H-W (Care Proceedings: Further Fact-Finding Hearing)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Carr,Lord Justice Bean |
| Judgment Date | 21 February 2023 |
| Neutral Citation | [2023] EWCA Civ 149 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-002277 |
[2023] EWCA Civ 149
Lord Justice Bean
Lord Justice Baker
and
Lady Justice Carr
Case No: CA-2022-002277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WATFORD
HH Judge Richard Clarke
WD20C00420
Royal Courts of Justice
Strand, London, WC2A 2LL
Sharan Bhachu (instructed by Local Authority Solicitor) for the Appellant
Kate Grieve (instructed by Bastian Lloyd Morris) for the First Respondent
Emily Beer (instructed by Crane and Staples) for the Fourth Respondent
Amanda Meusz (instructed by David Barney and Co) for the Children, by their Guardian
The Second and Third Respondents were not represented at the hearing.
Hearing date: 24 January 2023
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 10:30am on 21 February 2023.
This is an appeal against a judge's decision to refuse a local authority's application for a further fact-finding hearing in long-running care proceedings in which findings have previously been made that the threshold criteria for making orders under s.31 of the Children Act 1989 were satisfied.
At the conclusion of the appeal hearing, we informed the parties that the appeal would be allowed for reasons to be given at a later date. This judgment sets out my reasons for agreeing with that decision.
I say at the outset that it was with great regret that I concluded that the appeal had to be allowed. These proceedings started as long ago as March 2020 – in other words at the start of the Covid 19 pandemic. In circumstances described briefly below, they have already been the subject of an appeal to this Court ( Re H-W (Children: Proportionality) [2021] EWCA Civ 1451) and thence to Supreme Court ( In the Matter of H-W (Children) [2022] UKSC 17). As a result of our decision on the present appeal, there will be yet further delay before the proceedings are concluded. It is inevitable that by the time they are finally concluded they will have been ongoing for well over three years. Parliament has of course stipulated that care proceedings must be determined without delay and in any event within 26 weeks: s.32(1)(a) of the 1989 Act. Under s.32(5), that period may be extended but only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly. Unfortunately, I am in no doubt that an extension of the proceedings is necessary for precisely that reason.
Background
The background to the proceedings is set out in the judgments of Peter Jackson LJ on the earlier appeal to this Court (paragraphs 3 to 7) and of Dame Siobhan Keegan in the Supreme Court (paragraphs 7 to 13) and need not be repeated in detail for the purposes of the present appeal.
I shall refer to the family members using the alphabetic identification adopted in the earlier judgments. The mother has six children – A and B, who are now adults and living away from home, and the four children who are subject to these proceedings – C (aged 14), D (12), E (9) and F (2 years 9 months). The four children have three different fathers – F1, the father of C and D, F2, the father of E, and F3, the mother's current partner, who is the father of F. F3 has four older children, one of whom, referred to as G earlier in these proceedings, lived with this family for a short period between 2016 and 2018. At an earlier stage, F3 had been in a relationship with the mother's own mother.
The mother was in care herself as a child and she and her children have been involved with the local authority children's services for a number of years. In earlier care proceedings in 2014 concerning A, B, C, D and E, a circuit judge concluded that the children were at risk of neglect and sexual abuse, following findings about the behaviour of A and F2. The proceedings ultimately concluded with a care order in respect of A, a residence order to the mother in relation to the four other children coupled with a supervision order, and an injunction against F2, which remains in force. The local authority's involvement with the family lapsed for a while after the end of the supervision order but resumed again after further concerns of neglect were reported and continued until October 2019 when the case was closed again. At that point, as Peter Jackson LJ observed (at paragraph 7 of the earlier appeal judgment), the longstanding concerns about neglect and sexual abuse had receded “with signs that the mother was maturing and F3 was seen as a stabilising influence”.
