EH v London Borough of Greenwich & Ors

As this case is ongoing, reporting restrictions will be imposed, and this judgment is being written anonymously. Nothing must accordingly be published which will in any way identify the children concerned.

This is an appeal from a Judgment given and order made by HHJ Hayward Smith QC on the 9^th October 2009. On that occasion the judge made a full care order in favour of the London Borough of Greenwich (the local authority) and a placement order in respect of two children namely R, a boy, born on the 12^th January 2005 (now aged 5 years and 2 months), and his full sister RA born on the 29^th July 2007 (now aged 2 years and 8 months years). These children have not lived with their natural parents since January 2008 and, in the light of findings of fact made by the Judge, it is the local authority’s plan that the children will be adopted outside their birth family.

The grounds of appeal are to the effect that:

The two children with whom this court is concerned lived with their parents until 3^rd January 2008 and there were no concerns about their care. On the contrary the evidence was to the effect that both were thriving. The household in which they were brought up was traditional in the sense that the father worked whilst the mother stayed at home and cared for the family.

In January 2008 the parents took RA to the Accident and Emergency department of the local hospital. She was then aged only 5 months. On admission she was found to be suffering from a comminuted spiral fracture of her left humerus. In fact, the bone was broken in three separate places. The parents could offer no adequate explanation as to how the injury had occurred. The treating medical team considered that it was likely that the injury was non accidental and social services were informed. Both children were removed from their parents’ care on that day and, initially, were placed with their maternal grandmother.

In about May 2008, after a dispute between the father and the maternal grandmother, when the former lost his temper, the children were moved into foster care where they have remained. There was frequent contact with their parents. The judge was satisfied that, in general, the mother’s contact was of very good quality and that she related well to the children. The mother has been steadfast in her commitment to the children. Since about June 2009 the father has ceased to have any contact with them. He has failed to appear at the last three court hearings (including this one) and the local authority have had no recent communication with him.

In January 2008 neither parent accepted that RA’s injury was non accidental or that either had caused it. Moreover, they did not accept that there must have been a failure to protect the baby particularly as they did not seek proper medical assistance immediately after the injury had occurred.

In the light of the parents’ denials a fact finding hearing took place in November 2008. After an extensive 10 day hearing HHJ Hayward Smith QC gave a very carefully reasoned 50 page judgment and concluded that the father (who had a history of violence) had deliberately caused the injury probably because he “lost his temper with (RA) and was violent to her, thereby causing the fracture”. The judge was not able to make a specific finding as to the precise mechanism but “it entailed the forces on the arm required to produce the fracture”. In fact, the medical evidence was to the effect that considerable force and a twisting mechanism had been required.

The judge could not determine whether the mother actually saw what the father did to the baby but “she was in the house at the time and she must have been aware that a very serious event had occurred. The event probably took place during the night of the 2^nd January or the early morning of the 3^rd January”. In the circumstances, the judge was clear that the mother had failed to protect RA and had failed to take her to hospital until mid-afternoon on the 3^rd January. Importantly, he found that she had sought to protect the father by failing to tell the truth about how the injuries had occurred and by agreeing not to take RA to hospital for some hours. The judge also held that the father had failed to give full details of the incident when questioned and that he posed a continuing risk as a result of his propensity to violence.

In November 2008 during the course of his judgment the judge expressly referred to many positive aspects of the parents’ care. He pointed to the fact that the contact notes made “no criticism of [the mother] of any significance. There is abundant evidence that she is a warm and loving mother”. That stated, he found that she was “very supportive of the father”. At paragraph 298 of his 1^st judgment he said, “I have already recorded in this judgment that these parents have many good qualities; they love their children and the children love them. They have shown commitment to the children. Apart from the fracture to (RA’s) arm, there is no evidence that the children have suffered any harm, quite the contrary, they appear to have been thriving. It would be very unfortunate if the children had to be removed from their parents”.

Obviously the parents required some time to come to terms with the judge’s findings. I have no doubt that each was required to accept his findings in full if they were to make any progress towards rehabilitation with the children. It is common ground that immediately after the fact finding hearing leading counsel for the mother asked the local authority to arrange a meeting with her alone. No doubt her legal team anticipated that the local authority would advise and encourage the mother to separate from her violent partner because, in the light of the judge’s findings, he posed a danger to the children unless he could be helped through therapy to control his propensity towards violent outbursts and assisted to alter the disturbing pattern of behaviour which had bedevilled his adult life.

Despite the mother’s request, the local authority arranged a meeting with both parents. This effectively ruled out a detailed discussion with the mother about the need to separate from the father. It is not in dispute that, notwithstanding the judge’s remarks at the end of the hearing in November, the mother was given the clear impression by the local authority that the social workers were steadfastly maintaining that, whatever she did, the children would be removed permanently from her care. Their plan was to place the children either with a member of the extended family or in an adoptive placement. HHJ Hayward Smith QC was highly critical of the local authority’s actions in this regard. The detail of this part of his Judgment (which would seem to me to be very well founded) speaks for itself.

The judge referred to the “closed mind” of the local authority. He stated that “one of the unfortunate features of this case is that, despite the evidence of good parenting the local authority formed the view far too early that their care plan should be to place the children away from the parents”. I am sure that this merited finding has, to a degree bedevilled this case, because the mother has had a continued sense of grievance that she was never given a fair chance and, more importantly, the local authority’s social workers have never provided sufficient support to her.

It is obvious from the terms of our domestic Statutes and the ECHR that children should remain within their birth families unless the facts are such that they have suffered or are at risk of suffering significant harm. This means that where, in a case such as this, positive features of a parents’ care are highlighted, it is only proper that steps be taken to foster and support the positives so that rehabilitation is given a reasonable prospect of success. That process did not occur in this case. Indeed, the two independent professionals who were asked to assess the parents noted that the local authority’s “negative attitude” towards the mother and father “pervaded” the case. Apparently, it was so explicit that the experts wanted to know if there was additional information to which they had not been made privy. It is difficult to understand how the social workers could have reached the concluded view that this mother was beyond redemption given the judge’s careful analysis of her good qualities.

