P (A Child)

This is the judgment of the Court to which all of us have contributed. Following the hearing, we notified the parties of our decision which was to dismiss the appeal with reasons to follow. This judgment sets out our reasoning.

This appeal concerns P, an infant girl born on 5 May 2014. By Notice of Appeal filed on 28 September 2015, P’s mother (“the mother”) appeals against the making of a care order and placement order by His Honour Judge Ansell on 13 March 2015, following a contested hearing at the Central Family Court. Permission to Appeal and an extension of time for appealing were granted by McFarlane LJ on 16 October 2015. On 13 November the Local Authority lodged a Respondent’s Notice; although this was out of time, we gave leave at the appeal hearing for this to be filed.

In focus in this appeal is a judgment which gives every appearance of being prepared under pressure of time, in a busy court, following directly from submissions at the conclusion of a five-day contested hearing. The result is, as all parties in this appeal have acknowledged to a greater or lesser extent, not altogether satisfactory – a matter of concern to us given that we have concluded that the judge was right for the additional reasons we shall describe; the outcome could not be more momentous for this mother and this child. The appeal represents an example of an all too common occurrence, namely the difficulty of finding time in a busy list adequately to explain a decision based on a series of multi factorial elements.  The inevitable temptation for a judge who is seeking to be compassionate and also not to interfere with the other business of the court, is to try and do too much in the time available, when it would be better to take additional time.

Having considered the material, and the arguments, carefully we have concluded that in limited but important respects the judgment is materially flawed. We have then gone on to consider whether the ultimate decisions can be supported on other grounds as set out in the Respondent’s Notice. We have concluded that the orders made by Judge Ansell can in fact be justified on the evidence, for reasons other than those which were addressed by the judge.

The case has a reasonably complex background, and for an understanding of our conclusion it is necessary to summarise it here.

P’s mother is 36 years of age; she has cognitive difficulties, and an IQ of 78. She resides with her disabled mother. She has a cerebral thrombosis. P is the mother’s seventh child.

Local Authority Children’s Services monitored and supported the mother in her parenting of P’s older half-siblings for over ten years. Five of the mother’s six older children (now between the ages of 19 years and 9 years old) are in long-term foster care; the mother has periodic contact with them. The sixth child, ‘C’, (the youngest of the older sibling group, now aged 6) was aged 3 when removed from her mother’s care in 2012, and was subsequently adopted. Care proceedings had been launched in relation to the older sibling group (together with placement order proceedings in relation to C) in 2012, and concluded in May 2013; for reasons which are unimportant, proceedings concluded in relation to the oldest child in July 2013. In those proceedings, psychiatric and psychological assessments were commissioned. The mother played a minimal role in the proceedings, although she co-operated with the psychiatric assessment; she did not attend the final hearing, and the orders, draconian in nature, were made by a different judge without any or any meaningful opposition from either the mother or the children’s fathers. Judge Ansell rightly reflected in his judgment his regret at the fact that there was no judgment from the earlier final hearing, adding appropriately in our view:

“… it is incumbent on any judge in care proceedings, even if matters are effectively not disputed, for there to be, as it were remarks, in case it is needed for the future.”

That said, a ‘Final Threshold Statement’ had been prepared on 26 April 2013 in the previous proceedings setting out the basis on which the ‘threshold criteria’ (i.e. section 31(2)Children Act 1989 “CA 1989”)) for the making of the care orders was based (the “April 2013 Threshold Statement”). This document is in our appeal bundle. Specifically, that threshold ‘statement’ reflected inter alia the following facts about the sibling group:

It appears that the mother had left the family home and had ceased caring for the children some weeks or months prior to the removal of the children under police protection measures in May 2012. She had had limited contact with the children in the intervening period. The mother was said to be struggling at that time to manage the terminal illness and subsequent death (July 2012) of her father, having also been the victim of a violent sexual offence (July 2012), and a miscarriage.

Within four months of the care and placement orders, the mother was once again pregnant, and P was born in May 2014. For the first months of her life, P resided with her mother in the home of the maternal grandmother. Unsurprisingly, by reason of the mother’s parenting history, care proceedings were launched soon after P’s birth, and an interim care order was made on 16 May 2014. Assessment of the mother’s parenting was undertaken at a local Family Centre. Initial reviews were positive, and a court report prepared in July 2014 was encouraging; the value of this report was however significantly undermined, in Judge Ansell’s view, by the fact that the mother had not been challenged in that assessment about the substantial deficits of her earlier parenting. The report had also been predicated on misinformation from the mother about the paternity of P, to which we now turn.

