BP & Ors v Hertfordshire County Council & Anor

These proceedings concern two children. I shall refer to them as ‘P’ and ‘B’ respectively for the purposes of this judgment. On 9 October 2014 the court heard four linked applications by their parents for permission to appeal decisions that had been made in respect of the two children. P is now 2 years and 7 months of age and B is 11 months of age. If the applications for permission had been successful the appeals would have followed on, but for the reasons I set out, I would refuse each of the applications.

The applications in respect of P are from the decision of His Honour Judge Waller who on 1 April 2014 dismissed a first appeal by the parents against the decision of District Judge Mellanby who made care and placement orders on 13 November 2013. This is accordingly a second appeal to which the test in CPR 52.13 applies namely, that the appeal must raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. The application in respect of B is from the decision of Parker J who on 23 May 2014 made care and placement orders in respect of B who is a baby who is as yet un-named. That is a first appeal for which permission is required and the test in CPR 52.3(6) is that the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. There is a subsidiary application relating to a decision of His Honour Judge Wright on 7 March and/or 6 April 2014 which relates to father's interim contact with B and a naming ceremony for B. As will appear, that appeal is now academic given that both P and B are now in the care of the local authority and the interim determinations have now been overtaken by final orders.

The local authority, Hertfordshire County Council, oppose the applications. The children had been represented by children’s guardians in the courts below, both of whom have ceased to practice. Given the alignment of their cases with that of the local authority we dispensed with their need to attend.

The parents were both litigants in person when they first came before the court at an oral permission hearing that had to be adjourned to obtain the most basic of documents which had not been made available to them in circumstances that I then explained (see Re B and Re P (Children) [2014] EWCA Civ 1133). If such a circumstance occurs again, an applicant to this court should consider making an application to the court below for documents that are necessary to pursue an appeal. No such application was made in this case and both courts have confirmed that they would have willingly assisted had they been made aware of the problem. I am not persuaded that any subsequent difficulties that there may have been in obtaining the bundle for this hearing have been other than of the father’s own making.

The parents were assisted by their McKenzie Friends, Mrs. Haines for father and Mr Haines for mother at the adjourned permission hearing. At the resumed permission hearing before this court, mother had the benefit of public funding but father had not. Accordingly, mother had counsel and father was accompanied by Mrs. Haines who was permitted to assist the father in the presentation of his case.

This permission hearing was limited to two issues. The first was whether the jurisdictional threshold in section 31 of the Children Act 1989 [CA 1989] was satisfied and, if so, how and the second was whether the independent expert psychologist on whom the courts had relied was in fact independent given her retainer with the local authority. There were other grounds which were misapprehensions of law that were pursued at the first permission hearing but permission to appeal those grounds was refused. An issue relating to the existence of the placement order concerning B was clarified during the hearing before this court.

The background circumstances are as follows. In 2006 mother had a child by a different father. That child was placed in the interim care of a local authority because of emotional and physical neglect and exposure to domestic abuse. Within the proceedings there was an influential assessment relied upon by the court. It was conducted by a psychologist who concluded that mother has an intellectual impairment that prevents her from being capable of exercising her parental responsibilities unless she is provided with adequate support. In 2007, the child concerned in those proceedings was placed with her paternal grandparents under the supervision of the local authority.

Within the proceedings relating to P and B reliance was again placed upon the conclusion about mother that was reached in 2006. Very properly, the court dealing with P’s circumstances ordered a further assessment. That was conducted by the same psychologist with the overt agreement of the mother who was at the time represented by counsel. Not only was no objection taken to the same psychologist being used, it would appear that it was mother’s team that suggested the same and mother’s solicitor was the lead solicitor in the instruction. The suggestion that mother opposed the instruction of the same psychologist amounts to no more than that she suggested an alternative psychologist prior to the decision which she subsequently agreed. The psychologist concluded that although there had been material improvements in mother’s capabilities, the underlying issue remained that she needed the support of another person to enable her to provide adequate care for a child. The psychologist was not cross examined as to her opinion in either proceedings (and I remind myself that the mother was legally represented and the father made a deliberate choice not to be represented) with the consequence that the expert’s opinion is effectively unchallenged other than by the evidence of the parents.

