A Local Authority v KAB and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Date | 2010 |
| Year | 2010 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Interim care order – Threshold – Two older children of family running away from home due to allegedly violent incident – Parents denying allegations – Local authority issuing care proceedings – Recorder making interim care orders in relation to older children but not two younger children – Local authority appealing against refusal – Whether recorder failing to take emotional risks into account – Whether recorder erring in treatment of question of physical abuse – Whether sufficient reasons given for departing from recommendations of children’s guardian.
The parents lived with their two children and two older children fathered by the mother’s former partner. Social services had been involved with the family since the mid-1990s, the children having been taken into foster care for short periods by consent on three occasions. On 18 February 2010, the two older children ran away from home, alleging that the father had assaulted them. They were taken into police protection and placed with their maternal grandparents, where they informed a social worker that the parents had argued and that the father, who was allegedly intoxicated, had assaulted the mother. The parents denied the allegations and stated that the older children had run away because they had not been allowed to play outside with friends. All four children were subsequently placed into foster care. Although the parents initially gave their agreement for them to be accommodated under s 20 of the Children Act 1989, they withdrew their consent in March, which caused the local authority to issue care proceedings. The children’s guardian had very little time to investigate prior to the interim care hearing, having been appointed just three days earlier. She continued her inquiries after her initial report, which stated that the older children had confirmed their accounts. In oral evidence, she stated that one of the older children had subsequently denied that any violence had taken place on 18 February 2010. She recommended in her report and oral evidence that interim care orders be made in relation to all four children. The court also heard evidence from Mr H, a witness for the parents who supported their account of the incident. On 7 June, the recorder granted interim care orders in relation to the older children but refused to do so in relation to the younger children, concluding that their safety did not require immediate separation from the parents and that a source of difficulty would be removed if the older children remained in foster care. He commented that, had the guardian’s concerns been as serious as stated at the oral hearing, she would have said so in her initial report (but had failed to do so).
The local authority sought permission to appeal against the refusal, submitting, first, that the recorder had failed to take emotional risks into account. Secondly, it submitted that he had erred in his treatment of the question of physical abuse, having decided that events before 2000 (including an incident whereby the father accepted a caution for assaulting another of the mother’s children) were not relevant, and effectively having made a finding that the older children were telling lies. The authority thirdly contended that the judge had given insufficient reasons for departing from the guardian’s recommendations.
Held – (1) It was established that the concept of a child’s safety was not confined to his or her physical safety, but also included emotional safety or psychological welfare. A complete reading of the judgment below showed that the recorder in the instant case had taken into account not only physical risk to the younger children but also emotional risk, and had been conscious that an interim care order could, in a proper case, be required to protect a child’s psychological safety or welfare. There were references throughout the judgment to aspects of harm and risk which were not associated with physical safety. The judge’s view had simply been that the emotional issues were not sufficient to require the separation of the two younger children from the parents by way of interim protection; that was a view that had been open to him, not least in light of the fact that the local authority had not intervened over such issues over many years and had only ultimately been provoked to take care proceedings by the physical risk considered to have been revealed by the events of 18 February 2010 (see [42]–[43], below).
(2) Surveying the judgment as a whole, it had not been established that the recorder had erred in his treatment of the question of physical abuse and risk. He had been wrong to decide that events before 2000 were not relevant; it was important for the court to have the full picture of the history. Any cut-off date was artificial and the cut-off date chosen in the instant case excluded an important feature of the case which was relevant to the issue of the father’s conduct towards the children and the credibility of the older children. However, the recorder’s approach to the pre-2000 material had to be seen in the context of the whole case; it was clear that the history had been taken into account. Furthermore, the recorder had been entitled to express doubts about the allegations of violence made by the older children. Significant factors had undermined their credibility and it had been necessary to give consideration to the evidence of Mr H, which supported the parents’ account (see [47]–[48], [54]–[55], below).