Throughout her pregnancy and the early months of P’s life, the mother maintained that P’s father was Mr. E, a Nigerian living in Nigeria (who, she said, had briefly visited England), but with whom she had lost all contact. This was untrue. In August 2014, the truth was exposed when the social worker undertook her own enquiries and discovered Facebook entries revealing the mother and Mr. E to be “married”. This was later shown to be untrue, the mother describing it as a “joke”. Mr. E’s Facebook page was adorned with photographs of C – the mother’s older child who had been placed for adoption. The mother then disclosed that she had never in fact ever met Mr. E, and had only ever interacted with him through social media. The mother told the social worker that she had lost contact a “long time” previously with Mr. E, a further story which did not withstand the inevitable interrogation of the website records which showed multiple communications between them, of an intense and sexual nature, which were (contrary to her assertion) very recent.

Only when confronted with her lies, did the mother reveal the true identity of P’s father as Mr. D, a Nigerian national who resided in South East London; paternity was subsequently confirmed by DNA testing (30 October 2014). Mr. D is married and his wife remains, with his three children, in Nigeria. The mother further misled the social worker about the state of the relationship with Mr. D, asserting that it had ended and that she did not wish Mr. D to have any role in P’s life, all the while secretly continuing the relationship (which the judge found to be “volatile”), and facilitating contact between Mr. D and P. The mother invented or exaggerated claims that Mr. D was harassing her, and was constantly pestering her for sex. She subsequently informed the professionals that she had lied about him because he was an illegal over-stayer.

Mr. D was assessed as a possible carer for P in these proceedings, and, although some strengths were noted (particularly in the warmth of his interaction with P), overall the assessment was negative. It appears (indeed the judge found) that the mother had put pressure on the father to lie to professionals about their relationship. Mr. D was unsure whether P should remain with her mother, although he informed us at the appeal that he believed that P should be with her mother. Other family members were put forward as potential carers but were not favourably assessed.

The Family Centre re-engaged with the mother after the July report, investigating more fully her past parenting, and her evolving deceptions. A further assessment report was prepared and filed with the court in late September 2014, the conclusions of which were unfavourable to the mother. The professionals did not, in this revised report, consider that the mother had demonstrated sufficient ability to prioritise or safeguard P, nor had she shown motivation to avoid risky situations, and potentially abusive relationships. The professional opinion was that the mother could not be trusted to work with professionals in the future given her repeated dishonesty, and that P would accordingly be at risk of significant harm in her mother’s care. Importantly, the manager of the Family Centre acknowledged the deficits of the initial assessment in coming to the revised conclusions.

Even though P was ostensibly cared for well by her mother during this period, by early November 2014, and in light of the negative assessment from the Family Centre, it was decided that the mother and P should move to a mother and baby foster placement, where P remains. By this time, the Local Authority had concluded that P’s long-term future did not lie in her mother’s care; the judge was alert to this when reviewing the social work critique of the ensuing period in which the mother and P were together in the foster home.

Inevitably, social work monitoring of the mother and P continued throughout the period from November 2014 to the final hearing in March 2015, while the mother and P were at the joint foster placement. While the mother generally showed warmth and affection towards P, she was said to be inconsistent in her attention to certain routine parenting tasks, seemed at times wholly distracted by her social media contacts, and absented herself from the home for many hours at a time, leaving P in the care of the foster mother.

The Children’s Guardian, Mr. David Abrahams, had been appointed in the same role in the previous proceedings for the mother’s older six children. He therefore brought to the case valuable knowledge and experience of the mother and her parenting which he had garnered over previous years. In preparation for the final hearing in March 2015, Mr. Abrahams filed a report in which he recommended, on balance, that P should remain in the care of the mother, supported by the father; his conclusions included the following comments:

“If [P] returns to her mother’s care and a supervision order is made I hope that the local authority will consider extending it after one year, particularly to ensure that [P] settles into nursery and school as she reaches those ages and that she does not miss out on education as her brothers and sisters did. However, despite [the mother’s] dishonesty in certain respects I think she will co-operate with the local authority and other professionals to the extent that [P] will not become lost in the same way that her elder half sisters and brothers were before…

If the court rules out either parent or any other family member to be able to meet [P]’s needs I would support care and placement orders being made to enable [P]’s placement for adoption.”

At the conclusion of the second day of the final hearing, after the mother had given evidence and Mr. Abrahams had undertaken some further investigation of the mother’s social media records, he radically changed his recommendation. He filed an addendum that evening, in which he said this:

“I no longer think it will be safe for [P] to live independently with her mother or that the risks to her could be managed by a supervision order… A particular risk is that [the mother] does not fully consider the risks of embarking on relationships with men who might, directly or indirectly, pose a risk to [P] and that she will hide, or be deceitful to the local authority about any relationships … [the mother] is vulnerable to controlling and potentially dangerous men….

