This is an appeal brought by the mother of three young children against an order made with respect to the middle child by Mrs Recorder Posner, sitting in the Family Court at Oxford on 25^th August 2016. The three children are a boy, A, now aged seven, a girl, B, now aged four and a half, and a baby boy, C, aged eight months. The case has a very substantial history which has involved the local authority social services department maintaining a moderately high level of concern about the mother’s ability to provide effective parenting for the children from the middle of 2011 when her eldest child, A, was only two years’ old.

In short terms, concern about the mother’s parenting arose from two separate aspects of the life of this family. First of all, by the middle of 2011, it was plain that the relationship between the two parents was characterised by constant shouting and arguments and a degree of domestic violence. Secondly it became progressively more clear to the social workers that the mother, who in many ways was providing good enough or adequate care to A, had a deficit in that she was unable to provide predictable and clear boundaries for his behaviour.

A was made the subject of a child protection plan in October 2011 under the category of “emotional abuse”, relating almost entirely to the domestic situation and, as soon as she was born, B also became subject to a similar protection plan. It was concern about A’s behaviour, and the mother’s ability to control it, that led the local authority to issue the first set of care proceedings in August 2013. A was removed from home for a period of six months under interim care orders and placed in a specialist foster home.

In the three-year period of 2011 to 2014 the mother’s care of the children was supported by the following agencies: the social worker, health visitor, support staff in the housing project in which she lived and staff at the children’s centre. In addition the mother attended various parenting courses.

Following A’s rehabilitation to the mother’s care, at the conclusion of the first care proceedings, the court made supervision orders for twelve months for each child in April 2014. By this time the parents had been separated for at least eighteen months.

In mid 2014 A was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).

The supervision order expired in April 2015 and was not extended. Local Authority support for the mother however continued and, in particular, she attended a parenting programme aimed at helping parents deal with children who display challenging behaviour.

By August 2015, only four months after the supervision order had expired, the local authority concern was at such a level that the second set of care proceedings was issued. Once again A was made the subject of an interim care order and removed to a foster home where he has since remained. An interim supervision order was made with respect to B who has remained in her mother’s care throughout.

The care proceedings became protracted because the mother was pregnant with her third child, C, who was born in February 2016. C’s father is not the same as the father of A and B. Following discharge from hospital C has remained in the care of his mother living with B. Care proceedings were issued with respect to C soon after his birth.

The final hearing of the care proceedings was conducted by Recorder Posner in two stages. There was an initial two day hearing in May 2016, followed by a five day hearing in August followed by the handing down of a reserved judgment six days later.

At the start of the five day hearing in August the parents announced that they had come to accept that it was in their son A’s best interests for him to remain living with his current foster carer under a full care order. There was therefore no issue between the parties as to the outcome for A. Similarly there was common ground within the proceedings that baby C should remain in the care of his mother under the terms of a supervision order. The focus of the case, therefore, was upon the welfare and long term placement of the middle child, B.

At the conclusion of the proceedings the recorder made a full care order and endorsed the local authority’s plan for adoption. She dispensed with the consent to adoption of each of the two parents under Adoption and Children Act 2002, s 52 and made an order authorising the local authority to place B for adoption.

The adoption plan put forward by the local authority, with the encouragement of the recorder, was to a degree unusual. It was for an “open” adoption on the basis that the local authority would look for prospective adopters who could accept a degree of ongoing face to face contact between B and each of the core family members, namely, A, C, the mother and the father.

The present appeal, brought by the mother, is against that outcome. Miss Frances Judd QC, who did not appear below, leading Miss Anna Yarde, who did, essentially promotes the appeal on two separate bases. Firstly that the underlying evidence in the case simply did not justify a decision to place B for adoption. It is submitted that adoption was not proportionate to the need to protect B from the perceived deficit in the mother’s ability to care, namely in relation to the imposition of boundaries and controlling behaviour, and that therefore, in the terms of s 52, adoption was not “required” to meet B’s welfare needs.

Secondly it is submitted that the recorder’s judgment fails to engage with that central issue of proportionality and, in particular, where the recorder identifies that B is suffering and is likely to suffer significant emotional harm, the judgment fails to particularise or explain what that harm is and/or give sufficient analysis of why that harm is so serious that only permanent removal from the mother’s care “will do”.

