G-A (Children)

Mrs Henry-Darius, who is a public relations consultant and who is interested in also becoming a magistrate, applies in person for permission to appeal against an order of Mr Justice Singer in the High Court, Family Division, Principal Registry, on 23 October 2007. The order states that it was made on 22 October 2007 but I fear that that is probably an error on the part of the Associates’ Department of the Division. The applicant’s Appellant’s Notice recites her husband, Mr Samuel Darius, as a joint proposed appellant but, in that he does not seem to have been a party to the proceedings before Singer J., he cannot join in the proposed appeal to this court.

By the order under challenge Mr Justice Singer dismissed an appeal by the applicant against an order of District Judge Crichton in the Inner London and City Family Proceedings Court dated 3 April 2007. The applicant’s application to the district judge was within, or perhaps more accurately closely connected to, care proceedings which had been launched in his court by the London Borough of Camden (“the local authority”) in relation to three children, namely R, a girl, who was born on 2 June 1991 and is thus now aged 16, B, a boy, who was born on 18 July 1999 and is thus now aged eight, and A, a girl, who was born on 2 September 2002 and is thus now aged five. The applicant had been a registered foster carer for the local authority and they had placed the three children with her late in September 2003. They removed the children from her in mid-September 2006. Thereupon the children ceased to have contact with her. In that, by a narrow margin, the applicant was not entitled as of right to make an application for orders for residence of, or contact with, the three children, and more particularly the two younger ones, by virtue of the terms of s.10(5)(b) and (5A) of the Children Act 1989 (“the Act”), she was required to apply for leave to make those applications. It was such an application for leave which the district judge refused on 3 April 2007; and it was the applicant’s appeal against the refusal to grant her leave to make those applications which Mr Justice Singer dismissed on 23 October 2007.

It will thus be seen that the proposed appeal is a second appeal, with the result that, by virtue of Rule 52.13 of the Civil Procedure Rules, I cannot give permission for it to proceed unless I consider that it would raise an important point of principle or practice or that there is some other compelling reason for this court to hear it. I am concerned that many litigants in person, such as the applicant, aspire to bring a second appeal to this court, and no doubt invest, as this applicant certainly has, a lot of physical and emotional energy into its preparation, without realising that, in perhaps 90% of such cases, this court is precluded from accepting their appeals by virtue of the criteria.

It has not been easy for me to piece together the history of this matter because many of the documents filed by the applicant for my consideration, all of which I have carefully read and reread, relates to complaints by the applicant about professional persons, for example the local authority social workers, Mr Martin, who is a psychotherapist, District Judge Crichton and Mr Justice Singer; and not much of the material appears to relate to what should in my view have been the core issue, namely whether there is any realistic possibility that it would be in the interests of the children, and in particular the two younger children, to see the applicant again. I should, in fairness, record that the applicant’s complaint about Mr Martin to the Association of Child Psychotherapists has resulted in a conclusion that she has at any rate a prima facie case against him; so no doubt that complaint is proceeding. The applicant also filed a complaint against him with the police, to the effect that he had conspired to pervert the course of justice; I do not know the result of that complaint but it is irrelevant for my purposes. Furthermore the applicant has made a complaint to the European Court of Human Rights in Strasbourg about the treatment of her and her husband, and indeed perhaps the children, on the part of the local authority and of the English courts on the ground in particular of racial discrimination; and the European Court has told the applicant that it is proceeding with her case. It certainly seems to me that the applicant is so consumed with grievances about the way in which she has been treated that there would be a real risk that in any period of contact she would be unable to prevent herself from destabilising the children’s current lives by angry references to her grievances.

I should also add that, notwithstanding that my concern today relates to the district judge’s order dated 3 April 2007 and the High Court Judge’s order dated 23 October 2007, there have been further proceedings brought by the applicant. Thus on 13 June 2007 the applicant unsuccessfully applied to be made a party to the continuing care proceedings referable to the children; District Judge Crichton in effect considered that her application to become a party to the proceedings was only another vehicle for the presentation of her applications for residence or contact. So the care proceedings continued without the participation of the applicant; and on 25 October 2007 full care and placement orders referable to the children, or perhaps more probably only to the two younger ones, were apparently made by District Judge Crichton. I also understand, however, that, notwithstanding that the making of the placement orders betokened an intention by the local authority and by the court that the two younger children be placed for adoption, that plan may since then have changed and the local authority may currently be searching for a long term foster placement for them. The applicant says that it is hardly surprising that the local authority failed to find adoptive placements for the children because they advertised them as “non-descript, no cultural heritage, no identity and therefore no future”. I collect that information from documents filed in yet a further application by the applicant, including on this occasion perhaps also by her husband, for leave to apply for a special guardianship order under s.14A(3)(b) of the Act. In refusing that application on 25 March 2008 District Judge Sims also directed, pursuant to s.91(14) of the Act, that no further application be made by the applicant or her husband in respect of any of the three children under the Act without leave of the court. Today the applicant tells me that she has appealed against the orders made by District Judge Sims and that appeal is proceeding in the High Court, Family Division, and has already been heard and adjourned on two occasions, namely on 2 May 2008 by Mrs Justice Black and on 16 May 2008 by Mrs Justice Hogg and is due to be heard on a substantive basis by one or other of the judges of the Division tomorrow, namely 23 May 2008.

