C, D and E (Care Proceedings: Adequacy of Reasons)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Coulson,Lady Justice Macur |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] EWCA Civ 334 |
| Docket Number | Case No: CA-2022-002437 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 334
Lady Justice Macur
Lord Justice Coulson
and
Lord Justice Baker
Case No: CA-2022-002437
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT EAST LONDON
Recorder Main Thompson
ZE21C00022, XE21C00197, ZE/83/22
Royal Courts of Justice
Strand, London, WC2A 2LL
Kemi Ojutiku (instructed by Connaughts) for the Appellant
Tim Parker KC (instructed by Local Authority Solicitor) for the First Respondent
Tabitha Barran (instructed by Campbell Chambers) for the Third to Fifth Respondents, by their Children's Guardian
Hearing date: 16 March 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 30 March 2023.
This is an appeal against care orders made in respect of three children, hereafter called C, D and E, and a placement order in respect of E, made at the conclusion of care proceedings.
At the end of the appeal hearing, we informed the parties that we would allow the appeal and set aside the orders and remit the matter for a rehearing of the welfare aspect of the proceedings by a different judge. This judgment sets out my reasons for agreeing with that outcome.
The relevant background can be summarised briefly. The proceedings originally concerned five children – four boys, A (now aged 15), B (aged 12), C (aged 9), D (now aged 6), and a girl, E, (rising 3). The third respondent is the father of all five children. The second respondent is the mother of the two older children. The appellant is the mother of the three younger children. She and the father started a relationship in 2013 following the breakdown of his relationship with the second respondent.
A and B were the subject of earlier care proceedings which concluded in 2015 with the making of a child arrangements order that the children should live with the father and a twelve-month supervision order in favour of the local authority.
The present proceedings were started in January 2021 after A and B made allegations that they and their half-brothers C and D had been physically abused by the appellant and that the father had failed to protect them. The four children were removed from the family home and placed in foster care under interim care orders. In May 2021, the mother gave birth to E who was also made the subject of care proceedings and placed under an interim care order. After discharge from hospital, the appellant and E were immediately accommodated in a mother and baby residential assessment centre where they remained throughout the proceedings.
A fact-finding hearing started in October 2021 before Recorder Main Thompson but was adjourned because of the ill-health of one of the advocates and not completed until April 2022. On 21 April the recorder delivered a judgment in which he made a number of findings against the parents, including that the appellant had physically abused the four older children by punching, kicking, slapping and hitting them with a variety of implements, bathing them in cold water, and in respect of A forcing him to stay in his room without food. The recorder found that the father was aware of the mother's abuse of the children but did nothing to stop it. The proceedings were then adjourned for further assessments and listed for a seven-day final welfare hearing in November 2022, almost two years after the start of the proceedings.
At the final hearing, the local authority contended that the four older children should be made the subject of full care orders, with A accommodated in a residential unit and B, C and D in long-term foster care. In respect of E, the local authority proposed that she be adopted, and they filed an application for a placement order authorising her placement for adoption. The plans in respect of A and B were not opposed, and the welfare hearing therefore focused on the future of the three younger children. The father and the appellant proposed that C and D should be returned to their care, or alternatively, placed with a paternal aunt under a special guardianship order. With regard to E, they opposed the local authority's plan for adoption and contended that, upon leaving the residential unit, E should remain in their care under a supervision order. The children's guardian supported the local authority's plans for all three children.
The final hearing extended over six days during which the judge heard oral evidence from nine witnesses, including an independent social worker who had carried out an assessment of various members of the family, the appellant, the father and the guardian, and received written and oral submissions from all parties. Judgment was reserved and handed down on 23 November 2023.
The judgment runs to 177 paragraphs. The opening paragraphs introduce the factual and procedural background. At paragraph 10, the recorder found the threshold criteria for making care orders under s.31 of the Children Act 1989 to be made out in respect of all five children on the basis of his earlier findings. At paragraph 14, he directed himself that the welfare of the children was his paramount consideration and quoted the welfare checklist set out in s.1 of the 1989 Act. He then summarised the agreement that had been reached with regard to the two older children and the issues that remained in dispute about C, D and E. Unsurprisingly, it was E's future that was the main focus of the hearing. The recorder summarised the issues about her future at an early stage in his judgment in these terms:
“28. The case of E has occasioned the most intense deliberation. Her 19 months of life have been spent with her mother … in a mother and baby residential unit where, under the surveillance of the unit, her basic needs have been met by her mother and where she has regular contact with her father and with her siblings, C and D.
29. In the words of the guardian:
“E has been cared for well by her mother in the safe and contained environment of the residential unit. E does have a warm and particularly strong relationship with her mother”.
30. The local authority's care plan for E is adoption and their application is for a placement order. All the assessments of the father and the mother are negative, as ultimately is the assessment of the children's paternal aunt as a carer for any child. The guardian, recognising adoption as the last resort and having conducted a thorough analysis, considers adoption to be the only option which will meet E's needs and supports the application for a placement order, endorsing the care plan.”
At paragraphs 31 to 34, the recorder directed himself on the relevant statutory provisions for the making of a placement order, including the welfare checklist set out in s.1 of the Adoption and Children Act 2002. At paragraph 35, he expressed his thanks to counsel for the guardian and local authority for setting out the case law in their closing submissions. He continued:
“In order not to over-burden those listening to this judgment, I do not propose to set out orally as I have just done in respect of the statutory provisions the case law to which my attention in directed. However, if there is to be a transcript of this judgment, which I suspect is likely, I invite the transcriber to include by way of addendum to this judgment the case law as set out in, I was going to say either of those two documents, but it is helpfully set out, for example, at paragraph six and follows of Ms Barran's position statement, and it may very well be that that is adequate in terms of a recitation of case law for the purposes of this judgment. It is, I should say for the sake of completeness, also set out in paragraph 13, A to E, of Ms Youngs' very helpful submissions.”
In the event, the transcript of the judgment was prepared in some haste for this appeal, and did not include any addendum setting out the relevant case law. But the appeal bundle included copies of counsel's closing submissions from which this Court has been able to read the summaries of the law on which the recorder relied.
From paragraphs 48 to 172, the recorder recited passages from the written and oral evidence, in the order in which each witness had been called. He included passages from the appellant's evidence, including her answers to questions directed at establishing whether she accepted the judge's earlier findings. He also quoted the concluding paragraphs of the guardian's report in which she explained the reasons for her recommendations. For the most part, as he was going through the evidence, the recorder did not make any observations about it although in passing he commented that the appellant's evidence about the findings and her position was “expressed in what might be described as a somewhat equivocal way”.
Having completed his review of the evidence, the recorder concluded his judgment in four paragraphs:
“174. The evidence is overwhelming in my judgment that the welfare of B, C and D requires the making of care orders, endorsing the local authority plans for them, endorsed by the Guardian. I am satisfied that those children will continue to thrive in their environments and the course sought by [the father and the appellant] is absolutely fraught with risk, which no Court could safely countenance.
175. In relation to E, the risks are the same. It is extremely sad, given that everybody acknowledges that in the contained environment of the unit, [the appellant] has provided not merely adequate, but good basic care for this little girl. However, the evidence of the parents in relation to the findings and in relation to the concerns and in relation to the past injury, physical and emotional, which the elder children sustained, is...
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