M v Warwickshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Dyson,Lord Justice Thorpe |
| Judgment Date | 01 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1084 |
| Docket Number | Case No: B4/2007/2009 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 2007 |
[2007] EWCA Civ 1084
Lord Justice Thorpe
Lord Justice Dyson and
Lord Justice Wilson
Case No: B4/2007/2009
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COVENTRY COUNTY COURT
HIS HONOUR JUDGE BELLAMY
LOWER COURT NUMBER: CV07Z00562/564
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Vater (instructed by Warwickshire County Council) appeared for the local authority, the Appellants.
Mr Alistair Macdonald (instructed by Alsters Kelly, Leamington Spa) appeared for the mother, the Respondent.
Mr Piers Pressdee (instructed by Johnson and Gaunt, Banbury) appeared for the children, the Interveners.
Hearing date: 2 October 2007
Judgement
SECTION A: INTRODUCTION
Section 24 of the Adoption and Children Act 2002 (“the Act”) provides as follows:
“(1) The court may revoke a placement order on the application of any person.
(2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless –
(a) the court has given leave to apply, and (b) the child is not placed for adoption by the authority.
(3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.”
This appeal requires the court to identify the criteria by reference to which a judge should determine whether to grant leave pursuant to s.24(2)(a) of the Act to apply for the revocation of a placement order, namely an order authorising a local authority to place a child for adoption.
Warwickshire County Council (“Warwickshire”) appeal, with the permission of the judge himself, from an order made by His Honour Judge Bellamy in the Coventry County Court on 24 August 2007. By his order he granted leave to the Respondent (“the mother”) to apply for revocation of placement orders made by the Warwickshire Family Proceedings Court on 21 July 2006 in relation to her two children, namely M, a boy, who was born on 13 June 2002 and is thus aged five, and L, a girl, who was born on 10 December 2003 and is thus aged three.
Following the grant of leave the mother duly issued her applications for revocation; and the judge has given directions in relation to them. One direction has been that he should determine the applications at a three day hearing beginning on 17 December 2007. Another direction has been for appointment of a Children's Guardian. An application for revocation is included, at (hh), in the list of “specified proceedings” in s.41(6) of the Children Act 1989 (“the Act of 1989”), with the result that the court must appoint a guardian to represent the children unless satisfied that it is unnecessary to do so. Thus the children are parties to the applications for revocation and the judge has appointed a guardian to represent them; indeed Ms Booth, who represented them both in the placement proceedings and in earlier care proceedings, has been assigned to the role. An application for leave to apply for revocation is not included in the list of “specified proceedings”. Thus the children were not parties to the mother's applications for leave and the guardian took no part in them. Nevertheless, now that she is in post, this court has been happy to accede to her suggestion that, acting by her, the children should in effect intervene in this appeal.
At the hearing of the applications for leave, which took place before the judge on 13 August 2007, rival submissions were made about the meaning of s.24(2) and (3) of the Act, set out at [1] above. The mother submitted that, were she to establish that there had been a change in circumstances since the placement orders were made, the court was required to grant leave. Warwickshire submitted, however, that the establishment of a change in circumstances was only the necessary precursor to the court's exercise of a discretion whether to grant leave and that in its exercise of such discretion it should take the welfare of the children into account. Each side cited the recent decision of this court in Re P (A Child) (adoption order: leave to oppose making of adoption order) [2007] EWCA Civ 616, [2007] 2 FCR 407, as being in support of its submission.
In a long and careful judgment the judge upheld the mother's submission. He held:
“if the court is satisfied that there has been a change in circumstances since the placement order was made then it must grant leave.”
He proceeded to find that there had been a change in the mother's circumstances and thus he granted leave.
Warwickshire, supported by the guardian, contend that the judge's construction of s.24(3) was wrong. The mother defends it.
SECTION B: THE FACTS
The mother, who is aged 23 and of dual heritage, currently lives alone. Unfortunately she is HIV-positive but she does not presently require treatment. The children have different fathers, both of whom were of African ethnicity; and the children present as black. M suffers cerebral palsy but presently it is in so mild a form that its effects are scarcely noticeable. L's father, to whom the mother was married, was diagnosed with paranoid schizophrenia. He was an unsuccessful asylum-seeker and ultimately, in May 2004, after having perpetrated serious acts of violence on the mother and been detained in hospital for a lengthy period, he was removed to Malawi.
In October 2004 Warwickshire accommodated both children at the mother's request. At that time she was using crack cocaine and accepted that she was thereby disabling herself from caring for them adequately. In November 2004, after a few weeks with the maternal grandparents, the children were placed, on what was intended to be a short-term basis, with the foster carers with whom they continue to live. At the time of the placement M was thus two years old and L was less than a year old; and they have thus lived in the foster home for almost three years.
In September 2005 Warwickshire issued applications for care orders. The substantive hearing of the applications took place in the family proceedings court on 21 June 2006. By then Warwickshire's care plan, supported by the guardian, was for the children to be placed together for adoption without continuing face-to-face contact with the mother. Warwickshire recognised however that, in the light of the need for the children to remain together, of their ethnicity, of M's cerebral palsy and of L's father's mental illness, the finding of an appropriate placement might prove difficult. In the event the mother, who was represented at the hearing, withdrew her opposition to the making of the care orders. Neither of the fathers played any part in the proceedings. So, after at any rate reading and perhaps also hearing a quantity of evidence, the magistrates made the orders.
In their written reasons, in which they evinced sympathy for the mother in the light of “her obvious love for the children and her wish to care for them”, the magistrates adopted the contents both of Warwickshire's threshold memorandum and of the guardian's report. From such documents one therefore collects the basis on which the care orders were made. In summary it was as follows:
(a) The mother had exposed the children to frequent incidents of domestic violence between her and L's father, during which the police had been called.
(b) Contrary to professional advice, she had allowed him to return to the family home although, to her knowledge, he believed that he had heard voices that he should kill L.
(c) Notwithstanding his removal to Africa, she had not excluded the prospect of reconciling with him in the event that he might manage to return to the U.K.
(d) She had recently developed a relationship with another man named Emmanuel, whom she had put forward as a prospective carer of the children jointly with her.
(e) For five years until late in 2005, since when she had been abstinent at any rate from drugs, she had been abusing alcohol and crack cocaine, had therefore been unable properly to look after herself let alone the children and, other than in the short term, had failed to access help in overcoming those problems even for the sake of the children.
(f) The condition of her home had often been squalid.
(g) She had left the children unsupervised or with unsuitable carers.
(h) She had failed to take the children for medical appointments and, following their reception into care, had frequently cancelled contact sessions or arrived late for them.
(i) A clinical psychologist had assessed her as immature, prone to abusive relationships, overwhelmed by the enormity of her problems and unlikely to be able to sustain the changes necessary for the provision of safe parenting to the children within a time-frame acceptable for them.
(j) The children had already spent 19 months in foster care. In the words of the guardian, it was “not in their best interests to wait any longer” and the mother had “left it too late to demonstrate that she [was] able to make the necessary changes to her life”.
Precisely one month after making the care orders the magistrates made the placement orders. The mother withheld her consent to the making of them and indeed, albeit only by the submissions of her advocate, opposed their making. Mr Vater on behalf of Warwickshire complains to us that in their written reasons the magistrates did not fully set out the circumstances by reference to which they concluded that the welfare of the children required her consent to be dispensed with; and...
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