In the meanwhile, a local authority residential assessment unit, the Hertfordshire Family Assistance Unit, concluded that the parents when together were capable of caring for P. In addition, the evidence was that there were no relevant mental health or other health care issues. In fact, P was “thriving” in the care of his parents. It is important to stress that neither child has been harmed by either of their parents. The proceedings were all about the risk of harm. The parents, or perhaps more accurately the father, disagreed with the local authority about the mother’s need for support. That might have been capable of being worked with had it not been for father’s own conduct. I say this because despite his antagonism, at the conclusion of the residential assessment, mother, father and P went home without the need for a statutory order although the proceedings continued, no doubt in the expectation that a final welfare assessment by the local authority and the welfare analysis by the court would conclude that this option was in the best interests of P.

The father of the children had been antagonistic to the local authority from the beginning of their involvement with the family. He had responded to them with verbal abuse (for example he accuses them without any foundation of being paedophiles and racist), threats and a refusal to co-operate. Ultimately, he assaulted a social worker in the precincts of the court after a hearing concerning P in February 2013 after having denied social workers access to P in the family home on more than one occasion leading to the intervention of the police. Mother accepts that father’s behaviour is unacceptable but save when giving oral evidence from the witness box she was unable to confront him with that opinion. She was inconsistent about whether she wanted to separate from him and what implication that might have for her care of the children. In any event, the social work opinion was that there was a probability that a separation would not endure and the parents do not present themselves as a separated couple to this court. Father subsequently limited his own contact with P by refusing to abide by the conditions that were set by the court and refused to give permission for P to be immunised.

Father’s intransigence hardened during the proceedings relating to B such that he declined to have contact with B save on his own terms with the consequence that he has no relationship with him and he declined to give B a name. I have sympathy with him in relation to the latter issue which I have taken out of my consideration. I am by no means clear that anyone understood the cultural significance of and the appropriate means by which a name is given to a child in the faith community to which the father belongs. It suffices to say that the care and placement order decisions of the judges complained of would not have been different had this issue not been before them.

The first ground of appeal is as to whether threshold or jurisdictional facts existed sufficient to satisfy section 31 of the Children Act 1989 [CA 1989]. It is a persistent misapprehension of the law that if a parent has not harmed a child then there is no justification for the state in the guise of the local authority or the court to intervene in their family life. Section 31 sets out the basis for the intervention of the court on the application of the local authority. By section 31(2)(a) the court is given jurisdiction where “the child concerned is suffering … significant harm” and where “the child concerned … is likely to suffer significant harm”. It necessarily follows that if there are in existence sufficient facts to establish the likelihood of harm, parents who have not harmed their child may legitimately face the prospect of care proceedings which could result in the removal of their child if the likelihood of harm is established.

The section 31 threshold need only relate to one parent. The other parent may be capable of providing the care required. Where proceedings are begun to protect a child that enquiry is part of the court’s welfare determination which is mandated by the paramountcy principle in section 1 of the 1989 Act but that is only triggered where the threshold is satisfied. In these proceedings, the threshold relied upon by the local authority included the mother’s incapability in providing for the care of either or both of her children on her own. Given the determination of the court in 2006/7 relating to mother’s previous child, that was a sufficient fact, albeit that the continued existence of the incapability needed to be established, which in this case it was by evidence with which the parents eventually disagreed. It was then necessary for the court to consider the disputed evidence and make a decision. Neither court made any error in the manner in which that decision was reached on evidence that was cogent and relevant.

