G (A Child), Re

This is an application by a maternal aunt for permission to appeal against a care order made on 9 October 2012 by Her Honour Judge Coates in the Brighton County Court. The judge was concerned with a little boy, T, born in February 2008. The judge had previously on 14 August 2012 delivered judgment following a fact-finding hearing on 2, 3 and 6 August 2012 arising out of disclosures first made by T’s elder half-sister, then aged 10½, in May 2012. Put shortly, Judge Coates found that the girl had been sexually abused on a number of occasions by her mother and on one occasion by T’s father. The matter was then listed for a final welfare / disposal hearing which ran for three days from 11-13 September 2012. The judge delivered her judgment on the matters arising out of that hearing on 9 October 2012. She then made the care order sought by the local authority and approved its care plan. But she adjourned the hearing of the local authority’s application for a placement order. I shall explain in due course why the judge took that course.

The Court of Appeal was notified the same day – 9 October 2012 – that the aunt wished to seek a stay. The urgency arose out of the fact that the local authority had indicated that it proposed to remove T from his current placement with the aunt the same afternoon. The appellant’s notice, with grounds of appeal, was filed that afternoon. The local authority having indicated informally to the Court of Appeal office that it would not oppose a stay for 24 hours, I made an order listing the aunt’s application for an oral hearing before me at 2pm the following day – 10 October 2012 – and staying Judge Coates’s order until after the hearing of that application. I directed that the local authority was to attend and said that the other respondents were free to attend if they wished but were not required to.

It is convenient at this point to identify the relevant parties. The applicant for the care and placement orders is West Sussex County Council. T’s father has played no real part in the proceedings. T is represented in the usual way by a children’s guardian. T’s mother is the third of four children. The first two were boys, followed by the mother, born in 1970, and another girl, born in 1977, who is the applicant before me, the aunt. T’s mother has various cognitive and other disabilities and acts through her litigation friend, the Officer Solicitor. It was because the Official Solicitor had not been served with the proceedings in relation to the placement order that they were adjourned by Judge Coates. The aunt is registered disabled. She has cerebral palsy and Marfan’s syndrome.

At the hearing on 10 October 2012 the aunt was represented by Ms Sheila Phil-Ebosie, the local authority by Ms Gemma Taylor and the guardian by Mr Adam Smith. Ms Phil-Ebosie had appeared before Judge Coates; Ms Taylor and Mr Smith were new to the case. Since the only matter before me was the aunt’s application for a stay, I inquired as to when the parties might be ready to argue the issue of permission to appeal. As it happened, time was available in my list on 12 October 2012 and the local authority, albeit reluctantly, was willing not to oppose the extension of the stay until then. Accordingly, and with the agreement of the parties, I adjourned the matter – that is, both the application for a stay and the application for permission to appeal – until 2pm on 12 October 2012 (a Friday). I extended the stay until after the hearing of the applications. I gave the aunt permission to file amended grounds of appeal and a revised skeleton argument if so advised.

In accordance with the directions I had given two days previously, the matter came back before me at 2pm on 12 October 2012. Ms Phil-Ebosie, Ms Taylor and Mr Smith were now joined by the mother’s counsel, Ms Jessica Lee, who had represented her before Judge Coates. Ms Phil-Ebosie had prepared amended grounds of appeal. All four counsel, despite the limited time, had prepared detailed and most helpful skeleton arguments. I am grateful to all of them, as I am sure their clients are. It shows, and not for the first time, the skill, determination, enthusiasm and speed with which family practitioners are able to react to fast-moving litigation. Ms Phil-Ebosie was supported in her application by Ms Lee on behalf of the mother. Ms Smith, on behalf of the children’s guardian, joined with Ms Taylor on behalf of the local authority in resisting not merely the appeal but also the application for permission to appeal.

There was no approved transcript of Judge Coates’s judgment of 9 October 2012. But I had a very detailed note of her judgment [the document headed ‘Draft of Judgement of HHJ Coates on 9.10.12’] which everyone agreed was accurate and which enabled me to see clearly the basis upon which she had arrived at her conclusions. Amongst the other documents I had were the very detailed Assessment Report of Dr William Conn, the well-known Chartered Psychologist, dated 5 October 2011, which included his assessment of the aunt, the approved transcript of the judgment that Judge Coates had given on 14 August 2012, and the various forensic documents prepared by the advocates for the purposes of the hearing in September 2012: the local authority’s opening summary; the aunt’s position statement; and the final written submissions of the local authority, the mother, the aunt and the guardian.