The consequence of the local authority’s fixed preference meant that they did not actively support the mother in urging her to separate from the father. Moreover, they did no work with her in regard to her feelings around separation or its impact upon the need to keep the children safe.

This lady had been involved with a violent partner since about 2001. There is no doubt that the couple had an established, long term relationship which meant a great deal to each of them and was mutually supportive. In those circumstances, I am sure that it was unlikely that any separation (however essential it may be) would run smoothly without expert, supportive input. In this type of case, I regard it as vital that the non abusive parent should receive proper support at any early stage provided, of course, that he/she has sufficient qualities to be a good parent in the absence of the known abuser. On the judge’s findings, this mother was one such individual.

The case was originally for final hearing commencing the 2^nd February 2009 (that is just over 12 months after the precipitating event). However, on the 1^st February 2009, the mother filed a witness statement indicating that she had finally separated from the father. History confirms that on the 31^st January 2009 the mother left home to live in a women’s refuge. On the same day (no doubt as a result of the separation) the father had what the judge described as “some form of nervous breakdown” and was admitted to a local hospital where he remained as a voluntary patient until the beginning of March 2009. There was no doubt at the time that the separation was genuine.

In the light of these developments, the case was adjourned and re-fixed for the 20^th July 2009. I am sure that the delay was purposeful because, if it could be demonstrated that the mother had separated from the father and had accepted that he was a danger to the children, then (given her other noted good qualities) it was likely that she would be able to provide the children with (i) a good standard of parenting and (ii) the degree of protection which the professionals considered a necessary prerequisite to her resuming their care.

The intervening period was used, inter alia, to undertake two independent assessments upon the mother and, whilst he was participating in proceedings, the father. Having read them, I am clear that these assessments were reports for the court and were not, in any sense, a therapeutic exercise by which the mother was expected to gain insight into the dangers of her relationship with the father. This mother received no such expert guidance. The local authority did not assist and psychologists attached to the refuge did not feel that they could assist whilst the other assessments were taking place. As such, apart from such general guidance from the independent social worker, the Mother did not receive any proper support. Mr M (one of the experts) has described her as being “in limbo”.

The two experts and the guardian provided reports which were largely positive of the mother. They all seemed to be convinced that the parents’ separation was genuine and that she acknowledged, in large measure, that the father posed a danger to the children. Consequently, in the days leading to the July hearing, both experts and the guardian supported the return of the children to their mother at the refuge.

The local authority accepted the expert views but asserted that there were several pieces of evidence which proved an ongoing relationship between mother and father. In particular, insofar as relevant in the context of the judge’s ultimate findings, they placed reliance on the following pieces of evidence:

Prior to giving their oral evidence, the experts had been made aware of allegations at (i) and (ii) above prior to finalising their reports. They did not consider them serious enough to alter their recommendation of rehabilitation.

On the first morning of the restored hearing the local authority not only also sought to rely upon the above allegations but introduced a serious new accusation. It was an alleged sighting on Saturday 18^th July 2009 (some two days before the final hearing) by the local authority’s assistant Team Manager (a Miss T) of the parents together in Powis Street, Woolwich, near Social Services offices. This, they submitted, was evidence of a continuing committed relationship between the parents. Consequently, they sought a finding that the mother had sought to deceive everyone and could never be trusted to care for the children. The care plan was therefore adoption outside the family.

This allegation took all, bar the local authority, by surprise. Only the bald factual matrix was established on the first day of the trial because the local authority indicated that Miss T’s statement would only become available on the following day. There can be little doubt that the mother’s legal team were caught unawares by this development and had to deal with it very speedily. The mother denied any contact with the father and gave details of an alibi asserting that, from 9.30 am to 5 pm on the relevant date, she had been at the refuge assisting another resident to pack her belongings. Unfortunately, no staff member was on duty over the weekend and so there was no professional on site able to corroborate the alibi.

Despite the obvious difficulty caused by this late accusation, the trial continued with other oral evidence being given. On the second day Miss T’s statement duly arrived. In response to the local authority’s new evidence, the mother produced a statement from her alibi witness (a Ms TF) however the latter could not attend to give evidence because she had not been given sufficient notice and, apparently, had child care duties. The mother also produced two further statements from friends (only one of whom was available to attend Court). They were introduced to deal with a number of other issues and, in particular, a vague suggestion that the Mother may have been spending time at weekends staying with the father when she claimed to have been at a friend’s home.

Miss T gave oral evidence detailing that she had seen the mother and father together. It was asserted that CCTV footage of Powis Street was available to provide some form of corroboration. Following a request on behalf of the mother, on Thursday 23^rd July 2009 the judge and counsel attended Woolwich Police station to view the relevant footage. It was clear from the material that (i) Miss T had been in Powis Street and (ii) had been able to see a black man and a white woman (whose general appearance seemed to be similar to that of the mother) walking and standing together. The judge’s provisional view was that the woman in the video appeared to be fatter than the mother. He put it thus in his judgment “it was apparent that to me that the woman in the CCTV looked very like the mother, including a similar distinctive hairstyle. I did wonder however whether the person alleged to be the mother was somewhat stouter than the mother”. At that stage the judge refused an adjournment to obtain expert analysis of the CCTV footage.

The new evidence was made to fit around the original witness template. Thus, the two experts (namely, clinical psychologist Mr BM and independent social worker SB) gave their oral evidence relating to disposal on Tuesday 21^st July (which was the second day of the trial), This was before all the factual evidence relating to the Powis Street incident was complete.

The experts’ written reports were dated (i) BM (12^th January 2009 and addendum 4^th June 2009) and (ii) SB (19^th January and addendum 4^th June 2009). Accordingly, the reports came into being long before the new factual matrix emerged. Indeed, the usual experts’ meeting had taken place on the 5^th June 2009 long before the new allegation.