… I do not think that [the mother] has taken the opportunity over nine months to show that she is able to accept and follow advice to ensure that [P] does not suffer the same harm as her older brothers and sisters … this seems to stem from a lack of motivation on [the mother’s] part to prioritise [P]’s needs above her own. [The mother] does seem to be very enmeshed in her social media world which clearly has its dangers for her, and distracts her from focusing on [P]’s needs…

If the court determines that [P]’s needs cannot be met by either parent and makes a care order then she ought to be adopted…”.

Following the delivery of detailed written and oral submissions, the judge immediately delivered judgment and made the orders which are the subject of this appeal.

The judgment is lengthy, extending to 97 paragraphs, over more than 30 pages. The judge reviewed the background history of the parenting of the mother’s older children, considering specifically the evidence of the neglect, and found that the mother at the hearing before him:

“… sought to a degree to downplay the neglect aspect of the case … I had a clear impression that she was seeking in some way to minimise what had happened in the previous case.”

The judge referred to the evidence of earlier parenting as providing a “baseline” from which it was possible, indeed appropriate, to consider the circumstances of P. It seems to us that he used the term ‘baseline’ to denote the standard of parenting evidenced by the April 2013 Threshold Statement (see [8] above) from which, as he said:

“… one then begins to look at the situation in [P’s] case … one would want to see clear signs of improvement before one would even begin to risk or contemplate leaving another child in mother’s care and risking that child in the way that the other children have suffered…”.

The judge went on to analyse the evidence filed from the earlier proceedings and the current proceedings indicating that a ‘clear pattern’ emerged of how the mother had tried to parent her children. The judge referred throughout his judgment to the positives of the mother’s parenting of P, commenting that “all the witnesses” had reported the “good basic emotional warmth” between the mother and P; he accepted that unannounced visits to the mother’s home in September 2014 had revealed care of a “generally good quality”. In the concluding section of the judgment, he specifically referred again to “the positives, the emotional warmth”, and that P’s development in the first 9 months of her life was “normal”.

The judge concluded that the mother had an opportunity in the joint foster home from November 2014 to demonstrate that she could be a good parent to P, particularly given the additional support she was then receiving from the foster carer herself, from the Freedom project (addressing with the mother her history of abusive relationships), and from the Family Centre. However, the judge concluded that the mother seemed “at times … completely obsessed in using her mobile devices, and getting on to social networks” to the detriment of P, who was, in his judgment, deprived at times of attention and stimulation. Furthermore, the judge found that the mother was “out of the property for long periods” which was, he observed, “completely at odds with the whole purpose of this exercise, which was for her to prove herself as a viable carer”. He rejected the mother’s explanations for the repeated absences from the foster home, concluding that the mother’s absences for up to 12 hours at a time (coupled with the high levels of activity on her mobile phone) indicated “that there is another life going on here”. The judge appeared to accept that Mr. D, the father, was genuinely concerned that the mother “fantasises about other men constantly and is always texting and messaging younger men”. The judge was considerably affected by the mother’s dissembling to the court and to professionals about her relationship with Mr. D and Mr. E.

The judge discussed the social work assessments of the father, reflecting both positives and negatives in his judgment, but accepted that, in spite of his strengths, the professionals’ conclusion that he would not be a suitable permanent carer for P was right; that conclusion is not challenged.

Having rehearsed the respective arguments of the parties, the judge turned to the evidence and submission of Mr. Abrahams. The judge regarded the reasoning and recommendation of Mr. Abrahams’ pre-hearing report as “over-optimistic”; the judge supported Mr. Abrahams’ changed view, which had been revised to take account of the late-emerging picture of the mother’s deceptions (as Mr. Abrahams had described it, her “pervasive lying”), and her “chancy, risky” behaviours.

There then followed the judge’s conclusions. He rightly described the application of the welfare principle in section 1(1)CA 1989, the checklists in section 1(3) CA 1989 and in section 1(4) Adoption and Children Act 2002 “ACA 2002”, correctly identifying the need (given the consolidation of the care and placement applications) to concentrate on the ACA 2002 checklist (a reference to the principles discussed in Re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31, Re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273 (“Re R”) at [20] and more generally [50-59]). The Judge entirely appropriately observed that:

“A care plan for adoption via placement order is a very, very serious step and is an order which the court is always reluctant to make unless demanded by the child’s circumstances and unless clearly made out on the evidence … it has been said should only be made as a last resort, and it is necessary for the court to examine all the options.”

He cautioned himself against adopting a linear rather than a holistic approach to his decision-making:

“… it is necessary for the court to examine all the options, it is sometimes said on a linear basis or holistic basis but it involves a detailed consideration of all of the options, which also would include the ability to keep the child within the family, subject to additional support from the Local Authority and in particular in this case under a supervision order”.

