CB (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Black,Lord Justice Vos |
| Judgment Date | 06 August 2015 |
| Neutral Citation | [2015] EWCA Civ 888 |
| Docket Number | Case No: B4/2015/0437 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 August 2015 |
[2015] EWCA Civ 888
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice Vos
Case No: B4/2015/0437
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice MOYLAN
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant mother LB appeared in person assisted by a McKenzie friend Mrs Julie Haines
Mr Henry Setright QC and Mr Chris Miller (instructed by the South London Legal Partnership) for the London Borough of Merton
Mr Ian Griffin (instructed by Children and Family Law LLP) for the prospective adopters
Ms Hannah Markham (instructed by CAFCASS Legal) for the children's guardian
Mr Agris Skudra of the Central Authority of the Republic of Latvia (the Intervener)
Hearing dates: 1, 15 April 2015
Sir James Munby, President of the Family Division:
This is an appeal from a judgment and order of Moylan J dated 19 December 2014: Re B, London Borough of Merton v LB [2014] EWHC 4532 (Fam). His judgment is available, free to all, on the BAILII website.
The judge was exercising public law jurisdiction under the Adoption and Children Act 2002 (the 2002 Act) in relation to a little girl, CB, who was born in April 2008. CB and her mother, LB, are citizens of the Republic of Latvia, though it is correctly common ground that CB, who was born in this country, has at all material times been habitually resident here. CB's father has had no involvement in her life.
The history of the proceedings
Following an incident on 5 March 2010, the distressing details of which were recorded by Moylan J (judgment, paras 27–28), CB was taken into police protection in accordance with section 46 of the Children Act 1989 (the 1989 Act) and then, within days, taken into care by the local authority, the London Borough of Merton, under section 20 of the 1989 Act and placed in foster care. Moylan J recorded the subsequent events (judgment, paras 30–33). In May 2011, the mother, as she was entitled to, requested that CB be returned to her care. The mother seems not to have pressed the point. Be that as it may, the local authority did not return CB to her mother's care. Instead, on 15 June 2011, it commenced proceedings seeking a care order under section 31 of the 1989 Act. It also sought a placement order under section 22 of the 2002 Act.
On 10 July 2012, care and placement orders were made by District Judge (Magistrates' Court) McPhee sitting in the Inner London Family Proceedings Court. Moylan J recorded the proceedings before the District Judge in some detail (judgment, paras 36–54), quoting at some length (para 53) the District Judge's conclusions. For present purpose it suffices to note four things.
The first is that the mother did not seek to argue that the threshold criteria in section 31 of the 1989 Act were not satisfied: see LB v London Borough of Merton and CB (A Child) [2013] EWCA Civ 476, [2014] 1 FLR 1066, para 13.
The second is that the District Judge referred to the "appalling condition" in which CB had been found on 5 March 2010. He quoted the police officer who had been there, having been called by the landlord:
"I then heard a whimpering sound from a door directly in front of me. Once I had opened the door, I saw a room. In the left-hand corner of the room was a wardrobe and there were toys all over the floor. In the right-hand corner of the room against the window was a double bed that looked very soiled. On the wall beside the bed was a large area of damp and the wallpaper was coming away. There was a very strong and overpowering smell of urine and faeces in the room. I saw the child curled in an almost foetal position on the bed lying on a pillow. She sat up when we came into the room and she was holding an empty pink bottle. I went towards the child and she stood up and came towards me. I saw that her clothes were wet and that she was wearing a nappy that was falling off between her legs. Once in a different room, I could see that the child's clothes were wet and she was shivering. The strong smell was coming from her and it was clear that she had not been changed or cleaned all day. I removed the child's nappy to find dried and fresh faeces. The nappy was so swollen with urine that the child was unable to walk properly. There were also dried faeces on the child's body and her skin was soaked in urine that had leaked from her nappy and gone through her clothes."
