H (Children), Re

This is an application by Ms F and Mr H for permission to appeal against an order made by HHJ O’Malley sitting in the Taunton County Court on 16 July this year.

The background to the case is that the judge on that occasion was concerned with two boys, who are the children of the parents: B, born on 25 February 2005; and R, born on 3 April 2006. Both parents have a long history of drug addiction. The consequence was that, simply concentrating for the moment on these two children, there were the care proceedings taken by the local authority in December 2007, care orders made by a circuit judge in November 2008 after a four day hearing, and placement orders also made. None of those orders was appealed and therefore it follows that we must start in this court from the proposition that care orders and placement orders in relation to the two boys were properly made. That is not something which is accepted by either of the parents but it is the premise upon which we have to start.

What is striking about the case is that both parents have made very strenuous efforts to kick the habit of their serious drug addiction. They may not have a full appreciation of the circumstances in which they placed their older children, the two boys in particular, by their abuse of drugs, but that is neither here nor there; they are doing their best to kick the habit. As I understand it Ms F is still on methadone although she has stopped taking heroin.

So what they did was to apply to the judge to revoke the placement orders in relation to the two boys. I should say that in the meantime they have had a little girl and her case comes before the Justices sitting in the area in December of this year. I shall return to her at the end of this judgment. At the moment I am concentrating on the two boys.

They applied to revoke the placement orders on the basis that they were effectively now drug free, that they had got their lives together, that they had never neglected the boys in the first place, the boys wanted to return to them, they were still having contact with them, they were the boys’ parents and therefore the boys should return to live with them.

That application was duly issued by the parents, who at the time were represented by solicitors and counsel, and it came before the judge on 7 July with what is agreed to be a listing of half an hour. It was plainly a directions appointment, and counsel acting for the parents unsurprisingly had come to the court to deal with the case on the basis that it was a directions appointment but it appears that the judge had more time than he had anticipated, and in what he took to be the best interests of the children he decided that he would hear the application to revoke the placement orders then and there and that is what he proceeded to do.

It so happened that the parents were due to see the doctor who had been treating them, helping them, shortly after the hearing before the judge, but the judge nonetheless decided that he would not await a report from that doctor because he was told, wrongly as it turned out, that the doctor could not report until 14 August 2009 because he was going on holiday. The parents were due to see him on the 17^th July.

As I say the judge proceeded to hear the case. He decided that there had not been a sufficient change of circumstances to enable him to exercise his discretion to allow the application to proceed and he refused it then and there. The parents sought permission to appeal. The application first of all came before my Lord Hughes LJ on paper, and he refused it on the grounds that it was too late in the day; the judge was entitled to act as he had and that the interests of the children required finality. The parents renewed their application for permission to appeal. It came before me for an oral hearing, and, because I was concerned about the timeframe and about the fact that the judge had proceeded to deal with the matter on a directions appointment, I decided that the matter should be listed before the full court and that is what has happened today.

Adoption is of course final in the sense that the prospective adopters become the parents of the children they adopt, and I was, I have to say, initially troubled that a judge, even a judge as experienced as this judge, should deal with so serious a matter at such short notice. However, today we have been shown the reports which Dr Forshall did in fact produce following the interviews with the parents on 17 July, and it is apparent from those reports even on a cursory reading that the judge’s assessment of what they were likely to contain, had he had them, was accurate. Ms F and Mr H must understand that judges in this jurisdiction not only exercise a very broad discretion but are very cautious on the question of drugs, and the judge rightly foresaw that Dr Forshall would report to the effect that much more time was required before anybody, least of all the court, could be satisfied that both parents were entirely drug free and in a position to care for their children.