He identified accurately the principles discussed in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, and Y v United Kingdom [2012] 55 EHRR 33. He went on:

“… this area involved a complex question requiring an evaluation of all the circumstances with the court assessing with proper evidence all the options and analysing all the arguments for and against each option and making what I have referred to as the global or holistic conclusion. Pauffley J cited a passage from an earlier case of Baker (sic) speaking of a “rigorous analysis and comparison” of all the options. Certainly this approach reflects also the requirement under Article 8 to, as far as possible and in the interests of the child, protect family life”

The decision of Sir James Munby P in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11 had been brought to the Judge’s attention by counsel for the mother. The Judge rightly (and expressly) cautioned himself about:

“…the dangers in care cases where one is working on second or third hand material from social workers and others, and one must be very, very careful to distinguish between what can be proved by evidence and what are mere assertions”.

The judge also noted the importance of connecting the established facts to the threshold criteria, and “ultimately linking them to the risk of significant harm”. He added (in a clear nod to the judgments of Lord Templeman in Re KD (A minor) [1988] 1 AC 806 at 812, and of Hedley J in Re L (Care: Threshold criteria) [2007] 1 FLR 2050 at [50]), that:

“… lies, dishonesty, even a strange way of life does not mean significant harm. Human frailties, defects, different approach to morals, to sexual matters do not in any way mean that significant harm is likely to occur and do not justify removal. One is looking for more than that.”

The judge continued:

“I have at the outset spent some time with the previous proceedings, particularly because there was not a defined judgment in that case. Undoubtedly there were serious allegations of neglect which arose over time, apart from the more immediate physical signs which I accept came later on … but there was long term neglect affecting all these children in a very profound way …. I do not find the grandfather’s illness, as serious as it was, is an acceptable excuse for what happened, particularly bearing in mind young [C] who was not even three years of age … within this case to an extent mother’s evidence has sought to row back from her responsibility; first of all the denial of some of the areas of neglect…. The mother must bear full responsibility for what happened to those other children.”

He added:

“It therefore must follow, in my view that one would have to be fairly certain that those events would not be repeated before entrusting another child into the mother’s care.”

The Judge then addressed the mother’s dishonesty; he described it as “manifest” and “very serious”. He referred to “repeated lying and deception” from late 2013 to August 2014 about the identity of P’s father. The judge concluded that the mother’s evidence about her relationship with the child’s father was not “acceptable”. He found as a fact that the mother had conducted more than one relationship with men on the internet, and went on to state that:

“I am quite satisfied that mother has been conducting a second life, as [the Children’s Guardian] put it, somewhere and I am satisfied it involves men. I cannot provide the details but there is something else going on in this lady’s life. The combination of the texting, the phoning and the time spent outside the property leads me to that conclusion. … she wants another life, she wants some excitement outside the home and it is just the same as the first case and it represents in my mind a real risk because … she cannot maintain a correct lifestyle. She has absented herself when she should have been looking after [P], in my view, morning, noon and evening to clear the doubters and she has not done it. I accept the positives, the emotional warmth, the outreach reports. I only wish they had been maintained…” (emphasis by underlining added: see also [53(i)] below).

He added that:

“… there has been the grossest deceit in this case and it is continuing … the deceit has continued and it continued up to 28 February …. it is appalling”.

In his concluding narrative, he linked the “considerable deceit” to the mother’s capabilities as a parent in saying that:

“Mother’s emotional needs are being satisfied elsewhere and in that situation it is child care which would suffer. In addition, there are the real concerns about the continuing lack of stimulation. The deceit is continuing and I am afraid I have to come to a conclusion that mother cannot be trusted and, to my mind, therefore, that is a fact, and a prime fact, in this case which would lead to the conclusion, and [the Children’s Guardian] came to the view and I share that view, that this child would be at the risk of significant harm if returned into mother’s care … There are also serious concerns about her ability to properly stimulate and make sure the child’s emotional and educational development needs are met. She has had the opportunity for almost a year to prove herself. She has had considerable advice from various professionals and she has not followed that advice and her lying places the child in the future at risk of harm. The child would be caught up in those risks in vulnerable relationships.” (emphasis by underlining added: see also [53(ii)] below).

The judgment finally accelerates to a rather abrupt discussion of the orders; in a concise concluding section the judge expressed the hope that he had “sufficiently analysed the options in this case”; he indicated that, “whether it be a holistic or linear approach”, he rejected the contention that either of these parents could safely protect P. He regarded himself as “driven to the only conclusion” that could be reached, namely a “care order in the welfare of the child must be made”. Without discussing the care plan as such, he reflected that a care order would “involve” a placement order and that required him “to dispense with the parental consent if the welfare of the child requires that consent to be dispensed with”. Without further reflection, he made those orders “in the interests of this child.”

In granting the mother permission to appeal, and appeal out of time, McFarlane LJ considered that the judgment fell “well short” of any holistic consideration of the options, with no evaluation of adoption at all, and no overall balance – i.e. considering the circumstances of placement with the mother up against the circumstances if the child is placed for adoption. McFarlane LJ was further concerned that the judge had failed adequately to address the welfare checklist factors when conducting the analysis.

