ADA (Children: Care and Placement Orders)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Newey,Lord Justice Baker |
| Judgment Date | 29 June 2023 |
| Neutral Citation | [2023] EWCA Civ 743 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000618 |
[2023] EWCA Civ 743
Lord Justice Peter Jackson
Lord Justice Newey
and
Lord Justice Baker
Case No: CA-2023-000618
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT CHELMSFORD
Her Honour Judge Shanks
CM20C05117
Royal Courts of Justice
Strand, London, WC2A 2LL
William Green (instructed by Fisher Jones Greenwood LLP) for the Appellant
Mother Alison Easton (instructed by Essex County Council) for the Respondent Local Authority
The Respondent Father appeared in person
Zoe McGrath (instructed by Michaels & Co) for the 3 rd Respondent
Hearing date: 20 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 29 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
These appeals arise from the making of care orders in relation to B and C, aged 14 and 10, and care and placement orders in relation to D, aged 2. At trial, the question in relation to B and C was whether they should return from foster care to their mother, while the question in relation to D was whether she should be placed with her aunt and uncle or placed for adoption. The proceedings also concerned an older child, A, with agreement that she should remain in foster care. There are three appeals: the mother appeals from the orders in relation to B, C and D; B appeals from the order in relation to herself; D's father appeals from the orders in relation to D.
For the reasons given below, my conclusion is that the appeals in relation to B and C should be dismissed, but that the appeals concerning D must be allowed and the applications for care and placement orders in her case be remitted for rehearing. In brief, the judge had ample material upon which to find that it is not in the interests of the older children to return to their mother's care at this time, but the application in D's case did not receive the degree of focused attention that was necessary to justify an order leading to adoption. The result of the appeal has no bearing on the outcome of the rehearing, where the decision will be a matter for the family court.
Background
The mother was born in Jamaica. Her stepfather was abusive to her mother and she was sometimes caught up in violence between them. Physical chastisement was a feature of her childhood, both at home and at school. She was sexually abused as a teenager by a family member. She moved to London with one of her aunts when she was 15. A year after she arrived, she learned that her mother had been murdered by her stepfather in harrowing circumstances.
In her late teens, the mother began a relationship with the father of A and B. This ended when she separated from him and moved away. He suffered a brain injury after a suicide attempt and now lives in a care home. The mother later gave birth to C by another man. Neither father played any active part in the proceedings.
In 2014, the mother began a relationship with D's father. The family first became known to the local authority in 2016 after A alleged that her mother had assaulted her, but she later retracted her allegations. In 2018, another referral was made after A alleged further physical abuse and arguments between the mother and the father. In 2019, the police made a referral to social services after arresting the father for assaulting the mother.
These proceedings began in 2020. On 21 January 2020, C alleged that the mother had hit him with a belt. A and B made similar allegations. The police removed the children to foster care, with A placed on her own and B and C together. The mother and D's father separated. The children gave ABE interviews. In April 2020, the local authority took care proceedings and interim care orders were made. As will become clear, the proceedings have taken a long and tortuous course.
The mother's younger half-sister (‘the aunt’) and her husband (‘the uncle’) also originate in Jamaica and now live about 40 miles away from the mother with their own two children, aged 8 and 3. There is no history of social services involvement in their family and both aunt and uncle work in a care home. In September 2020, a full assessment by Ms M concluded that special guardianship orders should be made in respect of all three children in favour of the aunt and uncle. That recommendation was accepted by the local authority.
In May 2021, a three-day fact-finding hearing took place before Her Honour Judge Shanks. She found that the mother had assaulted each of the children on multiple occasions, sometimes with a belt; that the father had assaulted C and threatened A and B; and that the children had on more than one occasion witnessed violence between the mother and the father.
Shortly after that hearing, D was born. Proceedings were issued and interim care orders were made, with the result that she has been in foster care since birth.
In February 2022, B became separately represented on the basis that she had sufficient understanding to conduct the proceedings without a guardian.
Over the course of proceedings a number of other assessments were undertaken. Dr P, a forensic psychologist, conducted a psychological and cognitive assessment of the mother. Ms S, an independent social worker, provided a sibling assessment. Ms L, an independent social worker, wrote culturally-informed parenting assessments of the parents, recommending the return of the older children to their mother.
A final hearing of the consolidated proceedings was due to take place in October 2022, but in the previous month the court adjourned the hearing to allow for an addendum assessment to consider whether the aunt and uncle could become special guardians for D as well. Up to this point, the care plan for B and C, supported by the guardian, had been for them to be placed with the aunt and uncle.
That position changed in January 2023. The further special guardianship assessment, prepared by Ms C, was not an addendum report but a complete reconsideration. The outcome was negative in respect of all the children. The conclusion was that an SGO could not be recommended due to the concern that the aunt and uncle would not be able to adequately safeguard the children in future contact with their parents, that the children would be at risk of future emotional and physical harm and neglect, and that D had no established relationship with the aunt and uncle, making an SGO unrealistic. In signing off the report, the team manager observed that:
“Evidence presented in the assessment and that has come to light since the last SGO assessment suggest the couple do not fully acknowledge the abuse the children have disclosed. This is concerning given the fact finding judgement was clear in respect of their mother. The couple are not able to put the children's experiences and need for safety above their own loyalty to [the mother]. Furthermore there have been occasions that professionals are aware of where the children have been allowed to spend time with their parents, unsupervised against the direction of the Local Authority. This is concerning as the couple have a good understanding of safeguarding issues through their work and involvement with vulnerable adults.”
The local authority's care plans therefore changed, and the contact that was previously being afforded to the aunt and uncle was stopped. The statement of the social worker Mr A of 30 January 2023 now recommended care orders for B and C and a care order and placement order for D, with family contact coming to an end. Evidence was provided by Ms B about the availability of culturally appropriate adopters. In her final report dated 24 February 2023, the guardian endorsed the local authority's recommendations but in D's case recommended post-adoption sibling contact between four and six times a year.
The family's position crystallised just before the trial in response to the local authority's late change of plan. The mother accepted that A should remain in foster care, that being A's wish by this stage. She sought the return of B and C to her care, and supported D being placed with the aunt and uncle. B strongly argued that she and C should be allowed to return home. D's father asked for D to be placed with him, or in the alternative with the aunt and uncle. The aunt and uncle, who were not represented but appeared as witnesses called by the mother, now sought to care for D only, something that has never been the subject of any specific professional assessment.
The judge's decision
The final hearing began on 28 February 2023, when evidence was heard over four days. The judge met B and C. She heard evidence from the social workers Mr A, Ms C, Ms S, Ms B and Ms L, and from the mother, the father, the aunt and the guardian. On 6 March, the parties filed written submissions and on 13 March, the judge gave an oral judgment. She made care orders in respect of all four children and a placement order in respect of D; she also made an order under s 26 of the Adoption and Children Act 2002 providing for contact between the older children and D four times a year.
In her judgment, the judge introduced the parties and their positions, listed the evidence read and heard and provided factual and procedural background. She found that the threshold was crossed in respect of all of the children by reason of her findings of fact. She quoted from the reports of Dr P and summarised the oral evidence of each witness.
I will cite passages from the judge's account of the evidence, edited to remove names and focusing particularly on D. First, the children's social worker, Mr A:
“18. His description of the children was that they were children who were highly traumatised, and that was mainly to do with the influence exerted by both the...
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