K & KT (Children)

LORD JUSTICE McFARLANE: This appeal concerns the outcome of long running care proceedings with respect to four children. The children are three boys and the youngest child is a girl. The eldest boy, JJ, is now five-and-three quarters, the second in order is A and he is four-and-a-half and the third in order is another J and he is 3 and the fourth, the daughter, is B and she is now 17 months of age.

The proceedings started as long ago as July 2012 when the third child, J, was taken to hospital and it was discovered that he had sustained a fractured tibia and fibula at the age of 15 months. Predictable steps therefore followed in terms of investigation and arrangements to protect the children. Within the care proceedings the judge, His Honour Judge Meston QC, who has had the conduct of these proceedings throughout, undertook a fact-finding investigation, at the conclusion of which he found that the injury to J had been caused by non accidental means and that the perpetrator was either the children's mother or her partner.

The future of the four children therefore fell to be determined against the backdrop of that significant finding. In the event, at the conclusion of the welfare stage of the proceedings, on 22nd November 2013, His Honour Judge Meston made full care orders with respect to each of the four children and authorised the local authority to place all four of them for adoption.

A prominent part was played throughout the children's life by their maternal grandparents, Mr and Mrs K, and indeed, so far as the eldest boy is concerned, he was living with the grandparents until he was taken into care. The grandparents were party to the care proceedings from an early stage and within those proceedings they put themselves forward as candidates to take on the care of all four children, if that were possible and granted by the court but, if not all four, then as many as the court felt were able to be placed with them. They are the appellants before the court today.

The background to the case does not require significant explanation by me in the course of this judgment because the points that are now relied upon in support of the appeal are largely to do with the process and procedure adopted at court and the approach that the experts and the judge took to certain historical allegations rather than the welfare evaluation conducted by the judge.

The case came before me as an application for permission to appeal on 1st April. At that stage Mr and Mrs K were acting in person but they had been able to file a lengthy and wide ranging skeleton argument which dealt, in addition to the procedural matters to which I will turn in a moment, with a number of substantive points in the case. However, I was assisted at that oral hearing by Mr K's ability to focus in on the particular points that concerned him and those were in headline form, at this stage, as follows. First of all, that the independent social worker, Mrs Randall, who was instructed to conduct an assessment of the grandparents had been briefed by the local authority social worker and separately by the children's Guardian before she met Mr and Mrs K, the point being that that briefing was unknown to Mr and Mrs K, there is no note of it and the implication is that in some way it coloured the independent social worker's assessment.

The second point is in similar terms and the allegation was that the children's Guardian had had communication with the expert psychologist who was jointly instructed, Dr Jefferis and that the psychologist had been given his brief by the Guardian in the following terms, that he went on to report to Mr and Mrs K that he first met them. The terms of these:

The third procedural matter explained to me by Mr K was that at court on the day of the hearing on which Mrs Randall and Dr Jefferis were to give evidence a meeting took place in which both of those two jointly instructed experts met, Mr K presumed to discuss the case, for a period of the order of some 2 hours and yet Mr and Mrs K were not made privy to what was said in that meeting.

In addition to the fact that such a meeting was said to have taken place, Mr K pointed to its importance which is that prior to that day in court the independent social worker had expressed a recommendation which was to a degree more favourable to Mr and Mrs K than the recommendation of the psychologist. In short terms, the psychologist ruled Mr and Mrs K out as having the capacity to provide safe, good enough and stable parenting to any of the four children. Whereas the independent social worker, whilst agreeing that Mr and Mrs K could not take on the care of all four of the children, recommended that they "could" be considered as carers for the older child, JJ, in particular because of the background of them having the care of him until he went into care. However during the course of her oral evidence, after the meeting Mr K considered had taken place, the independent social worker changed her recommendation to one which favoured adoption for all four children.

The fourth matter of concern, explained to me but at a time when we did not have transcripts of the evidence, was that Mr K reported that the Guardian in the course of his oral evidence had purported to give expert opinion as to the medication that Mrs K was on and as to the impact of mental health issues, relating to the recognised depressive condition that both Mr and Mrs K at times have sadly suffered from impacting on their care of children. The submission to me was that this was a Guardian deploying apparent expertise which, as a professional social worker, he would not have and that the judge had relied upon that.