In that context it is not necessary to consider whether that part of the threshold relied upon by the local authority relating to father was capable of proof but it is worth analysing it to inform the argument raised by father. It was alleged that there was a likelihood of emotional harm arising out of his behaviour. By the time the proceedings relating to B had started, that behaviour was well documented and the facts underlying the risk alleged were easy to prove. So far as the earlier proceedings relating to P are concerned, if it had been necessary to consider the question, I would have regarded father’s subsequent conduct manifesting the behaviour that it was said was likely to give rise to emotional harm to be admissible in support of the threshold alleged. The analogy is with subsequently discovered or assessed information that is relevant to a risk that is identified to exist at the beginning of proceedings. The nature of the risk is the same and the risk exists at the time that the need for protective procedures is identified.

We permitted the development of the first ground of appeal by father to consider the welfare and proportionality evaluations in both sets of proceedings. That formed part of father’s perfected submissions before this court. In layman’s terms he was saying: it is not a sufficient reason that my children are permanently removed from my care because I disagree with the local authority and will not co-operate with them. On the facts of another case that might be a successful submission but that simplistic analysis does not adequately examine the facts relating to this father’s antagonistic behaviour and lack of co-operation. There is of course no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law. That said, these proceedings might not have been taken had father co-operated and it may not be too much of a speculation to say that, given his capabilities to provide support for mother and the children, there may not have been a need for the proceedings to be completed i.e. they may not have been pursued to an adverse conclusion had he demonstrated that he was prepared to act in the best interests of his children.

The significance of the father’s conduct is not that his children were removed because he had the temerity to argue with the local authority: to put it in that way misses the point. The welfare issue that was legitimately pursued by the local authority was that father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children. By way of examples, the following are relevant:

Given the nature of the positives that the parents demonstrated in the residential assessment and despite the recorded antagonism that he exhibited during that assessment and thereafter, DJ Mellanby gave father ‘one last chance’ in the proceedings relating to P. She did so in response to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 WLR 563 which had been handed down during the proceedings. In so doing she was being more than fair to the parents. She allowed a further examination of the evidence and of the father’s ability to change in the hope that the parents might provide a realistic alternative to long term placement away from the family.

Sadly, father failed to act on that opportunity and remained implacably opposed to any child protection mechanism or support that would verify that P was safe. He had refused access to the social work team in October 2012, he refused to engage with further assessment which would have been able to demonstrate that the positives had been carried across into the family home and ultimately when access was again refused in February 2013 it had to be obtained with the assistance of the police. Father’s written submissions to this court highlight the fact that mother would have been left in the care of the children when he was at work and in the context of the opinion that mother could not cope on her own, there was a legitimate child protection interest in the adequacy of the arrangements that the family had put in place once they were at home and no longer in a professionally supported setting.

There was ample material before both courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother. The welfare evaluation of the parents was accordingly adverse i.e. the detriments outweighed the benefits. To the extent that he was able to argue, as he did at the first permission hearing, that he was an un-assessed risk, that ignores the evidence that was before the court, the father’s refusal to co-operate with assessments and the court’s ability and indeed duty to undertake its own analysis for the purposes of section 1(3) of the 1989 Act. The local authority were able to prove both of their cases and the family was unable to take advantage of such support services as the local authority might have been under a duty to provide because father refused to participate in any arrangement that would have demonstrated the efficacy of the same.

In any event, it is the parents’ case that they do not need help. They deny that the assault in the presence of P (and indeed the continuing aggression thereafter) would have had any effect on P. They deny that either of the children would be likely to be adversely affected by father’s continuing and uncontrolled aggressive behaviour. They are oblivious to the confusing and frightening effects of father’s conduct. They are unable to see that it was their own failure to co-operate within proceedings when they had access to the court to argue their case and non means and non merits tested public funding to facilitate the same that led to the removal of P. Father’s written submissions to this court continue to assert that father will not deal with social workers.