It is fair to point out that the July hearing had been fixed in February expressly to deal with disposal. Having read the transcripts of the experts’ oral evidence, I am clear that the new factual issue had the effect of derailing concentration upon the central issue relating to the long term outcome for these children. Counsel for the guardian has expressed it as a “wind tunnel effect” with all parties, including the judge, being driven relentlessly in one direction and concentrating upon the truth or otherwise of the mother’s denial that she had been in Powis Street.

The experts were of the clear view that, provided the mother had separated from the father both physically and emotionally, then she could safely parent the children. However, they indicated that if the Judge were to find that she was in a continuing relationship (emphasis added) with him and, in consequence, had been duplicitous, then the experts did not consider that it would be safe to permit her to care for the children. The rationale being that this would prove that she had been collusive and untruthful over an extended period. Both experts accepted that the quality and extent of the parents’ relationship was important.

To be fair BM pointed to a “middle ground” suggesting that if the mother had simply been seeing the father to tie up loose ends it would not rule out rehabilitation.

Obviously the mother’s honesty was in issue. However, as I perceive it, the quality and extent of the parents’ relationship should also have been considered as being of crucial relevance.

On 21^st July (on the guardian’s application) the judge ordered that CCTV footage taken at the women’s refuge over the material period be released into the proceedings. The refuge later objected on the grounds of a breach of their clients’ confidentiality. Consequently, on 23^rd July, the judge set that order aside. The mother considers that she was deprived of vital evidence that could or would have demonstrated that she was at the refuge at the material time.

The judge held that he could not speculate as to what that coverage may have shown. It is submitted by the Mother’s Counsel that “He should have considered that it may have supported mother and she was deprived of it through no fault of hers”. Whilst it is correct that this evidence was not available, I do not consider that its omission was fundamental to the judge’s determination because if the mother’s alibi witness come up to proof that live evidence would have been far more potent.

That stated, when vital decisions are being made about the future of children which may lead to their adoption, I consider that, subject to law, all relevant evidence should be available to and heard by the court.

The experts seemed to be clear that if the judge found that the mother had lied to all about a re-established relationship then there could be no confidence that she would work with professionals in an open and honest manner. The guardian apparently supported this stance. Somehow this line of reasoning seems to have morphed into the position that all, save the mother, agreed that if the judge were to find the parents had not separated then the local authority’s care plan for adoption would be the inevitable consequence. For myself, I find this conclusion too stark and unsupportable given the factual matrix of this case.

I point specifically to the following points which make this case somewhat unusual; (i) the mother had very many good qualities and her parenting abilities, per se, were not in issue; (ii) the local authority because of their “closed mind” had failed properly to work with her or give her support from separation to July; (iii) the evidence of her alleged deceit emerged late in the day and derailed concentration on disposal. In effect, the July hearing became a second fact finding hearing; (iv) the mother’s legal team were on the “back foot” throughout trying to piece together her case in circumstances which were not easy. Some might regard the entire process as unfair; (v) most importantly, the Judge was not asked and did not determine why this mother might have lied (if that is what he found) and (vi) he did not consider what the quality/length of the re-established relationship with the father might be. In the light of all these points, the experts were unable to consider all the issues. They were not asked and did not determine whether with proper support (which it is clear the mother never obtained from the local authority) even if she had lied (i) the mother might nevertheless be assisted to become open with professionals and (ii) thereby achieve rehabilitation. Given the ages of these children, this type of evidence was particularly important because the mother had an established and good quality relationship with them.

On the 29^th July 2009 (after some 5 days of evidence) the judge received the parties’ final written submissions. Even at this late stage, the mother’s counsel sought an adjournment to (i) permit her to call her witnesses who had not been able to attend and (ii) to have an expert report on the CCTV images in the hope that this would exculpate the mother. The Judge acceded to those submissions and the matter was adjourned until 9^th October 2009.

On the duly appointed date, the mother’s main alibi witness (TF) did not attend. Apparently, she had been involved in a car accident and had (as mother’s counsel put it to this court) “minor injuries”. Another of her witnesses did not attend because she was giving evidence in a criminal court. As I understand it, no application was made for an adjournment to permit these witnesses to attend even if only through the medium of a video link. Perhaps this failure (for it was such) was due to the judge’s express stance (in reaction to an application by the local authority to adduce more evidence) that the matter would not be delayed further. I am clear that the mother’s case should not have been placed in this type of jeopardy. Even if the judge seemed to be displeased, the application to adjourn should have been made because the alibi was a crucial part of the mother’s case. It deserved to be weighed in the balance. Untested by cross examination, I doubt that any judge would be persuaded by it. Obviously, the failure to pursue this point cannot be prayed in aid to seek to undermine the judge’s ultimate finding in relation to the alleged sighting. However, I am clear that advocates should not be deterred from making an appropriate application just because they perceive the tribunal as being irked by it.

To return to the chronology, the expert analysis of CCTV footage was provided by a firm called BSB. Their report indicated that there was no “significant difference in the height of woman A and [the mother]”. This meant that she could not be excluded as having been present. Having seen the stills taken from the CCTV pictures it is noticeable that the hairstyle (which is fairly uncommon) of woman A (as she is referred to in the report) is very similar to that of the mother. The expert was clear that the quantity and quality of the pictures did not permit of a more detailed analysis in terms of facial identification or a comparison of bodily size. In particular, he pointed to the fact that the type and bulk of the clothing which was being worn by woman A meant that the weight/body shape of that person could not be adjudged with any accuracy. In the light of this evidence the judge’s initial impression of woman A’s size could not be supported as the pictures simply did not permit that type of precision. Complaint is made of the phrase in the judgment “I am quite sure that that if the appearance of the woman on the CCTV was fatter than the mother and that would prove that it was not the mother, (the CCTV expert) would have said so. Therefore my initial impression is not supported by the expert evidence”. It seems to me that the submission is misplaced because the judge was doing no more than accepting that his own initial impression could not be relied on as a matter of expert analysis.

