Consistent Group Ltd v Kalwak&anr
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Wilson,Lord Justice May,Lord Justice Richards,Lord Justice Lawrence Collins,Order |
| Judgment Date | 03 October 2008 |
| Neutral Citation | [2008] EWCA Civ 430,[2008] EWCA Civ 1553 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 October 2008 |
| Docket Number | Case No: B4/2008/1411,Case No: A2/2007/1211 |
[2008] EWCA Civ 1553
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PONTYPRIDD COUNTY COURT
(MR RECORDER G D JONES)
Before: LORD JUSTICE WILSON
LORD JUSTICE RICHARDS
and
LORD JUSTICE LAWRENCE COLLINS
Case No: B4/2008/1411
LOWER COURT NO: PD07C00583
Miss Jane Evans of counsel (instructed by Flanagan & Jones) appeared on behalf of the Applicant Mother
Mr Eifion Williams (a solicitor in Powys County Council) appeared on behalf of the Respondent Local Authority
Mrs Sheila Radcliffe of counsel (instructed by Nicol Denvir & Purnell) appeared on behalf of the Respondent Child, by his Children's Guardian
Lord Justice Wilson:
A mother applies for permission to appeal against orders made in relation to her son, C, who was born on 22 August 2007 and who is therefore now just one year old. The orders were made by Mr Recorder G D Jones sitting in the Pontypridd County Court on 23 May 2008. The recorder made a full care order referable to C in favour of Powys County Council (“the local authority”) and, in that their care plan was to place C for adoption, the recorder proceeded to authorise their placement of him and in that regard he dispensed with the consent of the mother.
Until recently the mother represented herself in the proceedings in this court but recently she was rightly granted public funding for representation at today's hearing. So in the last few days apparently excellent solicitors in Newtown, Powys, namely Flanagan and Jones, have begun to represent her and have sought to assemble the case for today's hearing in a professional manner. Equally yesterday the mother had a conference with Miss Evans of counsel, as a result of which, apparently on balance, the mother decided that she would prefer that Miss Evans should represent her today rather than that she should revert again to an appearance in person. Thus, probably late last night, Miss Evans produced, or at least finalised, a most helpful skeleton argument. She has appeared today primarily to add to the points so well made in that skeleton and also, as I will explain, to read a moving memorandum prepared by the mother for us to listen to today.
In the proceedings before the recorder the local authority were of course the applicants; the mother was the first respondent and was represented by counsel other than Miss Evans; the father of C, to whom the mother had never been married but who had co-habited with her until about February 2008 and was still on good terms with her, was the second respondent and was represented by separate counsel; and, of course, C himself was the fourth respondent, acting by Mrs Williams, the Children's Guardian. The mother opposed the local authority's applications and contended that the course most in the interest of C would be for him to be placed in her care, whether under a care order upon a plan revised to that end or under a residence order. Even after his separation from the mother the father supported the mother's opposition to the applications and her own proposals for C. For her part the Children's Guardian considered herself driven to support the local authority's applications.
The mother's application for permission to appeal was first considered by Ward LJ in this court on 30 July 2008 at a hearing attended, of course, only by the mother, then appearing in person. He adjourned the application for permission in effect until today; directed that this hearing be on notice to the local authority and to the other parties to the proceedings; and provided that, were permission to be granted, the substantive appeal should follow forthwith.
Thus today in court we have the mother again pressing her application, but now by Miss Evans; we have the local authority, represented —as in the court below —by Mr Williams, opposing it; and we have Mrs Radcliffe representing C by his guardian, also opposing it. In that he has not written to indicate otherwise, I think that we should proceed upon the assumption that the father's views are as before and that, translated into the context of an appeal, he supports the mother's proposed appeal. Indeed in one of her letters to the court the mother has suggested that since the hearing before the recorder she and the father have resumed at any rate a significant degree of cohabitation and thus that, as was the proposal at the outset of the proceedings, care of C in the mother's home would to a substantial extent amount to joint care of him by the mother and the father together.
