C (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Vos,Lord Justice Rimer |
| Judgment Date | 21 January 2014 |
| Neutral Citation | [2014] EWCA Civ 128 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/2048 & B4/2014/0198 |
| Date | 21 January 2014 |
[2014] EWCA Civ 128
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(HIS HONOUR JUDGE TURNER QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Rimer
Lord Justice Mcfarlane
Lord Justice Vos
Case No: B4/2013/2048 & B4/2014/0198
Mr Frank Feehan QC and Miss Francesca Conn (instructed by Moss & Coleman) appeared on behalf of the Appellant Father
Ms Ruth Cabeza (instructed by Moss Beachley Mullem and Coleman) appeared on behalf of the Appellant Mother
Ms Angela Burstow (instructed by the Local Authority) appeared on behalf of the relevant Local Authority
Ms Kelly Webb (instructed by Miles & Partners) appeared on behalf of the Children's Guardian
This is a case in which the father of a young girl, born on 16 August 2012 and therefore now still aged only 17 months seeks permission to appeal. The first initial of her first name is A. The mother also, late in the day, has issued an application for permission to appeal. Both have been listed for consideration of the permission application with the appeal to follow if granted.
In the event, there is consensus among all the parties, including the local authority, that the two appeals should be given permission and should be allowed, with the result that the case should be remitted for a first instance rehearing. It is, therefore, not necessary for me in the course of this judgment to rehearse all of the detail that sits behind the circumstances that I have just described. It is, however, I think, common ground between the parties in the case that it would be useful for this court to identify the particular difficulties that have arisen in this case and offer at least some guidance as to how those matters might be dealt with in similar cases in the future.
The difficulties to which I refer arise separately from the individual abilities and disabilities of these two parents. The mother is a young woman of 22 years of age who is of Turkish Cypriot origin. She is said to have a low level of cognitive functioning and she also has a degree of speech and hearing impediment, although she can hear and speak in English without the need of an interpreter. The father, a 35-year-old man who originates from the Angolan Portuguese community but came to this country from Portugal when he was seven, is profoundly deaf. He communicates by using British Sign Language.
A was born to this couple, and immediately the caring professionals, particularly at the hospital, identified deficits in the couple's ability to provide ordinary day-to-day care for A. On 22 August 2012 when A was only six days old, by social workers communicating as best they were able to do, the parents ostensibly gave consent under section 20 of the Children Act 1989 for A to be accommodated by the local authority in foster care.
It is of note that no professional interpreter was present at the meeting at which both these parents gave their consent under section 20, and the local authority used the only available resource, namely the mother, who herself, as I have indicated, has learning disabilities, to communicate to the father just what was involved in giving consent under section 20. Be that as it may, A was accommodated under that arrangement for about two weeks before the parents withdrew their consent. That withdrawal triggered the local authority applying to the court for a care order. An interim care order was granted on 7 September and A has been looked after away from her parents' care since then for much of that time in local authority foster care.
The proceedings were undertaken in the Principal Registry of the Family Division, and in their latter and more important stages they were conducted by His Honour Judge Turner QC. At an issues resolution hearing on 18 April 2013, amongst other steps that were accomplished, a document was drawn up recording concessions by each of the two parents as to the threshold criteria under CA 1989, s 31 in the case. Complaint is made on behalf of the father that that concession was achieved under pressure from the court for something to be put down in writing acknowledging that the section 31 threshold was established in this case; limited time was given for that process over the lunch adjournment, and the father was not assisted sufficiently by the timescale and the level of interpretation available to understand the process and give any informed consent to the schedule that was drawn up.
The final hearing was undertaken over the course of I think five days or more before Judge Turner in early June. He delivered himself of a full and reasoned judgment on 3 June. At the conclusion of the judgment, he made the watershed conclusion that it was not in A's best interests to be brought up by either of her parents, either in combination or individually, and, there being no other family resource available, the only course open for her future care was for her to move through the care system and on towards adoption. He therefore made a full care order, dispensed with the parents' consent to adoption and made a placement for adoption order. It is against those orders that the two parents now seek to appeal.
Within the court process, steps had been taken to provide the court with expert opinion upon the impact of the father's profound deafness, both on his ability to care for A and work in partnership with the professionals who might give him advice, but also on his ability to communicate what he wanted to say and involve himself in the proceedings. In particular, a psychologist who was herself deaf was instructed, Dr O'Rourke, and a deaf social worker professional. Both of those in the course of detailed reports expressed profound concern as to the provision of interpretation support to the father in the lead-up to the proceedings and the early stages of the proceedings.
By the time the case came on for its final pre-trial hearing before Judge Turner on 2 May, a need for a further parenting assessment of both parents had been identified. The local authority offered what might be called an ordinary parenting assessment undertaken by a social worker from the local authority team, assisted by a sign language interpreter for the father, and because no other resource was available and because the final hearing had been fixed to start effectively four weeks later, the court sanctioned that process. Significant criticism was voiced by Dr O'Rourke in particular, and also the independent social worker, of this local authority parenting assessment, conducted (as they advised it had been) without any adequate provision to accommodate the father's disability and therefore communicate in any meaningful way his response to the assessment process.
The threshold criteria, as the judge indicated in the course of his contribution to the evidence in the case, was passed on a modest basis. In the end, the two factual matters against the father that were recorded there did not form part of the judge's reasons for deciding that the father in particular could not provide a caring role for A in the future. The judge's conclusions about the father were based primarily upon his lack of insight into the incapacity that the mother presented because of her disability to be an effective carer for A, and the father's seeming lack of commitment at times to prioritise A's needs over his known, not to "step up", as the phrase was used, to intervene to take over the care of A at times, and the father's decision to reduce the number of contact sessions that he attended with A when he wished to prioritise his desire to obtain employment.
It should be said, as part of the list of the attributes of these parents, that in addition to the disabilities that I have mentioned, the father particularly is noted to be a man of significant intelligence to degree level and who, as a matter of intelligence, is not at all at any disadvantage in these proceedings. It is also the case that all of the professionals that I have seen recorded on paper, and particularly the judge, speak of the parents in positive terms in terms of their gentle and appropriate presentation to the court. This was not a case where all the issues pointed one way.
The appeal mounted by the father was issued some six weeks after the judge's decision, yet here we are, some seven months after the judge gave his judgment, hearing the appeal which in the event has been resolved by consent. This period of some 30 weeks to determine an appeal at a time when cases at first instance now must, unless there are exceptional reasons, be undertaken from start to finish within 26 weeks, is...
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