W (A Child)

This is an appeal brought with the permission of Munby LJ from the determination made by HHJ Bond sitting in the Bournemouth County Court in a judgment dated 11 September 2012. The case before the judge related to the welfare of a young child, whom I will refer to as S, a girl who was born on 21 July 2011. The parents of S had only but days before her birth been in court in front of the same judge in proceedings relating to the older children of the mother. Both parents are now aged 33; the eldest child, B, a girl born in May 2005, is now aged 7; the next eldest, a girl, M, born in June 2007, now aged 5; and the youngest of those three older children, another girl, born in November 2009, now aged 3, had been the subject of care proceedings following their removal from the care of the mother and the father on 1 July 2010, a year before, effectively, young S's birth.

The judge had, in the course of those care proceedings, conducted a very full investigation of the care which those three young girls had received in the home of their mother and over the three years or so prior to the proceedings, and in particular investigating what, if any, potential there was for one, two or three of those girls to be brought up either by the mother and the father themselves or within the wider family. He concluded at the end of that process that it was not safe to return those three girls to the family. He accepted the recommendation of an independent social worker, to the effect that the girls required better than good enough parenting; they required parenting which included an element that could establish some repair of the harm done to the children because of the experiences that they had in the mother's care, and he concluded that they should move forward to adoption. He made placement for adoption orders in each case on 1 July 2011, some three weeks precisely before young S was born.

It is not necessary in this judgment to go into extensive detail as to why it was that the three girls fell into the category that I have just described or what it was that did or did not happen to them in their mother's care. The mother has a personality difficulty which is described, as I will come to in more detail, by the psychiatrist, Dr Sheppard, instructed in the case, which leads to her acting in a way which is impulsive and, from a young child's point of view, on occasions harmful, when no doubt she does not wish to act in that way but her own self-motivation at those moments takes over and takes her away from being a safe and good parent. Thus it was that the judge found that the children had been neglected, both physically and emotionally, that there had been some physical harm caused to the children and that generally, over the course of time -- and it seems that matters had gone on for a significant time before the local authority eventually took action to remove the children -- the children individually, and collectively, and cumulatively, because of these experiences, had suffered significant harm.

Although obviously the authorities were aware that the mother was expecting young S, it was not possible to draw her case into the case of the older three children which concluded in July. An application for a care order was issued soon after her birth and she was effectively removed from the mother's care -- she had been born a month prematurely -- at or around the time when she was due for discharge for hospital. She went into foster care and there she remained; and the issue for the court, when it came to consider her case, was to consider first of all whether she was in circumstances which met the statutory threshold under Section 31 of the Children Act 1989, and that could only be (because she had no history in the care of the parents), because she was likely to suffer significant harm because of the way the older children had been looked after; and secondly, if that threshold was met, what was the best plan for her future?

The case, despite the wealth of knowledge that had been amassed and the prompt issue of proceedings, did not come on for determination before HHJ Bond until April 2012. The local authority in fact was a different local authority (the authority previously had been Dorset County Council, but the parents have now moved, no doubt albeit a short distance, but into the local authority area of Poole Borough Council). The mother was able to demonstrate to the judge that Poole Borough Council had approached the case with a single plan, which was for S to be adopted, and had closed its mind to any necessity to act openly, fairly, or in any way which looked with fresh eyes at these parents, as they were in the second half of 2011 and early 2012, to make a fresh assessment of them and entertain the prospect of this baby being cared for by them. The judge was taken to the decision of Munby J, as he then was, in the case of Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730, where, in familiar terms to those who practice family law, the judge emphasised that the Article 6 rights of parents, and the Article 8 rights of children and parents, do not simply focus upon what goes on in the courtroom. The process as a whole, including that operated by the local authority, must be one which is fair; and HHJ Bond, at the hearing in April 2012, concluded that the approach adopted by Poole Borough Council to these two parents and this baby was not fair in that sense; they had been ruled out before they started; and the judge was persuaded that the case should not be determined at that hearing, but the matter should be adjourned and come back before the court at a slot which had conveniently opened up in July for final determination.