The Judge did not give himself a Turnbull direction in relation to identification evidence. In all cases such as this, I consider that it is incumbent upon a judge to remind himself in judgment of the precise terms of the passages in R v Turnbull [1977] QB 224 in which Widgery CJ stated at 228:

The Judge accepted the evidence of Miss T as he was entitled to do. He considered that the CCTV evidence was corroborative of his findings. He stated that:

He continued from this

“That finding lends some corroboration of the evidence of Miss W and thus I think it probable that Miss W was also correct in identifying the Mother and Father together [emphasis added] despite my caution in approaching her evidence. Given those findings I also think that it is probable that the Mother did give the Father her mobile telephone number”.

Miss W had worked at the contact centre where mother had frequent supervised contact with her children. She told the court that on 5th March 2009 she had been driving past the contact centre and had seen mother walking towards it. This fact was not in dispute. Miss W thought that she had seen the father some 100 yards behind on the other side of the road apparently following the mother. She was so concerned (given the father’s propensity to violence) that it “might be him” that she stopped her car and warned those at the contact centre that the Father may be in the vicinity. This lady’s evidence was far less cogent than that of Miss T and it is clear that she never placed the mother and father “together” as the judge asserts above. Counsel for the local authority pointed to earlier passages in the judgment where the judge stated they were “together in the vicinity” and submitted that the above paragraph should be read in that way. I do not accept that submission. The judge was plainly wrong in stating that the parties were together on the 5^th March because that evidence was not given. The most that could be concluded was that they were in the same road at about the same time.

Miss Eaton QC, for the mother, has submitted: “Curiously, in his note of refusal of permission to appeal some minutes after he had delivered judgment the judge referred, to “sightings” of mother and father together”. I accept that this passage reveals an error because there was only one sighting of the parents together. In that document the judge also referred to the mother and father “associating with each other” rather than being in a relationship. The terms of that document are nothing more than stated reasons why permission is refused and, as such, no judge can be criticised for his/her use of terminology when the contents are not meant to be binding in the manner of a judgment. However, the Judge’s words do suggest that he had made more of the evidence of the 5^th March than he was entitled.

I note that the local authority did not take any direct or protective steps as a result of Miss W’s call. I doubt that her evidence, of itself, could ever be regarded as probative of a continuing relationship because it is plausible, as the judge himself pointed out, that even if the father was properly identified (and the sighting was not of the best) he could have been trailing the mother without her knowledge.

I accept that the Judge was entitled to use the evidence of Miss W in his analysis of the events as another piece of jigsaw. He was entitled to consider that it assisted in his investigation of the possible relationship between the parents. However he was plainly wrong in finding that they were together on that occasion.

The judge then analysed the evidence in relation to the telephone calls/texts from the father in March and June 2009. He found that the local authority’s contention that the mother must have given the number to the father was proved. He did so on the basis that it followed upon his finding that the mother was lying in relation to the main incident. Whilst it is permissible for any judge to take this route when analysing evidence I do not consider that it was good practice to draw such an adverse conclusion in this case. The critical finding sought related to an ongoing relationship over time. The telephone calls/texts were central to that issue because they might prove a resumption of communication from about mid March 2009. As such, the judge should have carefully balanced the detailed evidence before reaching his conclusion that the local authority’s allegation was proven as another part of the jigsaw.

The Judge found that he was “driven inexorably to the conclusion that the local authority’s suspicions that the mother and the father are still together are correct”. The submission on behalf of the mother is to the effect that “taken together, at their highest these events were not capable of justifying a finding that the parents had not separated and that there was an ongoing relationship which may endanger the children”. Ms Eaton QC submits that the judge failed to take proper account, inter alia, of the fact that (i) when requested, she offered her phone for forensic analysis and there was no suggestion that she had made calls to the father on that phone, (ii) she had asked for disclosure of the CCTV footage of the refuge, (iii) her mother informed the judge that the “old E (the mother’s first name) was back” thereby indicating that she was free from the influence of the father and (iv) she had even offered to be tagged.

Despite those submissions, I consider that the judge was entitled to come to the clear conclusion after hearing the evidence that the mother had lied about the sighting in Powis Street particularly in the light of his findings about her reliability in November. On that occasion she had most assuredly lied.

However, once he had made that finding, the judge should have gone on to consider (i) why the mother might have lied and (ii) whether the whole of the evidence was capable of proving a continuing relationship about which she had lied consistently over time.

If the judge had undertaken that analysis, he would have realised that the only credible evidence was to the effect that the mother had been with the father on one occasion in a crowded shopping street. Whilst her denial might have demonstrated that she could never be trusted to work honestly with professionals for the benefit of the children, there could have been another/other explanation(s) and he should have considered them.

The facts in this case could tend to suggest a plausible alternative because this Mother did not have a good relationship with the Local authority. Moreover, she had never been given proper guidance or help to deal with her separation from the father.

The Mother’s situation might have been different if, after intensive work, she had been helped to accept that she had seen the father and had been prepared to give reasons. Without support, I am not persuaded that this Mother was ever given a fair opportunity to demonstrate that her commitment to the children was greater than her relationship with the father.

Having read the guardian’s report, it was anticipated that intensive, supportive work would be undertaken once it was accepted that the children were to be rehabilitated. It is within my knowledge that, in many similar cases, local authorities carry out this type of rigorous support work with a non abusive parent long before the disposal hearing. I think that this is the correct approach. No such work was undertaken in this case, probably because the local authority had a “closed mind”. That failure should not redound to the disadvantage of this mother and, more importantly, to her children who will lose their birth family if no such intervention takes place.

Grounds 3 to 6 of the Appeal complain of the adequacy of the reasons given in the judgment for the care and placement orders which were made. It is clear that the judgment does not contain any detailed analysis of the applicable law. The result appears to have been wholly fact dependant because the judge accepted that if the mother had been untruthful in her portrayal of her separation from the father then there was no realistic alternative to the making of a care order with its ultimate plan for adoption outside the birth family.