Finally, and of a different character, the submission was made that part of the background to the case involved reports from social workers in Dorset relating to the time when Mr and Mrs K had the care of their own two children, one of whom of course is now the mother of these four children. It is the case that following allegations made to social workers in 2003, it became known to the authorities in Dorset that for a period of about 8 years those two young people, the mother and her sister, reported abusive parenting from Mr and Mrs K and in particular made a number of allegations of physical abuse against their father. In the event, Mr K submitted, the judge did not find any of those allegations proved, yet that finding only occurred at the very end of the court process, in final judgment, but by that stage each of the two experts I have mentioned had reported to the court and the Guardian had reported to court. In varying degrees, particularly Dr Jefferis and the Guardian had accepted as true all of the material coming from Dorset and that that had coloured the opinion that each of those two individuals went on to make and in so far as the judge relied upon their recommendations in making his overall conclusions the process was flawed. The submission was made that the letter of instruction to the experts should have either made plain at that preliminary stage that a finding of fact about those allegations had taken place, which of course it had not, and there was no truth in the physical abuse allegations, or that the experts should have been counselled to ignore those factors because the judge had yet to make a finding.

Those variously are the points which individually and certainly collectively caused me to be sufficiently concerned to grant permission to appeal.

The process has moved on. Prior to this hearing, albeit at fairly short notice, the parties have done their best to supply information to this court as to the various practical and procedural matters which are the focus of this hearing.

We have been assisted by the fact that Mr Zimran Samuel, counsel, has come into the case and particularly grateful to him for taking the case on the instruction of the Bar Pro Bono Unit. He has been assisted by the fact that Mr and Mrs K have in the intervening period produced a very clear and professional skeleton argument which gives chapter and verse to the submissions that they wish to make and Mr Samuel has been able to build on that in the oral submissions that he has made to the court today. We have also heard from counsel for the local authority, Mr Hand, who was in fact trial counsel before Judge Meston and counsel instructed on behalf of the Guardian, Mr Cholerton, who did not appear below. The children’s mother and father have attended court, but apart from a short supportive submission from the mother, they have played no active part in the hearing.

I propose now to take each of the points in turn. Logically the overarching point about the historical allegations arising from Dorset falls to be taken first. I have explained the background to those matters. They were current within the case from a relatively early stage, having been discovered by the Guardian and given some prominence in his initial analysis. So it was that at the interim care hearing, in December 2012, at which the grandfather gave evidence, the matter was dealt with and the judge summarises the position at paragraph 46 on page B12 of that judgment:

It is plain from the judge's summary that there was a degree of acceptance by the grandfather as to the overall description of how life was being led and how family life was being experienced by his two daughters in the family home during those years. It is a period measured in some 6 or 7 years that is recorded in the Dorset documents. There was no admission, and never has been, by the grandfather to any of the physical allegations.

The point that is taken on appeal is of course that the experts accepted the validity of these reports, including the physical abuse allegations and it is certainly the case that the Guardian in his evidence to the court is plain that he does accept the validity of the material. To a lesser extent Dr Jefferis makes reference to it and it is part of the background that he relies upon. In particular Dr Jefferis came to accept in the course of his oral evidence that when he first met Mr and Mrs K he did say to them something to the effect they had "messed up" the upbringing of their daughters and that was part of the background of the case.

The judge was tasked with trying to evaluate this historical material. He had two sources of information over and above that which was written in the records. The first was to hear oral evidence from a social worker from Dorset, Toni Colledge, who was involved with the grandparents in the period October 2006 until January 2009. She was able to speak to a degree from her firsthand knowledge of Mr and Mrs K at that time and to report what the daughter, A, that is these children's mother, said to her from time to time about life in the family home.

In particular Toni Colledge reported an occasion on 9th January 2007, during a conversation with Mr K, when he threatened to assault her saying "If you were a man you would feel the back of my hand". But, as I indicated, most of her evidence was simply to report what the children's mother, A, had said.

The other opportunity for insight into the truth or otherwise of these allegations came to the judge from hearing evidence from the children's mother and her sister. It is right to say that he was not impressed with them entirely as accurate and reliable historians. He considered that there was a potential for them to exaggerate matters.

When he came to deal with the historical aspect in his judgment, he therefore faced an important and slightly complicated judicial exercise. He approached it in this way. First of all, at paragraph 267 of his judgment, he rehearses the submission made on behalf of the grandparents to the effect that the experts, in particular Dr Jefferis, were working on a false premise, namely the fact that the historical allegations were true. The judge says this:

It is almost a common place of care proceedings involving children that the experts are instructed to conduct their assessments at a stage prior to the court determining the truth or otherwise of historical or factual allegations and this court is told that Dr Jefferis is a seasoned expert appearing in these proceedings. What the judge describes at paragraph 267 is to my eyes simply an expert familiar with the territory adopting a sensible approach to these allegations.

