B (Children) , Re

This is an application by the mother of twin boys for permission to appeal against an order made by Singer J sitting in this building on 7 August 2009. I saw the application on paper at the end of November, and I put it into the list for today with the following comment:

“Although we are dealing with the exercise of discretion by an extremely experienced judge of the Division it may be arguable that he was plainly wrong for the reasons which are well articulated in the grounds of appeal and skeleton argument.”

I confess I have not found this an easy application to deal with. Lurking beneath it is a point of law which time does not permit us to address.

The background I propose to state very shortly. The mother in question has a number of children, but her difficulty is that she has been found by a judge of the Division, the late Bracewell J, of having unlawfully killed two of them: S, who was born on 15 March 1998; and L, who was born on 11 February 2000. In proceedings relating to an older child, Bracewell J on 15 February 2002 found in terms that the mother had suffocated and smothered both children. Mother does not accept that she did this and has never accepted that she did it and believes herself to be innocent of the deaths of the two children. But clearly this very serious series of events which included an attempt, as the judge found, of a previous smothering, has led to extreme concern about the mother’s contact with her surviving children and leads to particular concern about her contact with the twins.

The matter is compounded by the fact that the mother travelled to the Isle of Man when she was in the latter stages of the pregnancy. For present purposes I am content to accept that she did not intend to give birth in the Isle of Man initially but the twins were born prematurely, and as it seems is the case no doubt this can be investigated further at trial. But it seems to be the case that the mother at that point gave a false name and sought to persuade the Manx authorities that she was not who she really was in the hope that she would be given an opportunity to look after the twins there. In the event the Manx Court, as I understand it, made interim care orders, the children were repatriated and are now the subject of care proceedings which are for issue resolution hearing this afternoon before Ryder J and for final hearing in April 2010. The question which comes to us in the interim is what contact if any the mother should have with the twins pending the final hearing.

For the mother Mr Cohen QC in what is if I may say so an exemplary skeleton of short but powerful submissions makes a series of points in the mother’s favour. Firstly, he says that there is no real risk of physical harm. It is of extreme importance for the children that they should have knowledge in due course that their mother saw them and wanted to see them and if necessary be photographed with them. She has had previous contact in circumstances which were as emotionally fraught with another child and behaved herself, therefore the risks to the children are minimal. There will be supervision. It is accepted there should be supervision. We are told that the mother has thrown her lot in with the father, which in the eyes of the local authority and the guardian rules him out as carer for the children. But Mr Cohen says process is important in family justice. You cannot assume as the local and the guardian appear to assume that the outcome is inevitable, and there has been, he submits with some force, a distinguished consultant advising in the case who says that contact can be managed and managed appropriately in the circumstances which I have briefly outlined.

As against that, both the guardian and the local authority effectively say really this is to look at the matter from an adult perspective. These twins are still very young and it is very important that we should get on with the case. They are unlikely to have any realistic recollection of their mother. The odds against her are very heavily stacked in relation to the April hearing and the risk of her emotional involvement and her emotional outburst or display of emotion in the twins’ presence, which would upset them, is something which cannot be risked even if one leaves on one side the physical dangers of her contact.

To that Mr Cohen QC responds that the contact would take place either at the beginning or the end of the father’s contact (he is seeing them on a regular basis once a week) and that therefore the mother’s conduct is likely to be appropriate and there is no extra journey involved in the twins coming to contact and the thing can be properly managed.

As I say, I have not found balancing these arguments easy, and had I been sitting where Singer J on the 7^th was, I simply do not know how I would have decided. I might well have decided that in the interim contact could take place. Of course, as is well established in the case of G v G (Minors: Custody Appeal) 1985 FLR 894, I am not in that position. I am not sitting where Singer J was. I did not hear the evidence; I am reviewing the exercise of his discretion. And although the mother may well think this is judicial sidestepping, it is not. When I say that I have read Singer J’s judgment, looked carefully at the reasons that he gave, although he could no doubt have expressed himself in more direct language -- I understand why he did not -- I have come to the conclusion that on balance I cannot say his decision was plainly wrong.

Mrs Provan submits in her report and reading between the lines one can see the argument that if contrary to expectation the case turns out differently in April work still can be done with the mother; there is likely to be a farewell visit, the children will in due course have to come to terms with Bracewell J’s findings if they are upheld, that the mother has suffocated two of their siblings. I have come to the conclusion that, ably though Mr Cohen QC’s submissions were put to us, they are effectively an adult perspective. This contact is more for the benefit, as I see it, with great respect to him, of the mother than it is for the two children. Therefore, having reviewed Singer J’s discretion, I have come, not without hesitation, to the view that I cannot say he was plainly wrong.

Therefore, though I would give permission for this application, I would dismiss the consequent appeal.

I agree that this appeal should be dismissed for the reasons given by my Lord, Lord Justice Wall. .