I had read almost all of this material when the hearing started at 2pm. The local authority indicated that it wished the stay to be varied to permit it to take T from school to a neutral location that afternoon, pending the outcome of the hearing. After hearing from counsel I agreed. The hearing then proceeded. As will appear shortly, the applications before me raised some unusual points which required a hearing rather longer than is usually appropriate for such applications. At the end of the hearing I announced that I was far from persuaded that I should grant permission to appeal, but that given the nature of the issues involved I wished to have some time for reflection before coming to a final conclusion. I said that I would be in a position to announce my decision by Monday morning, 15 October 2012, though my reasons might take somewhat longer to prepare. The question then arose as to whether I should extend the stay until I had announced my decision. Having heard argument I said that I was not prepared to extend the stay. The effect of this was, of course, to leave the local authority free to implement the care order in accordance with the care plan Judge Coates had approved.

The parties were notified by email at the opening of business on Monday 15 October 2012 that, for reasons to be set out in a written judgment in due course, the application for permission to appeal was refused. (In fact, so as to ensure that this information reached the parties as early as possible on the Monday morning the email was sent to them the previous evening.) The order refusing permission is dated 15 October 2012.

I now hand down this judgment explaining my reasons for refusing permission. It had previously been sent out in draft on 24 October 2012.

It is convenient before proceeding any further to set out a little more of the chronology.

The care proceedings had commenced in January 2011. Despite contested applications for interim care orders T remained in the care of his mother. In March 2011 there was a viability assessment of the aunt, who at that time was living in her own adapted accommodation. In June 2011, following the death of the maternal grandfather, the aunt moved to live with and support her mother (the maternal grandmother). Dr Conn reported on 5 October 2011. Amongst other things he recommended that the aunt be assessed as a carer for T. The previous month an independent social worker, Ms Elody Mene-Garue, had produced a special guardianship report on the aunt which was positive. The local authority then decided that there should be an assessment of the aunt’s actual parenting of T in a 12-week Building Foundations course. In addition, there needed to be an assessment of T with the aunt in his own home environment.

By February 2012 the position had been reached that assessments were being awaited on the mother (who at that stage, subject to assessment, was supported by the children’s guardian as a potential carer for T) and the aunt. There was an issue as to where the aunt’s home assessment with T was to take place. It was resolved by Judge Coates at a hearing on 16 March 2012. I quote from her judgment of 9 October 2012:

“In March it was argued that [the aunt] needed to be assessed in a home environment of her ability to care for T – this court determined it should take place at [the mother’s] home and required the local authority to put in handrails to accommodate [the aunt’s] difficulties. [She] argued assessment at the maternal grandmother’s home and forcibly argued the position and I determined where the assessment should take place.”

The order made by Judge Coates was in the following terms:

“provided the appropriate handrails are fitted to [the mother’s] property the assessment of [the aunt] will take place only at [the mother’s] home and not the home of the maternal grandmother.”

The assessment never took place. Judge Coates explored the reasons why at the hearing in September 2012. As she explained in her judgment:

“I have heard evidence as to what happened thereafter … the evidence of what happened when builder came to do the adaptation that [the aunt] sabotaged the attempt to put in handrails and therefore her assessment could not be progressed.”

In April 2012 the Building Foundation report on the aunt arrived. The report, although highlighting some positives, raised concerns about the aunt’s emotional relationship with T, her lack of insight into T’s experiences and emotional needs, and her ambivalence. She had not been able to ensure that T attended the course with her.

In May 2012 the disclosures were made. That brought the matter back to court on 11 June 2012. On 25 June 2012 the court listed the final hearing for six days starting on 2 August 2012. The same day T moved to the maternal grandmother’s home to be cared for by the aunt, supported by her mother, on what the local authority anticipated would be a temporary basis. On 23 July 2012 there was a further directions hearing before Judge Coates. She directed that the hearing was to be split into a fact-finding hearing for three days to start on the previously arranged date of 2 August 2012 and a final welfare / disposal hearing in September 2012.

