B (A Child) (Adequacy of Reasons)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P,Lord Justice Peter Jackson,Lady Justice Nicola Davies |
| Judgment Date | 25 March 2022 |
| Neutral Citation | [2022] EWCA Civ 407 |
| Docket Number | Case No: CA-2022-000025 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 407
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT IN NOTTINGHAM
Recorder Sanghera
NG20C00204
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case No: CA-2022-000025
Stephen Williams (instructed pro bono through Advocate) for the Appellant Mother
Lucy Limbrey (instructed pro bono through Advocate) for the Appellant Father
Anita Guha (instructed by Nottingham City Council) for the Respondent Local Authority
Alison Moore (instructed by Rotheras Solicitors) for the Respondent Child by their Children's Guardian
Hearing date: 9 March 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Friday, 25 March 2022 by circulation to the parties or their representatives by email and by release to BAILII and The National Archives.
Introduction and background
This appeal concerns the adequacy of a judgment leading to the making of a placement order in respect of E, a boy now aged 18 months. Since birth, E has been in foster care, with the exception of the period between September 2020 and January 2021 during which he was placed in a residential assessment unit (Amber House) with his parents.
The parents, who are now in their 30s, both experienced extremely difficult childhoods. E is the youngest of the mother's five children. Her first child, a girl named C, was born in 2006 during a violent and abusive relationship. The parents' own relationship began in 2009 and they married in 2011, after which they had three children who, along with C, became the subject of earlier proceedings and have since been adopted. In proceedings in 2013 in relation to C and the parents' older two children, His Honour Judge Lea found that C had been assaulted when she was six years old, causing bruising. He was unable to identify whether the assault had been carried out by the mother, the father, or by a Mr K, in whose home the family was living. He also found that children had suffered or (in the case of the third child, who was removed at birth) were at risk of suffering significant physical and emotional harm and neglect. In September 2016, Judge Lea refused an application by the parents for leave to oppose the making of an adoption order in C's case and in November 2016 he made a care and placement order in respect of the fourth child, born earlier that year. At those hearings he found that the parents did not accept the reason for the removal of the older children, and that their situation was essentially unchanged, despite the passage of three years since the first hearing.
Against this troubled background, E was born in August 2020. Proceedings were brought by the Local Authority, relying on the findings from the previous proceedings, the parents' denial of the previous problems, longstanding concern about the father's cannabis use, the mother's dependant personality style, the father's impulsivity and severely insecure attachment style, and the parents' inability to work honestly and openly with professionals. Nonetheless, E's guardian recommended a residential assessment with C and the family moved into Amber House in September 2020 At the midpoint of the assessment, it seemed possible that they might eventually be able to move into the community with E, but the final report of 16 December 2020 concluded that this would not be safe. The assessors' key concerns were that, although they denied injuring C themselves, the parents did not view Mr K as posing any risk to C and had not been honest about continuing contact with him; further, that, despite substantial support over the years and the loss of their older children, the parents still did not reflect or take responsibility for their behaviour and recognise their poor parenting skills. This, combined with an inability to work productively with others and to prioritise E's needs meant that they were unable to meet E's needs or keep him safe.
On the guardian's recommendation, the court authorised a single joint expert to undertake a psychological assessment of both parents, including a risk assessment addressing the findings made in previous proceedings. In his report of 3 December 2020, Mr Alexander Marshall highlighted ongoing issues of risk: the mother's dependent personality type and continuing contact with Mr K; her severely insecure adult attachment style with features of enmeshment; the parents' unsatisfactory response to the issue of C's injuries, with the mother in particular not accepting the court's findings that they had been inflicted; their inability to protect E from any risk from the other parent; the ongoing risk from the father's history of cannabis use; and the evidence of the parents not working honestly with professionals. Mr Marshall considered that the parents would need to demonstrate a sustained period of change, and would require therapeutic input over a period of at least six months, without there being any guarantee of a successful outcome.
In the light of these assessments, E returned to foster care in January 2021, with the parents continuing to have contact.
The hearing
Very regrettably, the final hearing of the local authority's application did not take place until November 2021, when it came before Recorder Sanghera (‘the judge’) for a hearing at which evidence was heard over four days from Mr Marshall, the social worker, the two Amber House assessors, the parents and the guardian. Written submissions were made by the parties, with oral submissions on behalf of the mother.
As to the overall state of the evidence, the social worker and the parents had filed updating statements in August/September, but the reports of Amber House and Mr Marshall were of course based on matters as they stood at the beginning of the year. The social worker and the guardian continued to maintain that adoption was necessary for E. There is no transcript of the evidence, but the closing written submission of the local authority's solicitor contained a useful note of extracts from their evidence and that of Mr Marshall and that is sufficient for our purposes. In Mr Marshall's case, the note contains these passages:
“When questioned in chief Mr. Marshall confirmed that he was not surprised by the conflicting information given to him by the parents as such was consistent with the reports generally about their presentation; the lack of openness and honesty was consistent and in part lead to his formulation.
Mr. Marshall was presented with the factual basis by counsel for the mother:
• No evidence of contact with Mr. K since November 2020;
• No evidence of cannabis use by father since August/September 2020;
• Last episode of aggression by father was in January 2021;
• No domestic abuse between the parents,
• Parents now have housing and are in employment.
Mr Marshall was asked to clarify the ‘period of sustained change’ he referred to in his reports. He asserted that from a psychological perspective a period of one year would equal a significant risk reduction and a period of two years would mean that risks were classed as historical.
He accepted that parents could evidence some positive change but was clear that if the Court found that either of the parents had continued to be dishonest that would raise his concern as did the incidences of father expressing angry responses. Mr Marshall was of the view that if the Court found that the parents had evidenced the required sustained change that he would recommend reassessment of their understanding of and acceptance of the findings.
In relation to [the mother], Mr. Marshall was clear that during his assessment she was able to ‘acknowledge’ some of the harm but when he delved deeper there was less ‘acceptance’ of the findings and she offered excuses and a deflection away from responsibility. He maintained his view that at the time of his assessment [she] did not accept findings made in 2013.
Mr. Marshall asserted that [the mother] continued to show evidence of her dependant personality and was clear that such personality patterns are enduring. He was of the view that should a relationship pose a risk that [she] would not cease that relationship as the evidence that she prioritised relationship over the needs of her children was both historic and current given she maintained her relationship with [the father] despite the concerns over his treatment of her daughter, C. He was further worried that a child in her care would be exposed to her emotional inconsistency.
Mr. Marshall accepted that the parents commencing therapy may be a positive indicator for engagement with and completion of such but opined that this would depend on their reasons for doing so. He was clear that if they are just going through the motions then this could not be seen as a positive.
Mr Marshall was clear that assessed change was the key measure rather than therapy.”
The matters put by the mother's counsel, Mr Williams, to Mr Marshall of course reflected the evidence given by the parents in writing and orally.
The appeal
The appeal presented by each parent is to the same effect, namely that the serious flaws that they assert are contained in the court's judgment mean that the judgment cannot be supported and must be set aside. For reasons which I will explain, I have been persuaded that the appellants are, unfortunately, correct and that this appeal must be allowed with the result that the case must return to the Family Court for rehearing. In those circumstances, it is not appropriate for the judgments of this court to descend to detailed consideration of the underlying facts. I therefore propose to indicate the essential matters of concern that have been raised by the appellants, before, going to the...
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