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| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice David Richards,Lord Justice Simon |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1779 |
| Date | 09 October 2019 |
| Docket Number | Case No: B4/2019/1903 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 1779
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(HER HONOUR JUDGE CRONIN)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
Lord Justice David Richards
Lord Justice Baker
Case No: B4/2019/1903
Miss Lorna Meyer QC (instructed by the Local Authority Legal Services) appeared on behalf of the Appellant Local Authority
Mr Hugh Merry (instructed by Wansbroughs) appeared on behalf of the Respondent Mother
This is an appeal by a local authority against an order made by Her Honour Judge Cronin, on 29 July of this year by which she discharged a care order in respect of six children.
For the purposes of this judgment, it is only necessary to summarize the facts in outline.
The respondent mother has a total of 11 children, aged between twenty and two and three-quarters, by four different fathers. The family has been receiving assistance from social services for many years, with regular referrals from other agencies about a number of issues which gave rise to concern about the children's welfare, including domestic violence, physical injuries sustained by the children, and neglect. On a number of occasions during the past 12 years, some or all of the children have been the subject of child assessment investigations under s.47 of the Children Act 1989, and on other occasions subject to child protection plans.
Finally, in May 2018, care proceedings were started in respect of the ten younger children. One of those children was placed in a residential unit in the course of the proceedings and has stayed there subsequently under a full care order. The other nine children remained in the care of the mother. At the final hearing of the care proceedings, on 21 December 2018, the threshold conditions for making a public law care order under s.31 of the Children Act were agreed. In short, the court found that (1) the mother had struggled to supervise the children, as a result of which they had suffered physical injuries on a number of occasions, (2) she had struggled to provide essential parental guidance for the children, (3) she had missed some health appointments for the children, (4) school attendance for the children had been low, (5) there had been domestic violence between the mother and her partners, (6) there was a risk of sexual abuse, and (7) the mother had found it very difficult to engage with professionals.
At the conclusion of the hearing, Recorder Leong placed all nine children under care orders on the basis of care plans which provided for the children to remain at home with their mother. In his judgment, according to an agreed note prepared for subsequent proceedings, the Recorder said:
“The mother should be under no illusions. She was very close to losing her children. I was not impressed or convinced at all about the reasons she gave for her inadequate parenting. She needs to know the time for excuses is over. This is her last chance. If no significant improvement is shown over the next three months, as recommended by the independent social worker, the local authority must and I daresay will seriously consider whether the children remain in her care. The mother must know there is a chance she will lose some or all of them. The plans are put in place despite the long history of it not working and hostility from the mother. She must realise how lucky she is that professionals are prepared to come to court and defend their position that she should be given this chance even when she hasn't attended many of the hearings. I urge her to take the opportunity because it is her last one. The consequences for her and the children if she doesn't take this chance and effect significant improvements in their care will be dire. I word this brutally so there can be no misunderstanding of the seriousness of the situation. The plans must be complied with fully and without excuse.”
According to the local authority, however, the mother, following the hearing, did not comply in full with the requirements under the care plan. Attempts were made on a number of occasions to put in place further support. The local authority asserts that this was without success. After several months, the local authority decided that the six younger children could not safely remain at home. On 17 June 2019, the local authority wrote informing her that the children would be removed from her care on 1 July, with five of them to be placed in foster care and the sixth, who has learning difficulties, with a family member. The letter summarised the local authority's concerns as being (1) that the children's emotional needs were not being met, (2) that there was a lack of supervision leading to physical injuries to the children, (3) that medical appointments were not being kept, (4) that the children were suffering neglect, (5) that correct medication was not being obtained or administered, (6) that children were continuing to attend school on an insufficient number of occasions and were getting little support for their education from home, and (7) that there was difficulty in engaging the mother with professional support. In accordance with guidance set out in the case law, the letter advised the mother to seek legal advice immediately if she wished to challenge the proposed placement. The mother duly consulted a solicitor and decided to issue proceedings to discharge the care orders. Following discussions between legal representatives, the local authority agreed to postpone the removal of the children until the first hearing in the forthcoming proceedings.
On 4 July, the mother issued her application for discharge of the care orders. The application was in respect of all nine children who were subject to the care orders. In the notice of application, the mother also applied for an order preventing the children's removal by the local authority under s.8 of the Human Rights Act 1998. The applications were listed for an urgent preliminary hearing on the following day before the local designated family judge. At that hearing, the local authority indicated that it sought the removal of the six younger children, with the older three remaining at home under the care order. The judge adjourned the application to a day later in the month and gave various case management directions. He further ordered the local authority not to remove the children from the care of the mother prior to that hearing unless circumstances arose which would justify the making of an emergency protection order or the children were removed by the police under their police protection powers.
The mother came back to court on 29 July before a different judge, HH Judge Cronin. We have the benefit of a transcript of the hearing and the judgment. At the outset, the mother's counsel raised the question whether the hearing was to be a final hearing on the discharge application or whether further assessments would be needed before the court was able to make a decision. He pointed out that no up-to-date assessments had been carried out. The judge stated that the options before her were to discharge the care order or dismiss the application. When counsel referred to the application for an injunction under the Human Rights Act, the judge stated that she did not think that she had jurisdiction to make an injunction under that Act as she was not a s.9 judge (that is to say, a judge authorised to sit as a deputy High Court judge) and did not have any inherent jurisdiction. After further discussion, the judge reiterated her view that she did not have the power to make an injunction under the Human Rights Act and therefore concluded that she had there and then to decide the application whether or not to discharge the care orders. She then proceeded to hear evidence over the course of the day, hearing from the social worker, the mother and the children's guardian. The guardian supported the local authority's proposal to remove the children, saying that, in the months since the care order had been made, there had been no significant improvement in the quality of parenting. She referred back to the Recorder's comments in his judgment on 21 December when making the care order, observing:
“That judgment on the last hearing was so clear and so concise that I don't think anyone left that court with any illusion of what was expected and we're still in a position whereby the children are sustaining injuries on a daily basis. We've got a child who's attempted self-harm. We've got another child who's saying quite clearly that he feels unloved and unwanted in his family environment. We've just these continued low-level concerns. So I'm not in any way saying there's been this immediate risk...
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