in the parents’ complaints as set out, for example, in their statement dated 22 January 2007 and in their skeleton argument in support of their notice of appeal to the Court of Appeal. There are two important points that need to be emphasised:

In the first place, the parents are unwilling to recognise and to grapple with the fact that the essential basis of the case against them is and always has been more wide-ranging than they are willing or able to accept. It is perhaps understandable in human terms, but the sad and simple fact is that the threshold findings made by Judge Horowitz in March 2006 and endorsed by him in October 2006 go much further than the parents have ever been willing to recognise and paint a significantly darker and more worrying picture than the picture they would seek to present.

Secondly, and contrary to what the parents have repeatedly asserted, the simple fact is that they have not been able to produce any new evidence which casts the slightest doubt either on District Judge Bradley’s findings or on the later findings by Judge Horowitz. There is no new evidence. The present case stands therefore in stark contrast to the recent case of Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) to which Mr Hemming referred. There there was fresh evidence which turned the earlier decision upside down and which demonstrated that there had indeed been a miscarriage of justice. Here, in my judgment, there is neither.

There is one final point to be made. Mr Josephs on behalf of the mother was at pains to observe that her case had to be considered quite independently of her husband’s case and that the two did not necessarily stand or fall together. He urged me to conclude that the mother was entitled to succeed even if there was not the slightest substance to the father’s rejection of District Judge Bradley’s findings.

I quite agree that the mother’s case has to be considered on its own merits. But the outcome remains the same. The fact is, as Judge Horowitz commented, that the mother has chosen to ally herself entirely with the father. The fact is that she is unable to protect CW from the risk which Judge Horowitz found to exist. There are important parts of the threshold findings which relate to the mother, quite apart from those which relate to the father. And for all the reasons I have already given, those are findings which Judge Horowitz was entitled to make and which justified him in coming to his ultimate decision. The mother’s case may be separate from the father’s but it is, in my judgment, no more compelling.

This application for permission to appeal fails and must be dismissed.