The recorder imposed a stay on the implementation of her order for a period of 24 hours to allow an application to be made to this court. That application, supported by an impressive skeleton argument prepared in a very short time by Miss Yarde, persuaded Lady Justice Black to extend the stay on 26^th August and subsequently persuaded me to grant permission to appeal on 2^nd September. We are grateful to all parties and to the court who have prioritised the need to achieve an early hearing of this appeal in the circumstances where B continues to reside in the mother’s care pending its determination.

Evidence in support of the local authority’s case with respect to significant emotional harm came firstly from the social worker, who, importantly, had held the case continuously since 2012, secondly from the Children’s Guardian, who had had the benefit of acting as Guardian for the children in the 2013 proceedings and thirdly from Dr Bryn Williams, a chartered clinical psychologist, who had been jointly instructed to provide expert opinion within the 2015/16 proceedings. In order to make sense of the issues on the appeal it is necessary to set out short passages from that evidence as illustrations of the case that was being put. In doing so it is right to underline the fact that in the period prior to his removal in September 2015, A was a member of the household and, as well as coping with the task of bringing up B, the mother was having to cope with A’s obviously challenging behaviour which must, at least in part, have resulted from his ADHD.

The initial social work statement in support of the 2015 application records concern at the mother’s lack of consistent boundaries with respect to B whose behaviour was said to have deteriorated so that she was regularly seen as being defiant towards her mother and, to a degree, copying her older brother’s negative behaviour. The social work statement gives specific examples. At that stage, however, the social worker wished to assess the mother’s ability to care for B in the new circumstances that existed following A’s removal to foster care.

In a parenting assessment dated 23^rd November 2015, no fewer than eight specific examples are given of occasions during a five week period in October and November when B, who was then aged three and a half years, exhibited worrying behaviour including, on at least five of those occasions, failing to respond to her mother’s instructions and moving around car parks in an uncontrolled way and, once, running across a road causing an oncoming car to brake suddenly.

In another context the social worker reported hearing B saying, on three occasions, “you’re sexy” and on one occasion “boobies”.

As part of the conclusions to the parenting assessment the following appears:

Later, in a witness statement dated 10^th December, the social worker, who knows these children well, described B’s behaviour as extremely challenging to the extent that B screams and shouts loudly if upset or annoyed and also displays physical behaviour towards her mother. Later in the same statement in the social worker observes that:

Turning to the Children’s Guardian, in a report of January 2016 she wrote:

In her conclusions the Guardian acknowledged the difficult and disruptive impact upon B of being removed from her mother’s care at the age of four years. She also acknowledged that “the local authority has made every effort, as indeed it should, to keep this family unit together”. However, her clear conclusion was that both A and B would be likely to suffer further significant emotional harm “which could seriously damage their well-being and long-term life chances” if they remained in their mother’s care.

In a later report, dated May 2016, the Guardian recorded the following professional observation which is particularly of note as, by that time, A had been living away from the family home, leaving B in the mother’s care, for over eight months:

In her May report the Guardian re-stated her conclusion, after taking account of additional evidence that had been filed. Her professional opinion remained that both A and B “would be likely to suffer further significant emotional harm, which could seriously damage their well being and long term life chances” if they remained in their mother’s care.

From a psychological perspective, Dr Williams concurred with the professional view of the social worker and the Children’s Guardian. He observed behaviour as between the mother and A and B which was of similar character to that reported by the social worker and the Guardian. He regarded the “relationship and attachment behaviours” exhibited between the mother and A and B as being “obviously problematic”. In his main report he advised at paragraph 3.43:

Having reviewed the history of the case, Dr Williams concluded that the mother had “consistently failed to change her behaviour in order to provide an adequate parenting experience” and that she was “unable to place the psychological needs of her children above her own when she becomes overwhelmed or stressed” with the result that “this leads her children having to battle for themselves”. He advised that it was highly probable the mother would need “an infinite level of support in order to provide an adequate home environment.” In his opinion B was “at risk of long term adjustment difficulties”.

Within his final report, at paragraph 3.21, Dr Williams advised as to the option of leaving the children in their mother’s care:

In the course of his oral submissions on behalf of the local authority Mr John Vater QC, who did not appear below, leading Miss Alison Williams, who did, submits that the evidence of the social worker, Children’s Guardian and psychologist expressed a unanimous and “overwhelming” level of professional opinion from experienced experts to the effect that B was suffering and was likely to suffer significant emotional harm as a result of the care given to her by her mother to the extent that she was at risk of sustaining lifelong damaging consequences as a result.

