T (Children)

This is an appeal from a decision of His Honour Judge Sharpe sitting in the Family Court (Swansea) on the 2^nd May 2014, to refuse an application by the Appellant, father, for permission to apply to revoke placement orders made in respect of his two sons. The placement orders had been made by District Judge Watkins sitting in what was then the Family Proceedings Court in Neath Port Talbot on the 23^rd September 2013.

The judge gave two judgments; a reserved judgment of the 2^nd May 2014 refusing the application for permission to appeal; and a “supplemental” judgment dated the 16^th May 2014 in which he amplified matters in the original judgment, clarified one matter in respect of the two older siblings (who are not the subjects of this appeal), considered and refused an application by the Appellant and the two older siblings to appeal.

The Appellant applied to the Court of Appeal for permission to appeal; this was refused on paper by Lord Justice Davis on the 27^th May 2014. The Appellant then made an oral application, in person, before Lord Justice McFarlane and Lord Justice Kitchin. Permission to appeal was granted and the Appellant appeared before us represented by counsel, Mr David Blake. The two older siblings were represented as was the 1^st Respondent local authority, Neath Port Talbot County Council. The children’s mother took no part in these proceedings. Nor did those representing the two younger children who are subject to the placement orders that the Appellant seeks to apply to revoke; they no longer have a guardian allocated to their case. The oral hearing of the appeal took place on the 9^th September 2014; this is the reserved judgment.

Originally private law proceedings between the parents started in February 2012. These public law proceedings were issued by the local authority on 13^th March 2012 for orders under s 31 Children Act 1989 in respect of the four boys. The family had “been known” to social services since October 2011, when the Appellant attempted to take his own life following the suicide of a close friend. There followed accusation and counter-accusation by the parents against each other of domestic abuse, theft and substance abuse; and police involvement culminating in an incident where the family car was damaged and the children’s mother was charged with criminal offences. The children had been cared for by their mother on her own for a few months but were placed with the paternal grandparents.

The parents separated and reconciled on several occasions and the pattern of accusation, counter-accusation and retraction persisted. The local authority had a series of contracts of expectations regarding the parents’ behaviour and conduct over contact and other issues which were not adhered to by either parent. In February 2012 the paternal grandmother felt she could no longer cope, the Appellant was arrested for assaulting the mother and the local authority were unable to contact the children’s mother or her family. The Appellant, then in police custody, gave permission for the children to be accommodated by the local authority under s20 of the Children Act 1989.

The case was heard by District Judge Watkins on three occasions, when she gave judgments, on the 29^th March 2012, on the 6^th, 7^th and 11^th June 2013 and over five days between the 16^th to the 23^rd September 2013. On the 23^rd September a supervision order was made in respect of the eldest child and care orders in respect of the other three boys. Placement orders were made for the youngest two. The judgments given in March 2012, June 2013 and September 2013 have not been the subject of appeals.

At the hearing in March 2012 the threshold criteria which allowed for the court to make interim care orders were not disputed, the parents agreed that the threshold for making interim care orders was established and the case was decided on the basis of a risk of emotional harm to the children as a result of the long-standing abusive relationship between the parents. The district judge said in paragraph 11 of her judgment, the “Welfare Checklist” section that “this is not a case of physical neglect that builds up over time, nor one where the parents have been addicted to alcohol or drugs.” Rather that it is a case where there has “…been a pattern of domestic violence that has exposed the children to the continual risk of emotional harm.”

An “Agreed Threshold Document” was filed on behalf of the local authority dated the 15^th February 2012 the basis for the making by the court of the subsequent supervision, care and placement orders. The document sets out the contention that the children had suffered significant harm and were likely to suffer significant harm attributable to the care given to the children by their parents. The document then sets out the “long history of physical and verbal abuse between the parents” who accepted some of the assaults on each other as set out, making allegations and counter-allegations, threatening suicide and each attempting suicide on one occasion.

The history as set out in this document amounted to some 10 allegations, mostly setting out in general terms without identifying, specifying or describing the matters relied on. The list contained one incident of assault when it was said that the youngest child was present and his mother is recorded as accepting he was at risk of physical harm on that occasion. None of the matters set out describe, define or delineate any instances of significant harm actually suffered by the children or the significant harm they are said to be at risk of suffering. Both parents accepted, to some extent, lacking insight into the impact their difficulties would have on the children and “thus putting the children at risk of harm”.