In his review of the decision of DJ Mellanby, His Honour Judge Waller correctly identified the legal principles both as respects a first appeal and the decision making process that is to be undertaken in applying the principles relating to care and placement order proceedings. In essence, the decision made in respect of P involved fact finding and welfare value judgments that cannot be criticised. The facts cannot be said to be plainly wrong and the welfare analysis was overtly right and in accordance with the significant preponderance of the evidence. Judge Waller simply had no basis as an appellate court to interfere. He then correctly identified from Judge Mellanby’s judgment the comparative welfare evaluation that was required as between a proposed adoptive placement and a placement of P back home with his parents and concluded, as had Judge Mellanby, that the benefits of the former so outweighed the detriments of the latter that it was proportionate for care and placement orders to be made.

There was no error of law made by Judge Mellanby and Judge Waller was right to dismiss the first appeal. This is not a case in which it can be argued that there was any misapprehension by either judge about what the concept of proportionality might mean and it is perhaps appropriate to remind practitioners and ‘interested McKenzie Friends’ that ‘nothing else will do’ is not a new legal test, rather it is part of the description used by the Supreme Court for the proportionality evaluation that is to be undertaken by the court. The language used must not be divorced from the phrase that qualified it, namely: “the overriding requirements pertaining to the child’s best interests” (see [77] and [215] of Re B (A Child) [2014] UKSC 33).

Parker J had the benefit of the judgments of both DJ Mellanby and HHJ Waller regarding P. As any reading of her judgment would demonstrate, she did not simply take them as read in relation to B. She came to B’s case with an open mind. She was not just sympathetic to the mother’s position, she was rigorous in underlining the right of a parent with disabilities to be supported so that they can exercise their true potential and their parental responsibilities. She gave father every credit he could have asked for in understanding his arguably innocent and protective motives for the damaging conduct that he had exhibited. It is not alleged that there is any failure in Parker J’s analysis that goes beyond that submitted in relation to the threshold and the proportionality of the outcome. Parker J had more evidence adverse to the father than had Judge Mellanby. It is hardly surprising given the short time that elapsed between the proceedings and the hardening of father’s attitude that there were no other positives identified to put into the balance. I can find no error in the determination of Parker J.

A separate issue arose during the first permission hearing that has become the second ground of appeal before this court. That relates to the independence of the psychologist. It transpires that on 4 March 2013 the local authority entered into a form of contract with the psychologist described by them as a ‘retainer’ by which the psychologist agreed to work for an agreed hourly rate and for up to 20 hours a week during 46 weeks of the year. Any work covered by the retainer was to be undertaken with a transparent letter of instruction and the psychologist was expected to act in accordance with the obligations of an expert (see for example, Family Proceedings Rules 2010 Part 25, PD25B 9.1(i)).

The arrangement enabled the local authority to rely upon independent expert advice that may have been obtained by them pre-proceedings where they needed it to supplement their own social workers and in-house advisors and which would subsequently be respected within family proceedings (in accordance with the guidance given for example in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) at [24] and [91]). The independence of the expert would enable other parties to join in the instruction if they chose to do so. We are told that the arrangement was revealed to solicitors then acting for the mother and each of the children in a circular letter. The arrangement was not specifically referred to in either of the proceedings concerning P and B.

The funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention. The perception of fairness is very important in proceedings that can involve the permanent removal of a child from a parent’s care. There is a hypothetical conflict of interest that can be implied in the financial arrangements. There is, however, no actual conflict of interest on the facts of this case nor any complaint that the psychologist did anything that could have amounted to a breach of her obligations as an independent expert. Far from it, she was not even cross examined as to any of her opinions or the work she had done. This court has been shown no material that would have warranted cross examination other than the disagreement of the parents with the expert’s ultimate conclusion. The assertion that the error in referring to her as a ‘Dr’ in the letter of instruction or the implication that she was unqualified for the task that all parties agreed is without foundation in that no valid complaint is based on the same. Accordingly, although the situation is regrettable, the manner in which the expert was selected and did her work gives rise to no issue that is capable of undermining the determinations appealed and the alleged procedural irregularity is insufficient on the facts of this case to warrant further consideration.

For these reasons I would refuse permission to appeal in respect of each application before the court.

I agree.

I also agree.