It is to be noted that although, as I understand it, there had been ongoing discussions as to where the aunt’s assessment with T might take place, no application was made to Judge Coates in relation to this at any time between the hearing on 16 March 2012 and the final hearing in September 2012. At no time between 16 March 2012 and the final hearing did the aunt apply for an order that there be an assessment of her and T either at the maternal grandmother’s home or, indeed, anywhere else. It was first raised during the hearing in September 2012. In this connection Mr Smith makes the important point that as long before as 30 May 2012 the local authority had filed a very clear and detailed statement setting out the reasons why it felt the aunt would not be able to care for T. As he comments, despite this change of position by the local authority no alternative assessment (or addendum report from Dr Conn) was sought by the aunt.

The view of the children’s guardian was that the outcome of the fact-finding hearing fundamentally changed the complexion of the case. He notes that the aunt was present throughout the hearing in August 2012. Mr Smith summarises the guardian’s thinking as being that it was fundamental to the aunt’s ability to care for T that she understood the court’s findings, accepted them and understood the ramifications of her sister having sexually abused T’s sister.

By the time the welfare hearing began in September 2012, the local authority was seeking a final care order with a plan for adoption and had issued an application for a placement order. It did not accept the recommendations made by Ms Mene-Garue. Its application was supported by the children’s guardian. During the hearing the mother accepted that she could not put herself forward as a carer for T, but she supported the aunt’s application for a special guardianship order. Threshold was not in issue. At the end of the day, therefore, the main issue for Judge Coates was whether T’s needs could be met in the aunt’s care.

The local authority’s concerns about the aunt can be summarised as follows: ambivalence and a questionable motivation; an inability to work cooperatively with the local authority; a lack of capacity to show emotional warmth; a lack of insight into T’s needs; uncertainty and ambiguity about her relationship with her partner, B; an inability to live independently from what has been described as a functioning but dysfunctional family; the maternal family's refusal and failure to accept the findings made by the Judge Coates about the mother’s sexual abuse of the girl and the risk that the mother presents to T. The local authority accepted that it was the maternal grandmother who voiced the strongest doubts, but pointed out that the aunt had indicated as recently as 4 September 2012 that she did not believe it.

The concerns of the children’s guardian were very similar. The key aspects of his thinking were: that the aunt lacks an underlying motivation to care for T long term; her antagonism and mistrust toward the local authority had remained consistent; she had in effect “self-sabotaged” elements of further assessment; if her motivation in putting herself forward was driven by “carrying the hopes and aspirations of the family” combined with her underlying ambivalence that might explain the contraindications of her behaviour’; arising from a meeting with her partner B, it was clear that she had not considered or discussed with him the impact of caring for T, and they had considered remaining at the grandmother’s home totally contrary to the need to distance themselves from the maternal family; most crucially, “what remains abundantly clear is that she does not consider her sister … presents any direct risk to T.”

Judge Coates explained her decision rejecting the aunt as carer for T as follows. She described T’s needs:

“T has developed separate codes for home and elsewhere. Insecure attachment and likelihood of emotional harm if he remains at home in an unchanged environment. He is brighter than mother … T requires structured stimulation and a particular authoritative level of parenting from a positive attachment figure.”

She continued:

“I now turn to the ability of the alternative person put forward to provide for the special needs that T has been identified with by Dr Conn.”

I need not set out the whole of her summary of what Dr Conn had said. The key passage is as follows:

“He strongly suggests that this family loosely survive as a unit but are dysfunctional. [The aunt] as the youngest may have had a better standard of parenting and her normal intellectual ability acted as a buffer. She has achieved considerable success in [various sports]. She has recently qualified as personal trainer. She is the most advanced member of the family … The admirable qualities and achievement are attributes I admire but are they features that would mean she could care for T. Dr Conn gave oral evidence …

Dr Conn considered in light of the subsequently obtained evidence that he was unable to continue to support [the aunt] as a long term carer and he felt the adoption route was the route that should be explored asap.