The document concludes at paragraph 7 that as a result of the matters outlined in the document “the children, whilst in the care of their parents have suffered or were at risk of suffering physical and/or emotional harm”. The nature, extent and evidence relied on to support this contention of significant emotional harm suffered by the children as a group or any individual child is not set out, nor is there any definition or description of what significant harm the children, or each child, are said to be at risk of suffering.

Unsurprisingly, as there was no dispute that the threshold for making interim care orders was met in March 2012, the judgment of the 29^th March contains no findings of fact. The oral evidence of the parents is referred to but there are no findings made in respect of the harm said to have been suffered by the children except in the most general terms. The plan was to rehabilitate the children with their mother; the parents had agreed to separate and live apart. The case was due to return to court in December 2012 to finalise arrangements, but shortly before that hearing the local authority became aware that the parents had broken their agreement and that the Appellant had been staying overnight at the mother’s home.

In June 2013 the court relied on the threshold document accepted by the parents in March 2012. The court had previously been provided with a psychological report (prepared prior to the hearing in September) by Dr Parsons who had concluded that the parents could each provide the children with good enough parenting but that there was a “significant risk that the children would be exposed to domestic violence and experience emotional neglect and emotional harm”. The children were returned to their mother’s care on the understanding that the parents had separated; they both signed a contract of expectations which contained a proviso that the mother was not to allow the father to stay overnight. The children were removed from their mother’s home in December 2012 because the two middle children told the social workers that their father had spent some nights sleeping in their home.

Regrettably there was no hearing until June 2013 when the district judge found that the Appellant had stayed overnight contrary to the evidence of both parents. The hearing was taken up with the question of the parents’ veracity and the state of their relationship with each other. The district judge concluded that the parents had no intention to divorce and that they intended to continue their relationship. There was no evidence that any of the children had suffered any significant harm, or any harm at all, during this period, nor did the court make any findings to that effect. The local authority had abandoned their plan to rehabilitate the children with their parents in December 2102 when they removed them from their home.

In September 2013 the two older children were granted party status because their views diverged from that of the guardian. It emerged that in early May 2013 the children had become aware that the local authority planned to separate the siblings. The oldest child wrote to the court asking to be placed with his mother and not to be separated from his brothers. The relationship between the mother and the paternal grandmother deteriorated and the children witnessed two episodes of violence between their mother and grandmother. The eldest was moved to a foster home as his own behaviour deteriorated in the aftermath. The parents had found separate accommodation and were in employment. The Appellant commenced divorce proceedings.

The district judge considered the reports of an independent social worker, Diane Jones, and the report of the social worker, Douglas Bean which assessed the boys attachment to each other (which this court has had the advantage of reading). The district judge heard oral evidence from both Ms Jones and Mr Bean. The judgment did not make findings about the nature or extent of the emotional harm said to have been suffered by the children, reiterating that the threshold had been accepted by the parents; it was primarily concerned with the care plans of the local authority and the long-term placement of the children, including the effects of separation on the sibling group.

The parents were found to have had a relationship that continued despite having separate households and to remain emotionally bound up with each other. They were found to have lied to the court and to the police about the nature and extent of the relationship. It was said that the two older boys were drawn into the deception but the nature and extent of the boys’ involvement in this deception was not set out in the judgment; nor was there was anything contained in the judgment about the nature of any harm this may or may not have caused.

The parents’ relationship, described as toxic by the district judge, their dishonesty about their relationship, which she found continued despite their protestations to the contrary, and their failure to abide by the contracts of expectations they had signed with the local authority, formed the basis of his decision to make the care and placement orders. Once again there were no findings in respect of significant, or any, harm suffered by the children or description of the harm they were said to be likely to suffer except in the most general terms.

However, there was evidence before the court, referred to in the judgment regarding the siblings, of their close attachment and relationships with each other and the positive effects on their lives of those relationships. Their social worker, Mr Bean, said, in his thorough and careful attachment assessment prepared for the hearing in September 2013 (paragraph 27); “The children have lived continuously with each other so have a strong imprint and affiliation with each other and the immediate family, albeit suffering the harmful effects of separation from parents, many moves and changes of circumstances.” Later he observed (paragraph 29) “Whilst acknowledging the harm that these children have suffered, it is also apparent that they have in many ways survived the harm. The 3 younger children are well behaved, are polite and friendly”. He goes on to say (paragraph 30) that a “possible protective factor for the children has been their closeness and bond to one another.”