In March 2020, however, the local authority started further care proceedings in respect of C, D and E after learning of an incident when A, who had been advised to leave his supported living accommodation, had visited the family home and sexually abused E. The mother, F1, F2 and F3 were all joined as parties, respectively the first to fourth respondents. When F was born a few weeks later, the local authority started proceedings in respect of her. Interim supervision orders were made in respect of all four children. A fact-finding hearing took place before HHJ McPhee over nine days in November and December 2020 which concluded with findings, in summary, that:
(1) A sexually abused E upstairs in the family home on 18 November 2019, witnessed by B, while the mother and F3 were downstairs attending to an injured dog;
(2) the mother failed to protect the children from actual sexual abuse and the risk of sexual abuse by permitting A to stay in the family home in that:
(a) she knew that A presented a risk of sexual harm to his siblings;
(b) after B and E told her that A had sexually abused E, she continued to place the children at risk by allowing A to stay in the house overnight;
(c) she failed properly to supervise A, allowing herself to become distracted and A to have access to E upstairs and out of sight;
(3) the mother delayed in reporting the incident to children's services until 21 November 2019;
( 4) F3 failed to protect the children from actual sexual abuse and the risk of sexual abuse by permitting A to stay in the family home in that:
(a) he was aware of the risk A presented to his siblings;
(b) he allowed A to remain in the house and became complacent as to the need to protect the children;
(c) he failed to report the incident to children's services;
(5) as a result of the mother's and F3's failure to protect the children, they suffered or were at risk of suffering, significant harm.
Following these findings, the interim supervision orders were extended until a welfare hearing which took place before HHJ McPhee over six days in July 2021. The evidence included the opinion of Dr Judith Freedman, a child and adolescent psychiatrist, who carried out assessments of the adults. Of the mother, she said:
“Her ability to parent is, in my view, uncertain. Her limitations will not change. She is likely to continue to cling closely to her children, who are dependent on her and struggle to achieve independence, but love and want to be with her. Her ability to provide a higher level of parenting is non-existent. She is likely to continue as she is, with the only possibility for improvement being the increased stability that F3 seems to have brought to the family. I think it likely that her ability to recognise and protect her daughters from sexual harm is unlikely to change, as this is a major blind spot for her.”
Of F3, she said that he:
“presents as a man who is committed to his children and has brought increased stability to the family. He is not without his short-comings, which include his poor judgment in getting together with M after being with her mother, and also his questionable protection of G when he was living with the family.”
In his judgment at the conclusion of the welfare hearing, the judge accepted the arguments on behalf of the local authority and guardian that the children should be removed from the care of the mother and F3, saying:
“I have come to the conclusion that the parents are not capable of providing for the safe needs of C, D, E or F. Those children were each placed at risk of significant sexual harm. E suffered significant sexual harm. I cannot be satisfied that the parents have learned sufficiently, or understand or have the capability of learning and understanding, in the case of M, how to avoid that situation in the future. This was a decision that the parents took in conjunction with the other.”
In respect of C, D and E, he made care orders on the basis of the local authority care plan for long-term fostering. He adjourned a decision in respect of F to await an assessment to establish whether B could care for her under a special guardianship order, directing that she should remain at home for the time being under an interim care order.
The mother, supported by F3, filed a notice of appeal against the care orders in respect of C, D and E and was granted permission to appeal and a stay of the order pending appeal. On 7 October 2021, this Court by a majority (Lewison and Elisabeth Laing LJJ, Peter Jackson LJ dissenting) dismissed the appeal. The mother and F3 filed separate notices of appeal to the Supreme Court. Permission was granted to both appellants and the appeal heard on 22 March 2022. On 15 June 2022, the Supreme Court delivered a unanimous judgment allowing the appeals and remitting the case for rehearing of the final welfare hearing, expressing the hope that the remitted case and the outstanding case relating to F would be heard together. In the course of her judgment (with which the other Justices agreed), Dame Siobhan Keegan stated (at paragraph 62):
“the process adopted by the judge is flawed as it did not adequately assess the prospects of various options to...
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Re T and Others (Children) (Adequacy of Reasons)
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