P (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Mr Justice Cobb |
| Judgment Date | 20 January 2016 |
| Neutral Citation | [2016] EWCA Civ 3 |
| Date | 20 January 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/3148 |
[2016] EWCA Civ 3
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HIS HONOUR JUDGE ANSELL
ZC14C00034
Royal Courts of Justice
Strand, London, WC2A 2LL
SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Vos
and
Mr Justice Cobb
Case No: B4/2015/3148
Peter Horrocks (who did not appear in the court below) (instructed by Morrison Spowart) for the Appellant mother
Pamela Scriven QC (who did not appear in the court below) and Joanna Youll (instructed by Local Authority solicitor) for the Local Authority
The father was present, but not represented
Gill Honeyman (instructed by Hopkin Murray Beskine) for the Children's Guardian
Hearing dates: 19 November 2015
The Senior President of Tribunals:
This is the judgment of the Court to which all of us have contributed. Following the hearing, we notified the parties of our decision which was to dismiss the appeal with reasons to follow. This judgment sets out our reasoning.
This appeal concerns P, an infant girl born on 5 May 2014. By Notice of Appeal filed on 28 September 2015, P's mother ("the mother") appeals against the making of a care order and placement order by His Honour Judge Ansell on 13 March 2015, following a contested hearing at the Central Family Court. Permission to Appeal and an extension of time for appealing were granted by McFarlane LJ on 16 October 2015. On 13 November the Local Authority lodged a Respondent's Notice; although this was out of time, we gave leave at the appeal hearing for this to be filed.
In focus in this appeal is a judgment which gives every appearance of being prepared under pressure of time, in a busy court, following directly from submissions at the conclusion of a five-day contested hearing. The result is, as all parties in this appeal have acknowledged to a greater or lesser extent, not altogether satisfactory – a matter of concern to us given that we have concluded that the judge was right for the additional reasons we shall describe; the outcome could not be more momentous for this mother and this child. The appeal represents an example of an all too common occurrence, namely the difficulty of finding time in a busy list adequately to explain a decision based on a series of multi factorial elements. The inevitable temptation for a judge who is seeking to be compassionate and also not to interfere with the other business of the court, is to try and do too much in the time available, when it would be better to take additional time.
Having considered the material, and the arguments, carefully we have concluded that in limited but important respects the judgment is materially flawed. We have then gone on to consider whether the ultimate decisions can be supported on other grounds as set out in the Respondent's Notice. We have concluded that the orders made by Judge Ansell can in fact be justified on the evidence, for reasons other than those which were addressed by the judge.
Background
The case has a reasonably complex background, and for an understanding of our conclusion it is necessary to summarise it here.
P's mother is 36 years of age; she has cognitive difficulties, and an IQ of 78. She resides with her disabled mother. She has a cerebral thrombosis. P is the mother's seventh child.
Local Authority Children's Services monitored and supported the mother in her parenting of P's older half-siblings for over ten years. Five of the mother's six older children (now between the ages of 19 years and 9 years old) are in long-term foster care; the mother has periodic contact with them. The sixth child, 'C', (the youngest of the older sibling group, now aged 6) was aged 3 when removed from her mother's care in 2012, and was subsequently adopted. Care proceedings had been launched in relation to the older sibling group (together with placement order proceedings in relation to C) in 2012, and concluded in May 2013; for reasons which are unimportant, proceedings concluded in relation to the oldest child in July 2013. In those proceedings, psychiatric and psychological assessments were commissioned. The mother played a minimal role in the proceedings, although she co-operated with the psychiatric assessment; she did not attend the final hearing, and the orders, draconian in nature, were made by a different judge without any or any meaningful opposition from either the mother or the children's fathers. Judge Ansell rightly reflected in his judgment his regret at the fact that there was no judgment from the earlier final hearing, adding appropriately in our view:
"… it is incumbent on any judge in care proceedings, even if matters are effectively not disputed, for there to be, as it were remarks, in case it is needed for the future."
