H (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALL |
| Judgment Date | 18 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1325 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 October 2005 |
| Docket Number | B4/2005/1879 |
[2005] EWCA Civ 1325
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(THE HON MRS JUSTICE PAUFFLEY)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Wall
B4/2005/1879
MR A SCOTT (instructed by William Bache & Co) appeared on behalf of the Applicant
The Respondent was not represented and did not appear
On 19th August an application was received for permission to appeal the judgment of Pauffley J of 8th August. The papers were referred to me on 22nd September, and accompanying the papers was a photostat of a report in the Mail on Sunday for 18th September to the effect that permission had been granted by the trial judge herself to appeal her order freeing the children for adoption. The report says that that decision was granted in the preceding week. I assumed that that was an accurate report of fact and returned the papers to the Civil Appeals Office on the ground that my consideration was rendered unnecessary. The Office made further inquiries and it transpired that the newspaper report was simply inaccurate and that there had been no grant of permission below.
Accordingly, I directed an oral hearing on notice with a time estimate of one hour. I did not deal with the application on paper, precisely because it was evident to me that the case had attracted widespread public interest and it was therefore important that this court's determination of the permission application should be thorough, full and public. It had been my intention that there would be three Lords Justices to sit, but for fortuitous reasons we are only two this morning.
But the aspect of publicity is something that is relied on by Mr Scott in submissions which I will come to in a moment. My Lord in his following judgment will give some general observations on the point of publicity. I have had the advantage of seeing his preliminary thoughts in draft and I associate myself fully with all that he intends to say.
That is but a brief introduction to a truly tragic case which was the subject of a defining judgment given by HHJ Hayward-Smith, sitting in the Chelmsford County Court on 8th October 2004. The judgment that he gave was clearly reserved and carefully considered. It was given in chambers. It was not released for publication in anonymised form and it was not the subject of any application for permission to appeal to this court or, as far as I know, to HHJ Hayward-Smith.
His judgment runs to some 98 paragraphs and explains with considerable care and compassion why he was making a care order which would have the immediate effect of removing two children, one born in 2001 and the other in June 2004, from their parents. There had been no prior separation. The parents were entirely decent and respectable people. On its face the order was contrary to all ordinary expectations and evaluations of the operation of the forensic part of the Child Protection Procedures.
The explanation within the judgment is quite simple. It is that one child had suffered, and the other was likely to suffer, harm without this intervention which the judge properly recognised to be draconian. That harm, and that likelihood of harm, resulted from the parents' inability to provide for the children the standard of parenting that they crucially needed. This inability was not the consequence of any want of effort or commitment on the part of the parents. It was simply that each of them had limitations of parenting ability which had proved incapable of supplement, despite the devotion of considerable resources by the local authority to support continuing care for the children in their natural home.
Of course, this court is very familiar with cases in which the state intervenes in family life and removes children from families because of varying degrees of parental failure or dangerousness. Children who are abused within the family, children who suffer harm because of adult dangerousness or adult neglect, are necessarily protected by removal and the court has perhaps little difficulty in discharging its responsibilities in such cases. It is in my experience highly unusual and truly tragic for the court to have to intervene in such a draconian fashion in relation to parents who have so many strengths and virtues to set against their limitations, and it must have been an extremely anxious and distasteful duty for HHJ Hayward-Smith so make the fundamental care order which he made in October 2004.
Once he had made the care order, of course, the future management of the children's lives lay with the local authority, but HHJ Hayward-Smith made it perfectly plain that the local authority were to approach future management by adopting concurrent planning. That is to say they were to simultaneously investigate either the placement of the children within the extended family; alternatively, move towards adoption by making a freeing application for the consideration of the court.
What transpired was an assessment of paternal grandparents which followed from a family group conference. The assessment ended with the conclusion of the independent social worker conducting it that a placement with paternal grandparents would be contrary to the welfare of the children. The freeing order application was in fact lodged shortly before that decision had finally been reached, and to that extent may be labelled anticipatory. On the other hand, given that the local authority had adopted a concurrent planning route, it does not seem to me that they were inhibited from issuing a freeing order application before the outcome of the grandparental assessment. After all, had the decision been otherwise, it was easy simply to withdraw the freeing order application.
The local authority had also achieved from the order of HHJ Hayward-Smith a legal permission to refuse parental contact during the ensuing period of concurrent investigation. Sadly, the local authority exercised that power to terminate contact following a fracas at a contact meeting on 3rd December. The freeing order application was heard by a judge of the Family Division, Pauffley J, on 4th and 5th August and her judgment was handed down on 8th August. Given the fact that there had been considerable publicity in the national and local press, between 8th October 2004 and 4th August 2005, Pauffley J ensured that her judgment, carefully anonymised, was placed in the public domain and she annexed to her judgment the judgment of HHJ Hayward-Smith, so that that too became fully available for public scrutiny.
Mr Scott in the course of his submissions has made the point that the publicity in the interim between the two judgments was largely, if not entirely, promoting the understanding that the children had been removed from their parents for the simple reason that their level of intelligence had been found by the court to be insufficient to enable them to parent children.
Accordingly, the release of the judgments at both levels, County Court and High Court, on and after 8th August should have led to, or might have led to, corrective publicity demonstrating that the judgments at both levels had been founded on a much wider appraisal and conclusion. Mr Scott says that there has been no such corrective publicity and his first ground for the grant of permission is that a full investigation by this court would result in judgments that would put the record straight.
I do not consider that that begins to amount to a compelling reason for the grant of permission, for the very simple reason that the judgments that we give on a permission application can in suitable circumstances be made available for reporting, either as a matter of public interest or as a matter of legal significance in appropriate cases.
Mr Scott has also drawn our attention to the fact that the work of the independent social work expert who had carried out the assessment on the grandparents was the subject of a complaint on the grounds that it had been rushed and in other respects flawed. Mr Scott has this morning produced a letter of 28th February 2005 which in some degree upholds the grandparents' complaint. If that had a forensic impact it was very important that it should be introduced at the trial on 4th and 5th August to be evaluated by Pauffley J. Mr Scott is unable to say with any confidence that it was not, since at some stage prior to 19th August there was a change of solicitors and change of counsel. It does not seem to me to be of sufficient weight to justify an adjournment of this application for a further hearing on notice to the local authority.
Mr Scott's perhaps considered grounds, set out in his skeleton argument of 25th August, are to the effect that this court should consider the interaction of the Human Rights Act 1998 on applications for freeing orders proceeding on the grounds of the unreasonable withholding of parental consent. He says that there has been no such previous decision of this court and that social changes not only offer an opportunity, but require the court to issue a commentary on the Adoption Act 1976 as it approaches its demise. It is of course to be replaced by the Act of 2002, which is to come into force within the near future. With respect to Mr Scott's argument, it seems to me that that reduces, rather than enhances, the value of any commentary from this court on a dying statutory regime.
Mr Scott then develops a...
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