K (Children) v Sheffield City Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Thorpe |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] EWCA Civ 635 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/1920 |
| Date | 25 May 2011 |
[2011] EWCA Civ 635
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
HER HONOUR JUDGE CARR QC
SE09C00402
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
and
Lady Justice Black
Case No: B4/2010/1920
Mr Andrew Wastall (instructed by Leviten Thompson & Co) for the 1st Appellant
Miss Sally Terris (instructed by Best Solicitors) for the 2 nd Appellant
Ms Jessica Pemberton (instructed by Legal & Governance) for the Respondent
Hearing dates: Friday 4th March 2011
This is an appeal against orders made in relation to AK by HH Judge Carr QC on 14 May 2010 following a nine day hearing.
AK is 4 years old, having been born on [DOB] 2006. The appellant is her father (F). AK's mother (M) supports F in this appeal. It is opposed by Sheffield City Council (LA) and AK's guardian.
The appeal was listed for an oral hearing at which there would be consideration of whether permission to appeal should be granted with the appeal to follow if so. Rather than hamper counsel in the presentation of their arguments, we heard their submissions on both issues together. For my part, I would grant permission to appeal. I doubt whether I would have done so had it not been for the proposed appeal against the Judge's order under s 91(14) Children Act 1989 but, as permission is appropriate in relation to that, I think it would be artificial to refuse it in relation to the other grounds.
The proceedings before Judge Carr related to both AK and her younger half brother, N, who was born on [DOB] 2009 and is M's child but not F's. The proceedings began on 25 April 2008 as an application for a residence order by AK's maternal grandmother (MGM) in whose care AK had been left by M. AK was joined as a party to the proceedings and a Rule 9.5 guardian was appointed for her. A psychological assessment of M, F and MGM was carried out by a chartered forensic psychologist, Mr Chekwas. His report provoked LA to commence public law proceedings in relation to AK in April 2009. AK was made the subject of a sequence of interim supervision orders which lasted until the hearing before Judge Carr.
When N was born, proceedings were also begun in relation to him and he was made the subject of an interim care order. He was placed with foster carers and Judge Carr made a final care order in relation to him on 14 May 2010, the care plan being that he will be adopted. There is no appeal in relation to that care order; the appeal is solely in relation to AK.
The local authority, the guardian and MGM invited Judge Carr to make a special guardianship order in relation to AK in favour of MGM. The parents opposed this because they wish to look after AK themselves in the foreseeable future. They were not asking Judge Carr to return AK immediately to their care. They acknowledged that they needed therapy and assistance before that could happen and proposed that they should be assessed again in approximately 9 months.
Judge Carr granted a special guardianship order in favour of MGM. She also acceded to an application by MGM and the guardian for a section 91(14) order, granting an order which restricted the making of any further applications by the parents for 2 years 4 months.
M has been represented throughout the proceedings. F was represented up to September 2009. At that point, both parents chose to dispense with their legal representatives in circumstances to which I will allude later. M instructed a new firm of solicitors but F chose not to do so and was not represented at the hearing in front of Judge Carr. Judge Carr noted that he was able to conduct the proceedings himself, that he demonstrated a clear knowledge of the issues and the papers and that, in any event, he was not prejudiced because his case was identical to M's. At the appeal hearing before us, F has once again had the invaluable assistance of counsel who has helped him to refine his proposed grounds of appeal, abandoning those which were untenable so that the argument could be focussed on those which merited it. Mr Wastall advanced the remaining grounds as persuasively as anyone could possibly have done.
F's objective is to persuade the court to overturn the special guardianship order and the section 91(14) order, to order a full viability assessment of his ability to look after AK, and to remit the matter for a rehearing as to future arrangements for AK by another circuit judge. If we are not persuaded that the special guardianship order should be overturned, he invites us to order that CAFCASS should look into the question of how AK is to be educated in the light of her dual heritage and should file a report making recommendations.
He advances three grounds of appeal which are, in essence, as follows: firstly that such assessment of the parents as there had been was insufficient to enable Judge Carr to rule them out in the way that she did, secondly that placement with MGM under the special guardianship order does not meet AK's religious and cultural needs, and thirdly that the section 91(14) order was wrong in principle or, in the alternative, too long in duration. Before I turn to examine these grounds in more detail, I need to set out a little history.
M and F met in 2005. Their racial and cultural origins are different. F is a Muslim from Pakistan. M is British and is white. She became a Muslim after she met F.
MGM is a white British woman and lives with her female partner in what she describes as a "non-religious household".
The parents were not living together at the time of AK's birth. When they commenced their relationship, F was already due to marry in Pakistan and he subsequently did so, notwithstanding that M had become pregnant with AK.
M's care of AK gave rise to concerns on the part of the authorities. She "presented as volatile, unpredictable, confrontational and was verbally abusive" as we see from Judge Carr's judgment at paragraph 7. She made numerous allegations that F had been violent to her (which he has always largely denied), often seeking police assistance and then retracting the allegations.
AK was about 1 1/2 years old when M left her in the care of MGM in March 2008, giving F's domestic violence as the reason for doing so. AK has remained with MGM and her partner since that time, although M attempted to abduct her three times between then and the end of August 2008, necessitating police involvement.
M's allegations against F of domestic violence included some very serious allegations in May 2008 which resulted in him spending five days in custody for alleged breach of a Family Law Act injunction. Then, at the end of June 2008, M chose not to pursue any allegations of violence at all. She has been prosecuted for wasting police time.
A social worker who had extensive involvement with M from January 2008 to November 2008 found her very unco-operative and almost impossible to work with. During this period, M made threats to hurt MGM, damaged MGM's partner's car, told MGM and the social worker that she was running around with a knife, and told the social worker that she was using £30 to 40 per week of cannabis. Apart from concluding that M was a very volatile young woman, the social worker was left with a very unclear picture of things.
By the time the public law proceedings were begun in April 2009, LA were concerned about M's failure to engage with professionals, her substance misuse, the allegations of domestic violence and the ongoing conflict regarding AK's placement with MGM.
A fact finding hearing was scheduled for mid September 2009. Both parents' case was that they had separated. LA did not trust this information and arranged for covert surveillance which showed that very shortly before the fact finding hearing the parents were spending time together. In the light of this evidence the parents, who at that point had the benefit of legal representation, submitted to various findings of fact which were recorded in an order of 17 September 2009. The facts found included that the relationship between the parents had been characterised by volatility and allegations of domestic violence which M retracted, that F accepted slapping M around the face on one occasion, that each parent had deceived LA as to their relationship, that M had a history of volatile and unpredictable behaviour (and had, for example, admitted in June 2008 to putting a brick through MGM's car window and attempted to abscond with AK 3 times) and that M had failed to provide AK with safe and stable accommodation.
By 6 October 2009, on which date the court was due to consider N's position further, it had become apparent that the parents were dissatisfied with the legal advice they had received and were seeking to challenge the agreed findings. Both dispensed with their solicitors.
Their revived opposition to the findings was, however, short-lived. On 10 November 2009, it became known that they had been married in an Islamic ceremony on 27 September 2009, between their acceptance of the findings of fact on 17 September and their indication on 6 October 2009 that they were intent on challenging them. F indicated to the court on 10 November that they now wished to be more transparent, open and honest. They were requested to file detailed statements setting out the nature of their relationship and their proposed plan for the future and, when the matter was heard again on 24 November, Judge Carr ordered that Mr Chekwas should look at the position again and listed the case for a final hearing.
The order of 24 November contains the following preamble, recording the intention of LA to carry out a viability assessment, which forms the basis of part of Mr Wastall's argument...
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