JFM v Neath Port Talbot Borough Council Ist - and - TM, JM and CM (Children) (by their guardian)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Thorpe |
| Judgment Date | 15 January 2008 |
| Neutral Citation | [2008] EWCA Civ 3 |
| Docket Number | Case No: B4/2007/2605 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 2008 |
[2008] EWCA Civ 3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Swansea County Court (Her Honour Judge Parry)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thorpe And
Lord Justice Wall
Case No: B4/2007/2605
SA06C00975
Mr. Clive Newton QC (instructed by T. Llewellyn Jones, Neath) for the Appellant
Mr. Stephen Cobb QC and Ms Emily Davis (instructed by West Glamorgan Joint Child Care Legal Services) for the 1 st Respondent
Mr. Stephen Cobb QC for the children instructed by Cameron Jones Hussell & Howe, Port Talbot
Hearing date : 20 December 2007
Introduction
As these are ongoing proceedings, I would be minded to direct that reporting restrictions should apply, and this judgment has, accordingly, been written anonymously. Apart from the location of the court, the name of the judge, and those of the local authority together with counsel and solicitors appearing before us, I would direct that nothing must be published which would identify or assist in the identification of the children concerned.
At the conclusion of the argument at the hearing on 20 December 2007, we announced our decision, but reserved our reasons. Our decision was that, whilst permission to appeal would be granted, the appeal itself would be dismissed. This judgment sets out my reasons for reaching those conclusions.
The appeal concerns a challenge made by the appellant to findings of fact made by Her Honour Judge Parry in the course of care proceedings heard in the Swansea County Court between 16–21 July; and 26–28 September 2007, when the judge reserved judgment. Her judgment is dated 25 October and was handed down on 9 November 2007. On that date, the actual order made by the judge records that she found the threshold criteria under section 31 of the Children Act 1989 satisfied in relation to all three of the children concerned in the case. On the same day, the judge refused permission to appeal, commenting: -
The appellant contends that the court's findings of fact are not based on reliable evidence and are flawed. These were issues of fact for the court. In so far as there is any issue of law it concerns the application of the threshold tests to the facts as found by the court and the proper inferences to be drawn in respect of future harm; again an issue of fact.
When the renewed application for permission to appeal came to me on paper on 10 December 2007, I adjourned it to an oral hearing on notice to the other parties with the appeal to follow if permission was granted. I directed expedition, since the final “welfare” hearing before the judge is scheduled to take place on 25 January 2008.
In the event, the only parties represented before us were the appellant, the local authority and the guardian. The latter, very sensibly, joined forces with the local authority and instructed the same leading counsel. The appeal was argued with great skill by Mr. Clive Newton QC for the appellant, and I am grateful both to him and to Mr. Stephen Cobb QC, for the local authority / guardian, for their considerable help in what is by no means an easy case. I am particularly grateful to Mr. Cobb, who was instructed at a very late stage, for his detailed skeleton argument and chronology.
The judge made a number of adverse findings against the appellant, which he seeks to challenge in this court. To understand how they have come about, it is, of course, necessary to examine the background. Before doing so, however, it also needs to be stated that the case has been bedevilled by a number of extraneous factors, not the least of them being the manner in which it has been mismanaged by the local authority. The judge devotes several introductory paragraphs and the three final pages of her judgment to this subject. Amongst other matters, these parts of the judgment explain why the hearing had to be adjourned between July and September 2007, and why the case has taken so long to reach even a threshold hearing.
These passages in the judgment do not make comfortable reading, and I welcome the judge's decision to require the local authority to explain and address the deficiencies which she identifies. At the same time, however, this is not an aspect of the case which this court has been called upon to investigate. It thus plays no part in my decision, although I anticipate that the subject matter of the local authority's report to the judge is likely to exacerbate the sense of unfairness felt by the appellant, who strongly denies the allegations made against him, and regards the removal of his daughter TM from the care of himself and his wife as wholly unwarranted. We were, however, assured by Mr. Cobb that the local authority had commissioned an internal investigation into these deficiencies, and that it would, as directed by the judge, file and serve a report dealing with them by 10 January 2008.
The adults and children concerned
The principal findings against which Mr. Newton's argument was directed are that the appellant has been guilty of sexual misbehaviour towards his granddaughter, whom I will identify by the initials JM.
The family structure is not altogether straightforward. Three children are the subject of the local authority's applications (originally issued separately but now consolidated) for care orders. They are TM, JM and CM. TM and JM are both girls now aged respectively 11 and 8. CM is a boy aged 7. The appellant and his wife AM are the parents of TM, and the maternal grandparents of JM and CM.
The appellant is 57 and AM is 54. They were married in 1976. Altogether, the appellant and his wife have eight children, all of whom, apart from TM, who is the youngest, are over the age of 18.
The mother of JM and CM is MM, who is the second child born to the appellant and AM. MM has an older sister SM, who figures briefly in the case. MM herself suffers from severe mental ill health and, as a consequence, was represented in the proceedings by the Official Solicitor. It is recognised on her behalf that she is not in a position to care for either JM or CM.
Apart from SM, the only other child of the appellant and AM who featured in the proceedings was their eldest son, J, who initially asked to be assessed as a carer for TM, and whom it was thought at one stage, might give evidence for the appellant. In the event, however, J's application to care for TM was not pursued, and he did not give evidence.
JM's father is a man called PH, and CM's father is a man called LP. LP has played no part in CM's life, and took no part in the proceedings. PH, on the hand, together with his parents, have applied for residence orders in relation to both JM and CM. These are matters with which the judge will have to deal at the final hearing of the applications.
There is a lengthy history of social services involvement with the family, dating back to 1995. We are not, however, concerned with this, save to the extent that it affects the appellant's attitude to the local authority. It is, I think, sufficient for the purposes of this judgment to summarise the history in the following way.
JM and CM were initially accommodated by the local authority in June 2006, when their mother MM was admitted to hospital as a voluntary patient under the Mental Health Act. In July 2006, the appellant made an application for residence orders in relation to JM and CM. This led to a report under section 37 of the Children Act 1989, and in November 2006 to care proceedings relating to JM and CM. The local authority's initial care plan for the two children had been that they should be reunited with their mother. However, in October 2006, MM sought a further readmission to hospital, and JM and CM have remained in foster care. They have had two placements. Their first placement lasted from June to July 2006: the second, in which they remain, has lasted from July 2006.
In November 2006, both CM and JM were recorded by their foster mother Mrs. E as making allegations of sexual misbehaviour by the appellant. This led to JM being interviewed on video by the police under the Achieving Best Evidence (hereinafter ABE) guidance on 28 November 2006.
On the previous day, 27 November 2006, TM was removed from the care of the appellant and his wife. This was initially by means of police protection powers, and was based on the perceived risk to TM arising from what JM had alleged. On 29 November 2006, the local authority started care proceedings relating to JM and CM, and on the following day an emergency protection order was made in relation to those children by local justices in the family proceedings court. On 1 December 2006, the local authority instituted care proceedings in relation to TM: on 4 December 2007 the proceedings were transferred to the county court and on 7 December 2007, TM's proceedings were consolidated with those relating to JM and CM by Her Honour Judge Parry, and a guardian appointed for all three children.
There is no doubt, from the statement in our papers made by the appellant, that he was deeply upset by TM's removal from the family home on 27 November 2006. It also appears that his initial concern in the proceedings was to regain the care of TM or, at the very least, contact with her. However, one of several obstacles in his way is the local authority's case that he has sexually abused JM. Thus although the focus of the appeal has been the allegations of sexual abuse made by JM against...
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