Having summarised the local authority case on significant harm it is necessary to refer to the “agreed threshold” document submitted to the recorder by the parties which purported to describe the basis on which the threshold criteria in Children Act l989, s 31 was satisfied in this case.

Although, in short terms in two short paragraphs the document records the mother accepting the basis of the local authority case to the extent that “historically” the children had been exposed to inconsistent emotional responses and that she had difficulty implementing consistent boundaries and that they had been exposed to incidents of domestic abuse, there is no acceptance on behalf of the mother that either A or B were suffering or were likely to suffer significant emotional harm at the time that the proceedings were commenced in August 2015. The relevant paragraph reads:

It is necessary to make two short points about that document:

The schedule does not reflect the factual background upon which the local authority relied, nor does it reflect the unanimous professional opinion as to very significant emotional harm (sufficient to justify adoption) upon which authority relied;

At no stage within the document does the mother actually concede that the children were suffering, or were likely to suffer, significant harm as is required by CA l989 s 31.

In any case of this nature it is often important to understand whether or not the parent whose parenting is identified as requiring some form of change accepts that there is indeed a deficit that needs to be addressed if their children are not to continue to suffer significant harm. On the basis of the document, the mother’s concessions appear to fall well short of the need for change identified in the professional and expert material to which I have referred.

The recorder’s judgment, which adopts a clear structure, includes a summary of the background, including the previous proceedings, and the passage of events following the issue of the present proceedings, including the birth of C. Thereafter, having noted the agreed threshold document, the recorder sets out, under a heading of “The Evidence” a short paragraph simply referring to the large volume of material that the court has read and listing the names of the witnesses who gave oral evidence. The judgment then includes three paragraphs which set out the court’s overall assessment of those witnesses. Nothing turns on that passage in the context of this appeal.

After a further section dealing with “The Law”, which all agree contains an accurate summary of the approach to be taken, the judgment then includes a lengthy section analysing relevant issues within the case within the context of the welfare checklists in CA l989, s 1(3) and ACA 2002 s 1(4). Within the section dealing with B’s needs, some short reference is made to the factual evidence as to the mother’s ability to control B, and to Dr Williams’ opinion that A and B have experienced “developmental trauma” and need “reparative parenting”. The judgment moves on to note the “enormous” effect on B throughout her life if she ceases to be a member of her birth family and becomes an adopted person (ACA 2002 s 1(4)(c)).

Under a heading in relation to “The harm which B has suffered or is at risk of suffering” the following appears [at paragraph 56 of the judgment]:

The recorder then lists a range of positives and then negatives as to the mother’s ability to meet B’s needs. Prominent in the list of negatives is the mother’s inability, despite help and support over the years, to impose and maintain consistent boundaries.

Thereafter the recorder looks at the various options. All save two are either discarded as being unrealistic or relate to the father and therefore are of no relevance to this appeal. The court’s final choice was identified as being between continuing B’s placement in the home of her mother or adoption. A complicating factor in the case was (as I have indicated) that it was agreed by all to be in C’s best interests to remain in the mother’s care, notwithstanding what was said about her inability to offer predictable and adequate parental control. The recorder dealt with this at paragraph 70:

The recorder then, over the course of some five paragraphs, summarises particular aspects of the evidence on these issues, but it is right to note that these relate to specific, quite narrow, points in the case, and do not include any overall description or analysis of the emotional harm to B, its scale or its potential consequences for her. The recorder’s conclusion is then delivered in one short paragraph (paragraph 76):

As I have already recorded, it was accepted that any prospective adoptive placement for B should be able to accommodate some face to face contact between B, her two siblings and each of her parents even after adoption. On the basis that she had been reassured that the local authority’s care plans would be put into effect in that regard, the recorder declined to spell out those contact arrangements in a formal contact order under ACA 2002, s 26.

As I have indicated, the mother’s appeal is put forward on two broad bases. Firstly that the underlying evidence did not justify orders to remove B from her mother’s care and move her on towards adoption. Secondly, and in any event, it is submitted that the recorder’s judgment failed to particularise or explain the significant emotional harm upon which the court based its decision and, in the absence of any sufficient analysis, failed to explain why that harm was so serious as to justify the permanent removal of this young child from her mother and family. Allied to those submissions is a further point that the yardstick by which the mother’s parenting was assessed was set too high and was well above the standard of simply “good enough parenting” which, it is accepted, applies in this context.

