A (A Child), Re

LORD JUSTICE McFARLANE: This is an appeal brought by a Local Authority against a determination made by Keehan J in the course of ongoing care proceedings.

The proceedings relate to a young girl, F, born on 2 October 2013 and therefore now just over 1 year of age. F did not have a favourable start in life, being born to two parents, both in their early 30s who are both habitually addicted to hard drugs. She, from the time of her birth, lived for a period with her mother, but was eventually received into foster care and the subject of proceedings.

However, at an early stage of her life, on 16 January 2014, she was removed from the home in which she was living, which was the home of the maternal grandparents, and taken abroad by her parents. They went to Spain. Proceedings were issued in the High Court in order to trace her and achieve her return to this jurisdiction.

Within those proceedings, the maternal grandparents were called to give evidence and to give an account of what they knew about the child's removal, their involvement in that process and more particularly, obviously, what they might know about where she then was and how she might be returned to this jurisdiction.

In the course of a hearing on 31 January 2014, Keehan J, who I think has been the judge with the conduct of this case throughout, heard oral evidence from the grandparents and, in particular, from the maternal grandfather. He formed a strikingly adverse view of the grandfather's honesty in relation to the matters that were being described.

The judgment of the judge is available to this court and we have read it. It is a sufficient summary to say that the judge found the grandfather to be evasive and defensive in his answers. The judge simply did not believe him on many of the significant points. He concluded that the grandfather was lying to the court in order to protect his daughter and to prevent the whereabouts of the mother, father and baby being identified so that his grandchild could be returned to this jurisdiction. He therefore found the grandfather to be in contempt of court and passed a sentence of two weeks' imprisonment upon him.

I mention that early episode in the proceedings in some detail at this early stage of my judgment because, in the event, the issue before the judge at the final hearing of the welfare aspect of this case was whether young F should be placed in the care of the maternal grandparents, notwithstanding the part that the judge had found that they had played in the subterfuge that led to the child's removal and their refusal to engage honestly in the attempts to trace her.

But I have described the end of the story without describing some of the significant steps on the way. Although the issue at the end of the day was a choice between the grandparents and adoption, the options before the court were not set up in that way, even at the start of the welfare stage of the process.

It will assist if I explain that the order made by the judge at the conclusion of the welfare stage, in the course of a short ex tempore judgment given on 10 October 2014, was to dismiss the applications made by the Local Authority for a care order and for an order authorising them to place young F for adoption and instead to sanction F going to live with the maternal grandparents under the umbrella of the court's wardship jurisdiction with a 12 month supervision order to the Local Authority.

In turn, that structure was augmented by various injunctions placed upon the ability of the parents to have any contact, other than that which was sanctioned by the court, to F and particularly, a requirement for the parents' passports to be retained by the tipstaff for the period of some 12 months until the first planned review in the wardship proceedings in October 2015.

It is against those orders, in particular the dismissal of the care order and the placement for adoption order, that the Local Authority sought permission to appeal, which I granted at an earlier stage.

I will deal with the procedural history hopefully in fairly short terms. Because of the bleak circumstances of the parents, and despite a full assessment, the prospect of the parents being seen as safe or even adequate carers either separately or together for their child was not a realistic one and was not being actively considered by the mid stages of the welfare process.

What was being considered was placement with an uncle and his wife who were putting themselves forward as carers. The welfare hearing started on 18 August and, at that stage, the plan was to support a special guardianship order to that couple.

However, events moved on. Tragically, the most significant event in those days in the summer of last year was that on the evening of 20 August, the father's brother was fatally stabbed in a street attack and died some few hours later. Either because of that or because of further information that they had received during the course of the process of the hearing, the aunt and uncle withdrew their proposal to care for F some six days later on 26 August.

There was therefore a need for those planning for F's future care to retire, regroup and reconsider their proposals. It was at that stage that the Local Authority developed their plan for F to be placed for adoption rather than with any other member of the family.