In part the judge was persuaded to take that course because the mother had by that stage embarked upon Dialectic Behavioural Therapy ("DBT"), designed to help her adjust her behaviour in the future in a way which did not present itself often, or at all, as it had in the past. It was also agreed that an independent social worker, a Mr Lamprey, would be instructed so that he might help the parents with aspects of their relationship, and address in particular features of domestic violence, so that, in the same way, future behaviour might be of a different calibre to that that had been witnessed occasionally in the past. The judge also was mindful of the report of Dr Sheppard, who had seen the mother in February of 2012, and at that very interview the mother had demonstrated once again behaviour where she had been unable to control her emotional presentation, and Dr Sheppard had indicated that, before she could be given a positive bill of health in terms of there being some greater confidence for her ability to control these aspects of her life in the future, some six months needed to go by from February without any noted further worrying incidents.

So for those various factors, but also, it is clear from the judgment, because the judge considered the parents had thus far been unfairly treated by the process as a whole, he adjourned the final determination.

When the matter came back before him in July he heard the case in full and he reserved his judgment, and it is that judgment and the conclusion of that process which was given after some short delay on 21 September.

The conclusion that the judge reached was between two completely diverse choices: the only two options before the court were either a placement with the parents, which would have had to be under a supervision order because the local authority would not contemplate placement with the parents under a care order; and that was at one end of the spectrum of options, and at the other end was endorsing the care plan for adoption and making a placement for adoption order. No intervening option was put forward by either side, given the age of the child and the unavailability of any alternative family placement in the community or wider family.

Of those two options, for the reasons which he sets out in an extensive judgment, HHJ Bond chose the more draconian. He made a care order, he dispensed with the consent of both parents to adoption and he made a placement for adoption order, and it is against those orders that the parents now appeal.

The appeal is brought by the parents acting in person, and I share the view that Munby LJ formed of the parents' documentation, which is that, despite the lack of legal representation but with the assistance of a family friend who has knowledge of these matters, the parents have been able to put forward short, succinct, but very clear grounds of appeal supported by a skeleton argument which can be described in similarly positive terms. In granting permission to appeal Munby LJ was plainly impressed by that material, impressed by the potential for there to be some global unfairness in this case and persuaded that that background, and the finely balanced decision that the judge had to make, justified the case being looked at in far more detail than is possible at a one-sided short permission to appeal hearing but at a full hearing of this court that has now taken place.

In the intervening period the parents have obtained legal aid; they now separately, through separate solicitors, jointly instruct Ms Samantha King, counsel who is presenting the appeal for them before us today. Ms King did not appear below, but we are extremely grateful to her for the way that she has built upon and embellished with detail the arguments that the parents wish to make.

If I deal with the points that are made before turning to the detail that lies behind them. The first point in the grounds of appeal is one that in fact is not now pursued. There was understandable confusion on the documentation as to the basis upon which the threshold criteria had been met. The judge was plain that there was an agreed document, but until very recently no copy of it seemed to have surfaced in the paperwork available to us. We have now been handed a typed document which sits at page 197 and 198 of the appeal bundle headed Provisional/Threshold Statement, and it has upon it a number of handwritten annotations. I note with some amusement that even the spelling of the word “provisional” is itself corrected in handwriting on the document.

It is a substantial document running to some 23 paragraphs, and through Ms King the mother accepts that now she has seen it she, either directly or through her counsel, at the hearing contributed to it, and she accepts that it is one that was agreed and that it does establish the threshold. Again, it is not necessary for me to go into the detail of it; it all relates, as it must, to the care that the older three girls had when they were with the mother and the father. So no point can now be taken upon whether the threshold was crossed, but the big point the parents wanted to make, rather than the technical point about the lack of a document, is that the threshold was crossed, but it was only crossed on a modest basis, if I can use that word; or, to use the phrase that appears in the skeleton argument "the threshold for intervention was not severely met"; and the point that is being made is that, first of all, the threshold in relation to this new baby was only met on the basis of past events; some of those were some years in the past before this baby was born, and there were a number of positives about this mother and this father, and also, of equal importance, a lack of the ordinary negatives that are often found in abusive families that needed to be weighed in the balance when seeing just what the potential for harm to a new baby would be. The point is made that in the welfare balance the judge should take into account the degree to which the threshold is met in deciding where on the scale of proportionality the level of intervention through care order or placement for adoption order should kick in and be delivered for the benefit of the child. So that, effectively, is the first point that is made.

The second point that is made is that there were improvements in the mother's mental state throughout the period that the judge was exposed to her, but particularly following the birth of S and particularly in the period during the adjournment between April and July; and, secondly, there was a lot of positive information about the father's presentation in contact, in dealing with social workers, in his approach generally to the proceedings and that, although there were hotspots and difficulties in the period between April and July (and I will come on to those in a moment), they were episodes and were given far too great a significance by the judge in the welfare balance.