The social worker’s evidence was that the children’s relationship with each other was strong and inter-dependent and that having already experienced separation from their parents a decision to separate the children from their siblings in the future is likely to be felt by the children with a greater sensitivity and intensity. Mr Bean considered that it was hard to say how much harm may be caused if the children were separated but that it is likely to cause initial distress and long term sadness and grief. The eldest child had previously expressed his distress by self harming. The careful analysis in his report contained evidence of the attachment felt by each boy to each of his brothers.

Mr Bean recognised that sibling relationships can be long-lasting, very significant over the life-time of an individual and can outlast other relationships and friendships. The youngest two boys had a warm, close relationship with their older brother; with the two middle boys being particularly close. Their older brother would find it difficult if they were separated, causing him a sense of significant loss. The youngest was said to identify strongly with his older two brothers.

Mr Bean said that consideration had been given to placing the two youngest for adoption with limited contact to their older brothers, although the third child who was loyal to his parents, may resist forming new bonds on placement. At the end of his assessment he said that if the parents had demonstrated “beyond all doubt” that they had separated and are able to function independently the court “might be minded to endorse a further attempt to reunite the children with one of the parents.” The guardian’s evidence, as set out in the judgment, did not consider the effects on the four boys of separation from their siblings either jointly or individually.

The placement orders in respect of the two youngest boys are not the subject of this appeal, however, the factual basis for any further consideration by the Family Court in this case are the judgments of District Judge Watkins; and the legal basis for the removal of the children is the threshold criteria which, in turn, is based on the threshold document of 15^th February 2012 in which the “emotional harm” the children were said to have suffered in their parents’ care is not described nor set out; nor is the evidence on which it was based set out by reference to supporting documents or findings. The volatile relationship of the parents and their truthfulness in their dealings with those in authority had become the focus of the court hearings rather than the threshold criteria. The facts of this case do not differ greatly from many private law cases with no local authority involvement. The often quoted words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR at 2063 [50] resonate;

“ Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor Ward) (Termination of Access) [1988] AC 806, [1988] 2 FLR 139. at 812 and 141 respectively, said this:

‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.’

There are those who may regard that last sentence as controversial but it undoubtedly represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting and very unequal circumstances flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event it could not be done.”

This case is, plainly put, at the lower end of the factual criteria necessary to cross the threshold necessary for the court to make care orders, so enabling the State to remove children from their parents and families and thence to make placement orders which are designed to allow permanent placement in alternative families. The need for a proportionate approach to such decisions has been the subject of considerable jurisprudence since the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911; which itself followed the principle set out in Re C and B [2001] 1 FLR 611 by Hale LJ, as she then was, at [34]:

“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”

This appeal is not against the decisions of District Judge Watkins, but against the refusal of His Honour Judge Sharpe to give permission to the Appellant to apply to revoke the placement orders made by the district judge. The case was heard the 22^nd of April 2014 and, and the judge delivered his reserved judgment on the 2nd May in which he described the “underlying problems in the inter-parental relationship” as having a significant impact upon all of the children. The Appellant sought permission to apply to have the placement orders set aside on the basis of change of circumstances; his own and that of the children.

The Appellant’s case was that he was separated from the children’s mother, was in the process of divorcing her, and unlike previously, was now in a relationship with another woman, Ms Giles, a school teacher. In fact the parents were divorced as a decree absolute was granted on the 10^th March 2014 but the judge was not aware of that fact. At the time of the hearing that relationship was of just over two months duration.

The other change in circumstance that was argued was the deterioration in the behaviour and distress being exhibited by the two younger boys and the distress and strength of feeling that the two older boys had about their contact with their younger brothers being terminated to facilitate placement with an adoptive family. In addition the court was told that the mother was pregnant with another child. She has chosen not to take part in any of the proceedings in relation to the revocation of the placement orders. The court heard evidence from the Appellant, and from Mr Lawrence, a support worker who supervised contact. Ms Giles was on a prearranged trip abroad and was not required to give evidence by agreement of the parties. Any conclusions that the judge reached about her were based only on her statement as he did not have the opportunity of assessing her as a witness.