In In re G (Children) [2006] UKHL 43 there was criticism of the fact that the trial judge did not refer to the welfare checklist. Baroness Hale stated [40]:

By failing to undertake the crucial analysis demanded by statute the judge did not direct his mind to the vital rationale set out therein so as to check that the outcome posited was fair, just and appropriate. It was his task to make the final determination and reach a conclusion that was in the children’s best interests. If he had followed the terms of the Statute he might have paused to consider whether, in the light of the new facts as found, there was only one outcome, namely adoption, or whether some other result was possible. I do not read the expert evidence as being as stark as it was portrayed by the local authority and guardian in their final submissions. I accept that the experts were concerned about a long term deception arising from a lengthy resumption of the parents’ relationship but they were not so sanguine in the event of some lesser form of connection. Having analysed the evidence, I am not clear that the judge’s final disposal took these matters into account.

Given the mother’s qualities as a parent and lack of support during the previous nine months, I am clear that the judge should have considered whether some additional work should be undertaken urgently to help her understand why she could never have contact with the father unless he had changed through an acknowledged therapeutic route. Moreover, even if the Judge thought that rehabilitation was not possible he should have directed his mind as to the possibility of contact, provided that the children were in a safe environment especially as these children had a good relationship with their mother.

The judge did not perceive this case as finely balanced but I disagree. I note that he did not evaluate the expert evidence in his judgment. On the face of it, he simply relied upon the submissions made by the parties as to the severe outcome. He proceeded upon the basis that he had but two alternatives (i) if he found the Mother was telling the truth then rehabilitation was supported by all (albeit reluctantly by the local authority) but (ii) if he found she had been untruthful the outcome was adoption. This methodology was inapt. It was necessary to balance all counsels’ submissions with a careful analysis of all the evidence, particularly given the expert evidence was heard before the factual dispute was finally determined.

The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1 (3) undermines his conclusions and his orders.

The Judge did not mention Article 8 of the ECHR. The terms of that Article provide that:

It is submitted that the judge erred in law by failing to express the terms in his Judgment. In Re B (Care: Interference with Family Life) [2003] EWCA Civ 786 Thorpe LJ stated:

“where the application is for a care order empowering the local authority to remove a child or children from the family, the Judge in modern times may not make such an order without considering the European Convention for the Protection of Human Rights and Fundamental Freedoms Art 8 rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an interference with family unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children”

I agree.

In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case the judge said was “removing the children from their Mother without good reason … would be a tragedy for them, quite apart from the mother”. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.

As to the placement order the Judge put it thus:

The placement orders had been applied for in March 2009. When the case returned on 9^th October 2009, it was clear to all that the issue of final care order and placement were to be dealt with at the same time. The mother’s submission is to the effect that the failure to mention any terms of the Adoption Act 2002 or the ECHR means that the placement order is fatally flawed. Miss Eaton QC puts it thus “The reference to welfare at the end of the Judgment may be a reference to section 52(1) (b) but ….it is wholly inadequate”. The judge failed to deal with the precise terms of Section 1(4) which are “wide ranging and demanding”.

In the case of Re P [2008] EWCA Civ 535 Wall LJ stated: -

The precise terms of the section which provides

“The Court must have regard to

a)

The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding).

b)

The child’s particular needs

c)

The likely effect on the child (throughout his life) of having ceased to be a member of his original family and become an adopted person

d)

The child’s age, sex background and any relevant characteristics which the Court or agency considers relevant

e)

Any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering.

f)

The relationship which the child has with its relatives and with any other person in relation to whom the court or agency considers the relationship to be relevant including-

i)

The likelihood of any such relationship continuing and the value to the child of its doing so

ii)

The ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise meet the child’s needs

iii)

The wishes and feelings of any of the child’s relatives, or of any such person, regarding the child”

The judge should have turned his mind to each of these provisions and not truncated his considerations as set out above. By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.

The final point raised relates to the mother’s contact with the children pursuant to Section 26(4) of the Adoption Act. The guardian prepared a report within the placement proceedings on the assumption that, if it turned out to be the case, the parents were withholding their consent unreasonably then she did not support contact. In relation to the mother she stated:

“If [the Mother] is found to have been in a relationship with [the Father] the risks of her having direct contact with the children would be significant as [the Mother] could not be relied upon to support an adoptive placement and as the children become more aware of their environment confidential information about their placement may be at risk. Letterbox contact should be promoted and supported. The Local authority proposes three times a year via the post adoption support service”.

As I understand it, no challenge was mounted at any time on behalf of the mother in relation to the recommendations in that report or the position of the local authority. This flaw in presentation should have been considered by the judge because it is he who has the duty to make the right order for the children.

It has been submitted that the criticisms now levelled at the trial judge were not raised at trial or shortly thereafter. In Re M (fact- finding hearing burden of proof) [2008] EWCA Civ 1261 it was stated:

“It is high time that the Family Bar woke up to this case, and to the fact that it applies to family cases: - see (inter alia) Re B a child) [2003] EWCA Civ 88, where Thorpe LJ cited from the judgment of Arden LJ in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531. In her judgment in the latter, Arden LJ specifically considered whether the principle identified in a civil appeal should equally apply to quasi-inquisitorial proceedings under the Act. She saw no reason why not, and went on in the following paragraph to offer some general guidance:-

'In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge's attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ... ; and in some cases, it may follow from the advocate's duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.'

I do not consider that the omissions in this Judgment could have been put right by following this route.

In the light of the above, I am of the clear view that the orders made the judge were plainly wrong. I would set aside the judge’s final care and placement orders. I am clear that outcome must be reconsidered, the mother must be given proper support by the local authority and the experts must re-assess their recommendations.

