H (Children), Re

This is an appeal from HHJ Wood sitting in Sunderland from orders that he made on 20 February, which were respectively care orders and placement orders in respect of three children: L, who was seven; J, who was five; and K, who was one; all that at the date of trial.

The case comes to us as a consequence of orders made by Black LJ on 22 March setting up a full scale hearing of the appellant's notice, which was filed in this court on 6 February following an unsuccessful application for permission to appeal mounted by mother's counsel in the aftermath of judgment. Now the case before the judge was undoubtedly an unusual case, a difficult case and a finely balanced case. To explain that, I start by saying that the parents of the children are both Chinese; they married in 2005, having met in this country in 2003. At that stage the mother was a student and the father was a chef. He has continued in that occupation ever since. Now, what has bedevilled the relationship between the parents and clouded family life has been the mother's unstable mental health. She has suffered from schizophrenia since 2003 and, as the judge recorded, she has suffered relapses virtually on an annual basis, up to the beginning of the year 2011.

Another threatening ingredient has been domestic violence. The mother has suffered domestic violence at the hands of the father, and even one of the children has apparently, on more than one occasion, been hit by her father. In context the mother's behaviour during periods of relapse has been extremely difficult for anybody to cope with, and that consideration obviously mitigates the father's responsibility for the disharmony.

There is no doubt at all that the relationship between the parents became unsustainable: they separated; the local authority were concerned at the mother's inability to provide consistent care and the children were moved to what seems to have been an exceptional foster home where they remain to this day. However, it is not a long term option for them and the real choice confronting the judge was either to move them to a long-term placement or to return them to their mother.

The practical opportunity for return rested on the fact that since January 2011 the mother's stability had been achieved by a monthly depot injection and that has ensured 13 months of health for the mother.

The judge had the advantage of a good deal of expert evidence on a number of aspects of the case. As to the mother's health and wellbeing, he had the evidence of a consultant adult psychiatrist, Dr Hughes, jointly instructed, and there was no other evidence in that important dimension.

Looking at the case more broadly, the judge had the advantage of the evidence of an independent social worker, Ms Todd, and a report from a child and family psychologist, Dr Donovan. Finally, of course, the judge had the aid of the guardian in this case, Mrs Collins. So Dr Hughes was able to express the view that if the mother achieved stability over a period of two years following the introduction of depot injection therapy, he would be optimistic about her future wellbeing.

The evidence of Ms Todd, as expressed in her written report and in her oral evidence, was that this was a case in which the judge should reject the local authority's proposals and instead direct a rehabilitative course, albeit recognising the difficulties that stemmed from the antipathy that L in particular had developed since her placement in foster care. Dr Donovan accepted the view of Ms Todd and endorsed it, but he was not advancing any practical step to overcome the problem of L's intransigence. That was shared to some extent by J, but of course had no application to K, a babe in arms.

The dramatic development in the trial was that during its six-day course Mrs Collins, who had in writing supported the local authority's application, changed her mind, having heard oral evidence from the experts; and she too joined the rank of experts who felt that the application of the welfare checklist required the search for rehabilitation despite the practical difficulties.

So, after all submissions had been made, there must have been a degree of optimism on the part of the mother's legal team that the resistance to the local authority's application, having strengthened considerably not only in preparation but also during the course of trial, would prevent the judge from making the orders that the local authority sought.

In that they were disappointed, and the judge in his reserved judgment essentially focussed on what he described the ten uncertainties in the case. One question that has been canvassed is whether it was open to the judge to rest his conclusion on a list of ten uncertainties which were not much analysed or balanced and did not in themselves amount to a rational explanation of very extreme orders that would separate these children from their parents for ever.

That is Mr Ainsley's first submission, and I think that it has force. A judge cannot found such a conclusion merely by saying that there was a list of uncertainties and that list not necessarily exhaustive; after all it is the function of the judge to decide cases as they come at a given moment, making an assessment of the likelihood of resolution of whatever uncertainties there may be. For instance the judge fixed on the possibility of the mother's relapse, and that was perfectly rightly taken as the first area of uncertainty because it was a crucial issue; it was only the history of relapse that had raised the local authority's intervention.

So what does the judge say? He simply says the mother's illness is much improved, her medication is stable, but she could relapse in the future, and that is clearly an uncertain state of affairs.

That was a statement of the obvious, and what was, in my judgment, required of the judge was to factor in an assessment of the likelihood of relapse, and as to that he had to give primary weight to the evidence of the only expert, Dr Hughes.

The same could be said through the list of ten uncertainties, but I want to move to Mr Ainsley's second submission, which is that the judge's freedom to depart from the recommendations of the experts was dependent upon a clear and cogent explanation of why he could not accept their recommendation, why he departed from their recommendation, why he took a different view. That seems to me to be completely absent from judgment.