At the hearing before His Honour Judge Sharpe the Appellant’s veracity, specifically concerning the state of his relationship with the children’s mother, was again called into question. He had been seen shopping with her on Christmas Eve 2013 by Mr Lawrence. He denied that he had been with her but the judge found that he was lying and Mr Lawrence had, indeed, seen them together. The judge found that this incident did not of itself undermine the father’s assertion that he was now in a relationship with Ms Giles but that the parents being seen together as recently as December appeared to have “all the hallmarks of that which was accepted by District Judge Watkins and therefore had to be considered when assessing the extent of the purported change of circumstances.”

In respect of the younger two children there was limited evidence before the court but it was accepted that they had become unsettled and were exhibiting signs of distress; that the youngest boy had been scratching and kicking his older brother who, in turn, passively accepted it; that they were confused about their future, believing that they were going to live with Tanya, a social worker charged with family-finding; that their carer, school and health visitor all noted that the youngest two boys talked about their older brother a lot and that it was considered that they had a close bond with him (a fact that was not in dispute and reflected the previous social work assessment of their sibling attachment). The evidence, such as it was, was contained in the foster carer’s records. There was no evidence referred to in the judgment or elsewhere of any professional assessment of the cause or causes of the deterioration in the children’s behaviour.

The first of the two judgments given was primarily taken up with the judge’s consideration of the evidence of the Appellant and Mr Lawrence and Ms Giles’ statement. At paragraph 43 the judge correctly summarised the law following the decision in Re B-S [2013] EWCA Civ 1146 as follows:

“a.

an application for leave involves a two-stage process;

b.

first of all, the court has to be satisfied on the facts of the case that there has been a sufficient change in circumstances ‘of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation’

c.

the test should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that is unachievable;

d.

whether or not there has been a relevant change in circumstance must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application;

e.

if there is no change in circumstances, that is the end of the matter, and the application fails;”

The judgment of the 2^nd of May was largely taken up with the change of circumstances of the Appellant; the judge found that his assertion of a change of circumstances was entirely unproven [48] and dismissed his application. He gave his reasons in the following paragraph [49] which, in brief, were that the father had lied about being with the mother on Christmas Eve which was consistent with the view of a continuing relationship notwithstanding the divorce proceedings; that he continued to be dishonest and that the relationship with Ms Giles was of very short duration and while it was potentially a settled, stable relationship it was not such a relationship in fact.

At no point in his first judgment did the judge consider and analyse the reasons for the younger two children’s unsettled behaviour. At paragraph 50 he said:

“Other factors were held out as being tantamount to a change in circumstances namely:

a.

the younger children being unsettled within their proposed placement and not demonstrating an easy transition to permanent separation from their parents;

b.

the prospect of a further sibling being born when the mother gives birth later this year; and

c.

the strength of feeling of the elder siblings towards having no contact with their younger brothers given the apparent change of heart by the Local Authority as to ensuring post-adoption inter-sibling contact.”

Paragraph 51 consisted of one sentence;

“ I do not accept that any of those assertions amount to a material change of circumstances in this case nor that the factual basis for (a) and (b) above is sufficiently established in any event.”

The judge was asked later to amplify his reasons in respect of the children and the father’s change in circumstances which he did in his second judgment of 16^th May 2014. At paragraph [4 a.] the judge said he had heard evidence of the children being unsettled and at other times inquisitive and curious and that “therefore it is perhaps going too far to say embracing but they were not repulsing the prospect of a different family relationship” and despite the evidence referred to at paragraph 28 (above) and that their unsettled behaviour was not a matter of dispute took the view that their being unsettled was not sufficiently made out in the evidence before him. The judge then said that he did not consider this behaviour of the children to be a material change “being that the material change, as I see it, should stem from the Applicant father and therefore would not constitute a material change in that regard.”

