Re S (Minors) (Care Order: Implementation of Care Plan); Re W
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE SEDLEY,LORD JUSTICE HALE |
| Judgment Date | 23 May 2001 |
| Neutral Citation | [2001] EWCA Civ 757 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2001 |
| Docket Number | (1) B1/2000/3480 (2) B1/2001/0094 (2) B1/2001/0131 |
[2001] EWCA Civ 757
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM PLYMOUTH COUNTY COURT
(HER HONOUR JUDGE SANDER)
(2) ON APPEAL FROM LUTON COUNTY COURT
(HIS HONOUR JUDGE HAMILTON)
Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Thorpe
Lord Justice Sedley and
Lady Justice Hale
(1) B1/2000/3480 (2) B1/2001/0094 (2) B1/2001/0131
(1) ALLAN LEVY QC and CATRIONA DUTHIE (instructed by Messrs Hooper & Wollen of Torquay TQ1 1BS) appeared on behalf of the appellant
(1) ANNA PAUFFLEY QC and CLAIRE ROWSELL (instructed by Torbay Council Legal Services of Torquay TQ1 3DS) appeared on behalf of the local authority
(1) ROBIN TOLSON (instructed by Messrs Woolcombe Beer Watts of Newton Abbot TQ12 2QP) appeared on behalf of the guardian ad litem
(1)+(2) NEIL GARNHAM and CAROLINE GIBSON (instructed by Office of the Solicitor, Department of Social Security of London WC2A 2LS) appeared on behalf of the Secretary of State for Health
(2) IAN PEDDIE QC and SARAH FORSTER (instructed by Messrs Motley & Hope of Biggleswade SG18 0AT) appeared on behalf of the appellant
(2) LEE ARNOT (instructed by Bedfordshire County Council Legal Services of Bedford MK42 9AP) appeared on behalf of the local authority.
Introduction
In these two appeals the appellants contend that if the Children Act 1989 is not to be held incompatible with the European Convention on Human Rights pre-existing case law governing the interpretation and operation of the Act must be modified in order to achieve compatibility. Of course the facts in each appeal are very different and there are very different merit considerations but since each raises the same fundamental contention directions were given for the two appeals to be listed together. By agreement at the Bar Mr Levy QC presented his submissions for the appellant in Re W & B followed by Mr Peddie QC for the appellants in Re W. Miss Pauffley QC then responded on behalf of the local authority in Re W & B followed by Mr Arnot for the local authority in Re W. Mr Tolson representing the guardian ad litem in Re W & B then made his submissions followed by Mr Garnham who represented the Secretary of State for Health in both appeals. Finally Mr Peddie and Mr Levy replied.
The Facts and the Submissions W & B
In these proceedings the mother Miss S had three children, the eldest being P born in 1987. His father played little or no part in his life until after the commencement of care proceedings in 1999. His effective father was Mr B whom Miss S met in 1987 and with whom she cohabited from 1989. Of their relationship two children were born, M in 1991 and J in 199Serious problems emerged in May 1999 when P ran away from home and refused to return. He said that he had been repeatedly beaten by Mr B and that he was frightened of him. The local authority arranged a foster placement. Mr B denied the charge and Miss S supported him. They united to reject and isolate P. At a case conference in November 1999 Mr B behaved appallingly. He was arrested for threatening behaviour, charged and subsequently sentenced to community service. That prompted the local authority to issue an application for a care order in respect of P and for supervision orders in respect of M and J. In May 2000 P told a fuller story. He described how he had been buggered by Mr B on several occasions. The usual investigations followed. Again Mr B denied the allegations with Miss S's support. P was further rejected and isolated. M and J were taken into care and placed with foster parents. In July Mr B and Miss S separated tactically to improve Miss S's case for the return of the two younger children. The paediatric examinations of the three children were inconclusive but Mr Herron, an expert in the field of sexual abuse of children, reported in September his conclusion that the allegation against Mr B was well founded and that Miss S was incapable of protecting the children from him. For her he recommended therapy. At that stage it seems that Miss S's separation from Mr B became real and permanent.
