A Local Authority v RS
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Males,Lord Justice Floyd |
| Judgment Date | 28 January 2021 |
| Neutral Citation | [2021] EWCA Civ 71 |
| Date | 28 January 2021 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/1762 |
[2021] EWCA Civ 71
IN THE COURT OF APPEAL (CIVIL DIVISION).
ON APPEAL FROM THE FAMILY COURT AT NORWICH
HH Judge Richards
NR18C01086
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Baker
and
Lord Justice Males
Case No: B4/2020/1762
In the Matter of the Adoption and Children Act 2002
And in the Matter of T and R (Refusal of Placement Order)
Andrew Bagchi QC and Fiona Baruah (instructed by Local Authority Solicitor) for the First Appellant
Nicholas Goodwin QC and Kitty Geddes (instructed by Spire Solicitors LLP) for the Second Appellant
Janet Bazley QC and Alison Moore (instructed by Chamberlins and Norton Peskett) for the Respondents
Hearing date: 9 December 2020
Approved Judgment
This case concerns appeals by the local authority and by the children's guardian against the decision of HH Judge Richards to refuse an application by the local authority for placement orders in respect of two children, T and R.
At the conclusion of the hearing of this appeal on 9 December 2020, we indicated that the appeal would be dismissed. This judgment sets out my reasons for agreeing to that course.
Background
The mother is now 40 years old, the father is 36. They are both from traveller backgrounds and, as the judge observed in his first judgment, they are clearly and proudly part of the traveller community. They met over the internet in 2011 and shortly afterwards started living together. Between 2013 and 2018, the couple had six children, the first four of whom are girls, now aged 7, 6, 5 and 4, followed by the two children with whom this court is concerned, a boy, T, now aged 3 and a girl, R, aged 2. This large sibling group is therefore notably close in age and it is a central feature of the parents' case that the close relationship between T and R and their older sisters is a strong argument against the proposal that they be placed for adoption.
The family became known to social services after an altercation with neighbours following which they lost their home and moved into temporary and unsatisfactory accommodation. There was particular concern about the welfare of one of the older girls, C, who was found to be underweight and developmentally delayed. In September 2018, shortly after R was born, the family was living in one room in a hotel. Later that month, C was examined in hospital where she was found to have sustained two metaphyseal fractures and was malnourished and neglected. On 5 October 2018, the local authority started care proceedings in respect of all six children. Interim care orders were made and the children placed in foster care in three separate placements, with T and R being placed together with carers with whom they continue to reside and with whom they have formed a close attachment.
Following a series of case management hearings, a fact-finding hearing took place before HH Judge Richards over 15 days in September 2019. In a lengthy reserved judgment delivered on 1 November 2019, the judge concluded that the parents had failed to give priority to C's needs and failed to maintain necessary and rigorous standards of hygiene for her. He found that her fractures had been sustained as a result of one or other parent pulling or lifting her by the arms with sufficient force to cause the fractures. He was unable to determine which of the parents was responsible but was satisfied that there was a real possibility that either of them was the perpetrator. In addition, the parents conceded, and the judge found, that there had been occasions during their relationship when the father had lost his temper and become aggressive and sometimes violent. The judge accepted their evidence, however, that they remained in a close relationship which was supportive and respectful, and a reflection of their culture, upbringing and background. He was not satisfied that it was generally characterised by verbal arguments or abuse.
Following the fact-finding judgment, the judge made orders under Part 25 of the Family Procedure Rules for expert assessments by an independent social worker and a psychologist. The completion of those assessments was delayed following the onset of the Covid-19 pandemic and the final hearing did not take place until July 2020. At that hearing, the local authority sought care orders in respect of all six children on the basis of care plans providing for long-term foster placements for the four older girls and adoption for T and R, in respect of whom they applied for placement orders under section 21 of the Adoption and Children Act 2002. The parents argued for the return of the children to their care. They strongly opposed the proposal that the two younger children be placed for adoption. The children's guardian supported the local authority's plan for all six children although she described the issue of adoption for the younger children as a finely-balanced decision.
In a reserved judgment delivered on 28 August 2020, the judge approved the care plans for the four older children and made them subject to full care orders. With regard to T and R, however he declined to endorse the local authority's plans for adoption and dismissed the application for placement orders. He invited the local authority to reconsider its care plans for the younger children with a view to their remaining in long-term foster care. At a subsequent hearing on 21 September 2020, he refused applications by the local authority and guardian for permission to appeal against the dismissal of the placement order applications and directed that the children should remain in the interim care of the local authority pending any further application for permission to appeal to this Court.
On 22 September 2020, the local authority filed a notice of appeal against the refusal to grant placement orders. On 13 October 2020, the guardian filed a notice of appeal against the same decision. On 2 November 2020, permission to appeal was granted by Peter Jackson LJ on all grounds, and the appeal was listed for hearing on 9 December 2020 with a time estimate of one day.
The judgment
Judge Richards started his judgment at the conclusion of the welfare hearing by summarising the background, the position of the parties and the legal principles. He then set out in some detail the evidence given by the witnesses, starting with the psychologist, Dr Hunnisett. She had conducted a cognitive assessment of the father and the children. Another psychologist had completed an assessment of the mother. The psychologists concluded that the parents both had considerable cognitive difficulties which restricted their ability to meet the children's needs. Dr Hunnisett noted that the parents have a real and deep love of their children, want the best for them, and are unswerving in their belief that only they can provide what is best in terms of care, education and growing up with an understanding of their culture and heritage as members of a traveller family. She concluded, however, that they would be overwhelmed by the demands of caring for the children.
In her report, Dr Hunnisett had recommended that the children all remain in their current foster placements. In her oral evidence, however, she told the judge that she had been persuaded by the arguments put forward by the allocated social worker and guardian and now supported the plan for adoption for the two younger children. She told the judge that it was the children's age which persuaded her that this was the right outcome. Importantly, she added that sibling contact was very important for all six children and she saw no reason to exclude the parents from that contact, provided they accepted that the children would be placed away from the family home. The judge summarised Dr Hunnisett's views about contact as follows in paragraph 55 – 56 of his judgment:
“55. Dr Hunnisett also told me that it would be an ‘unreasonable loss for the children’ if the ultimate orders for placement did not, in her words, ‘make sure that the children maintain contact over the course of their minority’. Similarly, she told me that, if there was a placement order and the children were placed with adopters, those adopters would have to understand the importance of the family relationships and the children's culture. In fact she went so far as to say that if they could not do so then they would ‘not be the right carers for the children’. Dr Hunnisett said to me without hesitation this: ‘if you did not make sure of this then you would be risking damaging the whole psychological development of this whole sibling group. It is extremely important that contact is maintained.’
56. In respect of T and R, she told me that if they were to move they would have to form new attachments. She said the contact would be, as she put it, ‘were it not to happen, an unnecessary loss and potentially harmful to all of them to lose those sibling contacts and relationships.’ In her evidence Dr Hunnisett told me, as she put it, ‘central to any decision for the psychological development of the children is to ensure contact throughout their childhood: I think it is essential’….”
Next, the judge considered the evidence of the independent social worker instructed in the proceedings, Ms Sue Hayward. He recorded that she described the parents as identifying entirely with the traveller culture and that the older children had a strong sense of identity and loyalty to their parents. Although there was no...
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