Re S (Children) (Care proceedings: Proper evidence for placement order)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Lady Justice Sharp DBE,Sir Robin Jacob |
| Judgment Date | 28 February 2014 |
| Neutral Citation | [2014] EWCA Civ 135 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 2014 |
| Docket Number | Case No: B4/2013/2363/CCFMF |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
HER HONOUR JUDGE KARP
BT12C0001
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur DBE
Lady Justice Sharp DBE
and
Sir Robin Jacob
Case No: B4/2013/2363/CCFMF
Mr Andrew Bainham (instructed by Ratcliffe Duce & Gammer Llp) for the Appellant
Ms Hannah M Markham (instructed by L.B. of Barnet) for the 1 st Respondent
The Respondent Mother appeared in person
The Guardian did not participate in the appeal his attendance having been excused
Hearing dates: 31 January 2014
The father appeals against a placement order made in respect of his daughter A-M by HHJ Karp on 31 July 2013.
The central issue in this appeal is whether the judgment is based upon proper evidence and reasoned sufficiently to be compliant with the admonitions of the President of the Family Division in Re B-S (Children)[2013] EWCA Civ 1146. That is, in accordance with In the Matter of W (A Child), In the Matter of H (Children)[2013] EWCA Civ 1177 @ paragraph 16, focusing "on substance rather than form" and whether "the judge's approach as it appears from the judgment engage with the essence."
For the reasons given below, the appeal is allowed, an interim care order is substituted in place of the full care order made and the case is remitted to HHJ Karp for further case management directions and, ultimately re-hearing.
Despite the conspicuously skilful advocacy of Ms Markham, Counsel for the Respondent local authority, I am of the clear view that the judge was wrong to make the order without further assessment of the situation of the father and child and in any event did not adequately articulate her reasons to proceed to make a placement order in the circumstances of this case.
The facts must be referred to in a limited compass relating to the court proceedings to provide the context of the grounds of appeal argued by Mr Bainham on behalf of the father. It is, however, unnecessary to descend into detail of the circumstances which first triggered the intervention of, and then led to proceedings initiated by, the local authority.
A-M is now 5, nearly 6, one of the mother's four children ranging in age from 1 to 12 years old. The eldest and youngest children have the same biological father, DdS. He has had little practical input into his children's lives and is not concerned with the outcome of this appeal.
The Appellant is the biological father of D, now aged 10 and A-M. He has parental responsibility in relation to L, now aged 12, by virtue of his marriage to her mother at the time of her birth. The mother is from Portugal. The father is from Nepal. They were married in August 2002 and separated in late 2007, prior to A-M's birth. Post separation, his contact with the children was limited to visiting contact of short duration until the beginning of 2012 when proceedings were issued by the local authority.
The father was implicated in the first social services referral in 2005 when a neighbour reported that the children L and D, then aged 2 and 1 had been left alone in the house without appropriate supervision. The father conceded the obvious mischief in doing so in the hearing held before HHJ Karp in November 2012. No follow up action was taken at that time.
Regrettably, from May 2009, the children's situation was significantly jeopardised in the mother's care. In her judgment dated 15 November 2012, HHJ Karp found "a serious lack of supervision and neglect of the children; that they have suffered physical injuries from each other as a consequence of not being properly supervised; that the mother is unable to meet their emotional, developmental and educational needs; that the children are at risk of sexual abuse due to the mother's lack of vigilance and her inability to safeguard them from men allowed into the home, about whom she knows little; and that L and D have both exhibited inappropriate sexual behaviour". There is no issue but that the mother was reasonably and realistically excluded by the judge as a future carer for any of the four children. She has attended before this court in support of the father's appeal and ultimate wish to have the care of A-M in Norway. She has informed the court that she is pregnant with her fifth child.
Obviously with the benefit of hindsight, I question the lack of an earlier application for statutory intervention by the local authority and the willingness of the local authority initially to maintain the two girls with their mother under interim supervision orders. Concerns were escalating from May 2009. Referrals from the children's school were frequent and of worrying substance. The adverse home situation was unabated despite social work advice and assistance.
There is no doubt that at the time of the local authority initiating proceedings pursuant to section 31 of the Children Act 1989 and his removal from his mother's care, first to the care of his father, the Appellant, and his wife and subsequently to foster care, D was an extremely damaged child with obvious and long standing behavioural problems. By the time of L and A-M's subsequent removal six months later they had been exposed to further physical and emotional harm. The mother was placed in a "mother and baby" foster home with the youngest child.
D moved to live with the Appellant and his wife in February 2012 and, at first, settled comparatively well. The father would have been aware of the local authority's concerns at this stage. Nevertheless, and inappropriately he returned D to the mother's care in March 2012 when he travelled to Norway to work. He did not inform the local authority. This was recorded by HHJ Karp but without overt criticism in her judgment of November 20The reality is that D was consequently exposed to further harm – however briefly — and this is to the obvious demerit of the Appellant. In May 2012, the Appellant asked for D's removal due to his "challenging behaviour". He was removed to foster care. The two girls joined him there in July, 2012 and they remained placed as a sibling group until July 2013. In July 2013 the elder two children were removed from the foster placement and placed separately when it became apparent that they had been engaged in inappropriate sexual behaviour together.
The Appellant had conceded the so called "threshold" statement prepared by the local authority in respect of the November hearing. That is, he accepted that the children had suffered, or were likely to suffer, significant harm as a result of the parenting afforded to them by the mother. He had been assessed, together with his second wife, as carers for the three elder children. Despite his action in returning D to his mother's care, the first assessment had been positive. However, HHJ Karp noted that a further assessment was proposed since "[t]he local authority has highlighted serious concerns in the current positive assessment. Furthermore a detailed exploration ….following on from the notification on 2 nd November 2012 by a hospital midwife to the local authority that [the Appellant's wife] is 16 weeks pregnant and reported to the midwife that she feels L, D and A-M have special needs and behavioural problems and would be a danger to her baby when it is born. She apparently also reported feeling that the …mother is a risk to her and that there was police involvement before because she was attacked by her at her house".
HHJ Karp made a full care order in the case of Le, the youngest child, with a view to adoption. She directed a further assessment of the Appellant and his wife and an updated assessment of the children by Dr Yates, a consultant child and adolescent psychiatrist. The local authority's care plans were for long term fostering placements for L and D, and adoption for A-M. HHJ Karp re-listed the case in April 2013.
In April 2013 the mother and DdS supported, and the Appellant father did not oppose, the children remaining as a sibling group with their then current foster carers Mr and Mrs M. If this was not deemed appropriate the Appellant sought to care for the three children together, and if not all three, then for A-M alone. The local authority did not support the continuing placement with the Ms and maintained the position in its previous care plans. The Children's Guardian supported the Ms continuing to care for the three children. He did not countenance the Appellant's proposals for care. A further assessment was ordered of the Ms by an...
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