The maternal grandparents had always put themselves forward, as I understand it, as a second line of family placement if the aunt and uncle or the parents were not acceptable. They had already been the subject of a detailed and full assessment by an independent social worker, Miss B, which was positive and was recommending them as a safe and good placement for F.

However, during the early stages of the hearing and before the aunt and uncle withdrew, Miss B came to give her evidence. She was given information about the maternal grandparents and what they had said and, more particularly, what had been said to them in previous contacts with the social workers which led her to conclude that they had not been straightforward with her in describing what they did or did not know at any one time about their daughter and their daughter's husband's drug use.

As a result, the judge records that Miss B altered her recommendation to the court orally at the hearing and indicated that she could no longer support a placement of F with the grandparents.

It is not necessary to explain anything further about the build up to the hearing or the structure of the hearings themselves. It plainly was not a straightforward exercise for any of those involved in this extended welfare hearing.

The hearing did not finish within the time slot available in August, partly no doubt because of the awful event around the death of the father's brother. It was necessary for the judge to come back for two days in September to conclude the oral evidence and then, on 10 October, to hear further submissions before giving the brief ex tempore judgment of which we have a transcript.

Whilst that judgment announces the judge's determination on the key issue of where F should live and whilst he announces his conclusions as to the threshold criteria, he was obviously aware that it was not a full judgment. He offered to provide a full reasoned judgment at a later stage if any party wished the court to take that step. The Local Authority understandably and quite reasonably did invite the judge to give a reasoned judgment. Therefore, on 18 November 2014, he handed down a perfected judgment.

Doing the best I can, it seems to me that there is nothing in that full judgment that was not already in the 10 October judgment. The judge has finessed or changed one or two words, as is inevitably the case in correcting an ex tempore judgment, the handed down version of 18 November is however a much more substantial document and does explain, particularly in terms of findings of fact and basic reasoning, the judge's approach.

What is the appeal about? Well, it really falls to be considered in two quite distinct aspects. I will deal with the first aspect which relates to the order about passports before turning to the more substantial thrust of the Local Authority's appeal, which is to attack the judge's conclusion on welfare, which was to favour the maternal grandparents.

The order that is in place following the hearing on 18 November is, as I have indicated, for the passports and travel documents of each of the two parents to be held by the tipstaff initially for a period up to October 2015.

The Local Authority's initial concern about that, which was manifested in the notice of appeal which was filed after the judge's first judgment, was to apprehend that the judge had in mind a far more exorbitant order. The judge had indicated in that first judgment that he was considering imposing “a passport order”, as these injunctive orders relating to travel documents are traditionally called, for "at least" the entirety of F's minority, therefore, a period then of some 17 years.

The Local Authority understandably questioned the jurisdiction that the court would have to make such an order and also questioned the proportionality of that order. In the event, the order now made is of a much more modest scope, covering just 12 months.

The submissions now made on behalf of the Local Authority do not suggest that the court lacked jurisdiction to make a passport order at all in this case. This is not a case, because the wardship jurisdiction has now been invoked, where the proceedings can be said to have come to a complete end. On the contrary, they are live. They are before the court. F is a ward of court and the case is simply adjourned for review to a date in October 2015.

The submission made by Miss Kate Branigan QC, who did not appear before the judge at first instance but who appears before this court on behalf of the Local Authority, is one of proportionality. She points to the fact that this is no longer an emergency situation designed to hold the parents of a child, as it may be, in a “stay put” location whilst the court begins to grapple with proceedings, as would typically be the case in a child abduction case. Nor is it a case where the orders can be seen to be used as a means of enforcement.

She does, despite the short period covered by the order, raise arguments of proportionality with respect to the embargo on the parents' ability to travel anywhere outside this jurisdiction and the consequent restriction on the freedom of movement that that represents.

To my mind, the Local Authority face difficulties in mounting that submission now in the light of the order that exists. Foremost of the difficulties faced is the fact that both parents consent to the order. They are not the appellants seeking to challenge the passport order. It is the Local Authority who seek to do so. The parents would, as I understand it, voluntarily maintain their passports in some form of secure regime in order to meet the need that the judge identifies.