As a consequence of all these developments the local authority founded their applications on physical abuse, sexual abuse and emotional abuse. Mr B was identified as the perpetrator and Miss S was charged with a failure to protect the children as a consequence of her dominance by Mr B and resulting passivity. The local authority sought care orders in respect of all three children, although their care plan for the younger two was rehabilitation to Miss S. Their case was fully supported by the children's guardian Mrs Moseley. The applications were tried by Her Honour Judge Sander sitting in the Plymouth County Court. She heard a good deal of evidence in October and delivered her reserved judgment on 1 November. She found against Mr B that he had sexually abused P and that he had repeatedly beaten the children with a slipper. She found that Miss S had failed to protect the children. She found that both parents had emotionally abused the children, particularly in their response to P's pleas for help. Once those factual findings were made all agreed that there should be a care order in respect of P. However there was considerable contention as to what orders should be made in respect of M and J. During the course of the final hearing Miss Duthie for the mother had effectively negotiated a series of evolutions of the care plan to emphasise the local authority's commitment to rehabilitation and to increase the package of support and treatment to make that possible. In consequence by the time of judgment the judge was able to record:
"Rehabilitation of them to her care is at the heart of the plan. When this will happen depends, the local authority says, on mother's commitment to her permanent separation from Mr B and to the essential work on parenting and protection which to her credit she wishes to undertake. The parenting work will take place two days a week in Halswell House. Ms Frendo has agreed to undertake the therapeutic work recommended by Mr Herron. This will start in November, continue until March and a report will be prepared in April. Contact to M and J is to take place twice per week."
However Miss Duthie sought for her client some guarantee of performance alternatively some safeguard against breach. She argued that it would be wrong for the judge to make a care order which would pass all power and responsibility to the local authority and which would disempower the guardian ad litem. Furthermore she submitted that a care order would breach the mother's human rights since it was not necessary or proportionate to the end to be achieved. Miss Duthie was not supported in this submission by Mr Tolson for the guardian ad litem, whose position had been explored during the course of her evidence. During the course of her cross examination Miss Duthie posed the question:
". What confidence do you consider, as guardian of the overall picture here, that the court might have in the local authority properly now operating its amended care plan?
A Obviously I have spoken to the local authority and the undertaking is that they will do this piece of work and I hear what you say that things were not done in the past, but the care plan as it stands now, if they keep to the care plan, there is no reason why all the work that is offered should not be done."
When pressed by Miss Duthie she said at the end of her next answer:
"You know, they have given an undertaking and we have to respect that the local authority will do their work."
When questioned by Miss Rowsell for the local authority this was put to her:
"Q Given the package of support, assessment and help and the local authority's view that these children should, if possible, be reunited with their mother, as the guardian ad litem you would be aware that there are a number of people who are going to help this mother are there not? They are an independent reviewing officer, practice supervisor, social worker, team manager, Nicky Frendo, Hillside, SATTS, and children and family guidance, so on top of that there would be you and the solicitor. She has a lot of support there anyway has she not?
A There would not be me or the solicitor if there was a full care order.
Q No, but what I am saying is that there being a full care order, that is a large packet of support for mother."
The judge rejected Miss Duthie's plea for interim care orders during the implementation of the care plan. She said:
"I accept that the guardian ad litem will drop out of the picture however I am confident that Mrs Luscombe and Mrs Allen will carry out the care plan and will carefully review the work, therapy and progress that everyone hopes Miss S will make. It was unfortunate that both social workers were only appointed about the time of P's June interview so they had not had the opportunity to get to know the parties or the children before these proceedings got under way. However I am satisfied that they have both responded positively to the discussions before and during this hearing in amending the care plans and arranging for the agreed help and support for Miss S. I am sure they will ensure the work progress in the same spirit and review it in accordance with their statutory duty to do so.
Miss Duthie for mother referring to the Human Rights Act argued that a care order was not necessary or proportionate to the end to be achieved. I cannot agree with that submission. Sadly I have found that Miss S has shown that she is unable to parent or protect the children adequately. The future for M and J is uncertain at present and depends on Miss S's response to the programme of work and therapy the local authority have offered her in support of her wish for the children to be returned to her care. The local authority's plan, if it can be done safely, is to...
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