Thirdly is the point about overall unfairness, and the parents in their document argue that the local authority were simply following a predetermined plan towards adoption, and that approach infected their whole approach to the case, and, although they were expected to change that approach during the period of adjournment, they did not do so. Even though the judge was looking at matters afresh in July and September, what had gone before was so unfair as to be incapable of being cured or balanced out by subsequent events.

The submission enlarged by Ms King today in the course of her oral contribution emphasises that in the short period of adjournment matters did not go well because the local authority brought in a contact supervisor, Ms R, who, as Ms King has to accept, the judge found was brought in through ordinary innocent administrative mechanisms and not deliberately by the local authority, but Ms R was an individual who, by her manner and by her inefficiency, just simply made matters worse around contact. The local authority allowed a situation to develop in which the mother and Ms R did not get on and work cooperatively and that this set up the mother for a further adverse finding in relation to her ability to cooperate with professionals. The point in the skeleton produced on behalf of the parents is that that episode needs to be looked at not only in the context of the unfairness of the local authority as it had been visited upon these parents from the birth of young S onwards, but also that episode has to be looked at in the context of a mother who had established a very good history, which it was, of general cooperation with professionals over a long and difficult period in the time leading up to the conclusion of the hearing for the three older children

The fourth point made in the skeleton, and again developed by Ms King today, and I use a phrase which neither appears in the skeleton nor in Ms King's submissions, but it is this: that the judge cherry-picked episodes of more recent behaviour and focused in upon them in an entirely disproportionate way so that he missed the big picture, and the big picture was that these parents were making positive strides to improve their ability to parent and that that progress had, in the words of Ms King, been considerable and significant, and it therefore was the case by the time the judge came to consider his judgment in September that the evidence established that there was sufficient ground for confidence about this couple's ability to look after this baby, that it was not necessary in Article 8 terms for her to be removed forever under a scheme for adoption from their care and adopted outside the family. What should have happened was that the judge should have made a supervision order to the parents or allowed some further short period for finality of assessment and the DBT before Baby S moved into the parents' care.

Those are the details of the case that is put. With the fairness point on one side, the basic thrust of the parents' case has to be, and Ms King accepts this, that for us to intervene and overturn the judge's decision we have to conclude that the judge was "plainly wrong" in coming to the conclusion to which he came. The case law in relation to that test is well established and I do not seek to repeat it, but it is often necessary to recall in cases which are finely balanced that the more finely balanced the case is the less possible it will be for parents who have failed to persuade a judge to decide in their favour to come to the Court of Appeal and say that the judge was plainly wrong. In a difficult and complicated case where matters are finely balanced, the judge might choose one option or another, neither of which would be plainly wrong, although the choice of one or the other is plainly going to upset and/or concern the party whose submissions are not favoured.

I propose against that summary to look at some of the detail that was available to the judge. One or two matters from the judgment in July 2011 first of all. The judge heard on that occasion from Dr Sheppard who concluded that the mother's psychiatric presentation was best described as one of "mixed anxiety and a depressive disorder". That was his characterisation of it at that stage, and he recommended DBT, but was pessimistic as to the timescale in which that could be provided and could be delivered to a conclusion. The court also had the benefit of a psychologist, Mrs Beazley-Richards, who said more generally that the couple would benefit from two or three years of professional help and support. In the course of the judge's judgment at page 61, in his conclusion he says this about the possibility of the children going back to the care of the parents:

I refer to those observations because they establish the starting point for Baby S and these parents, coming as they do only some three weeks before her birth. The parents were yet to embark upon respective programmes of therapy but they were at that stage at a position where the judge found they would be a source of "danger" to the care of the older three children.

By the time that the judge heard the case in the spring of 2012 he had an updated contribution from Dr Sheppard. In the course of paragraph 21 the judge summarises Dr Sheppard's contribution and quotes from it in this way:

Introduced into the court process for the proceedings in relation to S was an independent social worker, Katherine Gibbons, instructed on behalf of the parents. The judge summarises her evidence from paragraph 28 onwards, and it is plain that that social worker concluded that the parents would not be able to engage with the level of ongoing support that would be required of them. That is a crucial finding in the judge's mind because the delivery of Baby S into their care would inevitably be under the basis of some umbrella of supervision or continued contact with social services, and that conclusion from Ms Gibbons plainly was one to which the judge attached some importance. Ms Gibbons’ final conclusion was this:

In her oral evidence Ms Gibbons held on to that conclusion. She recommended that because of young S's age she needed to move to a permanent home, namely an adoptive home, as soon as possible. She also, in relation to the mother's therapy, indicated that the provision of therapy was not the end of the process, and there needed to be a time after the therapy had finished for the mother to show a consistent period of positive results before a concluded view could be formed.