Secondly and more generally, in wardship proceedings it is not uncommon for the court to limit the ability of one parent or party or another to leave the jurisdiction where there are concerns about the future abduction of a child. This, because of the history to which I have referred, is just such a case.

The period of 12 months that is to follow the judge's order, if this appeal it dismissed, is a crucial time in which F will move to live with the grandparents and settle there. Hopefully, the parents will settle to that arrangement and accept the reality that this is the arrangement for their child. All of this is unknown. It is against a background where both of the parents at the time of the hearing before the judge were indicating a lack of acceptance, certainly in the run up to the hearing, of placement with the maternal grandparents.

Without labouring the point, it seems to me that it is not possible to argue that this passport order is in any way disproportionate to the need to protect the child at this stage. It is proportionate to do what can be done through that means to limit or eradicate the potential for the parents to leave the jurisdiction with their child, as they did in the early part of 2014.

Moving to the more general grounds of appeal that are raised against the judge's judgment, they are, although they run to some five separate grounds, in essence a criticism of the risk assessment undertaken by the judge and a submission that the conclusion to which he came simply was not open to him and was therefore "wrong" on the evidence, had he conducted the risk assessment in the appropriate way.

It is therefore necessary for me to spend a short time now highlighting those matters of the judge's reserved judgment which turn on this aspect.

I should, however, record, because I have left it hanging in the air, as it were, that because of the efforts to trace F that were made, her location was swiftly identified as being in Spain. She was returned to this jurisdiction on 27 February 2014. Both parents pleaded guilty two months later before the Crown Court for offences of abduction and they each received suspended prison sentences. On her return, F was placed in foster care.

By the time judge came to evaluate the options, they were, as I have indicated, at the end of the hearing, namely a choice between the grandparents and adoption. The Local Authority plainly favoured adoption. That stance was supported by the children's guardian. The placement with the grandparents was obviously advocated for by them. At the end of the day by the end of the proceedings, the parents were acquiescing, as I understand it, and were certainly against the local authority’s plan for placement for adoption.

The judge in his judgment rehearses the factual background and largely finds the negative aspects of the parents' lifestyle and parenting to be proved and in particular in the context of this case, the unpredictable aspect of the father's personality which rendered him an ongoing risk of someone who might simply take the law into his own hands and act as he thought was right with the potential, therefore, for that to impact very adversely upon his daughter, F.

So far as the grandparents are concerned, the judge, who I remind myself had formed a particularly negative view of the grandfather in January, conversely expresses a far more positive description of them in his judgment. He by then had heard them give evidence not only in the course of the contempt proceedings in January, but on two further occasions during the August/September hearings, one in relation to fact finding and one in relation to welfare.

At paragraphs 18 and 19, the judge says this about the grandparents:

The observations in the latter part of paragraph 19 echo what was said to the independent social worker by the grandfather and by the grandmother, indicating that they did indeed regard their actions in January 2014 as being a grave mistake.

The judge then goes on to look at other evidence and in particular that of the independent social worker, Miss B. He records her change of recommendation as I have indicated, but he also records the positives that she had found in the course of her thorough and full assessment of the grandparents.

He draws matters together with regard to Miss B in paragraph 25 in these terms:

The judge disagrees with the conclusion of Miss B, or disagrees that what she had learned when she came to court about the grandparents' previous knowledge should effect her conclusion by reference to paragraph 38 of his judgment.

At paragraph 38, he says this:

Paragraph 38 to my eyes is an important paragraph when trying to discern the judge's reasoning. He describes the "immensely difficult journey" that the grandparents had undertaken. He was in a particularly good position to comment upon that and understand the importance of it and impact of it upon their ability to be safe parents for F. He had been the judge throughout. He had been the judge who was so critical of them in January. So for him, at the end of this process running over many days, to come to that more favourable view is one which is something to which the court should pay substantial respect.