At paragraph [4 c.] he went on to say that in considering the evidence as a whole he formed “the clear view that whilst there was evidence that the children found the uncertainty surrounding their future to be unsettling to which I was taken during the course of the hearing there was other evidence that indicated that it was not of itself anything other than that which would be normal for a child to have in the face of uncertainty as to their future in the light of the disruption they have suffered given the various removals from and returns to parental care since 2011.” He did not identify or set out the other evidence on which he relied. The judge, then, explicitly accepted in this paragraph and the succeeding paragraph that there was evidence of unsettled behaviour in the children. He went on to say at paragraph [4 d.] that the children found uncertainty surrounding their future was unsettling but took the view that “a degree of unsettlement is likely to be present in the vast majority of such cases in which removal or confirmation of no rehabilitation occurs and, not withstanding the importance of adhering to the principle set out by Lord Justice Wall to avoid setting the bar too high, this in and of itself does not overcome the primary hurdle in my view.”

The generalized view contained in the judgment was not based on any current assessment of the cause of the children’s unsettled behaviour. There was no analysis on his part of the circumstances of these particular children, notwithstanding the only evidence with any specificity before the court was a report setting out the distress which was likely to be suffered by the children on separation from their siblings which Mr Bean had foreshadowed when he analysed the difficulties each of the siblings would have in separating from each other. The view taken by the judge ignored that evidence, the evidence of the positive effects on the brothers from the support they gave each other and the perturbation apparent in Mr Bean’s report about the abandonment of rehabilitation as an option because of the effects it may have on the siblings.

The judge gave further reasons for his findings in paragraph 4 e. regarding the Appellant’s relationship with Ms Giles and whether it amounted to a material change in the father’s circumstances. The reasons given centred on the short lived nature of their relationship and the need for the father to demonstrate that he had fully and finally separated from the children’s mother and was now in a relationship which could deal with such deficits of parenting as had previously been assessed [4 e. i.]

When taken as a whole the two judgments are based on the judge’s view that he was primarily concerned with the father’s change of circumstance. Not only did he expressly say so, it is apparent from his lack of analysis and consideration of the longer term effects on the children should the root of their behaviour be separation from their parents and their siblings; this unsettled behaviour was prognosticated by their social worker. Should they fail to settle when in adoptive placements and their contact with their brothers is terminated the harm they would suffer as a result of a breakdown in adoption would be likely to be in excess of any they may have suffered to date.

At the end of his judgment on the 16^th May 2014 the judge refused permission to appeal.

The father appealed. Permission to appeal was refused on paper by Lord Justice Davis. The Appellant appeared in person before Lord Justice McFarlane and Lord Justice Kitchin on the 18^th June 2014. The court heard from the Appellant and from Ms Giles who accompanied him. They were shown decrees of divorce not shown to His Honour Judge Sharpe which confirmed that decree absolute had been granted in March prior to the March hearing. Ms Giles confirmed to the court that they were living together in rented accommodation and have firm plans to make their lives together. Their Lordships had the advantage of seeing Ms Giles and hearing from her which the trial judge did not have. The Appellant readily admitted to being with the mother on Christmas Eve.

The Appellant denied that he could possibly be the father of the child that the mother was carrying. He was warned by Lord Justice McFarlane that he had to tell the truth. Shortly before the full appeal hearing on the 9^th September 2014 the Appellant filed a statement in which he admitted that he could be the father of the baby.

He was given permission to appeal. Lord Justice McFarlane said that remembering that the issue on appeal is itself a preliminary issue to a full consideration on the merits, all the father had to do before the judge was establish a change in circumstances, not a high hurdle, and that there was a reasonable prospect of success, taking account of the children’s welfare. [11]

The revocation of placement orders is governed by s24 of the Adoption and Children Act 2002 which provides (s24(1)) that the court may revoke a placement order on the application of any person. Permission to apply for revocation has to be given when the application is made by anyone other than the child or the local authority (s24(2)); permission or leave cannot be given unless the court is satisfied that there has been a change in circumstances since the order was made. Thus there are two stages, the first being has there been a change in circumstances? The second, if so should leave be granted? While the first is primarily a factual question for the judge to decide the second is subject to judicial discretion when the court has to decide whether there is a real prospect of success. In this case the judge decided that there was no change in circumstances.

