B (A Child)

JurisdictionEngland & Wales
JudgeLady Justice Black,Lord Justice Lewison,Lord Justice Rix
Judgment Date14 November 2012
Neutral Citation[2012] EWCA Civ 1475
Docket NumberCase No: B4/2012/1753
CourtCourt of Appeal (Civil Division)
Date14 November 2012

[2012] EWCA Civ 1475

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION

HIS HONOUR JUDGE CRYAN

BT10C00502

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Rix

Lady Justice Black

and

Lord Justice Lewison

Case No: B4/2012/1753

Between:
B (a Child)

Mr Frank Feehan QC & Miss Anna McKenna (instructed by Moss & Coleman Solicitors) for the Appellant

Miss Alison Russell QC & Miss Hannah Markham (instructed by London Borough of Barnet) for the 1 st Respondent

Mr Paul Storey QC & Miss Sheila Phil-Eboise (instructed by Nicola Harries Solicitors) for the 2 nd Respondent

Miss Elizabeth Woodcraft (instructed by Craig Munro Solicitors) for the Respondent Guardian

Hearing dates: 27 th September 2012

Lady Justice Black
1

On 14 June 2012, HHJ Cryan granted a care order in relation to A, who was born on 22 April 2010 and was then just over 2 years old. The local authority's care plan was that A should be placed for adoption but a placement application was not yet before the court.

2

A's mother is MM (who I will call simply "M" for the purposes of this judgment) and her father is JB (who I will call "F"); they have been in a relationship with each other since the summer of 2009.

3

Each parent filed an appellant's notice during July 2012. Thorpe LJ ordered that the case should be listed for an oral permission hearing with the appeal to follow if permission was granted. We did not, in fact, deal separately with the question of permission as there was no question but that permission to appeal should be granted to the parents and we do grant it.

4

Judge Cryan described this as a "highly complex case" and it certainly is, as will become clear as this judgment develops. He approached it with enormous care and attention which is reflected in a judgment which is exceptionally clear and easy to read. Judge Cryan came to the case already knowing a considerable amount about M's situation and background from proceedings in relation to AE, her daughter by a different father, Mr E. He incorporated into his judgment the four earlier judgments he had given dealing with AE. These included a judgment in which he made findings in relation to allegations made by M against Mr E and by Mr E against M.

5

In Biogen Inc v Medeva plc [1997] RPC 1 (at page 45) and Piglowska v Piglowski [1999] 2 FLR 763 (at page 783H to page 784H), Lord Hoffmann highlighted the advantages that a trial judge has over the Court of Appeal and the need for the Court of Appeal to exercise restraint in interfering with a trial judge's findings of fact and his evaluation of those findings. Although what Lord Hoffmann said is very well known, I will return to it later because it has a particular importance in this appeal. At this stage, I would simply observe that Judge Cryan's involvement in the AE case meant that his advantage was not limited to seeing the parties and witnesses during the hearing in relation to A; he also brought to that hearing the depth of knowledge acquired from the earlier hearings. It is important to give weight to this when considering his decisions in relation to A.

6

A has been in foster care throughout her life and has had only supervised contact with her parents. The local authority did not assert that she had suffered actual harm attributable to her parents' care. Their case was based upon anticipated future harm which they said satisfied the threshold requirement in section 31(1)(a) Children Act 1989 that the child "is likely to suffer …… significant harm" and required A's permanent separation from her parents under first a care order and then, in due course, by adoption. Judge Cryan agreed with the local authority. The issue for us is whether he was plainly wrong to do so as the parents argue.

7

There were, of course, two parts to Judge Cryan's decision.

8

The first stage was his determination that the threshold criteria were satisfied on the basis that A was likely to suffer significant harm. In relation to this, the parents argue that the risks identified in relation to A were not sufficient to constitute significant harm.

9

I am inclined to categorise the threshold decision as a value judgment rather than as a finding of fact or an exercise of discretion, as was Ward LJ in Re MA (Care Threshold) [2009] EWCA Civ 853. He considered that when reviewing such a decision, the Court of Appeal has to ask itself whether the judge exceeded the generous ambit within which there is room for reasonable disagreement. That is the approach I will adopt.

10

The second stage of Judge Cryan's decision was what is sometimes called "the welfare stage" at which he determined which order would be in A's best interests. The parents argue that permanent separation of the child from her parents was an unnecessary and disproportionate response to the harm that it was alleged A may suffer, that the judge approached the issues of dishonesty, co-operation and M's behaviour in relation to illness inappropriately, and that he erred in the way in which he evaluated F's claim to look after A alone if it was not possible for her to be cared for by the parents jointly.

11

The judge's welfare determination was undoubtedly an exercise of judicial discretion and it is clearly established that an appellate court should only interfere when it is satisfied that the judge has not merely reached a decision with which it might disagree but exceeded the generous ambit within which a reasonable disagreement was possible and reached a decision which is so plainly wrong that he must have erred in the exercise of his discretion, see G v G (Minors: Custody Appeal) [1985] FLR 894.

How the local authority put their case in summary

12

The local authority's case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:

"[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour.

There is a real risk that A's emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm.

[F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A.

[F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A."

13

As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M's relationship with Mr E and about M's untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including:

i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him;

ii) The apparent difficulties in M's relationship with AE;

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

iv) The risk that M may impair A's moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a "tendency to pathological lying";

v) The problem created by social services and other professionals being unable to rely on the truth of what M says;

vi) F's long history of criminality and drug use;

vii) F's refusal to engage with the local authority's attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them;

viii) F's unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.

14

The evidence before the judge included quite a large body of expert evidence as well as the evidence of social services and A's guardian. Dr Bass, a consultant liaison psychiatrist, interviewed M and provided reports about her for the care proceedings. Dr Taylor, a consultant forensic psychiatrist, had interviewed M in the context of criminal proceedings against her in 2004 and assessed her again in 2011. Ms Summer, a parenting assessment coordinator from the Marlborough Family Service, carried out an initial viability assessment of whether the parents, together or separately, could offer good enough parenting to A. Dr Dale, whose background is in social work, also assessed the capacity of the parents to meet A's needs. Ms Nabi from the Lucy Faithfull Foundation carried out a risk assessment in relation to AE, including assessing M. In addition there were reports dated July 2011 and February 2012 from Dr Bentovim, a consultant child and adolescent psychiatrist, also in relation to AE's situation.

The facts as found by the judge

15

Judge Cryan's judgments are detailed and inevitably long and I do not intend to allude here to all that he said, merely to give the flavour of the facts that he found. References to paragraph numbers are to the main judgment in the care proceedings relating to A unless otherwise indicated.

The judgment of 27 April 2011

16

The logical starting point is M's history before she formed the relationship with F. Information...

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