The judge was critical of the Local Authority's approach to care planning, considering that it fell foul of the requirement for an holistic assessment. Instead he found that it was "a wholly linear approach," but he was nevertheless impressed by the social worker when she came to give her oral evidence.

The judge summarises the guardian's input and in particular quotes in detail the guardian's conclusion. In his second addendum report of September 2014, the guardian had undertaken a correctly structured exercise looking at the pros and cons of placement with the grandparents and placement for adoption. He had come down in favour of adoption because he could not rely upon the grandparents, in his assessment of them, to contact the police or the social workers in the event that they became aware of or worried about the potential for the parents to seek to remove F from the grandparental care or in some other way seek to undermine the placement.

The judge draws matters together so far as professional evidence is concerned at paragraph 31 in these terms:

There the judge is plainly critical of the risk assessment undertaken by each of the professionals. It is right to point out that in the course of the appeal, necessarily, the Local Authority have in turn to be critical of the judge's risk assessment and it is that to which I now turn.

The judge, for the reasons that I have described, had formed a favourable view of the grandparents. He went on in the welfare section of his analysis to say this:

First of all, he crystallises the risk that had to be contemplated if F was to be placed with the family. He does that at paragraph 42 in these terms:

Miss Branigan on behalf of the Local Authority and Miss Easton on behalf (today before us) of the children's guardian accept that at paragraph 42 the judge accurately and comprehensively summarises the risk. The criticism they therefore have of the judge's final conclusion is that, when balancing the factors in the case, he did not bring forward the terms of paragraph 42 into the final balancing analysis.

That final analysis is in short terms. It is at paragraphs 48,49 and 50. Paragraph 48 says this:

Paragraphs 49 and 50 are as follows, under the heading "Conclusion":

In short terms, but very forcefully and effectively, Miss Branigan says the bridge that should exist between paragraph 42 and paragraphs 48 to 50 simply does not exist. The missing link, or the missing span in the bridge, to stretch the metaphor perhaps too far, is that in paragraph 42 the judge expressly contemplates, top of the list, the risk of another abduction of F by the parents, whereas in paragraphs 48 and 50 the judge is more modestly contemplating a placement "breakdown". I understand that submission.

More particularly, Miss Branigan submits that a reader of the judgment simply does not know the thought process that the judge has gone through to get to his conclusions. It is not plain how the judge contemplated that these grandparents, who had hitherto been found to be wanting in terms of their ability to work honestly with professionals, could be now trusted and what it was about them that led the judge to form a more favourable view of them than the professionals had done.

There is also criticism in the skeleton argument of the Local Authority that the judge failed to give reasons for departing from the unanimous professional and expert opinion that he had. That ground is not pursued orally with any vigour before us today by Miss Branigan. In my view, she is right to take that course because from the passages that I have already drawn attention to, the judge in my view does confront the professional evidence and explain why he comes to a different view from those witnesses who otherwise would have the professional respect of the court.

So the appeal on this point is on really very short but important terms. The whole case turns on whether these grandparents are safe enough in terms of their custodianship of F. It is not a case at all about their ability to provide a very good home for her in every other way.

There is also criticism as to the choice of words adopted by the judge where he in terms at paragraph 43, which I think I have quoted, in the concluding part of paragraph 43 states that:

That word "chance" surfaces again in the concluding sentence at paragraph 49 to which I have already made reference where the judge says this:

Miss Branigan submits that that is just not good enough when dealing with the welfare and well-being of a child when the stakes are as high as they are in a case where child abduction, which might involve abduction in the future to a non-Hague country, is realistically to be contemplated.

Miss Easton in the course of her helpful submissions on behalf of the guardian supports the appeal and draws attention to the thorough way that the guardian undertook his assessment in this case.

Both those counsel for the guardian and for the Local Authority really submit that the case was not ready for the judge to press the button and give the green light to a placement with the grandparents at this stage. If he was contemplating that course, then a further period of assessment -- Miss Branigan says it would be a forensic risk assessment -- with the grandparents to sit down and go through just what they would or would not do to protect the child from future abduction, and that that step should have been taken by the judge rather than making a final order.