(3) The recorder should have acknowledged rather more than he had that, at the early stages of care proceedings and sometimes throughout the proceedings, a guardian was collecting information and impressions and that his or her opinion was likely to evolve. However, he had been entitled, in his effort to analyse what the real risks were in the case and what was demanded by way of interim protection, to subject the guardian’s evidence to scrutiny by examining how she put things in her written report as
opposed to in her oral evidence. The guardian had been influenced by the fact that the parents had consistently denied the truth of the allegations made against them and it was not wrong of the recorder to bear in mind, in this regard, that the allegations had not yet been established and might be unreliable. He was entitled also, from his evaluation of the guardian’s evidence as a whole, to conclude that she had set the requirements for interim removal of the children from their parents too low. In the circumstances, the recorder had spelled out sufficiently the reasons why he differed from the guardian (see [59]–[60], below).
(4) The discretionary exercise that had to be carried out in the instant case was a delicate and difficult one. That was often so where an application was made for an interim care order, not least when the application came when care proceedings were finally launched after a very long history of difficulties. Into the balance had to come not only the harm that might befall children in their home, but also the harm that might be occasioned to them by removal from home. The recorder had been acutely conscious that his decision was an interim decision and might not reflect the final outcome. The reality was that he had to do the best he could, looking not just at the detail but also at the matter as a whole, in a complex and as yet uncertain situation. In the circumstances, his decision was one which was within the ambit of decisions that had been open to him; his decision was not flawed in such a way as to lead to it being overturned. Therefore, whilst it was appropriate to give the local authority permission to appeal, their substantive appeal would be dismissed (see [61]–[62], below).
Cases referred to in judgmentsB (a child) (interim care order), Re[2009] EWCA Civ 1254, [2010] 1 FCR 114, [2010] 1 FLR 1211.
Biogen Inc v Medeva plc (1996) 38 BMLR 149, [1997] RPC 1, HL.
H (a child) (interim care order), Re[2002] EWCA Civ 1932, [2003] 1 FCR 350.
K and H, Re[2006] EWCA Civ 1898, [2007] 1 FLR 2043.
L (Care Proceedings: Removal of Child), Re [2008] 1 FLR 575.
L-A (children) (care proceedings: interim care order), Re[2009] EWCA Civ 822, [2010] 1 FLR 80.
M (children) (interim care order), Re[2005] EWCA Civ 1594, [2006] 1 FCR 303, [2006] 1 FLR 1043.
Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.
AppealA local authority sought permission to appeal against the refusal of Mr Recorder Pulman QC, sitting in the Chelmsford County Court on 7 June 2010, to grant interim care orders in relation to C and G, children born in 1997 and 2005 respectively, despite having granted such orders in relation to two older children of the family. The facts are set out in the judgment of Black LJ.
Sarah Dines for the local authority.
Robin Powell for the mother.
Diana Cade for the father.
Jane Drew for the children by their guardian.
BLACK LJ(giving the first judgment at the invitation of Moore-Bick LJ).
[1] On 7 June 2010, Mr Recorder Pulman QC, sitting in the Chelmsford County Court, gave judgment in relation to applications by the appellant local authority for interim care orders in respect of four children. The children are all children of Mrs B, whom I will call the mother. The older two are boys, GR and R. They were born [in] May 1994 and July 1995 and are therefore 16 and nearly 15 years old. The next in age is a girl, C, who was born [in] July 1997 and is nearly 13. The youngest, G, was born [in] February 2005 and is five. The father of the younger two children is Mr B. He is not, in fact, the father of the older two boys, but as these proceedings focus upon his two children, I will refer to him as the father without further qualification.
[2] The recorder granted interim care orders in relation to the older two boys; there is no appeal in relation to those orders. However, the recorder refused to grant interim care orders in relation to the younger two...
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X (Children) and Another
...toA (Family Proceedings: Electronic Tagging), Re[2009] EWHC 710 (Fam), [2009] 2 FLR 891. A Local Authority v KAB[2010] EWCA Civ 871, [2010] 3 FCR 1, sub nom Re GR (Care Order) [2011] 1 FLR B (a child) (interim care order), Re[2009] EWCA Civ 1254, [2010] 1 FCR 114, [2010] 1 FLR 1211. B (Inte......
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