H (Children: Placement Orders)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Males,Lady Justice Elisabeth Laing |
| Judgment Date | 25 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1245 |
| Docket Number | Case No: CA-2023-001576 and 1577 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 1245
Lord Justice Peter Jackson
Lord Justice Males
and
Lady Justice Elisabeth Laing
Case No: CA-2023-001576 and 1577
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
His Honour Judge Tolson KC
PE002/23 & P22C50128
Royal Courts of Justice
Strand, London, WC2A 2LL
Henry Lamb (instructed by Futter Chapman Family Law Solicitors) for the Appellant Children by their Children's Guardian
Gary Crawley (instructed by Pathfinder Legal Services) for the Respondent Local Authority
Alison Hunt (instructed by Oslers Solicitors) for the Respondent Mother
The Respondent Fathers did not appear and were not represented
Hearing date: 5 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal by the Children's Guardian from orders concerning three young children. The older two are boys who are now aged four and three. The third child is G, a one-year-old girl. The children have the same mother; the boys' father is F1, while G's father is F2.
The boys have lived in foster care since the spring of 2021 and placement orders were made at the end of that year. In their case, the order under appeal revoked the placement orders on the mother's application. G has lived with her mother since birth and in her case the Guardian challenges the decision that this should continue under a supervision order, rather than G being removed under a care order with a view to adoption. The local authority supports the appeal in respect of the boys, but opposes it in respect of G. The mother seeks to uphold both orders. The fathers play no part in the appeal.
For the reasons given below, I would dismiss the appeal in relation to G, but I would allow the appeal in respect of the boys and would restore the placement orders.
Background
These children are the youngest of the mother's seven children. The eldest girl (aged 18) lives at home. The second boy (B, aged 17), who has learning difficulties, is in foster care but was likely to return home on reaching majority in October 2023. The father of these two children has not been involved in their lives. The next two children, whose father is F1, are girls aged 11 and 8. They are in long-term foster care, with supervised contact with their mother every six weeks.
The family has been known to the local authority since 2011 due to recurring concerns about the care given to the children, which increased when each child was born.
The involvement of the Family Court began in April 2021, when care proceedings began and all the children, except the eldest, were placed in foster care. In July 2021, the threshold was agreed on the basis of: the children's exposure to domestic violence between the mother and F1, that had recently led to his imprisonment; the parents' anti-social behaviour and repeated shoplifting; the mother's involvement with F2, a drug user who was in a state of mutual enmity with F1 that would periodically break out into violent incidents; the mother's own use of drugs; and neglect of the children's health and educational needs. In the same month, an independent social work assessment of the mother was negative. It cited her lack of insight into the risks that her decisions and behaviour posed to the children's emotional welfare and safety, a lack of accountability and a tendency to blame others for the harm experienced by the children, absence of remorse impacting on motivation to change, a fundamental lack of honesty, and an incapacity to work openly with professionals.
In November 2021, the Guardian, who represented the children then as now, supported the application for care orders in respect of all five subject children and advised that in the case of the youngest two, the boys, the balance tipped firmly towards a plan of adoption. She noted strengths in the family in the form of loving relationships between the parents and children and between the children themselves, and the availability of some wider family support. She described B as having very significant learning difficulties and as requiring a high level of support and supervision to keep him safe and develop functional life skills while avoiding exploitation by others. The younger boys were noted to be very active with little sense of danger or awareness of how their actions may affect each other. Their experienced foster carer felt that their need for attention was significantly higher than any other children she had cared for. The Guardian regarded it as particularly worrying that the mother had continued to engage in criminal activity, associate with risky adults, and expose the children to drug use, even after learning that the independent social worker had recommended adoption for the boys.
Against this background, on 10 December 2021, Her Honour Judge Davies made care and placement orders, bringing the first set of proceedings to an end. It is unsatisfactory that no transcript or even a note of judgment was created, so no record exists of what was said by the court when it made such serious orders for these five children, even if the reasons for the decision can be broadly deduced from the professional reports. I repeat what I said in Re M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404 at paras. 5–7 about the obligation on the court and the local authority to ensure that a transcript of judgment is obtained when care or placement orders are made unless the court hands down a written judgment or makes arrangements for an approved note.
To complete the background, between July 2021 and March 2022, the mother was said to have been caught shoplifting on 18 occasions, often in company with F2. In June 2022, she was sentenced to an 18-month community order for shoplifting and drug driving. She and F2 were each given a two-year criminal behaviour order barring them from certain named shops or from going into any shop together.
In July 2022, potential adopters were identified for the boys.
Events since the birth of G
In August 2022, G was born to the mother and F2. The local authority began care proceedings the next day. They were allocated to His Honour Judge Tolson KC. On 26 August 2022, he refused the local authority's application for an interim care order with a plan for G's placement in foster care and he made an interim supervision order. The mother and F2 gave a number of undertakings to the court, including that the mother should have no contact whatsoever with F1 or F2. On that basis, G remained in her mother's care.
On 9 September 2022, care and placement orders were made in proceedings concerning F2's 5-year-old child from another relationship, with that child being said to have been harmed by exposure to F2's chaotic and criminal lifestyle and by his dysfunctional relationship with G's mother. The next day, the mother and F2 were caught shoplifting together in a games store. On 5 October 2022, the windows of a social worker's car were smashed by a masked person during a visit to the mother's house. The local authority renewed its application for an interim care order, which was refused by the judge on 6 October 2022.
On 23rd October 2022, F2 smashed the windows at the mother's home. The local authority again applied for an interim care order, which the judge again refused on 14 November 2022.
Following the 2021 proceedings and her conviction in March 2022, the mother engaged with a number of services: substance abuse, victim awareness, mental health treatment, domestic abuse, parenting classes and employment training.
On 10 January 2023, the boys were matched with the potential adopters and contact ceased. On 25 January 2023, the mother applied for permission to apply to revoke the placement orders and on 13 March 2023, the judge granted her application without opposition from the local authority or the Guardian. The adoption plan was paused to await the outcome of the application.
On 1 December 2022, the mother pleaded guilty to the September 2022 shoplifting. On 29 March 2023, she was given a community penalty, which she duly served.
On 18 May 2023, F1 told the Guardian that he had been in a relationship with the mother throughout her pregnancy with G and that he had lived with her for eight weeks after the birth, but that he had separated from her because she continued to see F2. However, he had stayed there over Christmas/New Year and the mother had continued to message and call him after that. This account was broadly consistent with statements made by F2 to the police.
The final hearing took place on 24–25 May 2023. The judge heard evidence from the social worker, the team manager, the mother and the Guardian. F1 appeared briefly by video-link but thereafter absented himself. F2 attended the hearing, though his mental health was too poor for him to be able to give evidence, but the judge viewed a recording of a police interview with him.
The local authority considered that the progress made by the mother was just about sufficient to allow G to remain in her care. However, the social workers' assessment was that the boys' substantial needs could not be met by the mother on top of her responsibilities to G and in due course B. As a result of their experiences, the boys required better than good-enough parenting that the mother could not reliably provide.
The Guardian considered that the available information raised serious concerns about the changes the mother was believed to have made, and her capacity to work honestly, understand and manage risk, and prioritise and protect G. There appeared to have been a complete failure of the court-directed safety...
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N (Children: Revocation of Placement Orders)
...the recorder's judgment in this case, this court has considered a Guardian's appeal from the revocation of placement orders in Re H (Children: Placement Orders) [2023] EWCA Civ 1245. At paragraph 45, I said this: “At the same time, the boys, who urgently need a permanent family that can gi......