Mr Gray for the local authority has sought to say that the judge has effectively explained himself, because he regarded the children's antipathy as being the communal factor in the case and that the experts had insufficiently considered that practical difficulty and obstacle to rehabilitation. I would freely accept that the judge could have structured a judgment in which he sufficiently explained his rejection of the recommendations of Ms Todd, Dr Donovan and Mrs Collins, but that is not to be implied, and the absence of a careful, explicit explanation is in my judgment fatal to the care orders made by the judge.

I am equally concerned by the complete absence of recognition of the right to family life, which is the entitlement of not only the mother but of the children. The judge embarks on the identification of the principles that he has applied in paragraph 64 of his judgment. He says that he has had regard to the welfare checklist, particularly the wishes and feelings of the two elder children, the likely effects of any change and the risk of harm. So far as it goes, that is impeccable; the judge had that obligation. He then went on to say that he had regard to the principle that siblings should not be separated. That again is a generally recognised principle in family law. But of huge importance is the necessity to vouchsafe to four children the experience of childhood in their natural family. To be brought up by the birth mother is generally of cardinal importance to the wellbeing of children, and to deny them that without very careful explanation is a failure that cannot be excused by saying “oh well, it was surely in the judge's mind and surely to be implied from the judgment”. There is not a single reference to the Article 8 rights of the appellant and the children. Of course I am not saying that in every case there has to be an exhaustive review, but it does seem to me that this case very plainly demanded that balancing exercise. The mother's tragedy is only her illness initiated the proceedings. It was common ground that whenever she was well she was an excellent mother to these children. That therefore is another deficit which is incapable of remedy.

There are smaller points which have been developed in argument by Mr Ainsley. It must be very questionable as to whether the judge misunderstood the evidence of Dr Hughes when he referred not to a period of two years of necessary stability but to a period of three or four years without relapse in paragraph 49. It seems that that was the result of a conversation with the community psychiatric nurse. But she was not a witness in the case; she had not made a statement, and any view she had came to the judge only secondhand.

There is also some uncertainty as to whether he did not glide over the difficulties of placement acknowledged by the expert, Mrs Turnbull, in her cross-examination, but it is difficult to make conclusive judgments on those points since we have not got transcripts of evidence and since the recall of Mr Ainsley for the appellant and Mr Gray for the local authority do not coincide.

I do want to record the position that the guardian has taken in this appeal. It is a matter of concern to me that the guardian made no contribution to the appeal at all until the 14 May, Monday of this week, when a position statement by Mrs Collins, the children's guardian, was submitted above the signature of counsel, Mrs Taylor, who appeared below. It seems to be more a position statement than a skeleton argument; perhaps it is a hybrid. But on the same day the guardian's solicitor sought what was really a reassurance that it would be in order for her to instruct counsel despite the regular admonition from the court that representation at appeals should be kept to a minimum.

What would be the guardian's position on the appeal given that the judge had rejected her recommendation? It was perfectly to be expected that she might support the appellant to the hilt. However, the position statement of Mrs Collins classically sits on the fence, saying that the judge has of course rejected what she thought best, but perhaps it was within his discretion to do. That is perfectly understood from a social worker, but there was a considerable obligation on the litigation team to support the children in this process. After all, the appeal is crucial to their future, and Mr O'Sullivan who has appeared today in Mrs Taylor's position has really contributed nothing. He has had no opportunity of talking to the guardian and his instructing solicitor has only talked to him on the practicalities. So effectively he has said, “well, in my position I can only stand by the statement of the 14 May”. In my view that is simply not good enough, and I think that the representation of the children at this appeal is open to plain criticism.

Whilst it was impossible for Mr O'Sullivan to take an independent judgment given the absence of any instructions, it was precisely that which this court needed and was entitled to: a carefully thought out independent submission by counsel, not only reflecting instructions from the social worker but analysing the force of the submissions within the appellant's skeleton, the force of the response within the local authority's skeleton, and critically analysing the judgment below to see whether or not, in the submission of the guardian, it was sustainable.

So although the general admonition must remain against unnecessary representation, that should not be taken as any sort of bar or fetter on the responsibility of the representatives of the children to take a firm line at the hearing of a full appeal.

I have sufficiently explained why I think the care order below was unsustainable. It follows that the placement order must also be unsustainable. But I do not want to set aside the placement order on that ground alone. I do want to emphasise that I consider that the way in which the placement order emerged in the court below was quite unacceptable.

The application had only been issued in January; none of the preparatory steps required by the Rules had been undertaken; including the absence of any engagement of a guardian and the filing of a guardian's report.

The issue was not even the subject of any process of trial. At the conclusion of judgment on the care order application there was then discussion between the Bar and the judge, at which the outstanding placement order application was raised, at which the absence of proper preparation was canvassed, to which the judge simply says at paragraph 21:

Placement orders do not follow automatically or consequentially from the making of care orders. They are orders of the greatest significance and, insofar as they require overriding parental objection, albeit on welfare grounds, they must surely be preceded by preparations and processes that duly respect the Article 6 rights of the parents.

I agree.

I also agree.