Re N-S (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Lewison,The President of the Family Division |
| Judgment Date | 25 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1121 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2017/0238/CCFMF |
| Date | 25 July 2017 |
[2017] EWCA Civ 1121
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice McFarlane
and
Lord Justice Lewison
Case No: B4/2017/0238/CCFMF
ON APPEAL FROM THE FAMILY COURT SITTING AT WATFORD
HIS HONOUR JUDGE WILDING
WD1600101
Royal Courts of Justice
Strand, London, WC2A 2LL
Elizabeth Isaacs QC and Hilary Pollock (instructed by Hecht Montgomery Solicitors) for the Appellant Father
Mark Twomey QC and John Church (instructed by Hertfordshire County Council) for the First Respondent Local Authority
Matthew Stott (instructed by Reeds Solicitors) for the Children's Guardian
Hearing date: 29 June 2017
Approved Judgment
The present appeal, essentially, raises two related questions. Firstly, what is the extent of a judge's responsibility to provide reasons in support of orders made at the conclusion of public law children proceedings? Secondly, where there has been a failure to give reasons, but there can be no challenge on appeal to the substantive orders made, what steps, if any, should the appellate court take to redress the lack of adequate reasoning?
The proceedings, which were heard by His Honour Judge Wilding sitting in the Watford Family Court, concerned seven of the eight children born to their mother and her previous partner, who is the father of the elder four, and her current partner, who is the father of the younger four. The case, which was based on allegations of neglect and emotional harm, arose from a history of extensive local authority involvement with the family stretching back to 2000 around the time of the birth of the second child. Despite that history, and to the credit of the mother, the children's fathers, and the Social Services, the arrangements for the care of the children had been maintained within the family, albeit with extensive support, until the instigation of the present care proceedings in 2016. Indeed, the seven children remained in the care of the mother and her partner until the making of the final order in January 2017.
By the conclusion of the final hearing there was agreement by all parties as to the factual basis upon which the CA 1989 s.31 threshold criteria were satisfied. Consequently, the sole issue for the judge was to determine the best outcome for the future care of the seven children who ranged in age from 16 years down to 9 months. Before the court, the parents accepted that alternative care arrangements should be made for the oldest three children. The primary area of dispute, therefore, related to the four youngest children, a girl, S, who is now aged 7 years, and three boys, now aged, respectively, 4, 3 and 15 months, who are all the children of the mother and her current partner ('the father'). The parents' case was that all four of these children should be returned to their care. The local authority case, which was supported by the children's guardian, was that all four children should be subject to a care order together with an order authorising the local authority to place them for adoption. It was accepted by the local authority that finding an adoptive home for all four children together and, in any event, finding an adoptive home for 7 year old S, would be a challenge. In addition, the emotional harm and neglect that the children had experienced over a period of years, with the consequent impact that that had had upon their ability to form attachments with their parents and with each other, indicated a need for a three-month in-depth assessment of the individual personalities, relationships, and needs of these four young people in order to identify the type and number of adoptive placements that might best meet their respective needs.
The final hearing occupied nine days in October and November 2016. The judge issued a draft judgment on 6 January 2017 which, following a short process of consultation with counsel and modest revision (to which I will turn), was handed down on 13 January 2017. The judge concluded that these four children were now in need of more than good enough parenting and that, despite the undoubted love and commitment demonstrated to the children by the parents, no amount of therapy, instruction or support, could enable the parents to provide that level of care for their children either together or individually. The judge therefore made care orders and placement for adoption orders with respect to each of the four children.
The main body of the extensive reserved judgment (paragraph 33 to paragraph 128) contains the judge's detailed account of the oral evidence that he had heard. That passage is followed by seven paragraphs which record the judge's reasons for rejecting placement with the parents as a viable or safe option for the future. No point is taken in this appeal by the appellant father against the judge's rejection of rehabilitation to the parents' care, and it is not therefore necessary to rehearse that detail in this judgment.
Rather than challenging what is said in the judgment, the appellant draws attention to what he submits is missing from it and, in doing so, he points to the fact that the judge moves straight from the seven paragraphs rejecting the parents as viable carers to a simple announcement of the orders that were to be made (paragraphs 135 and 136):
"135 I will be making orders in respect of each of the children and in respect of [the four children] I will make care orders and placement orders. I am satisfied that their welfare throughout their lives requires that the orders be made and that the parents' consent be dispensed with.