Mr. Horrocks, on behalf of the mother, has advanced altogether eleven Grounds of Appeal in writing. Without, we hope, detracting from the skill and thoroughness of his written and oral presentation, we distil the mother’s case into six key points:

Miss Scriven QC and Miss Youll in attractive submissions on behalf of the Local Authority sought to support the judge’s findings; Miss Scriven invited us to conclude that the judge had identified correctly the relevant legal principles, and had demonstrated sufficient attention to their application in the instant case, applying the principles to the facts found and recited in the judgment. She recognised deficiencies in the judgment, acknowledging that the judge had not deployed any “formalistic ‘balance sheet’” approach to his analysis, but invited us to conclude that this was not a sufficient or relevant deficiency as to justify the setting aside of the orders. The Local Authority emphasised that the judge repeatedly referred to the positives in the assessments of the mother, indicating – so Miss Scriven argued – a balanced approach, yet asserted that the judge was right to place weight on the mother’s lies as highly damaging to any possible relationship based on trust which she may have with any of the professionals in the future.

The Local Authority defended the judge’s cursory disposal of the mother’s consent to the placement order, by inviting the court to consider that having rejected the mother as a potential carer for P the judge was indeed “driven to the only conclusion” (see [31] above) he could come to on the evidence, especially when viewed in the context of the judgment as a whole. Although acknowledging that Judge Ansell had not expressly examined the pros and cons of adoption “had he done so, the outcome would have been the same”; in this regard the Local Authority issued a Respondent’s Notice (see [37] below).

The Children’s Guardian also opposed the appeal, and Miss Honeyman carefully endorsed and enlarged upon the points made by the Local Authority, summarised above, in a detailed and helpful skeleton argument augmented by oral submissions.

On 13 November, the Local Authority issued a Respondent’s Notice inviting this Court to uphold Judge Ansell’s order for reasons which differed from, or were additional to, those given by the judge. It presented two points for us to consider:

We recognise the challenges facing a judge in the Family Court presiding over proceedings of this kind; judges are working under considerable pressure of time, often marshalling complex lay, professional and expert evidence, making crucial life-changing decisions for the parties, often urgently (see also the comments of Black LJ in Re D [2015] EWCA Civ 1150 at [30]).

We are satisfied that Judge Ansell conscientiously sought to grapple with the issues and evidence in his ex tempore judgment, but he fell short in drawing his review of the case to a satisfactory conclusion. Specifically, the judge provides only a perfunctory evaluation and discussion of the long-term options for P before announcing his final decision. Indeed the final chapter is so condensed that a legitimate question hangs over whether the judge had indeed conducted the necessary exercise at all.

Our task in this appeal is to assess whether in view of the unsatisfactory aspects of this judgment, the conclusion reached by the judge is wrong, and if so, to consider whether we should substitute our own order, or remit the case for re-hearing. In this regard, we keep firmly in mind the distinctions of the role of the appellate court and court at first instance particularly in a public law case, helpfully summarised by Lord Wilson in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] (above) at [42]. Further, we must consider whether, even if the reasoning is defective or inadequate, the outcome can be upheld for other reasons which can be readily collected from the evidence, and/or which were not reflected sufficiently in the judgment. This general introduction leads us to deal with three generic points before turning to the specifics of the Grounds of Appeal.

First, we defer to Judge Ansell’s assessment of the witnesses, in particular the mother and father. We acknowledge the considerable advantage which he had in seeing and hearing them give their evidence; this is a well-known appellate consideration which requires no amplification here: see Piglowska v Piglowski [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1630, and Biogen Inc v Medeva plc [1997] RPC 1, discussed more recently in the decision of this Court of Re A (Children) [2015] EWCA Civ 1254 (see in particular Lewison LJ at [37-40]). It is evident that, while crediting the mother with certain qualities, he formed an extremely poor opinion of her capabilities to protect P throughout her life; he formed the clear view that “the mother cannot be trusted”, a finding which contributed to his crucial determination that the mother could not be relied on to prioritise P’s care for the future. In this, the judge was entitled to have regard to her lies to professionals about her relationships, her minimisation of past failings, and her failure to commit to the care of P in the foster placement. It is in our judgment significant in this respect that Mr Abrahams, the experienced Children’s Guardian, was so affected by the mother’s presentation in the witness box, coupled with her ‘pervasive’ lying outside of the court, that he was moved to revisit his conclusions and recommendations. This provides a useful measure of the impact of the mother’s evidence on judicial thinking. We are, in the circumstances, reluctant to underrate, let alone interfere with, the judge’s clear findings about the mother even though his phraseology, sometimes blunt, may have failed to reflect the nuance and impression which may not have easily translated into exact expression in an unreserved judgment.