That said, a 'Final Threshold Statement' had been prepared on 26 April 2013 in the previous proceedings setting out the basis on which the 'threshold criteria' (i.e. section 31(2) Children Act 1989 "CA 1989")) for the making of the care orders was based (the "April 2013 Threshold Statement"). This document is in our appeal bundle. Specifically, that threshold 'statement' reflected inter alia the following facts about the sibling group:
(a) The children were living in a dirty and unsafe home; they were dirty and unwashed, a situation which remained unaddressed by the parents; the parents did not see the state of the family home as a problem, and believed it was suitable;
(b) The children had severe head lice, and had suffered bite marks from the family's dog;
(c) All the children were "extremely delayed in speech and development", with "significant developmental problems";
(d) "[T]he children did not attend school for many years. The parents insisted they were adequately home tutored, and could not explain why the children were unable to read";
Individual concerns about each of the children were set out in the April 2013 Threshold Statement. By way of illustration:
(e) The 8 year old half-sister of P was recorded as having "very poor social skills, her speech unintelligible at times and her vocabulary very limited. There were many gaps in her understanding of every day life and in her learning"; and
(f) The 3-year old half-sister, C, "presents with significant difficulties in comprehension and has speech and language delay".
It appears that the mother had left the family home and had ceased caring for the children some weeks or months prior to the removal of the children under police protection measures in May 2012. She had had limited contact with the children in the intervening period. The mother was said to be struggling at that time to manage the terminal illness and subsequent death (July 2012) of her father, having also been the victim of a violent sexual offence (July 2012), and a miscarriage.
Within four months of the care and placement orders, the mother was once again pregnant, and P was born in May 2014. For the first months of her life, P resided with her mother in the home of the maternal grandmother. Unsurprisingly, by reason of the mother's parenting history, care proceedings were launched soon after P's birth, and an interim care order was made on 16 May 2014. Assessment of the mother's parenting was undertaken at a local Family Centre. Initial reviews were positive, and a court report prepared in July 2014 was encouraging; the value of this report was however significantly undermined, in Judge Ansell's view, by the fact that the mother had not been challenged in that assessment about the substantial deficits of her earlier parenting. The report had also been predicated on misinformation from the mother about the paternity of P, to which we now turn.
Throughout her pregnancy and the early months of P's life, the mother maintained that P's father was Mr. E, a Nigerian living in Nigeria (who, she said, had briefly visited England), but with whom she had lost all contact. This was untrue. In August 2014, the truth was exposed when the social worker undertook her own enquiries and discovered Facebook entries revealing the mother and Mr. E to be "married". This was later shown to be untrue, the mother describing it as a "joke". Mr. E's Facebook page was adorned with photographs of C – the mother's older child who had been placed for adoption. The mother then disclosed that she had never in fact ever met Mr. E, and had only ever interacted with him through social media. The mother told the social worker that she had lost contact a "long time" previously with Mr. E, a further story which did not withstand the inevitable interrogation of the website records which showed multiple communications between them, of an intense and sexual nature, which were (contrary to her assertion) very recent.
Only when confronted with her lies, did the mother reveal the true identity of P's father as Mr. D, a Nigerian national who resided in South East London; paternity was subsequently confirmed by DNA testing (30 October 2014). Mr. D is married and his wife remains, with his three children, in Nigeria. The mother further misled the social worker about the state of the relationship with Mr. D, asserting that it had ended and that she did not wish Mr. D to have any role in P's life, all the while secretly continuing the relationship (which the judge found to be "volatile"), and facilitating contact between Mr. D and P. The mother invented or exaggerated claims that Mr. D was harassing her, and was constantly pestering her for sex. She subsequently informed the professionals that she had lied about him because he was an illegal over-stayer.
Mr. D was assessed as a possible carer for P in these proceedings, and, although some strengths were noted (particularly in the warmth of his interaction with P), overall the assessment was negative. It appears (indeed the judge found) that the mother had put pressure on the father to lie...
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