The judge moves on to give his own evaluation in the course of a lengthy passage within the paragraph 273 of the judgment:

It is plain from that analysis that the judge was impressed by Miss Colledge, the social worker from Dorset in her evidence and had no hesitation in accepting the factual evidence that she gave, in particular that of the incident in January 2007 to which I have already made reference. Equally, rightly on the basis of his findings, he was less able to be clear about the accuracy of what the children's mother A said.

But the judge does make findings about family life in the home of Mr and Mrs K at that time. Those findings are to endorse the summary of them set out in the two passages from Dr Jefferis' report that he quotes. In the course of those findings therefore the judge describes striking behaviour by Mr K and an inability on the part of Mrs K to protect their daughters from the emotional consequences of Mr K's behaviour. Although the findings of physical abuse are not made, again, to my eyes, the emotional climate in the house over the course of this lengthy period is of at least equal concern, if not greater concern, than the physical allegations themselves.

So it is not the case, as argued by Mr and Mrs K in their skeleton argument, that all of the Dorset allegations were not proved and as Mr Samuel attractively and simply submits that on the binary basis therefore fell to be ignored. To a large part the emotional climate of the family home, adverse as it was to the interests of the two children living in it, was established by the judge and given due prominence in the case.

Moving on within the same point there is no indication within the reports of Dr Jefferis, or the children's Guardian that that leads me to conclude that the judge in some way simply endorsed their recommendations, swallowing with that endorsement their own apparent acceptance of the validity of the Dorset allegations. In order for this appeal point to be made good it is necessary for Mr and Mrs K, and on their behalf Mr Samuel, to establish error on the part of the judge, irrespective of the beliefs or views of the Guardian or the experts. That simply is not able to be established on the facts of this case.

This judge, as all judges are in this form of proceedings, was charged with making his own assessment and coming to his own view as to the future welfare of these four children and in particular, in the context of this appeal, his own view as to the ability of Mr and Mrs K to provide a home for one or more of the children who were his concern.

The judgment in this case, in fact all three of the substantive judgments that Judge Meston came to give in these proceedings is a model of the approach required of judges undertaking these important and difficult evaluations. The judgment is a very substantial document. It runs to nearly 300 paragraphs, each of which is full of details that the judge has absorbed from the papers in the case and from the evidence to which he was exposed during the oral hearing.

Although it is a long judgment, it is not a flabby exercise, it is a tight distillation of the material, complicated, as it was, coming from a number of sources to the judge, both lay and professional witness, social workers, experts and family members. The judge makes his own journey through that material and comes to his own conclusion.

So, for my part, I simply do not accept that firstly, the evaluation of the historical material, which was accepted by the expert and the Guardian was radically at odds with the judge's findings as I have recorded them as being in the extract of the judgment to which I have referred. But secondly, and more importantly, there is absolutely no indication that the judge paid any credence to the fact that the Guardian did or did not believe the allegations and equally the judge is not simply rubber stamping the Guardian's recommendations or the recommendation of Dr Jefferis; he makes own evaluation and comes to his own judgment. So I do not find the ground of appeal in relation to the deployment and use of historical material to be made out. I can deal more shortly with the other points.

So far as the social worker or the Guardian in some way briefing the independent social worker, Mrs Randall, before she commenced her assessment, the material before this court simply does not establish that that took place. There is no report from Mr and Mrs K of any disclosure from the social worker of any communication from those two people with her prior to meeting Mr and Mrs K. The report itself catalogues the meetings that Mrs Randall had and it shows that Mrs Randall met Mr and Mrs K together on 21st February 2013, 25th February and then separately on 1st March. Before, on 15th March, she discussed matters with the social worker and then, separately, with the Guardian. The fact that she had discussions with the social worker and with the Guardian is an entirely acceptable and commonplace step for someone undertaking an assessment of this sort and the fact that it came after the independent social worker had already conducted three sessions with Mr and Mrs K, to my mind establishes that there is no reason for concern about that process in these proceedings.

The third point, trying to deal with these matters in a chronological order, is the assertion that the Guardian in some way briefed Dr Jefferis before he met Mr and Mrs K. I have already quoted what Mr and Mrs K say about that and what they say Dr Jefferis said to them when he first met them. The Guardian has been asked about this in preparation for this appeal hearing and he flatly denies having any communication with Dr Jefferis at all.