As a consequence the judge went ahead. He cited from the reports which he had had to date from Dr Forshall and in paragraph 30 of his judgment he went on:

“I dealt with the application by way of submissions from counsel. I was not invited to hear any oral evidence. Miss Ahmed, for the parents, renewed her request that I should postpone a decision until after Dr Forshall had reported further. She told me the parents were due to see him on 17^th July 2009. On inquiry it appeared that he was then taking a period of leave and still would not be able to report until the date that had been given, 14^th August 2009. She informed me that the mother’s tests by Turning Point had been clean for some six weeks to date, and that the accuracy of earlier positive tests was challenged. She told me that the father’s tests were still positive, but they were also being challenged. She submitted that the parents were now showing insight into the effect of their drug use on their parenting and that stability by at least one parent was sufficient to allow the return of [the] children. The parents were able to support each other and contact with the two boys had been continuing. She submitted that the change in the parents’ circumstances was sufficiently large to justify the giving of leave to apply to revoke the placement orders. Mr Rees, for the local authority, accepted that the mother’s tests over the last six weeks had been clean, but up to April 2009 both parents had been using illicit drugs and the father was still using them. He suggested that continued use of drugs showed lack of insight. He referred me to a contact note dated 24^th June in which the supervising family support worker recorded a conversation with the parents in which they blamed the local authority for the removal of the children. The father had been cautioned by the police in May 2009 for possession of heroin. He suggested that the history of the family showed that the parents could not remain drug free for any extended period. He submitted that no change in circumstances sufficient to justify leave had been demonstrated. He submitted also that the welfare of the children required the refusal of the parents’ application forthwith. He suggested that if the application was adjourned into the holiday period the children’s placement would be exposed to risk. It was not in their interests for permission to be granted as if the application proceeded there would be far longer delay and the potential placement would be put further at risk. These submissions were supported on behalf of the children’s guardian, although she welcomed the parents’ attempts to address their dependency on drugs.”

On the ground what has happened is we are told that the matching panel met on 21 July after the judge had given judgment, that the children were introduced to their prospective adopters in August and placed on 1 September.

So the first question for this court and the principal question for this court is: was the judge entitled in July to go ahead and hear the whole application on what was listed as an appointment for directions? In this respect we are reminded and correctly reminded by Mr Powell, who appears today for the local authority, that judges in the position of HHJ O’Malley exercise a very broad discretion and that it is open to a judge to bypass conventional procedure in the interests of children which of course under the statute are paramount. This was an experienced judge, there had been care and placement orders and in one sense it can be said, I think, that the judge was giving the parents the benefit of any doubt he might have about what the doctor might ultimately say.

To their dying day the parents, Ms F and Mr H, will take the view I am sure that this process was manifestly unfair and that the judge was wrong. But given the very broad discretion available to a judge in this situation, and reminding myself as I have been reminded by Mr Powell of what Butler-Sloss LJ (as she then was) said in Re B (Minors) (Contact)  [1994] 2 FLR page 1, I have come to the conclusion that I cannot designate the judge’s actions as being outside the very broad ambit of the discretion which he was given and the view which he took, namely, that parents such as these parents would need to demonstrate a lengthy period of being entirely clean before return of the children could be contemplated; and given that the children had already been the subject of care and placement orders some time previously, the judge was in my view entitled to say that the parents’ timescale for a recovery was not consistent with the timescale of the two boys.

The parents have clearly done everything they can to assist in this respect and I understand their strong feelings on the point, but they unfortunately have to understand the limited function of this court, which is simply to look at what the judge did and decide whether the judge was entitled in all the circumstances to do it; and I have come to the conclusion, having considered the matter now carefully, that the judge was so entitled.

I mentioned earlier that the parents have another daughter, a little girl called EM, whose case is due to be heard before the Justices in December. It has been adjourned in order for there to be a further testing and in particular a hair test. Most unfortunately in my view, Ms F, who takes the view that nothing can be trusted, has declined to undertake any further testing. I do urge her in the time between now and December to reconsider that decision, because we have been told in terms by Mr Powell today that if there were some positive evidence that these parents were in a position to care for their daughter, the local authority would reconsider its current care plan, which is for adoption, but what is to my mind clear beyond peradventure is that if Ms F remains of the same view and does not have any form of testing between now and December, the result is likely to be a foregone conclusion.

That I say by way of aside in an attempt to assist the parents, but, as I say, having listened to them carefully and understanding the strength of their feeling, I am nonetheless not satisfied that the judge did anything he was not entitled to do and therefore in my judgment, although I would be minded to give permission, I would dismiss the appeal.

I agree and I only want to emphasise what my Lord has said about the continuing proceedings. Please, please just reconsider.