Alongside the submissions that we have heard, it is right to record that the lives of this family have moved on in a significant way since the hearing before the judge.

The mother, at the last day of the hearing when the judgment was handed down, confirmed that she was pregnant. She has now given birth to another daughter, again born to herself and the father, on 16 January, less than two weeks or so ago. That child is now the subject of an emergency protection order and was placed in foster care on 19 January. The future conduct of her proceedings are to be considered by Keehan J, as it happens, tomorrow sitting in Leicester.

Whilst it is obviously right that this court has been given information about the birth of this new child, A, when hearing this appeal, to my mind it does not alter the task that we have to undertake, which is to audit and evaluate the judge's judgment in November in the light of the information that was before him. No party argues to the contrary.

The appeal is opposed principally by the grandparents. They are supported by each of the two parents.

Mr Howling in the course of a very helpful skeleton argument indicates that, despite the brevity of the judgment and the tight use of words chosen by the judge in his reserved judgment, this was a judge who was alive to the issues in the case, all of them, particularly the big one, abduction, and it is simply not possible to say that in some way he conducted a flawed risk assessment.

He also submits that the professional evidence was not all one way. It was not all against the placement. He submits that the impact of the independent social worker's evidence was much more nuanced than that and that the judge pointed out the nuances in the course of his judgment in the passages to which I have drawn attention.

I granted permission to appeal because I, like the Local Authority, was concerned that the judge may have failed to undertake a full and balanced risk assessment. My eyes were drawn to the words "chance" and their use in the judgment that I have highlighted and also drawn to the word "breakdown" in paragraph 50 whereas one of the substantial risks in the case, if not the most significant, was not just of "breakdown," but of "abduction".

But, having now had the benefit of being taken through the judgment in detail by counsel before us today, I am satisfied that the judge was fully appraised of the risks in the case. If there is criticism of him, it is that the judgment is unduly brief in terms of describing his analysis on this occasion and that his choice of words, in particular "breakdown", is unfortunate in the way that that word was deployed in the two paragraphs to which I have drawn attention.

It being accepted that paragraph 42 of the judgment correctly encapsulates the issues in the case, having as it does child abduction at the top of the list, it is to my mind simply fanciful to contemplate that the judge not referring expressly to that issue some four or five paragraphs later in his conclusion had somehow forgotten about it or failed to give it weight.

To a large extent, the risk of abduction was what the case was about. In all other respects, the grandparents were very good carers. They came through the assessment not by limping over the threshold of the independent social worker's appraisal, they came through it with flying colours. The reason for any doubt about them was their ability to protect F from intrusions, gross or otherwise, by the unpredictable, drug-driven actions of the parents.

The judge had only one decision to make and he made it in favour of the grandparents, having conducted the risk assessment that he must have undertaken. The fact that he was short in describing it cannot be a reason in my view for this court now stepping into the case, holding that he was "wrong" and setting aside his judgment.

So, for my part, I would dismiss the appeal.

That outcome leaves the structure of the judge's orders intact, wardship with the injunctions with the supervision orders.

But, of course, some months have now gone by. The date for the return of the child is no longer a live one. That was a date in October. There is a need now for there to be some cooperative planning between the parties to draw up a plan by which F can move at a rapid rate to take up her home with the maternal grandparents, but with them being offered the support that Mr Howling says that they will accept in terms of advice and any other input to ensure that they are as prepared as possible for all that may lay before them.

It is fortuitous that the very same parties will be before the very same judge tomorrow. I would hope that this court having made the decision that, if my Lords agree with me, we make today to dismiss the appeal, the practicalities of how the order will be implemented can be agreed or, if not, determined by the judge at court tomorrow.

LORD JUSTICE McCOMBE: I do agree and have nothing to add.

LORD JUSTICE ELIAS: I also agree.