L (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Patten,Lord Justice Lloyd |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] EWCA Civ 489 |
| Docket Number | Case No: B4/2013/0427 & 0663 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 2013 |
[2013] EWCA Civ 489
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COUNTY COURT
DISTRICT JUDGE RALTON
UW12C00116
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Patten
and
Lady Justice Black
Case No: B4/2013/0427 & 0663
Miss Frances Judd QC & Mr Beresford Kennedy (instructed by Swindon Borough Council) for the Appellant
Mr Leslie Samuels QC with Miss Maria Gallagher who was unavoidably absent from the hearing but engaged in the preparation for it (instructed by Lemon & Co Solicitors) for the (Mother) 1st Respondent
Mr Graham Kean (instructed by Withy King Solicitors) for the (Father) 2 nd Respondent
Miss Alison Burge (instructed by Bevirs Solicitors) for the (Guardian) 3 rd Respondent
Hearing dates: 26th March 2013
Approved Judgment
On 26 March 2013, we heard an appeal in relation to an order made by District Judge Ralton on 11 February 2013 in care proceedings concerning a little boy, A, who was born on 30 November 2012 and is 4 months old. At the conclusion of the hearing, we announced our decision to allow the appeal, substituting an interim supervision order for the interim care order that the district judge had granted. This meant that A would immediately move from the foster placement where he has been living since birth to join his mother (hereafter referred to simply as M) in the mother and baby unit at the prison where she is presently serving a term of imprisonment. We reserved our reasons which are now provided in this judgment.
Two appeals were in fact listed for hearing before us, both of which had been transferred to this court by HH Judge Marshall under Rule 30.13 of the FPR 2010 because she considered that the issues to which they gave rise made them suitable for determination by the Court of Appeal rather than by a circuit judge as would have been the normal procedure. In addition to M's appeal against the interim care order granted by District Judge Ralton, there was the local authority's appeal against an earlier order made by the district judge on 25 January 2013 declaring that A had been unlawfully removed by the local authority from M's care within days of his birth. It was clear that there would be insufficient time during the hearing to deal with both appeals. It was decided to concentrate on M's appeal which would determine A's immediate future whereas the local authority's appeal concerned what was now history. The local authority's appeal was adjourned and the local authority was required to notify the court and the other parties by 19 April 2013 (since extended) whether it wished to proceed with it.
I need to give a brief history of this case.
M is in her mid twenties. A is her third child. She has two older boys, JS and MS. They do not have the same father as A. JS will be 4 years old in June this year. He was accommodated on a voluntary basis by the local authority when he was just under 4 months old because of concerns about M's drug use and chaotic and risky behaviour. He was quickly placed with his maternal grandmother and now lives with her under a residence order; M sees him regularly. MS is 2 years old. He went to live with M in a drug rehabilitation unit, Trevi House, in late April 2010 shortly after his birth. There M made slow but good progress and formed a bond with MS. It was considered to be important that she did not continue her relationship with MS's father and she said the relationship was over. However less than two weeks after she left the rehabilitation unit with MS in November 2010, she told the social worker that she wanted to be with MS's father, notwithstanding that this would mean the removal of MS from her care. MS was accommodated by agreement 13 days after he and M left the unit. He never returned to live with M and was adopted in March 2011.
Given that the care proceedings in relation to A are only in the early stages, there have not yet been any findings of fact as to M's history after this. Some features of it seem to be tolerably clear. M must have become pregnant with A in early 2012 but she did not attend for ante-natal care, she said because she was afraid the baby would be taken away. On 3 September 2012 she was arrested in relation to a dwelling house burglary, which she says was committed in 2011, and remanded in prison where she has remained since. On 31 October 2012, she was sentenced to 3 years imprisonment. Her earliest release date is October 2013. She wanted to look after the baby in the prison mother and baby unit but social services did not support this; their plan was to apply for an interim care order and to place the baby in foster care with M having monthly contact. Initially, M was refused a place in the mother and baby unit.
On 3 December 2012, A was taken into foster care. I will not go into the circumstances of this as they are the focus of the local authority's adjourned appeal. It is enough to record the fact that no court order was sought authorising this course. Following the decision of District Judge Ralton on 25 January 2013, M's case was reconsidered by the admission board responsible for deciding whether prisoners can be admitted to a mother and baby unit ("the board") and on 1 February 2013 she was offered a place but there was by then an interim care order in place and the local authority was not prepared to place A in the unit with her. So it was that on 11 February 2013 District Judge Ralton came to hear a contested application for an interim care order in order that the dispute over A's placement could be resolved. The effect of the interim care order that he granted was, of course, that A remained in foster care rather than joining M in the unit.
It may be helpful to understand something of how the local authority put its case. We have a copy of the threshold document and addendum relied upon by the local authority. Neither document is dated. This is all too frequently the case with local authority documents and I take this opportunity to stress that it is vital that all documents should be dated. The reasons why are many and varied and should largely be obvious so I will not spell them out here.
The local authority asserts in the threshold documentation that M has an extensive history of class A drug misuse dating back to her early teens and continuing during her pregnancy until she was remanded in custody on 3 September 2012. It asserts that she has engaged in criminal activity, including theft, burglary and prostitution, in order to fund her drug habit. It also asserts that she has a history of involvement with violent men, namely the father of her older two boys and A's father. Further, it asserts that she failed to avail herself of ante-natal care during her pregnancy with A and that by virtue of this and her continued use of Class A drugs during pregnancy, she has put A at risk of significant harm. Despite support, it says, she has shown that she remains unable to prioritise the needs of any children in her care.
A's social worker said in her statement of 3 December 2012:
"The Local Authority's previous involvement with M suggests that she has the potential to achieve positive changes but may be unable to sustain these improvements. M's ongoing pattern of behaviour, drug use, criminal lifestyle and poor lifestyle choices raises questions regarding her long term commitment to parenting her child and prioritising their safety and welfare." 1
Considering the various factors in the welfare checklist, the social worker expressed the view that:
"there are reasonable grounds to believe that according to M's history and ongoing lifestyle choices, she will be unlikely to be able to parent A upon her release from prison. In addition to this and in accordance with A's timescales the Local Authority does not think that it is in A's best interests to assess whether M now has the capacity to make the necessary changes upon her release. Therefore options of permanency will need to be explored for A as soon as possible."
The initial care plan also shows that the local authority had decided from the outset that M would not be a suitable carer for A and that, subject to any possibility there may be of him living with his father, he would need to be placed in permanent alternative care without delay. Meanwhile, their plan was that he would live with foster carers and see M at the prison on approximately a monthly basis, that level of contact being fixed to accord with the decision that A's future lay elsewhere.
The local authority maintained its position following a place in the unit having been offered to M. A's social worker conceded in her statement of 8 February 2013 that M had shown the capacity to provide for the basic care needs of MS so there would be a low risk of immediate physical harm to A whilst living in the unit with M. However, she said that it was the local authority's view that it would not be in his best interests to live with M there. The reasoning for this related to what would need to happen, in the local authority's view, in the period following M's release from prison. The social worker pointed out that in the past M had been unable to maintain changes made in a residential setting once she returned to the community. She would therefore need to be assessed after her release and this would delay a resolution for A. Furthermore, the assessment would be unlikely, in the social worker's view, to conclude that M could safely parent A herself and the local authority would not be able support A living with her in the community whilst it was done. The...
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