The history of the mother's largely thwarted wish to care for her various children is deeply affecting. C is her eighth living child. She did rear her first two living children, both now adult, albeit with a substantial amount of support from social services. Her third, fourth and fifth children were the subject of full care orders made in May 2001, as a result of which the two older currently live with foster carers and the youngest has been adopted. Her sixth and seventh children, born in 2003, were made the subject of care orders in 2004 and both thereupon adopted. It follows that, prior to the investigation conducted by the recorder in relation to C, there were two substantial forensic investigations into the mother's capacity to care for children in 2001 and 2004; and in each case the judicial conclusion was negative. In both judgments there were findings of such chronic and serious neglect of children on the part of the mother as to make it unsafe for the children then under consideration to be entrusted to her care. It is obvious that, if the recorder in the present case did no more than to adopt the findings of his predecessors in 2001 and 2004 without seeking to chart whether there was evidence since then of sufficient improvement in the mother's capacity to care for a child as to render it safe for C to live with her, he would have fallen into grave error. This was one of the two aspects which, as is clear from his transcribed judgment, gravely exercised Ward LJ on 30 July 2008. For there is no doubt that the mother has made the most strenuous efforts to develop skills of competence, of organisation and of child-centred routines, and to create a more settled home during the four years subsequent to the second substantial investigation. “What troubles me”, said Ward LJ, “and why I think it is necessary to get the local authority here, is to explain to this court's satisfaction why this mother, who has made these many attempts to improve herself, has not been given the chance to prove that she is a different person and a fit and capable enough mother.”
In the event, by his skeleton argument, Mr Williams has clearly demonstrated what in fact a close reading of the judgment itself discloses, namely that before the recorder there was a plethora of up to date professional assessments of the mother, which led him to reach the decision which causes her so much pain. Of course the recorder referred to the findings made in 2001 and 2004 but he used them only as starting points from which to chart whether there had been sufficiently substantial changes in the mother's parenting capacity. In his judgment the recorder reminded himself, as I believe all the professionals had recognised, that the mother had made substantial strides during the previous four years; it was this feature which confers upon the recorder's decision such anguished pathos and inspires, at a human level, such sympathy for the mother. Thus the mother's home conditions had improved substantially; her lifestyle was significantly less chaotic; her physical health was better; her cooperation with professionals, notwithstanding an underlying distrust of the local authority, was improved; and her commitment to contact with C, who had been in short-term foster care ever since discharge from hospital 15 days after birth, had been well demonstrated. The judge also reminded himself that, in putting herself forward as a carer for C, she was offering herself as a carer of only one child, unlike in 2001 and 2004 when she was aspiring to care for three children and two children respectively.
But, notwithstanding all these improvements, there was unanimity among the professionals that the personality and history of the mother were such that it would be unlikely that she could offer C an adequate level of care, consistently over time, on an emotional level. Thus Dr Heads, a consultant forensic psychiatrist, said:
“On balance I consider that the personality-related issues described above may well adversely impact, to some extent, on her ability to consistently prioritise [C]'s needs and consistently focus on his care in the long term. I consider, having carefully considered the information available, there is a risk of her having difficulty consistently meeting his emotional needs.”
Dr Parsons, a chartered forensic psychologist, said:
“…in my view, she would pose a high risk of emotional harm to any child in her care and also a high risk of emotional neglect. In addition, I could not rule out the possibility that she also poses at least a medium risk of physical neglect towards a child in her care. In my view, these difficulties stem from her personality structure, and are pervasive and enduring aspects of her functioning, and they are highly unlikely to change in the short, medium or long-term. In my view, were she to be caring for a child, the events and difficulties that she has experienced in her previous parenting would be highly likely to repeat themselves.”
Mr Awatar, a social worker invited to perform, with colleagues, an...
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