Secondly, and following on from the point above, we acknowledge that an ex tempore judgment could always be capable of being better expressed. One would always wish for quality in the style, structure and content of a judgment, such that the reader can understand the journey from the facts found, through value judgments based on the same, to the analysis that leads to the conclusion; we nonetheless make due allowance for the fact that the pressure of time and resources on a Family Court judge do not readily permit for painstaking craftsmanship in the formulation of every judgment. A deficit of the lack of conventional structure is that the reader is required to drill into the judgment rather more conscientiously to divine the findings and the reasoning to support the conclusions, than would customarily be the case.

Thirdly, while it is incumbent on a judge to explain his reasoning fully and adequately (per Henry LJ in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 381), where that does not happen, it is well-established that a party (particularly a represented party, as the mother was here) should take an opportunity to ask the judge at the end of the judgment to clarify or expand on the reasoning (see Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035, and Lord Phillips MR at [19] in Peter Andrew English v Emery Reimbold & Strick Ltd : DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd : Verrechia (T/A Freightmaster Commercials) v Commissioner of Police for The Metropolis[2002] EWCA Civ 605). While we make it clear that Mr Horrocks did not appear in the court below and is not himself responsible for the omission, we consider that this appeal, or at least much of the argument raised within the appeal, may have been avoided had Judge Ansell been invited to expand on his reasoning for the ultimate conclusions. Regrettably, this did not happen.

We turn now to the detailed complaints, set out in [33] above.

The evidence from earlier proceedings:

As we have indicated above, it is unfortunate that there was no judgment, however short, from the 2012/2013 proceedings; there were no formally recorded judicial findings, nor even a note of approval (or otherwise) of the professional and expert opinions filed. The absence of a secure factual platform from which to consider the more contemporary events caused the parties and the court to adopt an appropriately pragmatic and proportionate course, namely to make available to the judge the material filed in the earlier proceedings from which the parties, and the judge, could draw. Indeed this was the approach specifically encouraged by counsel for mother at the hearing, as we noted from her final written submissions:

“There is no judgment from the previous proceedings and the court must rely upon what it has read of the previous papers disclosed into these proceedings, as well as the written and oral testimony of these proceedings.

“The account of what happened with the older children has not previously been told from the mother’s perspective as she did not actively or effectively participate in the earlier proceedings. It is right and fair that those earlier events are considered now, from the mother’s perspective. It is the starting point for gaining an understanding of the current issue before the court, i.e. whether mother can safely care for [P] in the future.” (emphasis by underlining added).

There is, of course, an inherent danger in this approach given that factual issues arising from the previous proceedings could not be resolved merely on such evidence unless the authors of the reports/statements had been available for questioning upon them. It is always for the local authority to establish its factual case, and if that case is challenged, it must adduce proper evidence to establish the fact that it seeks to prove (see for example Re A (A Child), Darlington Borough Council v M [2015]). That said, the earlier evidence laid before the court added context and detail to the outline ‘threshold facts’ set out in the April 2013 Threshold Statement which was before the judge. It had been upon the basis of that schedule of facts that the earlier judge in May 2013 considered herself “satisfied” (per section 31(2)) that P’s older siblings had suffered or were likely to suffer significant harm, thus endowing her with jurisdiction to make the Part IV CA 1989 orders. Cognisant that the mother had not participated in the earlier proceedings, and that in the circumstances the factual basis for the earlier orders was at least vulnerable (see Hale J, as she then was, in Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117, 128), we consider that it was reasonable for the judge to treat the April 2013 Threshold Statement as the starting point – the ‘baseline’ as he called it – for his evaluation of the current picture. Two of the professional witnesses (social worker and Guardian) from the earlier proceedings gave evidence before Judge Ansell; importantly, the mother had her chance to comment on the earlier filed evidence, and plainly did so.

Taking the judgment as a whole, we consider that Judge Ansell sufficiently cautiously trod a path through the earlier, partially tested, evidence and did not, as argued by Mr. Horrocks, place inappropriate or disproportionate weight upon its untested terrain. Justifiably, in our view, he observed, having reviewed those aspects of the undisputed history which were available to him, that it was “really quite staggering” that the older children were left at home after social services first became aware of the family (2004), until 2012 when proceedings were launched, and the children removed.

Welfare checklists:

The judge adverted appropriately to the welfare checklists in the 1989 Act and the 2002 Act and the need to apply them. We are entitled to assume that a judge of the experience of Judge Ansell knew how to perform the welfare review, and knew which matters he should take into account, unless he has demonstrated the contrary. There was no need for him laboriously to rehearse each item of the checklist as if a pilot conducting his pre-flight checks (see Staughton LJ in H v H (Residence Order: leave to remove from the jurisdiction) [1995] 1 FLR 529), even if, in a difficult or finely balanced case, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear.