Accordingly, the order I would propose would be as follows: -

I have had the advantage of reading in draft the judgment of Baron J. with which I am in agreement. For the reasons she gives I would allow this appeal and make the orders she proposes. I am giving a judgment of my own both because we are departing from the course taken by the judge in material respects and because there are features of this case which, in my judgment, call for comment by this court.

I gratefully adopt Baron J’s description of the factual matrix of the case, which I will not repeat. I begin with what I fear has become a customary expression of sympathy for the plight of the circuit judge who, in difficult care proceedings, has to make critically important decisions determining the lives of parents and children on what Lord Hoffman has aptly described as “a binary system in which the only values are one and zero”: see In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35. [2009] 1 AC (Re B). The whole paragraph warrants citation: -

Judges in care proceedings, of course, make findings of fact on all the evidence, although where, as here, the question is what is in the best interests of the child concerned, the burden of proof is sometimes elusive. But since a finding of fact frequently involves issues of credibility, and the trial judge has the unique advantage of seeing and hearing the witnesses, this court (which is a court of law and rarely if ever hears oral evidence) usually defers to the trial judge’s findings, provided, of course, there is material upon which they can properly be made.

This case, in my judgment, is no exception to that rule, although it highlights a series of traps for the unwary which, in my view, judges would do well to avoid. I will identify some of these in a moment.

However, in my judgment, the appeal is complicated by two factors. The first – as I have already intimated - is that the judge was not conducting a fact finding hearing: he was conducting a welfare enquiry. The second flows from the first, and the judge’s fundamental error, in my judgment, was to treat his critical findings of fact as determinative of welfare.

I propose to identify only a few of the traps. They relate largely to identification evidence. The first concerns the Turnbull direction. In this regard, what he judge said was:

With great respect to the judge, this will not do. The judge is the jury for this purpose, and in my judgment it is imperative that where judges in care proceedings are dealing with highly controversial identification evidence, it is imperative that they give themselves a Turnbull direction. This is not a tiresome mantra which a judge must recite in order to tick a box for this court: judges need to remind themselves of the dangers of identification evidence.

A simple example of the perils into which the judge’s approach led him is provided by the very evidence which the judge is examining in the passage which I have cited at paragraph 6 above. His conclusion is: -

Miss Eaton invited us to underline the word “together”. In my judgment, she was right to do so. Miss W’s evidence was not that the mother and the father were “together”. Miss W was in a car driving away from the local contact centre. She saw the mother walking towards her on the left hand side pavement. The mother was legitimately there: it was her time for contact with the children. Approximately a hundred yards further on Miss W saw a man who resembled the father walking in the same direction as the mother on the right hand pavement. At no point were the mother and this man seen by Miss W “together”. The proposition that they were “together” is an inference which the judge has drawn from the evidence, but which he attributes (wrongly) to Miss W.

Even allowing for the latitude which this court affords to judges who make findings of fact, his finding, based on Miss W’s evidence, that the mother and the father were “together” is, in my judgment, not a finding which it was open to him to make on the evidence. I was unpersuaded by Miss Theis QC’s attempt to persuade us that by “together” the judge must be taken to mean that which he (wrongly) earlier attributed to Miss W - i.e. “if not actually walking side by side, it means they were deliberately together in the vicinity of the contact centre”. If that is what the judge meant, he should have said so when making his finding.

Like Baron J I am unimpressed both by what I will call the “Miss W identification” and the evidence about the calls to the mother’s telephone. In relation to the latter, the evidence was that the mother obtained a new mobile phone on 31 January 2009, and that on 13 March and 13 June the father telephoned the mother’s number. There was no evidence that they had spoken on the telephone or that she had called him. Clearly, the father had obtained the mother’s number. The judge recorded the local authority’s contention that the mother must have given the father the number “because no one else would have done so”. He also recorded the mother’s assertion that she did not know how the father had obtained her number. What he does not record is the fact that the mother made numerous calls on her telephone after 31 January, and that any one of the recipients of her calls could have given the father the number. I do not, accordingly, regard the evidence relating to the telephone as credible evidence of a continuing relationship between the parents, and the judge was wrong to find that it was.

Equally, I am unhappy about the judge’s cumulative approach. I will deal in a moment with the sighting by Miss T. of which there is CCTV evidence. What the judge says is: -

In my judgment, this approach is, once again, impermissible. If what the judge was actually saying was that the fact that the mother was lying to him led him to these conclusions; (a) he should have said so in terms; and (b) he should have given himself what has become known as a Lucas direction. Once again, this is not a tedious mantra designed to make the life of the circuit bench more difficult than it is already: it is a formula designed to make the decision maker stop and think carefully about the decisions being made. There is no evidence in the judgment that the judge even considered a Lucas direction in any shape or form.

I thus turn to the alleged sighting by Miss T on 18 July 2009. This was a Saturday, just two days before the hearing before the judge was to re-commence on 20 July 2009. Miss T is, of course, the supervisor of the social worker in the case. On the one hand, she was plainly not an independent witness: on the other, she knew both the mother and the father. Her evidence was firstly contained in an extremely brief witness statement dated 20 July 2009, and first made available to the mother’s advisers on that day. This said: -

Miss T gave oral evidence to the judge on the issue on 24 July 2009, and we have a transcript of that evidence. She was fully cross-examined by junior counsel for the mother and did not believe she was mistaken.

The mother’s case was that she (the mother) was not there at all and that Miss T was mistaken. There was, however, CCTV footage, and we have a still frame from that CCTV footage in our papers. This shows a sideways view of a black man in a baseball cap standing with his back to a shop apparently talking to a woman whose back is to the camera, but whose clothing is consistent with Miss T’s description and whose headwear and hairstyle is similar to a further still, obtained on a later date of the mother in the same location.