He felt that the sexual risk imported an enormous difference and the difficulty in [the aunt] accepting the findings created a real safety problem and he felt [the aunt] in the family home and not having found alternate accommodation (after at least 9 months) was a real problem. The nature of the relationship with B also a problem due to his lack of commitment to [the aunt’s] plan. He pointed out [her] support role being the brightest in her generation of family members and the pressure on her in that role and the pressure to keep T safe whatever I found she might believe or not.

The reality is that what Dr Conn saw and what I note are that other members of the family are vociferously unaccepting of my judgment. Dr Conn knew the risks of adoption breaking down but on balance felt that T cannot wait and [the aunt] cannot provide for his needs. He felt the situation might have been different had [she] found a home and not been so tied to family.”

Judge Coates then turned to consider the evidence of Ms Mene-Garue. She:

“not seen the family since [October 2011]. She had been sent the updating papers but on the day she was first due to give evidence felt she had not had enough time to read the updating papers and form a concluded view. She was asking for time to write an addendum report. I considered that was not in T’s best interests and the delay was not justifiable so I gave her time overnight to read papers and speak to [the aunt] which she explained was an interview of 10 mins and she said in evidence that her conclusions did not change.

She felt arising from the 10 min interview that [the aunt] accepted the finding and was committed to T. She said the [aunt] was aggrieved because she had little contact with the social worker and there had been antagonism between her and the social worker. The independent social worker had been able to meet B and her assessment was that he was a positive feature in T’s life”

Next, Judge Coates considered the Building Foundations report:

“The reality was [the aunt] had no experience of looking after a child and all that had been assessed was her willingness and intention to do so. Appropriate that the assessments were put in place. It was envisaged that T would be part of that assessment and having looked at the report from Building Foundation it was expected that T would come along with [the aunt]. He did not, reason given was that [she] said that her sister was unwilling for T to come and didn't want him to come and the nursery placement he attended would be lost if he went along.

I have heard other evidence to say that nursery place would not have been lost and the reality is that [the aunt] chose not to stand up to her sister to ensure that the assessment which took place was the appropriate one. The course, the design, was to assist and promote and help [the aunt] and really this was only able to fulfil half of its purpose. The conclusions of this programme were that ‘I believe that [she] is ambivalent when considering being T’s full time carer – only once have I found any real commitment’. When considering [her] emotional relationship with T I am concerned she does not understand his experiences … [She] has not conveyed that she understands the severity of T and [his sister’s] experience. In my experience families can collude to fight against the local authority. There is observation of what I have referred to which is the failure of [the aunt] to get T to the course. [She] was not able to ensure that T attended and was advocate of option of T remaining with the mother. It needs further exploration as to how [she] would cooperate with a contact plan.

The conclusion of that report from the family resources team was [she] can theoretically care for a child but practically that remained untested.

Should T be placed with [her] then work in to problems solving etc will be required.”

Having then considered the local authority’s evidence, Judge Coates turned to deal with the aunt’s evidence and the evidence of her partner. I have already set out what Judge Coates said about the aunt sabotaging the assessment. She continued:

“Heard oral evidence from [the aunt] and I have seen her statements. I considered her evidence in light of the assessment of her personality as provided by Dr Conn which I would suspect she would find accurate – her personality has enabled her to overcome a lot – she considers she has been discriminated against because of her disability and she has not been given a fair assessment – clash of personality between her and EJ (first social worker) from whom I have also heard – she has cared for T since his removal from mother and no criticism of day to day care.

[She] blames lack of support from Social Services for failure to secure alternative accommodation and asserts that she now accepts the finding of the court re sexual abuse but says she found it difficult at first.

I heard evidence from [her] B about their relationship and I have to say that I found B to be less than straightforward – he gave the court the impression that rather than telling the truth he was saying what the court wanted to hear – I point to the number of times he said that he had seen [the mother] at the maternal grandmother’s home and it is clear in my judgment that he didn't know what he should say and he was trying to say the right thing rather than tell the truth. I had a similar feeling in respect of his involvement with T and rather than show commitment to T he did not seem to have moved an intention forward hardly at all.”