With regard to the first broad ground, namely evidence and proportionality, Miss Judd took the court to a number of extracts in the oral evidence of Dr Williams. These were, at least in part, discursive and non-specific and supported a submission that the witness failed to identify with any particularity the significant emotional harm asserted by the local authority and, it follows, failed to explain why that harm was of sufficient concern to justify permanent removal of B from her mother’s care.

Miss Judd did not, however, take the court to the social worker’s statements, the parenting assessment, the Children’s Guardian’s reports or Dr Williams’ expert reports.

In support of the second basis of appeal, namely the attack on the judgment for failing for particularise and engage with the asserted harm, Miss Judd was able to make a number of substantial points.

Firstly it is the case that the judgment lacks any description of the content of the evidence that the court had heard, other than some short references to it which appear in particular parts of the welfare checklist section.

Secondly, in the context of “harm” a number of points were made. The statement that “this is dealt with in the agreed threshold” document is not, Miss Judd submits, an acceptable analysis where, as I have indicated, that document does not indicate an acceptance that any emotional harm was “significant”.

Under the heading “harm” at paragraph 56 of the judgment [see paragraph 37 above] Miss Judd also points to item (c) where the recorder expresses an apparent conclusion that B’s emotional needs are not being fully met on a daily basis and that she remains at risk of suffering further significant emotional harm, yet the recorder has not explained the evidence upon which she relied in coming to that finding or the impact on the child and her future development that the finding represents to the recorder as part of her analysis. Items (d), relating to the father and (e), relating to adoption, are not relevant to the assessment of harm with respect to the mother’s care of B. It follows, submits Miss Judd, that the three short subparagraphs under this heading, which represent the recorder’s findings on “harm”, are a wholly inadequate analysis in a complicated case, where there are many positives to be recorded with respect to the mother and where all involved regarded the decision as being “difficult”.

Finally, in this regard, Miss Judd focuses on the recorder’s conclusion expressed at paragraph 76 (set out at paragraph 40 above). Miss Judd submits that paragraph 76 indicates that the case was decided on the single point of emotional harm, divorced of a comprehensive evaluation of the positives and negatives in relation to B with respect to other aspects of her life and her future and that the recorder’s analysis is therefore one that falls short of the overall balancing exercise that these difficult cases require.

A and B’s father supports the mother’s stance on appeal. A skeleton argument has been filed on his behalf to that effect but, rightly, his legal team did not attend to make any freestanding oral submissions on his behalf.

On behalf of the local authority Mr Vater took the court to the documentary evidence emanating from the social worker and the Children’s Guardian which contains their detailed professional analysis on the issue of emotional harm. I have already referred in detail to some of the material to which we were taken.

There is no transcript of the oral evidence of the social worker and Children’s Guardian but the court was told that, despite full and careful cross examination, their professional opinion remained as it had been expressed on paper.

There was no conflict between the professional and expert opinion of the social worker, Children’s Guardian and Dr Williams. In those circumstances, Mr Vater submitted that the recorder was bound to accept that evidence, and clearly did. It was, in effect, taken as read and the omission of any detailed recital of it within the recorder’s judgment is to be understood and accepted on that basis.

Mr Vater accepted that if paragraph 76 of the judgment was to be seen on its own then the conclusion in the second sentence does not necessarily follow from the premise that is stated in the first. But, he argued, paragraph 76 only appears after the recorder has undertaken a relatively full analysis of all of the competing factors in the case. She had correctly advised herself of the necessary legal standard and had noted on a number of occasions the positives with respect to the mother and the commitment to supporting the mother’s care of the children that had been demonstrated by the social services over a period measured in years. She recorded that the impact upon B of moving towards adoption would be “enormous” and she understood that adoption should only be chosen if it was the last resort in terms of meeting the child’s needs. Although, as Mr Vater accepts, there is no discrete paragraph in the judgment where the recorder asks herself whether the deficits in the mother’s care, and their impact upon B, are so bad as to make it necessary for the child to move towards adoption, he argues that the recorder must have undertaken that exercise and that she was bound to answer it in the way that she did given the clear, strong and unanimous expert and professional evidence before the court. He submits that the judgment should be read as a whole and argues that, against the evidential background, to which he had taken this court, adoption was, sadly, the only viable option for this young child’s future.