The third is that the District Judge heard oral evidence from both a chartered clinical psychologist and a child and adolescent psychiatrist. The psychologist, whose evidence was effectively not contested, was of the opinion that the mother did not have a personality disorder but did have maladaptive personality traits. The psychiatrist, whose evidence, although challenged, was accepted by the District Judge, considered that CB had a disorganised attachment to her mother and attributed the global developmental delay, reported in August 2010, to the care given to CB by her mother and as being caused by neglect, both physical and emotional. The District Judge described the psychiatrist's evidence as compelling:
"His evidence was compelling when he said that observation of CB with the foster carer and with her mother was clinically dramatic for him, such was the difference in her presentation. I found his analysis of the available evidence persuasive and compelling and unshaken in examination."
The fourth thing to be noted is the District Judge's core finding:
"CB has suffered significant harm in the care of her mother. I find that CB has been subjected to significant neglect, both physical and emotional, causing her physical harm, emotional harm in respect of her primary attachment and causing her to be developmentally delayed in all areas of her development. This I find is attributable to the care given to her by her mother.
I find that her mother is in no better position now to prevent harm to CB than she was when CB was removed from her care on 5 th March 2010. The personality traits and psychological deficits identified by [the psychologist] will still be present: one can follow her avoidance of issues throughout these proceedings and see her denial in action. I have no doubt that if CB was to be returned now to her care, that CB would continue to suffer harm through emotional and physical neglect."
The mother's appeal against these orders was dismissed on 8 October 2012 by His Honour Judge Cryan, who gave a long and detailed judgment. On 29 October 2012 the mother applied to revoke the placement order in accordance with section 24 of the 2002 Act. The application was dismissed by District Judge Jenkins on 30 November 2012, on the basis that there had not been a sufficient change of circumstances to justify revoking the placement order. On 6 December 2012 the mother sought permission to apply for judicial review in accordance with CPR Part 54. Permission was refused on the papers by Keith J the same day. The mother's renewed application was heard by Mr Charles George QC, sitting as a Deputy High Court Judge, on 10 April 2013. He dismissed her application as being misconceived, her proper remedy being by way of appeal from the orders she was challenging.
The mother sought permission from the Court of Appeal to appeal from Judge Cryan's order. McFarlane LJ gave her permission on three points of law which are no longer in contention. However, her appeal was dismissed by the Court of Appeal on 1 May 2013: LB v London Borough of Merton and CB (A Child) [2013] EWCA Civ 476, [2014] 1 FLR 1066.
In the course of his judgment, Ryder LJ said this (paras 14–15):
"14 In a closely argued, detailed and most careful judgment, District Judge McPhee considered all of the evidence. He made findings of fact and exercised his discretion in a way which is clear. He identified the correct legal principles to apply and applied them to the facts as found. I can detect no error of law and nothing that can be described as plainly wrong. The conclusions he came to both as respects the witnesses and their evidence are coherent, consistent and well within the broad ambit that is to be afforded to a first instance judge.
15 The same level of care is evident in the conduct of the first appeal by His Honour Judge Cryan. His Honour Judge Cryan dealt with an appeal by the mother and also an appeal by CB's sister, MZ. He likewise took 4 days and reserved judgment over a weekend. The judgment is a model of clarity and analysis. It takes every ground asserted, analyses the evidence, sets out all of the positives and the negatives and applies the appellate test to the findings and to the exercise of discretion by District Judge McPhee. Both appeals were dismissed and Thorpe LJ refused permission for MZ to bring a second appeal to this court."
Ryder LJ's conclusion (para 19) was that "The conclusions of District Judge McPhee are unassailable and His Honour Judge Cryan was right to uphold them." He had earlier made this observation (para 16):
"It is important to understand that neither judge accepted the local authority's case without criticism. There was expressed disquiet about the local authority's management of the case and a careful critique of the apparently encouraging assessments. Those assessments were described as over optimistic, superficial, lacking analysis and insight and insufficiently rigorous in the context of the medical evidence about the child and mother's approach to her daughter's best interests while in care, which was described at best as expedient and lacking in motivation."
Following that, CB was placed with prospective adopters on 22 May 2013. She has been with them ever since. CB's last contact with her mother had been on 6 March 2013.
On 17 April 2013, the mother made an application for contact....
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