H (Parents With Learning Difficulties: Risk of Harm)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Warby,Lady Justice Falk |
| Judgment Date | 02 February 2023 |
| Neutral Citation | [2023] EWCA Civ 59 |
| Docket Number | Case No: CA-2022-001828 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 59
Lord Justice Baker
Lord Justice Warby
and
Lady Justice Falk
Case No: CA-2022-001828
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WOLVERHAMPTON
HH Judge Lopez
WV2100104
Royal Courts of Justice
Strand, London, WC2A 2LL
Lorraine Cavanagh KC and Kathryn Anslow (instructed by Clarkes Solicitors) for the Appellants
Stefano Nuvoloni KC and Louise Higgins (instructed by Local Authority Solicitor) for the First Respondent
Kirsty Gallacher (instructed by Talbots) for the child by her Children's Guardian (written submissions only)
Hearing date: 6 December 2022
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 2 February 2023.
Introduction and background
This is an appeal against care and placement orders made in respect of a child, referred to in this judgment as “H”, who is now aged 22 months.
H's parents both have cognitive difficulties. Her mother has a diagnosed learning disability. Her father has difficulties but does not meet the criteria for a learning disability.
H has three much older brothers, whom I shall call “D” (now aged 23), “E” (19), and “F” (16), and a sister, “G” (13). All four have cognitive impairments.
The local authority has been heavily involved with the family since 2011. D, then twelve years old, with the cognitive function of a child half his age, was alleged to have inappropriately touched a five-year-old girl. With the parents' agreement, D moved into local authority care. Since that time, he has largely lived away from the family home and now lives in supported accommodation. All four children were made subject to child protection plans until 2013 when they were reclassified as children in need.
Over the next few years, there were a number of referrals to the local authority's children services raising concerns about the children, in particular their relationship with associates of the family, allegations of aggressive and sexualised behaviour on the part of E and F, and violence allegedly shown by D towards E. In September 2018, E, F and G were again made subject to child protection plans on the basis of risk of sexual harm, and the parents signed a working agreement under which the children were not to have unsupervised contact with D, and G was not to be left alone with any of her brothers.
In February 2019, the local authority started care proceedings in respect of D, E and F. At that stage, E appeared to be beyond parental control and the local authority was worried that the children were still spending time with D and adults known to present risks to children. In a series of therapeutic sessions, G made allegations about E and F. She said that they were “mean”, that they hit, punched and kicked her, that they went into her bedroom when she did not want them to, that they showed her their genitals in the woods and that she felt unsafe when her parents were not at home. She indicated with visual aids that E and F had touched her genitals. On 28 March 2019, G was made subject of an interim care order and she was placed in foster care.
On 10 July 2019, E dragged his mother from the bath to the landing and sexually assaulted her. On 12 July, E was made subject of an interim care order and a secure accommodation order. On 18 May 2020, all parties agreed that E was beyond parental control and on that basis he was made subject of a full care order.
On 11 February 2021, final care orders were made in respect of F and G. The care plans approved were for F to remain at home in his parents' care and for G to stay in long-term foster care. It is important for the purpose of this appeal to note that findings in relation to G's allegations about E and F were not sought by the local authority and HHJ Lopez rejected an application by G's guardian to invite the local authority to seek such findings.
Meanwhile, the mother was pregnant again. A prebirth assessment concluded that she had the capacity to meet basic care needs but there were concerns about her ability to understand risk and to provide stimulation to a growing child. A Care Act assessment concluded that the mother was independent in all daily activities and did not meet the eligibility criteria for services from Adult Social Care.
On 19 March 2021, the mother gave birth to H, the subject of this appeal. Three days later, the local authority issued care proceedings in respect of the baby. On 24 March 2021 at a hearing before a district judge, she was made subject to an interim care order but remained at home with her parents under a working agreement. The case was allocated to HH Judge Lopez.
Over the following year, seven further interim hearings took place before the judge at which a succession of directions were given. During this time there were continuing reports of aggressive behaviour by F who was still living at home. But H was seen as developing well with age-appropriate behaviours. There were no concerns about the mother's basic childcare and professionals observed emotional warmth and affection between mother and baby.
On 13 June 2022, fifteen months after the start of the care proceedings concerning H, a final hearing took place. The hearing continued for eleven days until 5 July, after which judgment was reserved and handed down on 8 September. Under the order made following judgment, the judge made care and placement orders and refused the mother's application for permission to appeal. He directed that any application for permission to appeal be made by 4pm on 15 September and granted a stay of execution of the removal of H from her parents' care until this Court had determined the mother's application for permission.
On 15 September, the parents filed a notice of appeal to this Court. On 21 November 2022, I granted permission to appeal and extended the stay until the determination of the appeal. Thus, at this point H remains with her parents at home where she has lived all her life.
The judgment
The judgment is the longest I can recall encountering in care proceedings. It extends over 138 single-spaced pages, 335 paragraphs and 85,000 words. Paragraphs 1 to 8 contain an introduction, the details of the parties, and the basis on which the local authority asserted that the threshold criteria under s.31 of the Children Act 1989 were satisfied. Paragraphs 8 to 49 contain what is described as a summary of the essential background of the case. In paragraphs 50 to 81 the judge sets out the law, including extensive quotation from 17 reported judgments and citation of a number of other authorities. Paragraphs 82 to 267, headed “The Evidence”, include what amounts to almost a verbatim account, or at least a very full record, of the evidence. This begins with a summary of the written evidence about the earlier care proceedings concerning E, F and G, in which, as the judge acknowledged, the local authority had not sought, nor the court made, any findings on the allegations, including the allegations made by G against her brothers. The judge then sets out the evidence of 17 witnesses, of whom 14 had given oral evidence, including several social workers and family support workers employed by the local authority, Mr Roger Hutchinson, a consultant psychologist who had carried out assessments of the parents during the earlier proceedings concerning the other children but had not been instructed to reassess them for the present proceedings, Dr Gabrielle Gregory, another psychologist who had carried out assessments of the parents in the current proceedings, Ms Bridie Steventon, an independent social worker who had undertaken a PAMS assessment of the parents, the mother, the father and the guardian. This is by far the largest section of the judgment and includes lengthy quotations from the written and oral evidence. Paragraphs 268 to 333 contain the judge's analysis of the evidence and his reasoning, and the judgment concludes with the judge recording his ultimate decision.
I hesitate to criticise this experienced judge after the enormous effort he expended and the commendable diligence he showed in producing his judgment. I also bear in mind the axiom about pots and kettles. On any view, however, this judgment is far too long.
The law reports contain many lengthy judgments in care proceedings, but invariably they have involved issues about whether the threshold criteria were satisfied which necessitated analysis of complex and disputed evidence, often detailed medical evidence. It should be noted, however, that the parents in this case conceded that the threshold criteria under s.31 were satisfied. The issue for the court was therefore what order to make in the light of that concession. Once it is established that the threshold is crossed, there may be complex and finely-balanced issues about the appropriate order, and the judge will have to conduct the holistic balancing exercise of analysing the advantages and disadvantages of the realistic options – see Re H-W (Children) [2022] UKSC 17. But this latter exercise can generally be completed reasonably succinctly.
In those circumstances, a recitation of the evidence extending to in excess of 60,000 words is manifestly excessive. I note with some alarm the judge's observation towards the end of his judgment (paragraph 332) that the court had “not referred to every aspect or detail of the evidence” but instead “focused on the principal evidence and the reasons for making its findings and decisions”. With respect to the judge, his recitation of the evidence extends far beyond that.
This Court has repeatedly emphasised the measured expectations of a judge...
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