C (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Mrs Justice Russell,Lord Justice Jackson |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1634 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 2015 |
| Docket Number | B4/2015/3158 |
[2015] EWCA Civ 1634
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM FAMILY COURT
(HIS HONOUR JUDGE OWEN QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Jackson
Lady Justice King
Mrs Justice Russell
B4/2015/3158
Miss C Croft (instructed by Nottinghamshire County Council) appeared on behalf of Nottinghamshire County Council
Mr J Cleary appeared on behalf of the Mother
Miss H Simpson appeared on behalf of the Father
This is an appeal by Nottinghamshire County Council ("the Local Authority") against orders made by His Honour Judge Owen QC on 10 September 2015 refusing the Local Authority's application for placement orders at the conclusion of the final hearing in care proceedings. The judge made final care orders in relation to three sisters: ALC (born 9 December 2007) who is eight; ATC (born 26 January 2011) who is four years and ten months; and APC (born 13 May 2013) who is three years and seven months. The care plan approved by the judge was that the children should be placed together in long term foster placements.
On 16 November 2015, Cobb J granted permission to appeal.
The issue before the court today is whether the judge failed adequately to explain his reasons for refusing to make the placement orders sought, and whether, in addition, he wrongly rendered the desirability of the children being placed together as being determinative of the application in circumstances where he had in turn wrongly regarded an acceptance of "real difficulty" in finding a placement for the children together as synonymous with it being "unlikely" that such a placement would be found.
Background
The mother of all three children is VO ("the mother"). RC is the father of ALC and ATC. APC's father declined to play a role in the proceedings as he does not feel able to offer a home for APC.
In 2002, the father was convicted of the manslaughter of his son R, and of two further separate counts of actual bodily harm in respect of R. The father was sentenced to eight years' imprisonment and was released on licence in 2006. Since his release from prison, the father has committed a range of other offences. At no time since his conviction has the father accepted any responsibility for R's death, maintaining that it was an accident and that he has been wrongly convicted. Soon after the father's release from prison he met the mother.
At the time of ALC's birth, the parents were living in the Warwickshire area. The Local Authority brought care proceedings in respect of ALC, which proceedings were resolved with ALC remaining in her mother's care subject to a supervision order, albeit on the basis that the relationship between the mother and the father had now come to an end. This, however, was but one of many occasions when this mother dishonestly told those who were seeking to protect her children, that her relationship with the father was over.
By the time the mother became pregnant with ATC she had moved to the Coventry area. The mother admitted that ATC was the father's child, but sought to persuade the Local Authority that she was no longer in a relationship with him, and that ATC had been conceived using an artificial insemination kit. Coventry social services agreed that the mother's father would supervise the father's contact with the children as a protective measure. In 2011 there were allegations of domestic violence between the mother and father. As a consequence, the children were made the subject of child protection orders by Coventry, and in June 2011, at a child protection conference, the father admitted that he had in fact been living with the mother throughout the care proceedings in Warwickshire and during the course of the supervision order, frequently, he said, hiding from social workers when they attended at the mother's home.
In August 2011, the mother applied for a non-molestation order against the father on the basis that the father had frequently been violent towards her. In September 2011, the mother fled from Coventry to Nottinghamshire with the assistance of Coventry social services, due to the alleged continuing violence of the father. In 2012 private law proceedings followed in relation to ATC and ALC in the Sheffield County Court following the separation as between mother and father. The proceedings concluded with a prohibited steps orders being made to protect the mother and only indirect contact being permitted between the father and the children. A non-molestation order was extended to last until February 2014. At the conclusion of these proceedings in Sheffield in February 2013, the child protection plans which had been in place were allowed to come to an end on the basis that the mother had engaged well with social services, and taking into account the protection which was said to be afforded to the children by the private law orders and the non-molestation injunction.
In 2013, however, concerns again arose. The father's own parents found it necessary to obtain a non-molestation order against him, and the Local Authority received various referrals in relation to the mother and the children.
A core assessment completed in August 2013 raised a number of concerns, including the mother's lack of emotional warmth towards ALC, and in April 2014 there was a further referral relating to the home conditions and the presentation of the children. This led to a further core assessment which was completed in November 2014. ATC told her childminder that the mother had thrown a chair at her. This was investigated and the mother's denial and explanation at that time was thought to fit the injury.
Meanwhile, the father was suffering from significant mental health problems. He was admitted to a psychiatric unit for a number of months in the summer of 2014, discharging himself before being readmitted. An indication of the severity of his illness was that his probation officer was not allowed to attend at the hospital in order to visit him.
The concerns of the local authority had been by no means restricted to the father and to the parents' relationship. The mother herself has, as a consequence of a childhood described by an expert as "appalling", suffered serious mental health difficulties, although no diagnosed mental illness.
Matters came to a head in January 2015, when the Local Authority discovered that the father was living in the family home and had been for some considerable time. The mother would not agree to the father leaving, and neither of them would agree to any form of written agreement governing the father's contact with the children. The mother told the social workers that she was having suicidal thoughts and that she had had thoughts of "taking the children with her". Despite this threat, the Local Authority agreed to enter into a written agreement whereby the father was allowed to stay in the house but was not to be alone with the children or to care for them. Only a matter of days later, when an unannounced home visit took place, it was clear that the father was alone with the children. Care proceedings followed and the children were removed to foster care. Interim care orders were made and have continued to the conclusion of the proceedings.
Fortunately, the children have remained in the same foster placement since 21 January 2015. The children have benefitted enormously from the skillful and loving care they have received from their foster carers. There is no question, however, of the present foster carers providing a home for the children in the long term, although there is a possibility that in the event that the children were to be separated, ALC, the eldest child, now eight, might be able to remain in their care.
The evidence
Upon their reception into care, each of the children in differing ways exhibited challenging behaviour, even by the standards of the experienced foster carers with whom they were placed. In those circumstances, the court decided that it was necessary for a psychological assessment of the children to be undertaken, which assessment was completed by Rebecca Sawtell; who, having seen the children and conducted her investigations, filed a report on 1 May 2015.
In her report, Miss Sawtell set out the difficulties each child had individually, but also described the destructive and concerning relationship the children had with each other. She described the "complex dynamics and friction between the siblings". The overall picture was, and is, of children who have been seriously damaged by their early life experience, leaving each one with considerable difficulties and, as a sibling group, dynamics described as "destructive and undermining". Asked about the children's greatest therapeutic need, the psychologist said:
"Safe, stable, consistent and emotionally attuned care in the immediate and long term future, and this should be the absolute priority."
Miss Sawtell observed that the children have a significant bond with each other, and of course a common history. She regarded it as too early to say whether or not the dysfunctional pattern of sibling interaction which had developed whilst in their mother's care was intractable. She was reasonably optimistic that if their individual needs were met by their primary carers, progress could be achieved over time. Miss Sawtell went on to say:
"Ideally I believe the girls should be adopted as a sibling group, as this would provide them with the greatest chance of the long term stability they so desperately need."
Miss Sawtell confirmed her view in oral evidence. When asked about her reasons for adoption being her...
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