There is limited authority for the approach which should be taken in measuring whether there has been a change in circumstances, a phrase that appears throughout the Adoption and Children Act 2002. In Re P(Adoption: Leave Provisions) [2007] EWCA 616, [2007] 1069 the meaning of “a change in circumstances” in respect of s47(5) and s47(7) was considered and the approach of Lord Justice Wall, as he then was, was endorsed and followed in Re B-S (Children) [2013] EWCA Civ 1146. In his judgment Wall LJ considered the meaning of change in circumstances;

In Re P the Court of Appeal did not consider whether there had been a relevant change in circumstances. While the court in Re B-S was considering leave to oppose the making of an adoption order and not the revocation of a placement order the court urged judges to bear in mind the wise and humane words of Wall LJ and later at paragraph 84 said the Re B approach must apply to applications to revoke placement orders in accordance with section 24 of the Act.

The change has to be relevant to the circumstances of the case; s 24(3) does not relate the change to the circumstances of the parent or parents and it would be unacceptable on any level to exclude any change in circumstance to the children who are the subject of the orders. As set out in paragraph 31 in Re P “Section 47(7) does not relate change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances ‘since the placement order was made’.” This must apply to s24.

The approach of the appellate court has not changed following the Supreme Court decision of Re B when considering the appeals from fact finding determinations: as considered in several cases and summarised by Lord Justice McFarlane in Re G (A Child) [2013] EWCA Civ 965, paras 32-33 and approved by the President in Re B-S (Children) [2013] EWCA Civ 1146 [78]. The approach to fact finding remains the same: Re A (Children) [2013] EWCA Civ 1026 at [34]. It follows that the finding that was made by the judge with regards to the Appellant’s meeting with the mother on Christmas Eve cannot be said to be plainly wrong; indeed it is now accepted by the Appellant. Similarly the judge’s finding based on that meeting that in December the Appellant still had a relationship with the mother of some kind cannot be said to be plainly wrong.

The judge accepted that as a matter of fact there was a change in circumstances in the Appellant’s relationship with Ms Giles. He considered that the relationship was not a settled, stable relationship and given the length of the relationship at the time that he heard the matter that cannot be considered to be plainly wrong. He then must set it against the circumstances of the case, as a whole, at the time that the orders were made.

His Honour Judge Sharpe made reference to “not setting the bar too high” (at [49 c]) and the need for the Appellant no longer to be dishonest and to have put his dysfunctional relationship with the mother behind him. The facts form the basis of where the bar is set. The height of the test or bar which a particular applicant must climb over must be considered by the judge with respect to the factual background of the case as a whole and will vary from case to case. The relevance of the change, referred to by Wall LJ at paragraph 32 reproduced above, while being in part a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application, imports an element of judicial evaluation. The judicial consideration of the relevance or otherwise of the change in circumstance, and therefore the height of the test, in a particular case must be measured against the facts of that particular case when the placement order was made.

The application of Re B is considered in several judgments of this court of Black LJ and McFarlane LJ, in Re A (Children) [2013] EWCA Civ 1026, Re V (Children) [2013] EWCA Civ 913, Re P (A Child) [2013] EWCA Civ 963, Re G (A Child) [2013] EWCA Civ 965 and Re A (A Child) [2013] EWCA Civ 1104. In Re B-S Sir James Munby, President of the Family Division said at paragraph 84:

“Given the nature of the issues and their potential gravity for both the parent and the child, and given also, as we have already described it, the evaluative nature of the judicial task in such cases, we have no doubt that where the question is whether the parent should be given leave to seek the revocation of a placement order in accordance with section 24 of the 2002 Act, or leave to oppose the making of an adoption order in accordance with section 47(5) of the 2002 Act, the Re B approach must apply. Both require that an appellate court be able to intervene whenever the judge was ‘wrong’. Whether the approach identified in Re B – was the judge wrong? – applies in all cases where the issue for the judge was whether or not to give a family member leave to participate in proceedings under the 1989 Act or the 2002 Act is not something for decision today.”