136 In the complicated circumstances of this case I consider that the local authority plan to conduct the sibling assessment after the children are settled offers the best opportunity for the children to be placed according to their needs. I acknowledge the considerable difficulty in placing the children and ensuring that they maintain a relationship after adoption. [The social worker] said that whilst it would be difficult to place all four children together they would try to do so but wouldn't prioritise the need for the children to attach to a new primary carer as soon as possible. (sic)"
On 2 March 2017 I granted permission to appeal on one ground, namely, that the judge had erred in approving care plans for adoption and in making final care and placement orders in that no reasons were provided for the decisions that (a) the four youngest children should be placed for adoption rather than moving to long term fostering, and (b) nothing but "closed" adoption would do. In presenting the appeal before this court, Miss Elizabeth Isaacs QC, who did not appear below, leading Ms Hilary Pollock, who did, confirmed that the appeal was a "reasons" challenge, fair and square, and that, in particular, there was no realistic prospect of successfully challenging the placement for adoption orders made with respect to the three younger children (the position being reserved with respect to the eldest child, S).
Lack of judicial reasoning raised with judge
On 6 January 2017 HHJ Wilding circulated the draft of his judgment to counsel in the case, inviting any observations "on the usual terms" by 11 January.
On 9 January, in addition to suggesting minor typographical errors, Mr John Church, counsel for the local authority, made the following substantial observation in an email to the judge:
"The last two comments I make are in relation to issues in the case.
Firstly, (the mother and father) say that there is a gap in the evidence. As I read your judgment you do not accept this proposition. It might be helpful for the parents if you were able to set out your conclusions as to this issue in more detail and why you reject the suggestion that there is a gap in the evidence.
Secondly, the (parents) request that the youngest four children be returned to their care. As I read your judgment you do not consider it safe for any of the children to be returned to the care of (the parents) as they would be likely to suffer significant harm. Please would you set out your conclusions/reasoning so that the parents are able to understand why the court does not accept their first position and has chosen adoption for the youngest four children."
Further, at the conclusion of the document submitted by Mr Church with his email of 9 January the following appears:
"Para 131 (the parents) seek the return home of the four youngest children. Perhaps the court could set out what it considers to be the realistic options and the Re BS factors and the conclusions reached in this paragraph??"
Two days later on 11 January, Mr Church sent a further email to the judge in the following terms:
"Dear Judge
Further to the email and attachment below (the email of 9 January) I have re-read the judgment again.
As set out below the (parents' case) was that the four youngest children should be returned to their care. The (parents) would be assisted in understanding the court's rejection of their case if the judgment was to set out that each of the children's needs has been considered individually and collectively against the parents' ability to meet those needs.
The parents need to be able to read the judgment and see why, if they are not able to have all the four youngest children returned to their care, why one, two or three of the children cannot return to their care."
On 11 January counsel for the children's guardian sent a short email to the judge which read as follows:
"I have recently seen Mr Church's emails suggesting that it might be helpful to the (parents) to see the reasons set out as to why the youngest four children cannot be returned to their care and should be adopted. I agree with Mr Church, particularly in view of these parents' difficulties, this would be helpful in enabling them to accept the decision. I also agree with Mr Church's...
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H (Parents With Learning Difficulties: Risk of Harm)
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C, D and E (Care Proceedings: Adequacy of Reasons)
...as demonstrating that the court's decision was necessary and proportionate, the court's judgment will serve other purposes. In Re N-S [2017] EWCA Civ 1121, McFarlane LJ observed at paragraph 30: “Not only is the presentation of adequate reasoning of immediate importance to the adult partie......
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C and Others (Care Proceedings: Fact-Finding)
...way, however, presents difficulties for any later reader seeking to identify the reasoning behind the court's decision. In Re N-S [2017] EWCA Civ 1121, McFarlane LJ observed at paragraph 30: “Not only is the presentation of adequate reasoning of immediate importance to the adult parties in......
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S (A Child: Adequacy of Reasoning)
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