Some light is shone on the point by looking at what prominence, if any, this topic had in the hearing. First of all, we have a transcript of the cross-examination of Dr Jefferis and early on counsel then instructed on behalf of Mr and Mrs K put to Dr Jefferis the gist of the comment, that her clients, Mr and Mrs K, were asserting the expert had said. It was this: "You've got yourself into a right old mess with what happened with your children". Dr Jefferis accepted that it was possible that he had said something of that sort. He relied: "I might have said something like you know 'things really seem to have gone wrong in your parenting of your children.'" He did not accept the point behind question, which was that he had formed a preconceived view of the merits before he started his work.

What is of note in the transcript is that although the assertion of a comment along the lines that Mr and Mrs K had "messed up" with their children was put by counsel, counsel makes no mention of what Mr and Mrs K now say Dr Jefferis went on to say, which was that the Guardian had told him that his job was to make sure that the grandparents did not get the children back.

Of course we do not know and should not know what conversations and instructions were given by Mr and Mrs K to their barrister. They tell this court, through Mr Samuel, they did tell their counsel about this second comment. If they did it is odd, to my eyes, that counsel did not raise it given the tone of the cross-examination at this point. It would be the obvious follow-up question to deploy, given that the theme of the questioning was to suggest that Dr Jefferis had a preconceived agenda before he started his work.

The second indication of what took place before the judge is in paragraph 202 of the judgment. There he said:

The material that we therefore have, to my mind, in no way substantiates this serious and striking allegation made about Dr Jefferis and, through the report of what Dr Jefferis said, made against the Guardian. It would be a highly unusual step for any expert to take and a highly unusual development in any case. The fact that it did not surface at all in the hearing before the judge and is not raised in the transcripts as I have described, effectively provides no ground upon which the point can now run in this appeal. I therefore do not find that ground established.

Fourthly, I turn to the suggested meeting at court. The matter was first put by Mr K in his original skeleton in support of the appeal in these terms:

That is what I had before me when I granted permission to appeal. We now have more information. The case that is now put by Mr and Mrs K is that there was no formal meeting and there is no suggestion that the judge directed a meeting of any sort between the two experts but that, for a substantial period of time before they came into court to give their evidence, Dr Jefferis and Mrs Randall were sitting side by side, in a public seating area outside the court. They were seen by Mr and Mrs K to be engaged in conversation. It is also said that for a period of time counsel for the local authority, Mr Hand, joined in with that conversation by standing close to the two experts and being seen to talk with them.

In terms of how long a period of time is being described, Mr Samuel says his instructions are that it may not be as long as 2 hours but it certainly was a lengthy period and well over an hour. He says that the period during which counsel for the local authority was engaged was a period of some 10 minutes or so.

The two experts have been asked about this suggestion and their responses are contained in an e-mail exchange. In short-terms Mrs Randall says:

Dr Jefferis say this, having explained that he regards his recalling Mrs Randall being the independent social worker:

So far as counsel is concerned, Mr Hand has no recollection of the two experts being in conversation at all with each other. He denies the assertion that he took an active part in any discussion with them about the case. He accepts that if they had been sitting in the public area outside the court, then he would at some time or another have been in the vicinity because simply as a matter of the geographical location of the court door, the seating area and the rather small space involved. But he tells this court that he is aware of the need not to engage experts in conversation and that he did not do so on this occasion as asserted or at all.

The point behind the assertion is, of course, that Mrs Randall did indeed move her position, in terms of her recommendation, from that recorded on paper in her report to one favouring adoption for all the children by the time she concluded her oral evidence. We have been taken to and considered the transcript of her oral evidence which starts at page D26 of the bundle. A number of things stand out. First of all, Mrs Randall had apparently sat in court during the morning when Dr Jefferis gave his evidence before she in turn was called to give evidence herself is called to the witness-box. Counsel for the children invited her to identify her report and at that stage she gives no indication of having changed her view. She accepts in the early stages of cross-examination by Mr Hand, on behalf of the local authority, that Dr Jefferis is "much more definite" in his view and she indicates that she is in a more balanced position but, at that stage, she does not indicate a change of view.

The change of view only becomes apparent some eight pages in at page D34 of the transcript. There she says this:

So, again, looking at this in the context of the point being made on appeal it is not established, in my view, that Mrs Randall did enter the witness box having changed her mind. If she had then she would have said so, one would expect, at the very beginning of her evidence. On being taken to her report, she would have flagged up to the judge that her position had changed. It was a matter which developed and became clarified as a result of Mr Hand's cross-examination, it seems to me, rather than anything that had happened at an earlier stage.