A little later she added this:

“The guardian has had for some while reservations as to [the aunt’s] motive for looking after T and wondering if it was externally driven by the maternal family. In his final report he said of [her] ‘whilst I have had some empathy regarding her rationale I have also wondered if she has in effect self-sabotaged elements of assessment which is underlying ambivalence to permanently care for T’ and he talks about Dr Conn's assessment of her within a dysfunctional family.

[She] clear that she has traditionally taken on role of mediator and facilitator … the other side is that it will place [her] under enormous pressure. He expressed reservations of [her] acceptance of risk to T of [the mother] based on my findings and he pointed out strenuous defence expressed by the maternal grandmother ‘not in a million years and doing everything to get it overturned’. Guardian pointed out antagonism between the local authority and [the aunt].”

Judge Coates explained her conclusions as follows:

“When I consider all of this evidence together and give T’s long term welfare its paramount place in my consideration I am drawn to the following conclusions.

I have enormous respect for the achievements of [the aunt] that she has made in her life given her disability. Secondly she has made those achievements by advocating forcefully on her own behalf and her own strength of will and sense of belief in her own worth that that those views are always right. These strengths when advocating on her own behalf have not transferred to strengths when working with agencies involved in the life of T. Dr Conn and the Guardian have wondered if [she] has been ambivalent and Guardian has stated ‘self-sabotaging’ and there is evidence of that view. There is the relationship with Social Workers who were doing their job and they were not in my judgment discriminating against someone with a disability just someone making observations and requirements that [she] did not agree with and that fuelled the fire. There was the failure to ensure T attended the assessment with the Building Foundations programme. If she could not stand up to her sister and stress the importance of T being part of that assessment how she would stand up to family re future contact. There is no doubt that she sabotaged effort to modify sisters flat, failure to provide contact details of B and encourage him to provide details so he could be assessed. Accept that housing is a difficult issue but I do not accept that effort made by [her] to show intention to live apart from her family home and I refer to the suggestion of an extension to [the maternal grandmother’s] home.

Difficulties for placement for T in the family home for those seeking to protect T’s safety and if a child can be brought up safely in his family home that is the ideal place for him to be. I do not think that T would be safe in the care of his aunt and I also think that his emotional needs may well not be met – he will be in close proximity and under influence of his dysfunctional family and in the circumstances I sadly, because I don't underplay [her] wish on one level to care for T but unfortunately I do not consider that T’s needs would be met and I consider he would be at risk if I made a SGO to [the aunt] or allowed further assessment – T cannot wait and Dr Conn says he needs a settled placement now.”

Ms Phil-Ebosie has formulated a number of grounds of appeal but in substance there are three.

The first alleges breaches of various duties arising under the Equality Act 2010. It is common ground that the aunt is disabled within the meaning of section 6 of the Act. What is said is that the local authority was in breach of its duties under sections 20, 29 and 149 of the Act. The facts relied on are common to all three alleged breaches: the aunt’s complaint as spelt out by Ms Phil-Ebosie in her skeleton argument is that “the local authority refused to assess her capacity to care for T at her own home”, despite it being adapted for her needs, and “asked [her] to undertake a capability assessment at a venue” – the mother’s house – “that had not been adapted to her needs.” The proposed installation of handrails at the mother’s house was, she says, a “token gesture”, given that the aunt’s house is fully adapted with a range of equipment to assist her everyday life.

This is, in my judgment, quite unarguable as a ground of challenge to Judge Coates’s order. I am not concerned with, as it were, a challenge by way of judicial review to some decision of the local authority. The matter before me is a challenge to the order made by Judge Coates on 9 October 2012. Moreover, the factual premise which underlies this ground of complaint is simply wrong. It was Judge Coates, exercising her judicial discretion in the context of the pending care proceedings, and not the local authority, who decided both where the assessment was to take place and what adaptations to the mother’s house were required. So the challenge, if there is to be one, must be to Judge Coates’s decision.