In terms of the first primary submission made on behalf of the mother, I am afraid I regard the professional evidence from the social worker and the Children’s Guardian to be a complete answer to the mother’s case on appeal. These two professionals, who had known the family in different capacities over a period of years, and against whom no criticism was raised, set out in substantial detail over the course, each of them, of a number of statements or reports, their detailed observations and analysis which presents a consistent and compelling picture of the deficit in this mother’s ability to provide adequate parenting and its impact upon B. That evidence is supported in full by the professional opinion of Dr Williams who in turn has identified the psychological consequences for B as a result of the parenting that she has experienced. B has learned not to have any trust in or respect for her mother as a parental figure. She has not learned the need for establishing restraint and internal boundaries in her own mind to the extent that she now needs to be cared for in a particular way designed to repair the harm that has been done.

I do not accept Miss Judd’s submission that a child failing to follow boundaries set by a parent is part of the ordinary stuff of parental experience or, as she put it, a common or garden matter. Whilst it is indeed the case that every parent at some time or other may fail in this regard, the present case is totally outside the norm in that, most sadly, this mother as a parent largely lacks the ability to be in tune with her children’s needs from day to day or minute to minute to the extent that she wholly fails, across the board, to establish a safe structure to regulate their behaviour.

It is the professional and expert evidence that the emotional harm suffered by B is significant. Every reasonable effort has been put in to provide support, instruction and advice to the mother in the hope that she may be able to adapt her parenting to redress the deficit that has been identified but this has not achieved a significant or sustained change.

Miss Judd was right to take the court to the well-known authorities on proportionality and the need for a court only to authorise adoption for a child where that is rendered necessary by the overriding requirements of the child’s welfare. But I am entirely satisfied that that was the very approach taken by the recorder and that the professional and expert evidence, sadly, established that B’s welfare required that she should be placed for adoption, rather than in her mother’s care, notwithstanding the benefits of remaining in the family and notwithstanding the negatives that must be contemplated alongside the positives that a successful adoption may bring.

In relation to the second broad basis of the appeal, Miss Judd was justified in making some criticism of the structure and content of the recorder’s judgment. Superficially these criticisms supported her overall case which was that the recorder had failed to demonstrate what, to the necessary degree of detail, she had found in terms of harm and why that harm was such that only the option of adoption was justified.

The judgment would certainly have benefited from a passage which referred to the factual background which the professional witnesses had relied upon. It would also have benefited from a description of the professional evidence, again in short outline.

In addition, I agree that the recorder’s description of ‘harm’ in paragraph 56 is less than adequate. In so far as it is said at (a) that ‘this is dealt with in the agreed threshold’, a reading of the threshold document, which does not contain any concession as to significant harm, and fails to record the true case established by the unanimous professional/expert evidence, indicates that that document wholly fails to meet the need for which it is intended. Secondly, where, at (c), the recorder states that if B remains with her mother her emotional needs are not being fully met and she remains at risk of suffering significant emotional harm, that is a very important finding, yet it is simply stated without any account of the evidence that lies behind it or of the judicial analysis with which it is underpinned.

However, this was not a case in which there was any evidential challenge to that strong body of unanimous professional and expert evidence. There were no issues, other than the mother’s lack of acceptance of it, relating to the content of that evidence. It must be plain that the recorder accepted the evidence and effectively took it as read when compiling her judgment. As I have already indicated, on the basis of that evidence, sadly from the mother’s perspective, adoption was the only and proportionate outcome. I therefore do not consider that the recorder’s failure to set out those matters in her judgment in express terms amounts to an error sufficient to justify allowing this appeal. Moreover, I am fully satisfied that the failure to set matters out as plainly as might have been the case, does not indicate that the recorder failed to undertake the analysis that the law required of her.

Finally, although, as Mr Vater concedes, a reading of paragraph 76 on its own might give cause for concern that the judge had fallen into error, it is plainly right that the judgment should be read as a whole and that it should be read in the context of this case, where all of the evidence was of one voice, against the background of that evidence. On that basis, I am persuaded that the recorder was not in error. Sadly, on the strong and unanimous professional and expert evidence, which was plainly accepted by the court, there was only one possible outcome in this case in terms of welfare and proportionality and that was the outcome determined by Recorder Posner.

For the reasons that I have given, I would dismiss this appeal.

I agree