P (A Child: Fair Hearing)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice King,Lord Justice Lewison |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] EWCA Civ 215 |
| Docket Number | Case No: CA-2022-002418 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 215
Lord Justice Lewison
Lady Justice King
and
Lord Justice Peter Jackson
Case No: CA-2022-002418
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT COVENTRY
Recorder Arthur
CV21C50123
Royal Courts of Justice
Strand, London, WC2A 2LL
Dorian Day and Matiss Krumins (instructed by Brendan Fleming Limited) for the Appellant Mother
Amanda Johnson (instructed by Coventry City Council) for the Respondent Local Authority
The Respondent Father appeared in person
Stephen Abberley (instructed by Sills & Betteridge LLP) for the Respondent Child by her Children's Guardian
Hearing date: 21 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Rule 52.21(3)(b) of the Civil Procedure Rules 1998 provides that an appeal court will allow an appeal where the decision of the lower court was unjust because of a serious procedural or other irregularity in the proceedings in the lower court. In this case the appellant mother argues that the Family Court should not have continued a hearing and made a placement order permitting the adoption of her child but should instead have adjourned to allow her to obtain legal representation after her lawyers had withdrawn at an advanced stage of the hearing.
The context
The subject of the proceedings is C, a girl born in October 2021. When she was a day old, her local authority issued care proceedings and she was placed in foster care, where she remains. After assessments were carried out, an application for a placement order was issued in May 2022. The proceedings were listed for a five-day final hearing starting on 24 October 2022.
C is her parents' only child, but between them they have nine others. Of her mother's four older children, one lives with a relative under a special guardianship order, two are in foster care, and one has been adopted. The father has five older children from relationships with two women, one being the mother's older sister; both have accused him of violence towards them.
In 2015, in proceedings concerning her fourth child, the mother was assessed by a clinical psychologist as having a learning disability and a Full-Scale IQ of 63 (1 st percentile). In the present proceedings, directions were given in July 2022 on the basis that she was to be regarded as a vulnerable individual. She accordingly had the assistance of a lay advocate at the final hearing.
The father has a substantial criminal history dating back to 1998 for theft, robbery, burglary, violence, criminal damage, possession of cannabis, and driving offences, and has served a number of prison sentences. During the present proceedings, a psychological assessment considered that he would be likely to meet the threshold for a diagnosis of psychopathy.
The final version of the local authority's threshold statement asserted that if C was in her parents' care she would be at risk of emotional and physical harm and neglect in the following ways:
1) By witnessing domestic abuse and violence between her parents.
2) By witnessing her father's hostile and aggressive behaviour.
3) By exposure to her father's criminality due to poor role modelling and exposure to risky adults and situations.
4) By her parents' substance misuse impairing their parenting, depleting family finances, increasing risk of parental mental health difficulties and exposure to risky adults.
5) By neglect.
The threshold document was a substantial one, extending to six pages, closely referenced to the extensive evidence. A large part of it concerned violence and abuse perpetrated by the father against the mother. Because it became relevant to what occurred at the trial, I set out the pleading of that allegation in full:
“1) The relationship between M and F is a volatile and unstable [one] characterised by domestic abuse and violence, examples of this include:
a) On 17th September 2019, an ambulance was called by a third-party (M's aunt). M was assaulted by F and had a cut to her head. [C64; H57, [H216, H218 – H227; H233]
b) On 19th February 2020, Police were called by a third-party as F grabbed M to her left side of the neck causing injury. [H73–H81, H86–H97]
c) On 22nd March 2020, police attended the property. M reported that the relationship ended mutually on 21st March 2020. F attended the address to collect his belongings and an argument occurred. M tried to convince F to leave and he grabbed her by the neck through clothing pushing her backwards. No visible injuries observed. Police took no further action as M did not want support [H56, H113, H120 – H124]