That takes me on to the second of Ms Phil-Ebosie’s complaints, which goes to what are said to be various errors on the part of Judge Coates in relation to the aunt’s assessment. It is said, first, that Judge Coates failed to consider whether the assessment she directed on 16 March 2012 was compliant with the 2010 Act; second, that she was wrong to find that the aunt had sabotaged that assessment; third, that she failed to appreciate that, in the absence of such an assessment, she lacked sufficient evidence to reach a decision that the aunt could not care for T; and, fourth, that she was wrong to refuse to permit a risk assessment of the aunt in the light of the outcome of the fact-finding hearing. In short, it is said, Judge Coates should not have proceeded to a final determination of the care proceedings without first directing further assessment of the aunt. The aunt, says Ms Phil-Ebosie, has not been properly assessed.

In my judgment there is no even arguable merit in any of these complaints.

Judge Coates was plainly justified in finding that the necessary assessment was, from T’s point of view, better conducted away from the maternal grand-mother’s somewhat dysfunctional household and on territory that was more familiar to him. Judge Coates was aware of the need to accommodate the aunt’s disability and did so, in what seemed to her, having heard argument, to be the appropriate way, by directing the fitting of handrails. Even if more was sought by way of alteration to the mother’s house (and it is far from clear it was) there is, in my judgment, no sensible basis of challenge to the order which Judge Coates made on 16 March 2012 – an order which, it is to be noted, was neither challenged at the time nor subsequently. Moreover, it is apparent that the detailed arguments under the 2010 Act which the aunt now seeks to put forward were deployed for the first time at the hearing before me on 12 October 2012. I do not criticise Ms Phil-Ebosie but this is no way in which to conduct care proceedings. As Mr Smith put it, and I entirely agree, it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.

The finding that the aunt had sabotaged the assessment was a finding on a matter of fact on which Judge Coates heard evidence. Judge Coates was ideally placed to evaluate the evidence, including in particular the evidence of the aunt, and was plainly entitled to find as she did. This finding of fact is unassailable.

The two final parts of this complaint are linked, since both assert that Judge Coates’s determination of the care proceedings was premature, given the need, so it is said, for further assessment of the aunt. There is, in my judgment, no arguable basis of challenge on either point. It was for Judge Coates, as the judge managing the litigation and conducting the final hearing, to determine what assessments were going to be needed for that hearing and then, if the point arose again during the final hearing, to satisfy herself that she had all the evidence she needed – all the assessments she needed – to determine the issues fairly, justly and in accordance with the law. That is an evaluative task that the law imposes on the case management judge. Indeed, it is an absolutely central task of the case management judge, for it may well determine the shape of the final hearing. But this court can intervene only in limited and well recognised circumstances: only if (I put the matter generally) the judge has erred in law or in principle, has denied the applicant a fair trial or has come to a decision that is “plainly wrong”. In my judgment, there is simply no arguable basis for any such complaint here. This was the decision of a very experienced judge who had available to her, moreover, a mass of expert evidence, including evidence of various assessments of the aunt. I find it unsurprising that, in the circumstances she described in her judgment, Judge Coates should have concluded that further assessment was unnecessary as well as being inconsistent with T’s need for a settled placement without further delay.

It is essential that appellate courts do not too readily interfere with seemingly sensible and appropriate case management decisions of judges who, in the nature of things, are likely to have a much better ‘feel’ for the case than an appellate court can ever have. Those seeking to appeal such decisions must heed not only the well-known decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 1 WLR 647 but also what ought to be, but I fear is not, the equally well-known decision of the House of Lords in Piglowska v Piglowski [1999] 1 WLR 1360, and in particular the speech of Lord Hoffmann.

The third, and final complaint, is that Judge Coates failed to identify clearly in her judgment what the risks were of placing T in his aunt’s care and why those risks could not be managed without his removal from her care, just as she failed, it is said, to identify which of T’s emotional and other needs the aunt could not meet. For her part, Ms Lee submitted that Judge Coates also erred in giving insufficient consideration to the impact on T of separation from the birth family at this stage in his life and provided insufficient grounds to justify approving the plan for adoption. I do not agree. The judgment more than adequately explains Judge Coates’s concerns and the basis of her decision. There is, in my judgment, no arguable basis for any complaint that Judge Coates erred in her evaluation of the relevant factors or that she failed adequately to explain her reasoning. Were this court to interfere here it would be doing the very thing that Lord Hoffmann has emphasised it must not.

It was for these reasons that I refused permission to appeal.