Re The D Children
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 08 October 2015 |
| Neutral Citation | [2015] EWHC 2846 (Fam) |
| Court | Family Division |
| Docket Number | Case No: BM15C07019, BM14Z09592, FB13C00181, BM14C00153 |
| Date | 08 October 2015 |
[2015] EWHC 2846 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Birmingham Civil Justice Centre
Mrs Justice Roberts
Case No: BM15C07019, BM14Z09592, FB13C00181, BM14C00153
Miss Vanessa Meachin (instructed by Anthony Collins Solicitors) for the First Applicant
Mr Guy Spollon (instructed by Brendan Fleming Solicitors) for the Second Applicant
Miss Ruth Cabeza (instructed by Birmingham City Council) for the First Respondent
Miss Rhiannon Davies (instructed by Osborne and Co) for the Children
Hearing dates: 27th to the 30th July 2015
These proceedings concern an appeal brought by the parents of two children, L and T, against both findings and orders made by a judge in the context of care proceedings initiated by Birmingham City Council.
The appellants have been in a relationship since September 2012 (or shortly before that date). The first appellant ('the mother') has five elder children from her previous relationship with Mr S. The second appellant ('the father') has three children from a previous relationship. Together they have two children of their own. L, a girl, was born on 15 May 2013. She is now just over 2 years old and lives with her potential adopters following care and placement orders made on 27 June 2014. Whilst no adoption order has yet been made because of the currency of this litigation, L has now lived with her potential adoptive parents for some 10 months since the beginning of October last year. That is a significant period for a child of this age. She has never lived in a home with her birth parents, the appellants in these proceedings, having been removed from their care when she was nearly three weeks old. T, her brother, was born on 6 May 2014. He is now 15 months old and is currently living in a foster placement pursuant to orders made at the conclusion of a further hearing on 28 October 2014. He has never shared a home with his parents, having been removed from their care at birth. If the parents' current appeals are unsuccessful, L's prospective adopters remain open to the local authority's plan to place T with them in order that the two siblings can be adopted together and grow up in a shared home. Contact between L and her parents and wider sibling group (to whom I shall come shortly) ceased when she moved to her current placement. T continues to have contact with his parents and half-siblings three times a week.
This case has already been the subject of appeals to a circuit judge sitting in Birmingham and to the Court of Appeal in London. The litigation has now been before the courts for in excess of two years without a final resolution. Time is running for these children, each of whom needs the security of knowing who will be looking after them and where they will grow up. Of equal importance is the need to bring this long-running litigation to an end in order that the heavy burden of stress currently placed on the shoulders of the parents and the children who remain at home with them can be lifted. For the most part, the appellants have sat through several days of this hearing together. Whilst I did not hear evidence from them given the nature of these appeals, I want to say at the outset of this judgment that each has shown great restraint and courtesy to the court as they have been forced to relive the evidence given during a number of previous hearings. Many of the submissions made by counsel will have been difficult and painful to hear, but they have remained stoical throughout despite the distress they must have been feeling. That is very much to their credit and I wish them to know that I have thought long and hard about this case since I reserved judgment. That was a course which I had to take because of the manner in which the hearing unfolded. At an early stage, it became apparent that an important case management direction in relation to the preparation of some of the evidence had not been complied with and, rather than abandon the hearing, I allowed counsel extra time to make good that deficit. As a result, the two days which had been set aside for judgment writing were absorbed in concluding submissions.
The appeals before me
Before me have been the following matters:-
i. the parents' appeal against findings of fact made by District Judge Maughan on 25 October 2013 at the conclusion of a two day hearing held in the context of ongoing care proceedings launched by the local authority in June 2013. That appeal is now long outside the permissible time limits laid down in the Family Procedure Rules 2010 and thus they need the court's permission to appeal out of time;
ii. in the event that such permission is given, the substantive appeal against the District Judge's 2013 findings of fact;
iii. the parents' appeal against the care and placement orders made in respect of L at the conclusion of the full welfare hearing on 27 June 2014; and
iv. a similar appeal against the care and placement orders made in respect of T at the conclusion of a full welfare hearing some four months later on 6 November 2014.
In respect of the appeals against both care and placement orders, permission to appeal has already been granted by His Honour Judge Plunkett in the context of an earlier hearing conducted over two days on 21 November and 5 December 2014. Whilst the orders which he made on that occasion setting aside the care and placement orders have since been overturned by the Court of Appeal on 30 April this year (2015), s 54(4) of the Access to Justice Act 1999 provides that there is no route of appeal against a decision to give or refuse permission to appeal. Hence his order giving the parents permission to appeal the care and placement orders made in respect of both L and T stands, despite the reinstatement of the previous care orders secured previously by the local authority in June and October 2014.
There was also before me a fifth application by the parents to adduce fresh evidence. That evidence consisted of updating statements they had made since the last court hearings and a third party statement which concerned alleged retractions by three of the mother's elder children of some of the allegations which were before the court during the fact finding hearing in October 2013. I dealt with this application during the course of the hearing. On 11 June 2015, Roderic Wood J had given the parents' permission to adduce evidence from their legal advisers in relation to the advice which they claimed to have received about the timing of any appeal against the fact finding decision. Although privilege was expressly waived by the parents in respect of any such attendance notes or witness statements, none was produced at the hearing before me.
Background – the family and the litigation history
Because of the length and delay in achieving a resolution of these matters given the respective ages of the children, I need at this point to say something about the history of this litigation. The appellants' counsel, Miss Vanessa Meachin and Mr Guy Spollon, have produced a very detailed narrative chronology for which I am most grateful. It has been of much assistance to me in understanding the background to a complex piece of litigation. Together with counsel for the local authority and for the children's Guardian (respectively Miss Ruth Cabeza and Miss Rhiannon Davies), they have also prepared a schedule of the retractions which it is said the children have made to various third parties at various points in time. This has enabled me to navigate through the nine bundles of detailed documentation which were produced for the purposes of this hearing. Included within that material were transcripts of each of the three hearings before District Judge Maughan (including a full transcript of the evidence given by various parties on each occasion 1). I have also been provided with written copies of the judgments delivered at first instance and appellate level on both interlocutory and final matters. Several of these transcripts only became available at a late stage of the appeal proceedings. Thus, unlike HHJ Plunkett who dealt with the first appeal, I have had the benefit of knowing exactly what evidence was before the court at each stage of the hearings before District Judge Maughan. I have had the opportunity to revisit each day of the three substantive hearings which she conducted in relation to fact-finding and welfare disposals. In all, I have read what transpired over the course of the eight days spent in court considering the futures of these two young children. This has included the evidence, advocates' submissions, various judicial interjections and – finally – the judgments, delivered on both an extempore and reserved basis.
As I promised the parties I would, I have re-read more or less all the written material contained within the court bundles, together with counsel's detailed written submissions. I had a separate bundle containing twelve authorities, most of which were already familiar to me. I have reread all the authorities and will refer to them where appropriate during the course of my judgment. I cannot hope within the reasonable confines of my judgment to rehearse all the evidence in order to test the previous conclusions and decisions made in relation to these children, nor do I consider it appropriate to do so. However, because of the importance of the decision to both the children and the parents, I would wish them to know that I have carefully considered everything which was put before me before reaching my own conclusions in this matter.
The mother was born in October 1978. She is now 36 years old. The father was born in August 1980. He has just celebrated his 35 th birthday. The mother gave birth to her first child, D, a boy who was born in 1995 when she was still 16 years old. The following year, she moved with D from her own...
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