D-O'H (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Thorpe |
| Judgment Date | 10 August 2011 |
| Neutral Citation | [2011] EWCA Civ 1343 |
| Docket Number | Case No: B4 / 2011 / 1599 and B4/2011 / 1917 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 August 2011 |
[2011] EWCA Civ 1343
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE WATSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
and
Lady Justice Black
Case No: B4 / 2011 / 1599 and B4/2011 / 1917
Alistair McDonald QC (instructed by Brendan Fleming Solicitors) appeared on behalf of the Appellant mother.
Ms Jane Probyn (instructed by Birmingham City Council) appeared on behalf of the First Respondent local authority.
The Second Respondent father did not appear and was not represented.
The Third Respondent child did not appear and was not represented.
Ms Elizabeth Isaacs appeared on behalf of the Fourth Respondent child via his guardian.
On 26 May this year HHJ Watson gave judgment in proceedings brought by Birmingham City Council in relation to two children, L, who was born on 28 May 2008 and is three years old, and N, who was born on 4 November 1997 and is 13 years old. The judge refused an application by the children's mother for an order under Section 38(6) of the Children Act for assessment of her parenting capacity by an independent social worker. She granted final care orders in relation to both children on the basis of a care plan for L of adoption and N of long-term foster care. She ordered that there should be an assessment of the attachment between the two children and she adjourned the local authority's application for a placement order to await that information, listing it for a hearing in November to be determined along with N's application which was deemed to have been made under Section 26 of the Adoption and Children Act 2002/Section 34(4) of the Children Act 1989 for continuing contact with L once he was adopted.
The mother wishes to appeal against the refusal of the assessment by an independent social worker and the making of final orders when, she argues, matters were not yet sufficiently clear and interim care orders should have been made. The local authority want to cross appeal against the granting of N's application for an assessment of the attachment between the children and the adjournment of their placement application with regard to L. Both matters had been listed in front of us for consideration of permission to appeal with the appeal to follow thereafter if permission is granted. In fact we have heard the matter as if permission had been granted and I would be minded in those circumstances to grant permission and I intend to continue to consider the substantive appeals.
The father's representatives have very responsibly decided that it is not necessary or appropriate for him to be represented at this hearing but they have written to the court to indicate that in principle he supports all aspects of the mother's appeal. I will say little about his position in this judgment because there has been no appeal by the father in relation to his own assessment.
N has her own solicitor, having parted company from the guardian. Her solicitor has also written to indicate that "[N] does not disagree with the [mother's] grounds of appeal" and in relation to the local authority's proposed cross appeal she agrees with the orders made by the judge.
We have had some disturbing further information about N provided in an agreed note today. She has it appears been involved in criminal behaviour and on 27 July this year she entered a guilty plea to a robbery which apparently took place in a playground. There is suggestion, denied I think on N's behalf, that a knife was involved in that and she awaits sentencing in mid-August in relation to that offence.
We have considered that information but it has to be borne in mind that it is not material that was before the judge when she made the determination that we consider today, although clearly it is going to be material to the determination which she carries out in due course.
The guardian continues to look after L's interests. She opposes the mother's proposed appeal and supports the local authority's proposed appeal. Accordingly the parties who are represented before us are the guardian, the mother and the local authority. I start with the mother's appeal against the refusal of a parenting assessment.
The starting point for the mother's proposed appeal in that respect is the assertion that the core assessment done by social services was flawed. The trial judge did not consider it to be so. Furthermore she did not consider that the court required any further information in order to make its decision about the capacity of the parents to care for their children because there was already considerable material available to the court in addition to the core assessment. There was no support from any professional quarter either for the proposed parenting assessment. Neither the local authority nor the guardian supported the application and the psychologist who had assessed the mother, Dr Craig, gave evidence that a parenting assessment should not commence until there had been other therapeutic interventions in the mother's life and there had been a cognitive shift evidenced by an acceptance by the mother of the concerns and by her willingness to engage in the process of change.
I only need to give a short history in order to set the scene for the submissions that Mr Mcdonald has made so persuasively today in support of this limb of the mother's appeal.
The mother comes from southern Ireland. There is an extensive history of family difficulties in Ireland going right back to the time of the mother's own childhood. Her behaviour as a teenager was problematic. Once N came along, social services were involved because there were concerns about the mother's care of her. One can see references to problems such as her drinking heavily, fighting, not leaving N with an appropriate adult and family feuding. In June 2003 the mother was given a 12 month prison sentence for an offence of assault. A feature of the passing years in Ireland was drink. For example, in May 2007 the mother was cautioned by police, this time in North Wales, for being drunk and disorderly; in May 2009 she was arrested having returned intoxicated to a unit where she was living and become abusive to the staff when they woke her up to attend to L's needs, L then being one year old; and in July 2009 L was removed from her care to a place of safety by the police when she was once again drunk. The mother then secretly abducted L from the hospital where he was being kept, police and social services in Ireland were unable to find him and there is mention also in the catalogue of events in Ireland of drugs and of domestic violence between the mother and father and in other relationships.
Following the abduction of L from the place of safety in August 2009, the family turned up in England. On 9 August 2009 they sought and obtained from the council in Birmingham accommodation on the basis that they were homeless. N's education in Ireland had been disrupted by the move and she has been uprooted from her friends and support networks. L had also been put at risk by this unplanned clandestine and precipitous removal from Ireland. The mother has said that she did not fully appreciate the implications of this.
In September 2009 the father was arrested and pleaded guilty to criminal offences in England. He seems to have been imprisoned, being released in mid-December 2009. Meanwhile at the beginning of December 2009 the mother returned to Ireland for a family funeral, became drunk and disorderly and was arrested. She was then detained in custody, there being an outstanding warrant for her arrest. What she did not tell anyone was that she had left the two children at home in England with no responsible adult to look after them. L was 18 months old at the time, N was 12 and they had to look after them only a young man of 17, Carl Carter, whom the mother had not known for very long and about whom she did not know very much. It appears that Carl Carter attended hospital, having injured himself. N was with him and it seems that she had left L with some friends, saying that she was going to return within an hour, but not in fact coming back. The police were called to the hospital because Carl had caused criminal damage. N was taken to the police station. The police believe that she was having a sexual relationship with Carl. This incident resulted in the children being accommodated by the local authority.
The mother returned to this country in early 2010. On 5 February 2010 she and the father, heavily under the influence of alcohol, sought out Carl and stabbed him with scissors. They later said that that was because they had discovered that he had had a sexual relationship with N. They pleaded guilty to wounding and were sentenced to 16 months' imprisonment. Overall they were incarcerated from February to October 2010. In due course, when the mother withdrew her consent to the local authority accommodating the children, care proceedings were begun with a succession of interim care orders being made from May 2010 onwards. N has been difficult to contain in care. She has been accommodated in residential units and she has come close to having to be accommodated in secure accommodation. L has been with the same foster carers throughout.
The core assessment, or rather pair of core assessments, one for each child, was prepared as a matter of urgency by a senior social work practitioner at the beginning of the year 2010. The initial referral had come in on 10 December 2009 as a result of the children having been left in the care of Carl Carter and the first assessments are...
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