The local authority social worker gave evidence and it is plain that the judge continued to be critical of much of the local authority contribution. He did not accept the negative evidence, or all of it, that the social worker offered, and the judge was able to highlight positives from the social worker's evidence in relation to the parents generally and in particular their attendance and performance at contact.

The judge heard from both the parents. Again, it is not necessary to draw all the detail into this judgment. The judge concluded that there had been more incidents of domestic violence than the mother was prepared to admit. So far as the father was concerned, he impressed the judge on that occasion, and collectively the two parents seemed to have impressed the judge in April with their presentation in the witness box as showing more positive features than had been the case when he had encountered them in the previous July.

At paragraph 102 of his judgment, in particular, the judge said this:

By the time of the 21 September judgement which is the one obviously upon which my Lord and I have to focus, a number of fresh events had occurred and are recorded by the judge within what he says. First of all there is the introduction of Ms R as the contact supervisor, and that had led to some difficulties. Reading what the judge tells us in his judgment, I do not regard the judge as taking an adverse view of the mother for these events. He sees them in their context; they are part of the history, but they do not seem to have carried his conclusion as to the outcome of the case significantly against the parents.

So far as the DBT is concerned, the reports were good. The understanding that the judge had was that it was not uncommon for individuals to have to retake, or go through once again, individual modules of the five or six modules within a DBT therapy course. This mother had not had to do that; she stuck with the work, she passed through the stages and was confidently expected to conclude the process by September at the very time that the judge in fact gave his final judgment. So that was very much positive material that was before the court.

The third new development was that the father, who had been employed at a local branch of Tesco's for some seven years, had been dismissed on a summary basis because of an incident that had occurred whilst he was working, as he habitually did, on the nightshift. That incident, which may have been a matter of some concern in any event, was escalated in the course of the hearing because it is plain, and it is admitted by the parents, that they decided not to tell the social worker or the guardian or Mr Lamprey, the independent social worker who was brought in to work with them, the truth about the father's job situation at the time. They indicated that he was on holiday or that there was some other temporary event, but did not say that he had been dismissed because of what was alleged to be misconduct. That led to the judge concluding that neither of the parents had been open and frank and honest with the professionals at that time, and it also led the judge to conclude that whatever happened at Tesco on that occasion must have been of some significance because it led then and there to the ending of the father's post with that company which, as I say, had hitherto been established for some seven years.

Again, dealing with new material before the judge at that hearing, there was the contribution from Mr Lamprey who had been working on the parents' relationship and domestic violence issues, to use the jargon, from April 2012 onwards. His contribution to the proceedings was a relatively positive report. There was, however, an incident that the court knew about that had apparently occurred on 28 June. The mother had left her mobile phone at home, the father had gone after her as she went into town, and there was apparently some altercation between them that was witnessed by an individual who gave a statement to the court. The point made to the judge, and accepted by the judge to a degree, was that the couple should have raised that with Mr Lamprey as being a matter to discuss in terms of their relationship in the context of his work, but they did not do so. Mr Lamprey more generally stressed the need for the parents to be honest in their approach to professionals.

What strikes me as being of particular importance to the judge was Mr Lamprey's overall view, and that is set out at paragraphs 51 and 52 of the judgment:

So far as the father is concerned and the incident relating to his dismissal, the judge states at paragraph 63 of the judgment that he agrees with the guardian that the absence of frankness by the father in this respect is an important factor when considering whether it is safe for Baby S to be returned to the parents' care. So far as the mother is concerned, the judge records that he was impressed by her presentation and the beneficial effect that the therapy had apparently had upon her general performance and presentation, but he does note at paragraph 73 of the judgment that:

The guardian is recorded as having two primary matters that concern her. First of all, whether the parents were open and truthful; and secondly, whether the parents were able to work with professionals in such a way as to ensure that S would be safe in their care. In the course of his judgment, particularly at paragraph 80 and onwards, the judge gives detail of the guardian's views in that regard, and then at paragraph 91 the guardian's conclusion is summarised as:

The judge dealt with the submissions of the parties from paragraph 92 onwards and, in the course of dealing with those matters, he also expressed some of his conclusions. I just highlight one or two. At paragraph 110 the judge on this occasion did not consider that the father performed well in the witness box. He had not been frank about the circumstances of his dismissal; but of more importance the judge says this:

So far as the mother is concerned, at paragraph 112 the judge agrees with the submission that had been made in these terms:

The judge summarises the positives at paragraph 131 of the judgment, which is to the effect that both the parents have made "considerable efforts" to engage in relevant treatment; they have remained together; they have been subject to significant pressure through the course of the proceedings; and the father, before he lost his job, had plainly made a substantial effort to attend contact, despite the difficulties that being on a nightshift imposed upon him. But the judge then lists the negatives attached to the case, and in particular the mother. As the judge records at paragraph 133, to the question that if S was returned to her care would she tell the local authority about outbursts and difficulties, the judge says this:

It is that judgment, which I have taken some time to summarise in some detail, that we have to look upon. I have been able to accept almost all of the submissions that Ms King has made about the facts upon which the parents rely. The progress that had been made after April, the positive report of the mother's work with her DBT therapist, the basically positive interaction with Mr Lamprey, the positive presentation of regular, dogged and enjoyable attendance at contact, are all there, and Ms King was right to characterise all of that material as being considerable and significant progress. Inevitably in the judgment, the judge was looking at the hotspots, as I have called them, at the dismissal from Tesco and the other contemporary matters. But I do not accept Ms King's submission, which is that it was upon these few recent negative events that the judge decided the case. In my view this very careful judgment demonstrates, almost at every word, a judge who was totally immersed not only in the recent detail of the case but in the history of the case. He had formed a view of these parents in the course of the 2011 proceedings; it was the view that I quoted in his summary in the course of that judgment. Sadly for the parents, it had them starting at the very beginning of young Baby S's life at a very low level in terms of their potential to be safe and good enough parents to their newborn baby. They had a big mountain to climb. They had undoubtedly started to climb it and got to a stage or two up it, and the judge's endorsement of Mr Lamprey's characterisation I think tells much of the judge's own approach to the matter: they were on the right trajectory; they were on the right course, but there was a long way to go.

The judge had to evaluate their potential for care, not just on the basis of whether they were able to show progress, but with an eye, and more than an eye, on what had happened to the three older girls in the care, particularly, of this mother in earlier times.

Although that harm was in the past, it was significant harm; nobody can argue about that. And although there are far more striking cases that have come before the court and events of appalling cruelty to children that this court may see, and although it is right that the threshold for intervention was not on that scale "severely met", as the skeleton argument says, this was bad and harmful parenting, albeit delivered in a way which was neither deliberate nor malevolent but it was nonetheless harmful to those three girls and it was important in planning for the future of Baby S, a) for her to get to a home in which she could settle down and begin to get on with her childhood in the care of the people who were going to be her long term parents as soon as possible; but b) for that home to be sufficiently safe for the professionals, and ultimately the judge, to have confidence in it. And key to that was an ability for the court and the professionals to trust the parents to be open and cooperative with the authorities. I accept the submission that the way in which the local authority had approached these two parents by having a closed mind to their ability to care for S would have engendered something of a bunkered mentality where the parents would be less inclined to be open and honest with the professionals and that might explain to some degree what happened over the Tesco incident. But from the quotations in the judgment to which I have already gone, and from the generality of the judge's approach, the Tesco incident and the dishonesty around it was just one factor in the case; the judge was not impressed by the ability of the parents more generally to be open and candid with them and he was particularly unimpressed by the mother's answer to which I have already made reference to the effect that she would not necessarily tell the social workers there had been outbursts in the future unless she discussed it with her therapist and she thought that the social workers had changed their approach to her.

This was a matter that required a careful and thoughtful judgment. The judge plainly, on any view, provided that. It required a judgment call, as it were, as to where this child's best interests lay. It was not a case that pointed all one way; there were positives in favour of the parents; but it is quite impossible, in my view, for this court to sit this afternoon and say that the judge was plainly wrong in the choice that he made for Baby S. Indeed, he was faced with a case where all of the professional evidence was pointing one way and that was away from the parents, and that was also the evaluation that he himself made from the privileged position that he had and we do not, which was to have sat in a courtroom with these parents and learned of the detail of their family in a period measured in weeks, over the course of some eighteen months or two years. It was his judgment; he made it; and I cannot find any basis upon which it is possible to say he was plainly wrong. And so, although I have enormous sympathy for these parents and their position and I hope they will continue with the positive progress that they have embarked upon, I am afraid the only possible outcome is for this appeal to be dismissed.

I agree.