B (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Sales,Lady Justice Arden |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1610 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2015/1874 |
| Date | 08 December 2015 |
[2015] EWCA Civ 1610
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL CIVIL AND FAMILY COURT
(HER HONOUR JUDGE DE HAAS QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lady Justice Arden
Lord Justice McFarlane
Lord Justice Sales
B4/2015/1874
Mr R Zentar (instructed by Ogden, Lyles & Fox) appeared on behalf of the Applicant
Mr S Crabtree & Mr J Taylor (instructed by Cheshire West and Chester Council) appeared on behalf of the Respondent
This appeal concerns the future welfare of a young girl, M, born on 8 May 2014 and therefore still only 19 months old.
M was made the subject of a care order and an order authorising the Local Authority to place her for adoption by District Judge Conway sitting in the Family Court at Liverpool on 16 January 2015. Some 13 days after that application, M's mother applied for leave to revoke the placement order under section 24 of the Adoption and Children Act 2002. That application was eventually determined by Her Honour Judge de Haas QC on 29 May 2015. On that occasion the judge dismissed the application for leave to apply to revoke the placement order, having at an earlier stage on the same day refused the mother permission to appeal against District Judge Conway's substantive orders.
Promptly, the mother issued her notice of appeal to this court, and equally promptly, the matter came on for an oral permission hearing before Gloster LJ on 26 June 2015. Permission to appeal was granted by Gloster LJ. A direction was given that the appeal should not be listed for eight weeks to allow the mother to obtain legal aid if possible, but there was an exhortation for the appeal to be brought on for hearing as soon as possible after that.
The appeal was fixed for a full day hearing during the vacation on 3 September, but the transcript of the judge's judgment was not received until a week or ten days before that date and Gloster LJ therefore acceded to an application made by the mother for an adjournment of the fixed hearing for four weeks or more to enable her once more to obtain legal aid. Unfortunately, the consequence of that adjournment is that today, 8 December, was the first open date in the list, even on an urgent basis, for this appeal to be heard.
Fortunately, the aim of achieving legal aid for the mother has been realised, and this court, and I anticipate the mother, have been assisted by counsel, Mr Remy Zentar, who has been brought into this the case at relatively short notice but who has marshalled the arguments on behalf of the mother in a forceful and clear manner.
Having set the procedural background, it is necessary to say something about the factual circumstances that justified this order being made. The factual background is both detailed and complicated. It makes for very sad and hard reading. This mother has had an awful experience as a child, as a young person and as a young adult. She was born with the difficulty of having a deficit in her intellectual capacity, and that has no doubt compounded her ability to make sense of and cope with the various abusive acts that have been visited upon her by those with whom she has grown up and latterly mixed with.
This court has read the fact finding judgment conducted in earlier proceedings by District Judge Heyworth of 16 May 2012. It is a document which largely deals just with the facts of the mother's life and runs to some 70 closely structured pages. It is not necessary for me to go into detail other than to explain that it was the mother's behaviour, no doubt as a consequence of the experiences that she had had, that led to concern. In turn, it led to her being held for a period in secure accommodation and latterly to a period of a substantial prison sentence. The proceedings that were before District Judge Heyworth related to the first child born to this mother, a boy, K, born in January 2011. The district judge made a full care and placement for adoption order with respect to K. These proceedings, as I have indicated, relate to the mother's second child, born some two years later in May 2014.
Happily, given the grim early start in life that the mother had had, and the difficulties that that had led her to manifest in terms of her behaviour, she had matured to a degree over the intervening period. Such was the potential for confidence in her to care for her baby M that another district judge, District Judge Conway, again sitting at the Family Court in Liverpool, who was seized of M's case, was persuaded to direct that mother and baby should go for a 12 week residential assessment at a local unit. They moved there when M was only six days old. That assessment was largely positive and led to a positive recommendation that mother and baby should move on to some form of structured and monitored semi-autonomous placement in the community. That was achieved and the mother and M moved to a placement in a location, N Road, in her locality on 1 September 2014.
As is normal in circumstances such as these, the Local Authority set out a tight statement of requirements for the mother's conduct and her care of M during that period. That was formulated in terms of an agreement, and as I understand it was signed by the mother. Part of the background of the case was that the mother had formed a relationship some year or so earlier with a man, Mr AM, who on all accounts was involved in heavy criminal activity and, in particular, drug related activity, and who also had the potential for violence. It was a firm stipulation of the agreement signed by the mother when she moved to N Road that Mr AM should have no unauthorised or unsupervised contact with M.
It became apparent some two months or so after the mother had moved to N Road that a gentleman who had been visiting her on a regular basis but not staying full time, but on occasions staying overnight, who had been passed off by her as her brother, was in fact none other than Mr AM. The mother, on District Judge Conway's findings, had been utterly deceitful in terms of introducing AM into her new home at N Road and seeking to pass him off as her brother. That for the district judge was an important factual matter, coming against the very substantial background that I have done no more than summarise, but coming in the very middle of the progress that the mother was making towards being given the green light to maintain M in her care following the conclusion of the final hearing.
Thus, as I have described, at the final hearing before the district judge in January 2015, matters went against the mother. They largely took that course because of the background that I have described but also because of the mother's more recent conduct, which indicated that, despite the green shoots of positive news about her ability to look after M — and no-one suggests that she has ever harmed M during the period that M was in her care during 2014 — despite those positive matters, it was impossible to rely upon her consistently behaving in a safe and open and honest way looking forward, were she to continue to have M in her care. Given M's age, then only some 11 months old, and given the fact that there was no prospect of a placement with any other member of M's family, the decision to dispense with the mother's consent to adoption and make a placement for adoption order was almost the inevitable outcome of ruling the mother out.
As I have indicated, only some 12 days after that decision, the mother applied for leave to revoke the placement order. She also applied for permission to appeal. It is right to record at this stage, and it is a point to which I will return at the conclusion of this judgment, that at no stage in the short statement of the reasons for her application does the mother indicate that there has been any change of circumstances justifying the application for leave to apply to revoke the placement order. As is well known, it is a two stage test that the court must apply on such an application, the first stage being that the court needs to be satisfied that "there has been a change in circumstances since the order was made". The mother's position, simply stated, and this is entirely understandable in human terms, was that she did not accept that her daughter should go off for adoption, she did not accept the basis of the district judge's decision, and she therefore wanted the order revoked.
Part of the background that I have yet to mention is important. It relates to the evidence that was before the district judge to the effect that the mother may have behavioural symptoms which would justify the attribution of a psychiatric diagnosis of a personality disorder. That evidence was in part based upon historic assessments undertaken by a psychiatrist and/or psychologist, but principally upon the expert opinion of Ms Roberts, who was a clinical psychologist who conducted two assessments of the mother for the purposes of the hearing. Ms Roberts's opinion was that the mother's behaviour suggested that such a diagnosis would be appropriate.
The district judge found that that was, on the balance of probabilities, the right formulation to describe the mother's circumstances. She therefore agreed with Ms Roberts's opinion that the mother would be likely to refuse an extensive period of therapy to try and introduce her to worlds of behaviour which lessened the impact of the potential personality disorder, and that without such therapy, the continued placement of the child in her care would be "a high risk", and that in part justified the district judge's order.
The matter, once the application was issued, was...
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