As Baron J has related, the parties and the judge watched the CCTV video footage, and we were told that it was at the mother’s insistence that expert evidence (which proved inconclusive) was obtained in relation to it. Furthermore, the judge granted the mother an adjournment to obtain that evidence – although she was unable to obtain CCTV footage from the refuge - and in my judgment that adjournment also gave the mother an abundant opportunity to call her “alibi” evidence and, if need be, to issue witnesses summonses.

I have therefore come to the conclusion – not, I have to say without some hesitation - that, despite the unhappy procedural issues raised by Miss Eaton, and despite the judge’s failure to give himself a Turnbull direction, there was material upon which he could properly find that the mother and the father were seen together by Miss T on 18 July 2009, and that the mother had lied to him about it. In my judgment, therefore, this finding must stand.

At this point, however, I part company from the judge in two major respects. The first is his conclusion that the findings of fact which he has made lead inexorably to the children’s adoption. The second is the manner in which he went about making placement and adoption orders.

I propose to take the second point first. A theme of this judgment has been the need to ensure proper process. There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.

Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life (my emphasis – see section 1(2) of the 2002 Act) requires adoption.

It is, however experienced the judge, wholly inadequate to deal with these crucially important issues in a sentence or two, as Judge Hayward-Smith has done. This is what he said:-

With all respect to the judge this will not do, and for this reason alone it seems to me that the matter must go back to the judge for him properly to reconsider the making of placement and adoption orders in the light of the Statutes and the decisions of this court and whatever evidence is placed before him at the final hearing. In paragraph 60 of her judgment, Baron J has cited the relevant paragraph of this court’s decision in Re P, which I will not repeat. The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.

The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.

In my judgment, neither defence meets the criticism. As to the first, a judge must demonstrate that he has addressed his mind to the critical issues. It is simply not good enough for this court to be told that counsel had made appropriate submissions to the judge, and therefore the material was available to him. A moment’s thought will demonstrate the fallacy of the argument, particularly when the court is dealing with an issue as emotive and important as adoption.

As to the first of the two points identified at paragraph 87 above, it by no means follows, in my judgment, that the judge’s findings of fact led inexorably to adoption. The argument of the local authority is that the children need permanence and security of placement, and that this can only be achieved by adoption. That is one perfectly proper perception. However, there is a raft of alternative arguments, some of which I will develop later in this judgment under the heading “the conduct of the local authority”. Can it be said at this stage and on this evidence that permanent separation between mother and children (one of whom is now five) who have a powerful relationship with each other is in the interests of these children and appropriate? What help has the mother had to break her relationship with the father? What about injunctions and other court orders? What about a continuation of foster care? There are just some of the considerations which need to be addressed. As I said to counsel in argument, this is why we have judges, and why some important decisions in care proceedings are not made by local authorities. Having now re-read all the papers and listened to skilful argument, I am entirely satisfied and repeat that it seems to me the judge’s findings are a very slender thread on which to hang placement and adoption orders, and that the judge needs to reconsider the decisions which he has made in the light of all the evidence which will be placed before him. I thus wholly endorse the proposed order set out by Baron J at paragraph 75 of her judgment.

This is sufficient to dispose of the appeal. However, I cannot part from the case without: (1) commenting adversely on the conduct of the local authority; and (2) addressing myself directly to the mother. I do the former not out of any wish to engage in gratuitous criticism of social workers, but because the conduct of the local authority in this case strikes me as; (a) entirely inimical to the ethos of the Children Act 1989; (b) wholly contrary to good practice in care proceedings; and (c) unduly adversarial. I do not propose to name any of the social workers involved, but express the hope that both the judgment of the judge and the judgments in this court are read by the social workers concerned, their superiors and by the local authority’s Director of Children’s Services.

Had the judge not made specific findings about it, I would, speaking for myself, have found the conduct of the social workers in this case hard to credit. The first finding is contained in paragraph 8 of the judgment. I propose to set out the judge’s criticisms in extenso :

This is bad enough. What follows, however, is much worse. I continue with my citation from the same paragraph of the judgment: -

I have cited this extensive extract from the judge’s judgment because I have to say that I find it quite shocking. Indeed, I find it difficult to believe that in 2010, more than 18 years after the implementation of the Children Act, a local authority can behave in such a manner. Here was a mother who needed and was asking for help to break free from an abusive relationship. She was denied that help abruptly and without explanation. That, in my judgment is very poor social work practice.

If we have learned anything in the past few years it is quite how difficult some women find it to break away from abusive relationships, however, rational such a breach would appear to a disinterested outsider. Here, in my judgment, was a mother demonstrating that this is what she wanted to do. She went to a refuge. She both needed and sought help, and was quite improperly rebuffed by a local authority which had plainly pre-judged the issue.

Miss Lucy Theis, QC, for the local authority, did not seek to defend its conduct. In my judgment, she was wise not to attempt to do so. She said that the local authority accepted the criticisms which the judge made. In my judgment, however, that is insufficient. We have no guarantee that these social workers will not behave in the same way again.

Baron J has spelled out the ethos of the Children Act in her judgment, and I will not repeat what she had said. During the course of argument, we were concerned to see what help the mother had had in this case, and we asked to see the reports of BM and SB, together with their respective letters of instruction. It is plain, in my judgment, neither was instructed in a therapeutic capacity, although BM was invited, in very general terms, within the twenty questions posed to him to consider “therapeutic services”. The powerful impression with which one is left is that this mother was left to fend for herself, and denied the support she was entitled to expect.

What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception.

I yield to nobody in my appreciation of the difficult tasks which social workers are called upon to undertake and the pressures under which they are constrained to work. I am very conscious of the criticism that social workers are damned if they do and damned if they do not. At the same time, their duties under Parts III and IV of the Children Act in care proceedings are plain. Their aim should be to unite families rather than to separate them.

I am prepared to accept, as I was in Re F (a child) (placement order) [2008] EWCA Civ 439, [2008] 2 FCR93, that the social workers in this case were genuinely of the view that it was not in the interests of the children for them to be rehabilitated to their mother’s care, although no explanation has been given to us of why they had formed that view. I equally accept that in care proceedings a local authority is entitled to take a view, although that view should always be evidenced based and capable of being altered to meet changed circumstances. For all the reasons which I give in Re F, however, neither point meets the criticism which the judge made in this case and which I endorse.