Given the importance of any preparation and communication of expert witness evidence in family proceedings, I do not regret having granted permission to appeal on this point. If there had been a meeting measured in terms of one or two hours between these two jointly instructed witnesses, in which they had discussed the case in detail and which had led to Mrs Randall changing her opinion, that would be a significant matter and I certainly do not regret the process of investigating what went on in the context of these appeal proceedings. But now that investigation has been undertaken I am entirely satisfied that nothing untoward took place. It is not for this court to undertake a fact-finding exercise but it seems apparent that there was some form of conversation between the two experts in the period before they were called to give evidence. But this was not choreographed by any party. For my part I accept Mr Hand's assurance that he did not and would not take part in a discussion about the case with any experts and, having read Dr Jefferis' account of the matter, he too volunteers his own practice and his own understanding of the importance of not discussing the substance of the case with another expert. So nothing untoward happened. But further than that, it seems to me there was no consequence to any meeting if it had taken place which, as I have indicated, I do not believe a meeting in which the case was discussed did occur. What happened was a perfectly explicable change in Mrs Randall professional opinion. She explained why she had changed her mind. She explained that she had come to a clearer understanding of the case because, in part, of the clarity brought to her view by Dr Jefferis' contribution and she gives reasons for the change of view.

Then finally, to return to a point that I have already made. At the end it is the judge's view that matters and that the judge comes to his own conclusion about all these issues and does so in a conspicuously clear and well reasoned judgment.

Finally, therefore, that leaves the point about the Guardian expressing opinions on matters which must fall outside his own professional background. Allied to this is the worrying report, again drawn from the transcript, that the Guardian had only listed negative factors in relation to the grandparents in his report, explaining as he did, that he understood that now CAFCAS officers, in order to keep reports short and to focus the resources deployed in any case were only required to list negatives.

Having looked at what the Guardian said, it does seem to me that he did at times stray into giving an opinion which was plainly based on medical information or analysis of pharmaceutical matters. But all of this was played out in front of the judge. The Guardian was cross-examined expressly on the basis that there he was, as a professional social worker, purporting to give a view which was contrary to the general practitioner as to the effect of the grandmother's medication.

All of these matters were before the judge. The judge in particular referring to the Guardian's decision not to put any positives in his report was entirely aware of the number of positives. There are real positives in this case that can be attributed to Mr and Mrs K. For that matter, Mrs Randall undertook precisely the correct exercise of listing the positives and then listing the concerns in her report. So, although I consider the Guardian may have been ill advised to stray quite as far as he seems to have done, it seems to have had absolutely no consequence in terms of infecting the judge's judgment and it does not feature in the judgment at all.

In closing, it therefore follows that each of the five matters that led me to grant permission to appeal turn out on investigation to have no substance or no substance sufficient to cause me concern as to the essential validity of the process undertaken by the judge and, more importantly, the substance of his judgment.

This case is extremely important to Mr and Mrs K. It is hard to underestimate how they and the other family members must feel about the orders that have been made and I do not criticise them for seeking to raise these matters. As lay people they see them from a different perspective. It was right that this matter was investigated. But for reasons I have given, I am entirely satisfied that there is no valid ground of appeal.

In closing I would repeat a point I have made in passing. Having read, as I did, first of all, the skeleton arguments of the various parties and particularly Mr and Mrs K, before once again looking at the judgment, I having read it of course in April, I was struck by the quality of the exercise undertaken by HHJ Meston in this case. This court is well used to reading judgments from family judges of high quality. But the exercise undertaken by Judge Meston on this occasion was as thorough and as careful as it is possible to contemplate. He made the decision. He made it on the basis of evidence that he had heard and he evaluated. He came to this draconian conclusion on the basis that there was no other option for the placement of these three children. I am therefore entirely satisfied that this was a proper process and a judgment that was fully justified on the evidence before the judge. I would therefore dismiss the appeal.

SIR STANLEY BURNTON: I too would dismiss this appeal for the reasons given my Lord. I would particularly like to associate myself with my Lord's comments as to the quality of the judgment which is under appeal.

MR JUSTICE TOMLINSON: I agree with both judgments and I would wish to reiterate our thanks to Mr Samuel for the assistance given to the court at short notice under the pro bono basis.