Within that judgment the reference to section 24 is taken to mean the second part of the process in an application to revoke, whether leave to apply should be granted, and not to the change in circumstances, nonetheless the relevance of the change in circumstances to the case cannot be considered in isolation without an evaluation of the case as a whole as carried out by His Honour Judge Sharpe at [49 c] when he said that he clearly had

“in mind the importance of not setting the bar too high when considering a leave application but where the central issues here are the need to demonstrate he has left behind a dysfunctional relationship and is no longer being dishonest as to that reality I do not believe I am setting it to high by rejecting as material changes (i) the father being in a new relationship that in fact only predates this application by a matter of weeks and (ii) being found to have been dishonest as to his engagements with his wife as recently as December of last year, almost exactly halfway between the final hearing and this application being heard.”

The fact remains that this case is one in which no findings were ever made of the children suffering significant harm and the risk of future significant harm has not been set out, defined or described in any judgment. The local authority accepted that the children are not said to have suffered significant harm when they appeared before this court. The source of future harm was seen to be the resumption of the relationship between the parents. The change in circumstances of the father would point away from such resumption.

In the instant case the changes to the circumstances of the father were not the only changes which fell to be considered. There were two elements to the change in the circumstances, the second being those of the children which are both relevant and directly pertinent to their future placement. That the judge was wrong to concentrate on solely on changes to the father’s circumstances is self evident from the provisions of the statute itself which refers only to “a change in circumstances”. The view of the judge regarding the cause or causes of the unsettled behaviour of the children was not evidence based as there was no evidence before the court as to the cause of the children’s distress when the application was made; the only evidence which had considered the effects of separation and placement away from their siblings and family was to be found in the impressive piece of work carried out by Mr Bean, the social worker.

The judge’s findings in respect of the unsettled behaviour of the children (set out above) were based on limited evidence. There was no current assessment of the underlying cause of the children’s unsettled or distressed behaviour by any of the professionals involved in their care or the case put before the court either by the local authority or those representing the children themselves.

The children were not visited by their guardian at the time and the guardian was, therefore, unable to comment on the children’s behaviour and filed one page of brief notes based on the guardian’s conversation with the foster-carer. It amounted to the following: the youngest child was said to have periods of unsettled behaviour; “exhibited by him showing aggressiveness to [his elder brother] and the carers…In terms of moving on [the elder of the two brothers had] seemed ready to accept the idea of a forever family and still asks now and again when something is going to happen…[the younger boy] is too young to understand which contributes to the behavioural issues…[the two boys] spoke a lot about [their elder brother] since [contact with him]”.

The behaviour of the boys should have been considered in the light of the evidence at the time the placement orders were made to reach a judgment as to whether or not there had been a change in their circumstances. It was not. Not only did the judge fail to consider the forewarnings of Mr Bean contained in his careful assessment of the inter-sibling attachment; he had focussed his attention on the change of circumstances of their father and hampered his assessment of any change in circumstances affecting the children as a result. The judge was plainly wrong to conclude that the disturbed behaviour of the children was simply that which would be experienced by any child as a result of uncertainty over their future. Though it may well have contributed to it such a conclusion was unsupported by any assessment of the cause of the children’s behaviour and such evidence as there was contradicted and pointed to an opposite finding. The change in the boys, consisting of increased unsettled and disturbed behaviour, was of a nature and degree sufficient to justify the court in proceeding to the second stage at which it would be open to it to exercise a wider discretion as to whether permission should be given to apply to revoke the placement orders. The judge should have taken that course.

There was some discussion in the first judgment as to whether the two older siblings were properly respondents to the application for permission to apply to revoke the placement order. They are, as a matter of law, respondents to such an application as set out in Part 14 of the Family Procedure Rules 2010, r14.3 as persons in whose favour there is permission for contact. The rules do not differentiate between permission and subsequent hearings.

It is self-evident that the article 8 rights of all four children were and are engaged. The children, all of them subjects of the public law proceedings, should know either at present or when they are older that the possibility of revocation was seriously and carefully explored and analysed by the court. This must have considerable force when it is a matter of fact that none of them (except perhaps the eldest boy) was said or found to have suffered any harm as a result of their parents’ care.

The right of children to have contact with each other has been considered by this court in Re H (Children) [2010] EWCA Civ 1200 when an appeal by an elder sister for indirect contact was allowed. Lord Justice Thorpe held that the judge at first instance had insufficiently weighed the rights of the children to a wider family life. The rights of the older siblings subsist after the placement orders were made and are not extinguished by the making of such orders. The long-term affects of enforced separation from loved siblings and the importance of inter-sibling relationships have often taken second place to the perceived need to protect adoptive placements. In this case it is accepted by all that the three younger boys are close and have a positive and apparently lasting and important relationship.

