O (A Child)

LADY JUSTICE BLACK: The proceedings that I have in front of me today relate to H, who was born on 10th October 2014, so is nearly 1 year old. The father applies for permission to appeal against orders made in relation to H by His Honour Judge Tolson QC on 19th June 2015. The judge made care and placement orders.

I need to give a little bit of history. The child's mother has considerable problems. At the time of H's birth the parents were living together and they tried to bring their child up together. However, by November 2014, the month after H was born, the child was removed on an emergency placement order and she has remained in foster care ever since. The mother it seems had misused drugs and alcohol and suffers also from mental health difficulties. It seems she was violent to the father. Subsequent to the removal of H, the parents separated.

At the hearing in front of Judge Tolson the mother was not seeking the immediate return of H; what she wanted was to be assessed for further. The judge found, however, that there were no grounds for that. He found that she had been assessed and that the prognosis was pessimistic. H is in fact her second child and she is not caring for her first child either. She does not appeal against the judge's decision to rule her out as a carer for H. Failing a placement with her, she wanted H placed for adoption rather than placed with the father or his family.

The father however did wish to care for H himself. He wanted that to be in this country but failing that to be in Nigeria, from where he comes and where he has family. He came here in 2003 on a 6 month tourist visa and simply stayed on thereafter illegally. It does not appear that he is keen to return to Nigeria. The local authority have provided a letter which includes some information for this court about the current position in relation to the father. They say that they understand that he has now in fact been granted discretionary leave to remain in this country and may be working here. That, of course, would be a change since the situation before the judge. Failing being allowed to care for H himself, the father's case was that he wanted her to be cared for by his brother and wife in Nigeria.

The judge heard the case over five days and gave a relatively short extempore judgment at the end of it. The judgment must be read bearing in mind it was delivered there and then and that although the decision that the judge took would have been taken very carefully and thought out, the judgment itself will not necessarily have been as polished as it would have been had the judge reserved it. I am not therefore particularly receptive to any points which, for example, depend purely on an analysis of the particular language used by the judge. It is necessary to look at the judgment as a whole and to do so on the assumption that the judge was well aware of the test that he had to apply and the evidence that he had heard unless the contrary is demonstrated.

The judge considered the father's case starting at paragraph 12 of his judgment. He noted the positives first, namely that the father had kept up contact with H and there were records of warm interactions between himself and the child. He noted also that the father was not the perpetrator of the domestic violence in the relationship with the mother but the victim. He noted that the father was intelligent and educated. At paragraph 14, however, he explained the problems with regard to the father's case. He considered that the father's life "appears to be coming off the rails." The judge enumerated various difficulties that the father faced. He was at that time here illegally; he had no job; he had no home and he had been living rough on the streets at times; he was isolated and he had problems with cannabis misuse which had led to him losing the chance to live with the mother's parents with a view to that assisting with him looking after H.

Also listed in what seems to have been the judge's catalogue of negative features of the father's case were the following: that he had formed a relationship with the mother who was obviously a very vulnerable woman; that he had another relationship with another woman at the same time and may be the father of her child. The judge made a damning adverse finding about the father's motivation for caring for H. There were a number of features that contributed to that. Part of the picture was that the father had thrown away the chance of caring for H through the good offices of the mother's parents by using cannabis contrary to the ground rules of the placement there. Part was that the father was seeking to look after H here when his prospects would, the judge thought, be a great deal better in Nigeria. The judge took into account that his presence is precarious and that he was without a home and a job. In Nigeria, in contrast, he would have family support from his brother and his position would be better. But the judge observed that that option was nonetheless not part of the father's thinking as a desired possibility. So the judge found against that background that the father's motivation about H was his desire to remain here and that she was not his main consideration.

The judge said that it would be:

He said that conclusion was in line with all the professional thinking in the case which he accepted.

He considered and ruled out the possibility of care by the aunt and uncle in Nigeria. They had been assessed by a social worker in Nigeria, Ms Coker, who had produced two negative reports. Her first report had ended prematurely with the aunt, who is a business woman, who has her own children and who would be a necessary part of the package of care for H, deciding that she did not feel to offer H a home. She then changed her mind and a further assessment was carried out. What the judge considered to be a thorough report was produced, not recommending care by the relatives because, whilst their intentions were good, the assessor concluded that caring for H would overstretch the aunt. Both the aunt and Ms Coker gave evidence by video link to the judge. The judge found Ms Coker to be "a highly impressive and fair-minded witness" and he accepted all of her conclusions. He found himself particularly persuaded by, firstly, the aunt's initial stance which he considered was a guide to the strength of her motivation and justified Ms Coker's conclusion that there was a danger of insufficient emotional commitment over time. Secondly, that the move to Nigeria would be a big and uncertain change for H who needs a high level of nurture and attention because she has experienced disruption already and who would be required to move from a very different regime to an African regime of a wider pool of family and servants. He concluded it was not in H's best interest to make that move. He then went on to conclude that nothing else but adoption would do and therefore made the care and placement orders.

