Re T (Children)
| Jurisdiction | England & Wales |
| Judge | Russell J,Sir Maurice Kay,Sir Colin Rimer |
| Judgment Date | 21 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1369 |
| Docket Number | Case No: B4/2014/1639 and B4/2014/1641 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 October 2014 |
[2014] EWCA Civ 1369
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT (SWANSEA)
His Honour Judge Sharpe
FN13Z00184 & FN13Z00185
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF T (CHILDREN)
Re T (Application to Revoke a Placement Order: Change in Circumstances)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Justice Russell
and
Sir Maurice Kay
and
Sir Colin Rimer
Case No: B4/2014/1639 and B4/2014/1641
Mr David Blake (instructed by Goldstones Ltd) for the Appellant
Ms Ruth Henke QC (instructed by Neath Port Talbot County Council) for the 1 st Respondent
The 2 nd Respondent (the mother) did not appear and was not represented
Ms Sharon James (instructed by David Prosser & Co) for the 3 rd & 4 th Respondents (the two older children)
The 5 th & 6 th Respondents (the two younger children) were not represented
Hearing date: 9 th September 2014
Introduction
This is an appeal from a decision of His Honour Judge Sharpe sitting in the Family Court (Swansea) on the 2 nd May 2014, to refuse an application by the Appellant, father, for permission to apply to revoke placement orders made in respect of his two sons. The placement orders had been made by District Judge Watkins sitting in what was then the Family Proceedings Court in Neath Port Talbot on the 23 rd September 2013.
The judge gave two judgments; a reserved judgment of the 2 nd May 2014 refusing the application for permission to appeal; and a "supplemental" judgment dated the 16 th May 2014 in which he amplified matters in the original judgment, clarified one matter in respect of the two older siblings (who are not the subjects of this appeal), considered and refused an application by the Appellant and the two older siblings to appeal.
The Appellant applied to the Court of Appeal for permission to appeal; this was refused on paper by Lord Justice Davis on the 27 th May 2014. The Appellant then made an oral application, in person, before Lord Justice McFarlane and Lord Justice Kitchin. Permission to appeal was granted and the Appellant appeared before us represented by counsel, Mr David Blake. The two older siblings were represented as was the 1 st Respondent local authority, Neath Port Talbot County Council. The children's mother took no part in these proceedings. Nor did those representing the two younger children who are subject to the placement orders that the Appellant seeks to apply to revoke; they no longer have a guardian allocated to their case. The oral hearing of the appeal took place on the 9 th September 2014; this is the reserved judgment.
The Background
Originally private law proceedings between the parents started in February 2012. These public law proceedings were issued by the local authority on 13 th March 2012 for orders under s 31 Children Act 1989 in respect of the four boys. The family had "been known" to social services since October 2011, when the Appellant attempted to take his own life following the suicide of a close friend. There followed accusation and counter-accusation by the parents against each other of domestic abuse, theft and substance abuse; and police involvement culminating in an incident where the family car was damaged and the children's mother was charged with criminal offences. The children had been cared for by their mother on her own for a few months but were placed with the paternal grandparents.
The parents separated and reconciled on several occasions and the pattern of accusation, counter-accusation and retraction persisted. The local authority had a series of contracts of expectations regarding the parents' behaviour and conduct over contact and other issues which were not adhered to by either parent. In February 2012 the paternal grandmother felt she could no longer cope, the Appellant was arrested for assaulting the mother and the local authority were unable to contact the children's mother or her family. The Appellant, then in police custody, gave permission for the children to be accommodated by the local authority under s20 of the Children Act 1989.
The case was heard by District Judge Watkins on three occasions, when she gave judgments, on the 29 th March 2012, on the 6 th, 7 th and 11 th June 2013 and over five days between the 16 th to the 23 rd September 2013. On the 23 rd September a supervision order was made in respect of the eldest child and care orders in respect of the other three boys. Placement orders were made for the youngest two. The judgments given in March 2012, June 2013 and September 2013 have not been the subject of appeals.
At the hearing in March 2012 the threshold criteria which allowed for the court to make interim care orders were not disputed, the parents agreed that the threshold for making interim care orders was established and the case was decided on the basis of a risk of emotional harm to the children as a result of the long-standing abusive relationship between the parents. The district judge said in paragraph 11 of her judgment, the "Welfare Checklist" section that "this is not a case of physical neglect that builds up over time, nor one where the parents have been addicted to alcohol or drugs." Rather that it is a case where there has "…been a pattern of domestic violence that has exposed the children to the continual risk of emotional harm."
An "Agreed Threshold Document" was filed on behalf of the local authority dated the 15 th February 2012 the basis for the making by the court of the subsequent supervision, care and placement orders. The document sets out the contention that the children had suffered significant harm and were likely to suffer significant harm attributable to the care given to the children by their parents. The document then sets out the "long history of physical and verbal abuse between the parents" who accepted some of the assaults on each other as set out, making allegations and counter-allegations, threatening suicide and each attempting suicide on one occasion.
The history as set out in this document amounted to some 10 allegations, mostly setting out in general terms without identifying, specifying or describing the matters relied on. The list contained one incident of assault when it was said that the youngest child was present and his mother is recorded as accepting he was at risk of physical harm on that occasion. None of the matters set out describe, define or delineate any instances of significant harm actually suffered by the children or the significant harm they are said to be at risk of suffering. Both parents accepted, to some extent, lacking insight into the impact their difficulties would have on the children and "thus putting the children at risk of harm".
The document concludes at paragraph 7 that as a result of the matters outlined in the document "the children, whilst in the care of their parents have suffered or were at risk of suffering physical and/or emotional harm". The nature, extent and evidence relied on to support this contention of significant emotional harm suffered by the children as a group or any individual child is not set out, nor is there any definition or description of what significant harm the children, or each child, are said to be at risk of suffering.
Unsurprisingly, as there was no dispute that the threshold for making interim care orders was met in March 2012, the judgment of the 29 th March contains no findings of fact. The oral evidence of the parents is referred to but there are no findings made in respect of the harm said to have been suffered by the children except in the most general terms. The plan was to rehabilitate the children with their mother; the parents had agreed to separate and live apart. The case was due to return to court in December 2012 to finalise arrangements, but shortly before that hearing the local authority became aware that the parents had broken their agreement and that the Appellant had been staying overnight at the mother's home.
In June 2013 the court relied on the threshold document accepted by the parents in March 2012. The court had previously been provided with a psychological report (prepared prior to the hearing in September) by Dr Parsons who had concluded that the parents could each provide the children with good enough parenting but that there was a "significant risk that the children would be exposed to domestic violence and experience emotional neglect and emotional harm". The children were returned to their mother's care on the understanding that the parents had separated; they both signed a contract of expectations which contained a proviso that the mother was not to allow the father to stay overnight. The children were removed from their mother's home in December 2012 because the two middle children told the social workers that their father had spent some nights sleeping in their home.
Regrettably there was no hearing until June 2013 when the district judge found that the Appellant had stayed overnight contrary to the evidence of both parents. The hearing was taken up with the question of the parents' veracity and the state of their relationship with each other. The district judge concluded that the parents had no intention to divorce and that they intended to continue their relationship. There was no evidence that any of the children had suffered any significant harm, or any harm at all, during this period, nor did the court make any findings to that effect. The local authority had abandoned their plan to rehabilitate the children with their parents in December 2102 when they removed them from their home.
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