Re R (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Floyd,Sir James Munby |
| Judgment Date | 16 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1625 |
| Docket Number | Case No: B4/2014/2748 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2014 |
[2014] EWCA Civ 1625
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EAST LONDON FAMILY COURT
HHJ Sleeman
IL13C00792
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby, PRESIDENT OF THE FAMILY DIVISION
Lord Justice McFarlane
and
Lord Justice Floyd
Case No: B4/2014/2748
Miss Melanie Johnson (instructed by T.V Edwards Llp) for the Appellant
Miss Emily James (instructed by X Local Authority) for the First Respondent
The Second Respondent Father appeared in person
Hearing date: 31 October 2014
The young girl at the centre of these proceedings is ES, who was born on 5 th September 2012 and who is now aged just over two years. In November 2013, when she was just over one year of age, ES was removed from her mother's care by police exercising their protective powers. Thereafter she has remained in foster care and the subject of proceedings before the Family Court sitting in East London. At the conclusion of those proceedings on 30 th June 2014 Deputy Judge Sleeman made a care order with respect to ES and granted an order under Adoption and Children Act 2002, s 21 authorising the local authority to place her for adoption. With the permission of Macur LJ, the mother now seeks to challenge that determination on appeal to this court.
We heard the appeal on 31 st October 2014 and at the conclusion of oral submissions announced our conclusion which was that the appeal would be dismissed. This judgment represents the reasons why I concurred with that decision.
The principal issue in the appeal is whether the judge failed to conduct the welfare analysis in a manner which was compatible with the guidance given by this court in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035. As a result of concern that the requirements of Re B-S may have been misunderstood in some quarters, we encouraged counsel, at the conclusion of each of their submissions about the specifics of this appeal, to engage in discussion upon the impact of the Re B-S decision during the twelve months that have now passed since that judgment was handed down. The judgments that my Lords and I now give in this appeal are handed down together and have been discussed between us. I propose, in this first judgment, to deal with the merits of the appeal itself. In his judgment, my Lord, Sir James Munby P, considers the wider question of the approach to be taken by local authorities and courts in the light of Re B-S. I wish, however, to make it clear that I have considered every aspect of the President's judgment very carefully and am in full agreement with it.
The Appeal – Factual Context
ES's mother has two older children, a boy, R, who is now nearly sixteen years old and whose father has taken no part in his son's upbringing, and a younger boy, C, who is now seven years old, and who is the son of the mother's former husband Mr R. Mr R separated from the mother in November 2011 and, in July 2012, R, who is not his son, went to live with Mr R because he was unhappy in his mother's care. That move was followed, in April 2013, by C also moving from the mother's care to live with his father, Mr R. Those moves coincided with the development of a relationship between the mother and ES's father, Mr AR. As the judge found, and the mother accepted, that relationship was characterised by a number of incidents of domestic violence, some of which were of a very serious nature. In addition the mother and father (Mr AR) regularly consumed alcohol in a manner which went to fuel the violence between them and threatened to compromise their ability to provide a safe home for their young baby, ES.
It is not necessary to descend to any further detail in describing the impact that the unpredictable and volatile lifestyle of the two parents had upon the baby. The mother accepted that the statutory threshold criteria in Children Act 1989, s 31 were met in the Autumn of 2013 when proceedings were commenced. The judge went on to find that the consequence of her exposure to life in the family home was that ES was suffering and was likely to suffer significant emotional harm, and that she was exposed to the risk of physical harm, as a result of the frequent alcohol fuelled violence between the parents.
On 28 th October 2013 the local authority applied to the Family Proceedings Court for an emergency protection order. The justices declined to make an order on that occasion on the basis that the parents entered into a written agreement designed to keep the father away from the family home, restrict his time with ES to supervised contact only, and on the basis that the mother would not drink alcohol whilst ES was in her care. That agreement obviously placed a substantial element of trust upon the parents to stick to its terms. It is clear, sadly, that that trust was misplaced because, less than a week after the agreement was drawn up, it was broken on 3 rd November 2013 when the mother and father were found together at the father's sister's home with ES at a time when they were both drinking alcohol. ES was removed from the mother's case under police powers and she remained in foster care from that date under a series of unopposed interim care orders.
The court was provided with parenting assessments carried out upon each of the two parents. The result of both assessments was negative, with a recommendation that ES could not be placed in the care of either parent. At the time of the hearing before the judge the father accepted that he could not care for his daughter; however the mother's case was that she could now provide safe and good enough parenting for ES and that it was in the child's interest to be rehabilitated home to her mother under a supervision order.
The local authority plan, which was supported by the children's guardian, was for ES to be adopted.
The choice facing the judge was stark; no alternative option, such as placement with another family member, was put forward. The court faced a straight choice between rehabilitation of ES to her mother or placement for adoption.
The judge's decision
The judge's principal findings of fact are not challenged in the course of this appeal and can therefore be summarised fairly shortly in the following terms:
a) The mother has had a problem with "binge drinking" which is of many years' standing. On her own admission, she was binge drinking in February 2014, only some four months prior to the final hearing. The mother now accepts that she has a problem, has undertaken a relevant course on two separate occasions, but still, to the judge, sought to draw a distinction between a person who drinks every day and someone who binges at weekends. The judge concluded that the mother was still grappling with her long standing problem of alcohol abuse;
b) The mother has a vulnerability as a result of a propensity to enter into and remain in abusive relationships. The judge concluded that this was a longstanding problem which had continued for some twelve or thirteen years. In particular she received, on the judge's findings, "a dreadful beating" in mid-January 2013 from Mr AR, he was arrested and charged with assault, she was the key witness, he was kept in custody until his trial on 22 nd February 2013 at which the mother retracted her statement and the charge was dismissed. A few days later she resumed cohabitation with him. Despite the mother describing the incident as "the worst day of my life" the judge found that she lied on oath to the criminal court in order to re-engage in her relationship with Mr AR;
c) The judge found that although, by the date of the hearing, the couple had separated physically, they nevertheless maintained contact with each other and had been on friendly terms in the days before the hearing as a number of Facebook messages demonstrated. The judge found that there continued to be an emotional attachment and concern each for the other and that there was a substantial risk that, once the proceedings were over, they would resume their former abusive relationship;
d) The judge found that the mother was not a witness of truth and that she had lied to the court and the authorities in a number of respects relating, for example, to her cocaine use, her relationship with Mr AR, her own capacity to be aggressive when she feels provoked, particularly when in drink, and the contact that she had had with Mr AR in the lead up to the proceedings.
e) The mother accepted that there was "an attachment problem" between herself and ES. The mother's presentation at contact to her daughter was described in positive terms as being of good quality and demonstrating warmth. Nevertheless ES was described as being "wary of her mother" and exhibiting watchfulness to a level which was concerning to the social worker. The judge accepted the social worker's opinion which was that this young child's reaction arose partly out of fear because she had been present during violent incidents.
The judge was critical of the mother who, despite accepting that there was an attachment problem, was unable or unwilling to acknowledge any connection between the alcohol fuelled violence and the risks to a young child in that setting. The judge was unimpressed by the mother's explanation that the difficulty that existed in her relationship with ES arose because the foster carers could offer the opportunity for the child to play in the garden and also, because of the time that had passed, ES had become attached to her carers.
Having found the facts as I have described, the judge went on, first of...
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