The appeal grounds focus I think upon three areas. Firstly, they focus upon the judge's treatment of the prospect of care by the uncle and aunt. It is argued that the judge was wrong to reject that possibility and a number of points are made in support of that argument. At the moment, as I explained to Mr Leong, I am diffident about the prospects of success for those arguments. It was for the judge to assess the Nigerian family option which he did having the benefit of oral evidence from the aunt and from Ms Coker. It is argued, for example, that he gave too little weight to the fact that H is half Nigerian when he assessed the option, and too much weight to the change that it would represent to her to move there and, also, that he was misguided in his evaluation of the aunt's commitment, being inconsistent and accepting that she had rethought her position and noting that she had emphasised the strength of her commitment and then finding her commitment was insufficient.

The difficulty facing an appeal on this basis is that the judge reached his assessment after seeing the witnesses and with the benefit of a report from the assessor which he found to be highly impressive. I do not at the moment see that his conclusions were contradictory and it may be an uphill task to establish that they were untenable or not open to him on the evidence. He was, for example, entitled to look at the aunt's initial position with regard to the prospect of caring for H as part of his evaluation of how things may turn out in future. It was not simply a question of looking to see whether she had enough hours in the day to spend time with H.

I note in the advocate's statement prepared by Mr Leong that the argument in relation to the aunt and uncle is perhaps made slightly more sophisticated and Mr Leong has picked up that in his oral argument today. It amounts I think to this: that if properly compared with adoption the aunt and uncle option may have had more weight and the judge should perhaps have been more open to it given that the alternative was to sever the links between the child and her natural family. Mr Leong tells me that there was argument in the course of the hearing in front of the judge about whether relatives such as the uncle and aunt should be treated in the same way as parents when it came to considering the proportionality of invading family rights by placing a child for adoption. No doubt the argument, if permission to appeal were to be granted, would focus on matters such as that in relation to the uncle and aunt.

That leads into the second basis of the proposed appeal, that is that the judge's approach to proportionality was flawed. That is based largely upon paragraph 19 of the judgment. A complaint is that the judge did not consider proportionality properly in respect of the father's position, as opposed to in relation to the mother's position upon which he concentrates in that paragraph. It is argued that he fails to carry out the analysis mandated by Re: BS or to consider the checklist in section 1(4) of the Adoption and Children Act 2002 before concluding that adoption was required.

I propose to take that proposed ground of appeal alongside grounds 4 and 6 as they are in the formal grounds of appeal. The grounds of appeal are puzzling in this respect because grounds 4 and 6 are the only grounds in the notice which really take up and argue the father's case, as opposed to the generalised position in relation to proportionality and the position of the aunt and uncle. They are, as they appear in the grounds of appeal, fairly narrowly drafted, focusing on the judge's reliance on the father's desire to remain here as a reason to rule him out as a carer for H and placing too much weight on the father's cannabis misuse.

However, the position is put rather more widely in the skeleton argument at paragraph 44, where the following appears:

I do not propose to say very much about these proposed grounds of appeal at this stage. The reason for that is that when I read these papers it seemed to me that the appropriate course to take in relation to this aspect of the appeal was to ask the judge to amplify the reasons that he had given in his judgment. It seems to me that there might be some mileage in an argument that, as things presently stand, he has not given sufficient reasons to justify his conclusion as to the father and his ruling out of the father as an option for caring for H. He may not have spelled out so far why it is that some of the criticisms that he made of the father translated into an inability to care for H. Counsel mentions, in this regard, the judge's reference to the father's relationship with the mother and also his fathering of another child during that relationship, his use of cannabis and his motivation being to remain here. All of those, says Mr Leong, needed to be further explained by the judge so that the father and other readers could understand why it was that they amounted to reasons why he would not be able to care for H. It is apparent, even from the documentation which has been provided to me, that the judge had available to him material which he did not spell out in the judgment. No doubt that material was also amplified during the course of the five day hearing. So, in these circumstances, and bearing in mind that it is a relatively short time since the hearing took place, it seems to me that it would be appropriate to ask the judge to amplify his reasoning in relation to the lack of potential for the father to care for H, before a final decision is taken as to whether there is any future for this appeal. By chance, after I had formed that view myself, a letter arrived from the local authority in which they raised the question of whether the judge had been asked for amplification or clarification.

Today, Mr Leong tells me that he did apply for permission to appeal from Judge Tolson and that the judge (I think I am right in saying) did not wish to add anything on the matter of the aunt to what he had said in the judgment. I would not be minded to say that he could not add anything, if the matter goes back before him now and he were to consider that he ought to add something on that subject, or indeed otherwise, to his judgment but the reason I am returning the matter to him with an invitation to add to his reasoning focuses upon his treatment of the father's case that he himself could be a carer for H, whether it be here or in Nigeria.

When the matter has been considered again by Judge Tolson it should come back to a judge of this court. I can discuss in a moment with Mr Leong whether that should be by means of another oral application or whether it should be on paper. I must say that my inclination at the moment is it is probably better that it should come back as an oral application. It should come back, if at all possible, to me.

I will order that the transcript of the judgment I have given this morning should be expedited so that it can be shown to Judge Tolson. I am conscious that it is necessary to get on with this case because H's future is awaiting a decision. I am not sure what Judge Tolson's position is at the moment and how quickly the papers can be got to him and he can deal with this. I would be thinking in terms of 3 weeks at the moment. But perhaps you might incorporate that the judge should feel free to contact the Court of Appeal in the event that that is an unrealistic time scale. I meant to ask you to draft the order. Also needed will be a transcript of any remarks that the judge made when dealing with the permission to appeal if they are not there.