The approach of the European Court of Human Rights is instructive; in Jucius and Juciuviene˙ v Lithuania (Application No 14414/03) [2009] 1 FLR 403 which concerned a case involving extended family members (maternal aunt/uncle and paternal grandparents) in dispute over the care of two children whose parents had died illustrates the need to balance the rights of all family members. In Jucius the court had granted permanent custody of the elder child to the uncle and aunt, and permanent custody of the younger child to the grandparents. The uncle and aunt complained that the process had interfered with their article 8 rights in relation to the younger child as they were prevented from caring for her and that the older child was exposed to uncertainty regarding her placement.

It was held in the ECtHR that there had been an interference with the uncle and aunt’s article 8 rights in depriving them of the relationship with the younger child, and creating considerable uncertainty for their care of the older child. The ECtHR reinforced the point that proper conditions should be created so the two children could communicate with each other. Although the challenge here was not against the placement order, decisions of the Family Court should be proportionate in their outcome for all siblings and in this case there is evidence that separation will cause long term distress and possible harm contained in the accepted evidence of the social worker. Thus when considering whether there has been a change in circumstances the effects on all the siblings is something that should properly be kept in mind.

The judge was wrong to find that there had been no relevant change of circumstances. The judge should have considered any change of circumstance within the context of the case as a whole. In any case the relevance of any change should be set against the finding or threshold upon which the original orders were made so that the test is not set too high. This will vary from case to case but in this case the threshold was at the lower end of the scale and the test should reflect that; it should be proportionate to the facts of this case.

The change of circumstance had two parts to it; the father’s new relationship and the unsettled behaviour of the two youngest children who were subject to the placement orders. The judge set the test too high, in two respects. In respect of the father he failed to set the change in his circumstances against the facts of this case where the principal concern had been about the parents’ continuing relationship. He gave great weight to the veracity and truthfulness of the father rather than focussing on his relationship and considering his new relationship against the context of the threshold criteria which had consisted primarily of the risk of future harm and not on any significant harm said to have been suffered by the children. The change in the father’s circumstances, which the judge accepted, while of short duration, was relevant to the circumstances of this case.

In respect of the children the judge hampered his consideration of their circumstances by giving the father’s circumstances primacy. He then reached a decision regarding the children that was not based on the evidence before the court. The judge could easily have taken the opposite view as to the cause of their unsettled behaviour and could have done so if he had considered the evidence contained in the report prepared for the court at the time the orders were made. Further he was wrong to decide that the disturbed behaviour of the youngest two was not a relevant change in their circumstances. The change in the father’s circumstances may not have been sufficient for the court to consider it relevant by itself but the change in the father’s circumstances and the boys increased unsettled behaviour and the anxiety they exhibited are collectively relevant. In the context of this case the judge was wrong to conclude, as he did, that there had not been a change in circumstances sufficient to allow him to proceed to the second stage at which he could consider whether he ought to exercise a wider discretion to permit an application to revoke the placement order, an exercise which would require an analysis of the children’s welfare.

Finally it is regrettable that the two younger boys were unrepresented before this court. As alluded to above it is important for children to know that any applications which may lead to them remaining with or returning to the care of their family are properly argued on their behalf. There can be little doubt that the two youngest would want to continue to see their older brother. Their wishes in respect of this or any other matter were not put to this court. The case of Mabon v Mabon [2005] EWCA Civ 634 considered some nine years ago the need for children and young people to know their wishes are transmitted to the court and, in the words of Lord Justice Wall in Mabon, “to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented to the judge and their perspective fully advanced to the judge.”

While the two younger boys are still very young (6 and 3) they are aware of their situation and have a close relationship with their elder brother in particular. The FPR 2010, Pt 16 relating to the appointment, role and powers of a children’s guardian apply in full to proceedings under the Adoption and Children Act 2002 governed by Pt 14, as do the rules in PD 16A and FPR 2010, r 16.9 relating to the representation of subject children and the appointment of a solicitor for the child. The youngest two are to be represented in any forthcoming proceedings and a new guardian will be appointed if necessary.

I agree.

I also agree.