As we have said elsewhere, the judgment suffers from its discursive and unstructured form; but in our analysis, we can readily identify passages which correlate the findings to the checklist factors in what may otherwise have been a standard review. By way of example only, the judge places significance on:

In the circumstances, we do not consider that Mr. Horrocks has demonstrated judicial failings in this respect.

Lies:

The judge was greatly vexed by the mother’s dishonesty (see [29] above). The mother’s lies in different contexts amounted in the judge’s view to an extended pattern of deceit. We do not feel able to interfere with this assessment, nor do we feel that the judge placed disproportionate weight on his finding.

We are conscious, as we believe the judge was, that dishonesty does not necessarily lead to the crossing of the threshold; there needs to be a causal link between the two. It is necessary to examine whether the local authority's evidence sets out the argument and explains explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts (Re A (A Child), Darlington Borough Council v M [2015] (above) @ [12]). Lack of candour does not inexorably lead to proof of ‘threshold’ facts. Far from it; indeed, as Sir James Munby P said in Re A (see above), there is a need to demonstrate why proven facts justify the conclusion that the child has suffered or is likely to suffer significant harm (at [12]):

“Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect.”

We are satisfied that Judge Ansell was aware of the need to relate the finding of dishonesty to the threshold facts, and to his more general assessment of the mother’s ‘capability’ to parent P in the future. In a number of passages he made this connection:

Another life:

The evidence taken as a whole was sufficient, in our judgment, for the judge to conclude that the mother was living a separate life from her responsibilities to parenting, which carried with it the risk that P would not be prioritised despite maternal attachment and emotional warmth.  The mother raised no dispute that she had an online relationship with Mr. E which was both sexually and financially exploitative. The mother gave explanations for her prolonged absences from the foster home (on the judge’s finding up to “eight, ten, twelve hours” at a time) which the judge simply did not believe; her various accounts for her inattention to P at times did not “add up”; in reaching his conclusions about the mother’s separate life, he brought into his reckoning (as he was entitled to do) the mother’s implausible explanations together with his finding of her “continuing use of electronic media devices” while ignoring P.

The significance of this finding was the judge’s legitimate conclusion that the “mother can just not accept the mundane life. She wants another life, she wants some excitement out of the home”. The judge was entitled to conclude, particularly against the backdrop of chronic neglect of the older siblings, that this is a circumstance of significant risk to P. In the context of her deceit there was no protective mechanism or professional support which could be relied on to moderate the risk other than 24 hour supervision, which was impractical.  

Lack of analysis:

While ostensibly aware of the need to adopt a ‘holistic’ approach to the evaluation of the options for P (and the guidance offered by Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1935 at [36] and at [46]), we are not convinced that Judge Ansell delivered on his intentions. It is, as this Court has emphasised in Re B-S and in Re R (A Child) (Adoption: Judicial Approach) [2014] (above))“essential” that a judge provides an adequately reasoned judgment at the conclusion of a case such as this. We very much regret that after the extensive, perhaps overly discursive, review of the evidence this judgment is light on analysis of at least one of the two realistic options (i.e. adoption) to the degree of detail necessary, nor does the judgment contain a comparison of each option or options (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]), or a proportionality evaluation. In this respect, Mr. Horrocks makes good his submission.

There is no specially prescribed form for a judge undertaking the exercise outlined above; the judge is doing little more than performing an 'old-fashioned welfare balancing exercise' (Re F [2015] EWCA Civ 882 at [48]); the term ‘holistic’ does not have any special meaning. Neither the parties, nor this Court, will readily conclude that a judge has performed the necessary welfare balancing exercise just because he or she acknowledges the need to do so. The debate about whether the analysis of the realistic options is a ‘balance sheet’ of the pros and cons or an aide memoire of the key welfare factors and how they match up against each other is sterile. What is expected is that the benefits and detriments of each option are considered and there is an evaluation of each option as against the other based on that analysis.

In this case, as in Re R (A Child) (Adoption: Judicial Approach) [2014], Judge Ansell was faced with an essentially binary decision; either P was restored to her mother’s care, or she was adopted. There was no realistic alternative. The fact that the judge considered the merits of the mother’s position, properly evaluating, we are satisfied, her strengths and weaknesses, but ruling her out as a long-term carer for P before moving on to consider the other option of adoption is ‘linear’ thinking, both in form and substance (see Re R [18]).

There was sufficient evidence before Judge Ansell for him to conclude that the mother was indeed a realistic option as a long-term carer for P (giving ‘realistic’ its ordinary English meaning: Re Y (Children) [2014] EWCA Civ 1553). After all, her aspirations to care for P throughout her childhood had attracted some support during the proceedings from both the Family Centre and (until after the hearing had started) P’s Guardian. There were many positives of her parenting, as the Judge himself recognised. This was not one of those rare cases identified in North Yorkshire County Council v B [2008] 1 FLR 1645, and discussed by Sir James Munby P in Re R at [67], in which it would have been permissible for a court, albeit acting cautiously, to rule out a parent as a potential option (even in some cases before the final hearing itself) before going on to consider other options. By his judgment (both in substance and structure), Judge Ansell gives the impression that this is precisely what he did.

