F-T (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice McFarlane |
| Judgment Date | 10 June 2015 |
| Neutral Citation | [2015] EWCA Civ 880 |
| Docket Number | B4/2015/1757 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 2015 |
[2015] EWCA Civ 880
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEST LONDON FAMILY COURT
(HER HONOUR JUDGE KARP)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Richards
Lord Justice McFarlane
B4/2015/1757
In the Matter of
Ms R Cabeza (instructed by Corporate Legal Services) appeared on behalf of the Applicant
Mr D Sharpe & Mr R Beddoe (instructed by {L"Defendant Solicitor}) appeared on behalf of the Respondent
McFarlane LJ will give the first judgment.
This appeal comes in the course of recently issued care proceedings with respect to a very young child, a girl, "E", who was born on 21st May 2015 and so is not yet three weeks old.
The issue before this court is whether Her Honour Judge Karp was justified in making an order directing that E and her mother and father be placed in a residential assessment unit. That order was made at a hearing that was concluded before the judge on Tuesday 26th May. The hearing had originally started the previous Friday but had been adjourned, and during the course of the second day, 26th May, the father, through his legal team, was able for the first time to put forward the proposal that a residential assessment unit should be engaged to provide accommodation and an assessment for the mother, father and the child.
As I have indicated, that was the order that the judge made. She did so after a process of hearing and occasionally the parties outside the court negotiating. It is of note that we have been told that the judgment given by the judge was given at the very end of the day at around 6 pm, therefore well after the time for concluding proceedings.
In summarising the procedural history, it is right to take matters forward. The local authority issued its notice of appeal on 2nd June. I considered the case on paper on 4th June, granted permission to appeal on the basis that I will describe in a moment, and this court is extremely grateful to the advocates and to the listing office in this building for arranging an extremely prompt inter partes hearing of the appeal itself today, 10th June.
Before focusing in on the issue, it is right to summarise the background of the proceedings. They make for difficult reading because they chronicle the early life of E's mother, who is even now a young woman only of the age of 25. She has two older children, one aged nine and one aged seven, who are accommodated by the authorities in her home country of Bulgaria; she being a Bulgarian Turk. She left Bulgaria in 2009 and came to this country in circumstances which I will not repeat in this judgment, but which generate a great deal of sympathy. She is a young woman with very, very modest internal resources. She has a very profound learning disability: her IQ has been measured in the course of previous proceedings at a level of 33 on the global scale. In this jurisdiction she gave birth to two other children, aged six and five. They were in her care for a number of years, but the local authority had developing concern as to the mother's ability to care for them. In the end care proceedings were issued in 2013, and on 30th September 2013 those two children were made the subject of care orders and for each of them an order authorising the local authority to place them for adoption. The basis of those orders were findings of physical abuse and neglect.
The mother subsequently started a relationship with the gentleman who is the father of E, the subject of these proceedings. He is not the father of any of the mother's four older children. He is a gentleman of Turkish origin and he is nearly 50 years of age. There is no apparent chronicled local authority history of concern about children he has previously had in his care, who are now either adults or fast approaching that stage.
As I have indicated, E, the subject of these proceedings, was born on 21st May of this year and, because of the local authority's knowledge of the mother's profound learning disability and the previous findings in the earlier proceedings, care proceedings were issued the day after her birth. E and her mother remained in hospital pending the court's determination of the local authority's application for an interim care order.
That matter was the matter considered by Her Honour Judge Karp. Fortunately, that judge was no stranger to this family. She had undertaken a hearing with respect to the ultimate adoption of the two older children who had been placed in the care of the local authority here in England and those proceedings had been undertaken in the spring of 2015, culminating in a hearing in April 2015. So the judge brought her knowledge of this mother and the proceedings to the court room when considering the interim care application.
A further important matter, which does not in fact play into the merits of this appeal but it is right to place it on record within this judgment, is that because of the mother's learning disability she had in the previous proceedings been declared to lack litigation capacity and she had been represented by the Official Solicitor, instructing local solicitors and counsel. These proceedings are too recent in origin for such a finding of capacity to be made, and it is anticipated, we are told by Mr Sharpe (counsel who acts for the mother before us, as he did before the judge), that it is anticipated that there will be a certificate about capacity later this month. Despite the uncertainty as to the mother's capacity, we are grateful, as no doubt Judge Karp was grateful, for Mr Sharpe doing the best he can to represent the point of view of the mother before the court.
The point in the appeal relates to the judge's approach to the twin issues that had to be determined. The first of those two issues was whether or not the court should make an interim care order with the result that the mother and father should be separated from their young baby. The second issue was whether or not the family should move to be placed in the residential unit that had been identified.
The principal ground of appeal of the local authority is that the judge conflated both of those two issues and, in consequence, came to fall into error by ordering placement in a residential assessment unit without having gone through the necessary consideration of the statutory criteria set out in Children Act l989, section 38(6), 7A and 7B ("CA l989").
Before looking at what the judge had to say about these matters, it is necessary to look at the legal context within which these two issues fall to be decided.
As is well known, this court has on a number of occasions stressed the test for a court deciding to make an interim care order, the effect of which is to separate a child from his or her family. The test has been set out in a number of authorities. In Re L-A (Care: Chronic Neglect [2010] 1 FLR 80, it was stressed that a child should not be separated from his or her parents unless "the child's safety requires interim separation", and subsequent authority has clarified that the word "safety" does not simply refer to physical safety but may include emotional safety and other similar matters.
The parameters with respect to ordering an assessment are contained within the CA 1989 in its present form following amendment as a result of the Children and Families Act 2014. The relevant provisions now read:
"(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
…
(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.
(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to —
(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,
(b) the issues with which the examination or other assessment would assist the court,
(c) the questions which the examination or other assessment would enable the court to answer,
(d) the evidence otherwise available,
(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,
(f) the cost of the examination or other assessment, and
(g) any matters prescribed by Family Procedure Rules."
Those provisions are in precisely the same terms as the over-arching provisions governing any form of assessment in these proceedings, which are set out in section 13 of the Children and Families Act 2014 in these terms:
"(1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.
…
(3) A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings.
…
(5) In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.
(6) The court may give permission as...
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