Late in September 2003 the children went into the care of the local authority, and into the foster home of the applicant, as a result of their mother’s failure, by reason of addiction to drink and drugs, to care for them properly. Following their move into the home of the applicant, the children seemed at first to thrive. In the continuing care proceedings the guardian of the children commissioned an independent assessment of the applicant and her husband by Mr Townley, who, by a report dated 14 October 2005, reported positively about the applicant and her husband as long term carers for the children, whether as foster parents or even perhaps as adopters. Early in 2006, however, the local authority began to develop substantial concern about the situation of the children in the home of the applicant. R appeared to be becoming out of control; and in February 2006 B made a telephone call to the police in which he alleged that he had been hit on the head with a chair, apparently by the applicant. Although, as I understand it, B’s allegation was later accepted to be untrue, it revealed some dysfunction in the relationship between him and the applicant, which precipitated further inquiry. Ultimately, as one of a series of directions given by the family proceedings court on 28 April 2006, it permitted a report on the children in the home to be prepared by Mr Martin. By letter to the solicitor for the children dated 31 August 2006, Mr Martin alleged that in his view the situation of the children in the home of the applicant was harmful to them. He made a number of comments about the applicant, to which she took profound objection, namely that at times her speech was mysterious and incomprehensible; that, while he did not suggest that she was suffering a psychiatric disorder, he considered that her grip on reality was quite shaky; and that her attempted management of the children, in particular of R, was taking its toll of her in terms of stress. The applicant had apparently indicated that she wished to be relieved of the task of caring for R, who was becoming beyond her control; but it was the view of Mr Martin that, in the future, she could no more satisfactorily care for the two younger children than she could care for R. “The need”, wrote Mr Martin, “to bring the placement with Mr and Mrs Darius to a decisive end, unhampered by delay, recrimination and argument over detail, must take precedence over keeping the children together.”

In the event, deciding that it would be preferable not to give advance notice to the applicant, the local authority removed all the children from her on a date in mid-September 2006 and placed them together in a different foster home. Understandably the applicant was devastated; and her sense of injury was overwhelming. For example, notwithstanding that, for the purpose of their life storybooks, the children need photographs of them with her and her husband in their home, the applicant has felt unable to provide them. She considers, I fear, that any such cooperation on her part with the local authority for the sake of the children would amount to some sort of validation on her part of their actions in September 2006.

As I have said, the applicant has not had any contact with the children since their removal.

One of the profound difficulties for the applicant in presenting her appeal to Mr Justice Singer was the manner in which the proceedings before the district judge on 3 April 2007 had developed. By that time, notwithstanding representation of her at earlier stages of the proceedings by at least three different firms of solicitors, the applicant was appearing in person. The local authority and the children, by their Guardian, were legally represented; and they opposed her applications for leave. The district judge no doubt announced in court, just as he later recorded in his reasons, that, some weeks earlier, he had met the children; that R seemed happy in the new foster home and did not wish to return to the care of the applicant; that B liked the present foster home more than his home with the applicant; and that A had missed the applicant but was beginning to settle in the foster home. In his reasons the district judge recorded that, following some discussion in court, the applicant had agreed to withdraw her application for leave to apply for a residence order and had accepted that he would refuse her application for leave to apply for a contact order. The district judge also refused her application for leave to disclose Mr Martin’s report to the Commission for Racial Equality upon the basis (with which, having read it, I concur) that there is nothing racist in it.

Thus, at the hearing before Mr Justice Singer, the applicant was in almost an impossible position. She had not seen the children for over a year. She appeared to be fighting so many battles with the professionals that the chance that any contact on her part with the children would be constructive and, in particular, supportive of them in the new lives chosen for them by the local authority, seemed remote; and, as the district judge had recorded notwithstanding her subsequent complaint that such was inaccurate, the applicant had withdrawn one aspect of her application for leave and, without active contest, had allowed the other to be refused.

We have an approved transcript not of the entire proceedings before Mr Justice Singer, for such is rarely necessary, but of the judge’s very brief summation and the dialogue in court thereafter. The judge recorded that the applicant had been addressing him for 40 minutes and that he had found it extremely difficult to identify a justifiable ground of appeal. He noted that the applicant did not accept that the hearing in the court below had proceeded as in his reasons the district judge had described. I understand the applicant’s complaint that, after Mr Justice Singer had said “I shall dismiss the appeal”, he had given her what he described as one “last opportunity… to tell [him] something relevant about why the judge was wrong”. If he had already decided to dismiss the appeal, what was the point of that invitation? Perhaps his thinking was that, had some point of merit then been pressed upon him, however belatedly, he would have revisited his decision. Speaking generally about the hearing, the applicant complains that Mr Justice Singer showed that he had not had the opportunity to acquaint himself with the papers and did not afford her a fair hearing. My own experience of the applicant’s presentation to me today, which was civil and polite, was nevertheless that it was quite voluble and hard to follow; and I found it hard to steer the applicant away from what I considered to be irrelevance towards what I considered to be relevance. This leads me at any rate to understand the difficulties which Mr Justice Singer claimed to have encountered in receiving the applicant’s submissions to him. I note that, in a recent presentation to the family proceedings court, the applicant writes that at the hearing on 3 April 2007 “we did not receive our rights -- the hearing was successfully appealed to the High Court”. Such assertion has been repeated to me today by the applicant; but I discern no part of the appeal to the High Court which succeeded. Even had the waters not been muddied by the proliferation of professional complaints ventilated by the applicant, and thus even had the focus of her presentation been more properly directed to the interests of the children, I cannot think, in the light of the history which I have sought to piece together and to record in this judgment, that the applicant stood any chance of persuading any High Court judge to reverse the district judge’s refusal of leave. It is also manifest that this proposed second appeal fails to satisfy the criteria to which I have referred. I refuse permission for it to proceed.