That said, the judge conducted a sufficiently sound analysis of the pros and cons of the mother’s potential as a long-term carer of P; he was, after all, entitled to rely on the fact that the expert and professional evidence in this case all pointed against rehabilitation of P with her mother – namely, the final evidence from the Family Centre, the social worker’s assessments and the final recommendations of Mr. Abrahams. At least two of the professional witnesses (one of the social workers and the Children’s Guardian) had known the mother from the earlier proceedings, and were able to bring to this case long-standing knowledge of her care and parental capabilities. Indeed, it is significant to us that the experienced Guardian, who had represented P’s older half-siblings in the 2012/2013 proceedings, had initially supported the mother in her endeavour to care for P, but in the final analysis, had found himself unable to do so, having heard the same compelling oral evidence as the judge. Mr. Abrahams had concluded that P would not be safe in the care of the mother, a view on which the Judge was entitled to, and did, place significant reliance.  

However, that was only part of the required holistic evaluation. The Judge then needed to go on to consider the issue of adoption, and place that option up against the case for parental long-term care.

The outcome of adoption:

As indicated in the previous section, having conducted a fair review of the mother’s strengths and weaknesses, and considered her potential as a long-term carer for P, the judge should, in our judgment, have gone on to conduct an internal analysis of the pros and cons of adoption, and then place that analysis up against his conclusions on the mother. In failing to do this, Mr. Horrocks has made good his complaint under this ground of appeal. We have considered whether this failure vitiates the entirety of the reasoning in the judgment such as to require us to remit the case for a full re-hearing, or whether this failure can be addressed (as Miss Scriven has invited us to do) by conducting our own evaluation of the material against the background facts as found by the judge.

In reaching a view about this, we have considered carefully the evidence from the senior social worker in the adoption team, the final statement of the key social worker, the Family Centre reports, the Placement Order report, the mother’s written evidence and the Guardian’s reports, all of which (save that from the mother) was evidence accepted by the judge. We consider that we have sufficient evidence to undertake the analysis ourselves.

P is an eighteen-month old infant; she is in good health, though has sickle cell traits. She has the ordinary needs for “predictable, reliable, consistent” parenting from a parent who is “available, responsive and sensitive” (per Placement Order report). She has, in the judge’s finding, a warm relationship with her mother. We acknowledge, as indeed the social workers acknowledge, that if P were to express her feelings, she would almost certainly wish to be cared for by her mother, assisted by her father, provided this was in her best interests. This would reflect well her dual-heritage ethnicity, and would most completely respect her rights to family life; she would probably be able to establish a modest relationship with five of her six half-siblings, through her mother’s periodic contact with them.

By contrast, adoption will sever all legal and emotional ties with the mother and she will, in all probability, lose any contact with her half-siblings; it is thought that any ongoing direct family contact could potentially destabilise any placement. P will nonetheless be claimed as a child in a new family. It is not envisaged that there will be difficulty in finding a suitable placement for P for adoption, and it is believed that this could be done within 3-6 months of a final placement order. The “strict” test for severing the relationship between parent and child by way of adoption is now clearly defined; it will be satisfied only in “exceptional circumstances” and:

“where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do” Baroness Hale Re B [198].

We have much in mind that the court's paramount consideration, in accordance with section 1(2) of the ACA 2002, is P’s welfare "throughout [her] life." We are of course acutely conscious of the effect on P of ceasing to be a member of her family. But having considered the case carefully, and having placed the options alongside each other, we share the judge’s view, essentially for the reasons he gave, that P’s best interests would not be protected, let alone enhanced, in the care of her mother. We are persuaded that adoption was indeed the only outcome which would meet P’s long term emotional and physical needs; it was, in the final analysis, the only realistic option. The judge was therefore entitled to conclude, albeit he expressed it with incautious brevity, that the mother’s consent to adoption was “required”.

Notwithstanding the exceptionality of this outcome, and while acknowledging that the judgment is light on analysis of the competing options, and far from ‘holistic’ as McFarlane LJ used the term in Re G, the outcome was in our view sufficiently clear that we feel able to substitute our own conclusion.

It follows from all that we have said above that we are satisfied that the mother has succeeded in demonstrating some deficits in this judgment. However, we have had the advantage of reviewing many of the key documents filed for the substantive hearing, including the social work assessments, the Guardian’s reports, the mother’s statements, and the Placement Order documentation, and feel able to substitute our own decision on the ultimate outcome. We regret that adoption was the only realistic option for P, in all the circumstances, and accordingly the mother’s appeal must fail.