J-S (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Baker |
| Judgment Date | 24 May 2019 |
| Neutral Citation | [2019] EWCA Civ 894 |
| Docket Number | Case No: B4/2019/0918 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2019 |
[2019] EWCA Civ 894
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COMBINED COURT CENTRE
Her Honour Judge Owens
CX19C000028
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
and
Lord Justice Baker
Case No: B4/2019/0918
Edward Devereux QC and Alex Forbes (instructed by Reeds Solicitors) for the Appellant
Father Charles Geekie QC and Andrew Leong (instructed by Oxfordshire County Council) for the Respondent Local Authority
Andrew Bagchi QC and Emma Hudson (instructed by Brethertons Solicitors) for the Respondent Mother (written submissions only)
Maria Savvides (instructed by Wilson Solicitors) for the Respondent Father (written submissions only)
Pamela Scriven QC and Cherry Harding (instructed by Oxford Law Group) for the Respondent Children through their Guardian (written submissions only)
Hearing date: 23 May 2019
Approved Judgment
Introduction
On 15 March 2019, Oxfordshire County Council removed five children from their mother under an emergency protection order. Interim care orders were then obtained and the case was listed for a contested hearing before Her Honour Judge Owens on 10 April. The threshold for interim orders was not disputed, but the local authority's plan to keep the children in foster care was. The judge continued the interim care orders and listed a fact-finding hearing for three days on 29 May. The father of the youngest child challenges that outcome on two grounds. The first concerns the justification for making the orders: the judge refused permission to appeal, and this court's permission is now sought. The second ground of appeal, for which the judge herself gave permission, concerns the power to order electronic tagging in a case of this kind.
The background is that in 2009 the father (as I shall call the appellant) was found to have caused 17 fractures to a baby son by a previous relationship. In 2012, he was sentenced to 33 months imprisonment for inflicting grievous bodily harm on the child and for neglect. In mid-2017, he began a relationship with the mother of the older four children. The local authority told the mother about the father's history and a written agreement was made which barred him from attending the family home. In January 2018, a psychiatric report advised that the father posed a serious risk to any child and that he is not treatable. In May 2018, the local authority issued proceedings in relation to the older four children on the basis of neglect and failure on the mother's part to protect them from unsuitable adults. That summer, the youngest child was born. In October 2018, a social work report on the father referred to his “eruptive anger”. In December 2018, the court made a supervision order for 12 months on the basis that the children would remain with their mother. The parents and the local authority made a written agreement that the father would have no unsupervised contact.
In March 2019, two of the children made statements that the father had been staying at the family home, and this was apparently corroborated by one of his former partners. The children were then removed under the emergency protection order. The parents accepted that the threshold for intervention was met because there were reasonable grounds for believing that the father had been at the home, but they denied that it had in fact happened. That issue, which is central to the current proceedings, will be resolved at the imminent fact-finding hearing.
Ahead of the contested decision, both the mother and the father offered to be tagged so that their physical separation could be monitored, allowing the children to return to their mother. Information from Electronic Monitoring Services, the agency responsible for tagging, was gathered. The matter came before the judge on 5 April, when there was no time for it to be heard. It was appreciated that only a High Court judge could make a tagging order, but Judge Owens directed that at a hearing fixed for 10 April she would conduct the welfare evaluation and refer the making of a tagging order to a High Court judge if she concluded that such an order should be made in principle – a course of action that was in itself not without potential difficulties in my view. She also invited the Ministry of Justice to attend the hearing, or to provide written submissions on the question of who would bear the costs of tagging.
By agreement, the hearing on 10 April was decided on submissions. The parents pressed the issue of tagging, saying that it would sufficiently mitigate the risk of what was accepted to be severe harm. The local authority argued that the risks were not manageable because, even with tagging, the father could lose his temper quickly and before help could be mobilised. A letter was received from HM Prison and Probation Service (part of the MoJ) explaining the parameters and procedures for tagging. The author stated that the MoJ would not be responsible for the costs of tagging and monitoring and expressed the view that the case was for a number of reasons unsuitable for a tagging arrangement.
The judge's decision
The judge reviewed the history, the common ground, the disputed issues and the need for a fact-finding hearing. She correctly directed herself that the question was whether the children's immediate safety required their continued separation from their mother. She concluded that there were reasonable grounds for believing that the father poses a very high risk of physical, psychological and emotional harm to the children unless carefully supervised. She considered possible mitigation measures and rejected the effectiveness in this case of orders under the Family Law Act 1996 or of prohibited steps orders. Next she considered tagging in some detail and concluded that it would not provide an immediate response sufficient to protect the children: it was not a suitable safeguard in this case. She noted the distress of the children in foster care, and the fact that they would face a further change of foster placement, but concluded that allowing them to go home would expose them to a very high risk of physical, psychological and emotional harm. The best remedy was for the proceedings to be swiftly progressed.
The grounds of appeal
The grounds of appeal contend (1) that the judge was wrong to conclude that the continued separation of the children was proportionate, and (2) that there...
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