The mother has been ably represented on this appeal, but she must appreciate several things. The first is that she has come within a whisker of losing her children. The second is that she may still do so. Thirdly, she has forfeited the judge’s trust. Abuse apart, she committed what is perhaps the most serious offence which a parent can commit. She has lied to the judge.

The mother must understand that she is not engaged in some elaborate game with the court in which being found out results in a tap on the wrist and no more. The future of her children is at stake. The issues could not be more important.

Wiser heads than hers had decided, rightly in my view, that the father is a danger to her children. Every court sympathises with a woman who has to choose between her partner and her children, but no court will tolerate lies which put children at risk. We have directed the judge to think again. Quite what he will decide I do not know. What I do know is that, rightly, he will not tolerate further lies.

I very much regret the additional delay which our order will cause. I have, however, carefully considered section 1(2) of the Children Act 1989 and have come to the clear view that the additional delay in resolving the case is justified and proportionate. Although no-one suggested the contrary, I see no reason why the case should not return to His Honour Judge Hayward-Smith.

I have read both judgments in draft and agree that the appeal must be allowed. I agree also with the order proposed by Baron J. With regret, I must endorse the criticism which Wall LJ has made of the conduct of the local authority in its failure to support the mother in her expressed wish to separate from the father.

I wish to add a few words of my own because I take a less critical view than Wall LJ of the judge’s approach to the identification evidence. First, I think that the judge recognised the inherent weakness in the evidence of Miss W and that relating to the mother’s mobile phone number. For the judge, the identification hinged on the evidence of Miss T and the support for it found on the CCTV footage. Although I agree with Wall LJ that the judge ought really to have reminded himself of the specific weaknesses in that evidence, so as to demonstrate that he had applied the Turnbull guidance, I am prepared to accept that he had those weaknesses in mind. This judge is very experienced in the conduct of criminal trials and I think it can be inferred from his hesitation in accepting this evidence that he had the guidance in mind. I am concerned that he did not mention that Miss T, being the local authority’s team leader and having a specific (and it must be said potentially partisan) interest in the case, was likely to be suggestible and therefore more likely to make a mistake in the identification than a truly independent witness would be. However, all that said, I would accept that the judge was entitled to accept Miss T’s evidence and conclude that the mother had lied about that event.

Having so found, I would say that the judge was entitled to treat that as support for the accuracy of the evidence of Miss W. If two witnesses (without apparently colluding) both testify as to similar events, that can provide mutual support; if the evidence of one is accepted, the other’s is quite strongly supported. So I think the judge was entitled to accept the accuracy of Miss W’s evidence and her recognition of the father. However, the judge does not appear to have considered what the evidence signified. He did not appear to consider the possibility that the father was following the mother on that occasion either without her knowledge or at least without her approval. Instead he seems to have drawn the inference that, even if they were not together at the moment they were seen, they must have been together a while earlier and were walking apart as a ruse. In my view, that was not a safe inference. The mother’s progress towards the contact centre with the father trailing her at a distance on the other side of the road is entirely consistent with her being ignorant of his presence.

I would accept that the judge was entitled to weigh that the fact the mother has lied about her contact with the father in respect of at least the 18 July sighting makes it more probable than would otherwise be the case that she has lied about the mobile phone number. He was therefore entitled to hold that she probably had given him the number. However, here again, what does that signify? Had she done so willingly because she was still emotionally involved with him? Or had he put her under pressure to give him the number in the period after he came out of psychiatric hospital? There was no evidence that the mother had ever telephoned or texted the father, which is strange if it be right that the two are continuing their former relationship. Here again, the judge appears to have drawn an inference from the evidence which was, in my view, unsafe.

Accordingly, in my view, the judge was entitled to conclude that the mother had probably been with the father on 18^th July and had probably given him her phone number. Even those findings were based on evidence which might well be mistaken and it would have been sensible, in my view, if the judge had borne that in mind. He was certainly entitled to conclude that it was not safe for him to accept that the mother had separated from the father and not safe to move towards rehabilitating the children to her care. What the judge should not have done, in my view, on the evidence before him, was to conclude from those factors and the mother’s denials that the mother was willingly and intentionally continuing an emotional relationship with the father and that, for the foreseeable future, she could not be trusted to protect the children. She might be wholly untrustworthy but the inference that she is, was not a safe one. If the case was concerned only with her legal rights and she had been caught out lying, the drawing of that inference against her might be justified. But this case is about the future welfare of two children. The judge had said that if possible the children should be reunited with her. Before concluding that the mother could never again be trusted, it seems to me that some attempt should have been made to find out what was really going on between the father and mother and to understand her mental state. As Wall LJ has said, the judge did not give himself a Lucas direction. He did not ask himself why she had lied. He inferred that she had lied because she was in an ongoing committed relationship with the father.

I acknowledge that the mother had been encouraged to confide in the social workers and she had not done so. But the judge had already gone some way towards explaining why that might be so. She had received no help or support in her professed determination to separate from the father. Instead the local authority had been implacably against her. She had received no therapeutic counselling as to the importance of separation and the importance of complete honesty. I acknowledge that the experts and the guardian took the view that if the mother had lied, she could never be trusted to protect the children. I acknowledge that the judge thought that it was important to reach a decision immediately. However, the judge was not bound to accept that view and I do not think that he should have done without further investigation of the mother’s state of mind and the provision to her of the kind of support which ought to have been given in the months following the fact finding hearing.

For those reasons, it was in my view premature to make a final order in this case and in particular an adoption order. I respectfully endorse all that Wall LJ has said about the detailed consideration which should be given to the statutory provisions and I agree that there is no reason at all why this case should not be returned for further consideration by Judge Hayward-Smith.