d) On 29th January 2021, M was subjected to numerous assaults throughout her relationship with F. M has been kicked, punched and strangled. M fled the address in fear of further violence from F. M stayed with her Aunt. F was arrested and released on bail with conditions until 03/03/2021 including not to go to [address] and not to contact M in any way. On 1st February 2021, M reported to [name] Housing she had been assaulted by her partner, F over the weekend and the Police had arrested him and he was in custody. Police agreed to support a house move on the basis that M presented as scared to return to the address. [C3; C5; C65; H1, H7, H12, H17–H20, H23, H27–H37; H59–H64; H234 – H235]
e) M reported to [name] Housing on 25th February 2021, that she fled the property the day prior because F beat her up. She left in a taxi whereby F chased after her [C4-C5; C66]
f) On 27th July 2021, M reported to [name], Social Worker, that F spat at her and also bit her. [Social worker] observed injury to M to be a large circular bruise on M's right forearm. M made a subsequent disclosure to Midwife, and injury was observed. [C6; C13; C47; C68]
g) On 8th October 2021, M left the property and F due to his aggression; C49; C69;C70
h) On 8th December 2021, Police attended property. F was found throwing a suitcase full of M's clothing and items onto the street, whilst shouting “F**ing Wh***; F***ing B**h”. M attended the Local Authority offices that day seeking refuge. [H275; H319–H326, H332, H338, H345–H346; F104]
i) On 13th January 2022, third party witness reports F and M were arguing on the street and spitting at each other [H298–H300, H309, H316–H317, H332–H336]
j) On 11th February 2022, the Mother accepts that there was a verbal altercation between M and F [C197; H271 — H281, H284–H288, H290, H296]
k) On 8th March 2022, M was being frequently “kicked out” of her property by F and contacted the local authority for support to rehouse her as she separated from F. [C159; E203]
2) The parents have remained in a relationship with one another despite the occurrence of domestic abuse.
3) Neither parent sufficiently understands the impact that their domestically abusive relationship might have on their child exemplified by:
a) M's repeated re-entry into the relationship despite making repeated complaints of domestic abuse and violence by F examples of this include:
i) On 29th July 2021, M reconciled with F and allowed him to re-enter the property, despite reporting domestic abuse incident of 27th June 2021 [C68]
ii) On 25th August 2021, M reconciled with F despite reporting domestic abuse incident of 27th June 2021; [C47]
iii) On 10th October 2021, M reconciled with F following the incident of 8th October 2021 detailed above. [C49; C70]
iv) The Mother reconciled with F despite stating she originally was going to seek a restraining order against F, following the incidents of 8th March 2022 [E203]
b) M's failure to pursue prosecution against F, examples of this include
i) No further police action was taken from the incident of 17th September 2019 as M did not want support and did not respond to police calls [H220]
ii) M confirmed she did not want support nor to take any further action following the incident of 19th February 2020 [H80–H81]
iii) M refused make a statement to the police relating to the incident on 22nd March 2020 [H123]
iv) M confirmed she did not want support nor to take any further action following the incident of 29th January 2021, despite having provided an initial statement. [C3; C5; H59–H61]
v) On 11th February 2022, Mother accepts that she refused to give any details of the incident to the police [C197]
c) M's failure to engage with domestic abuse support services, including the following examples
i) In June 2021, M disclosed feeling low in mood and struggling to manage current stress factors within her life. At this time M had not engaged with her GP or Midwives to discuss her emotional and mental health and is not currently receiving any support from services [C63]
ii) In July 2021, M acknowledged that she would benefit from counselling to address the previous experiences in her life. M's medical records during the current episode of Social Care involvement evidence that M did not engage in any service to address this [C63]
iii) On 20th August 2021, a referral was made with M's consent for domestic violence support. M was offered space within a refuge but did not attend. On 7th October 2021, [refuge] informed Social Worker, [name] that they have made 10 or more attempts to call M to engage with their service and would be closing the referral. [C69; F50; F57]
iv) M was offered and accepted support by an Independent Domestic Violence Advocate (IDVA) and with support regarding housing. However, Children's Social Care and partner agencies records indicate that M withdrew her statement to Police in February 2021 and subsequently disengaged with support agencies [C66]
v) M was spoken to and been offered support in July, November, and December 2021 and either refused support or refuge accommodation or did not respond to contact attempted [C165;...
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