Re W (A Child) (Care Proceedings: Court's Function)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Mccombe,The President of the Family Division |
| Judgment Date | 11 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1227 |
| Docket Number | Case No: B4/2013/1280 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 2013 |
In the Matter of W (A Child)
and
and
and
and
[2013] EWCA Civ 1227
The President of the Family Division
Lord Justice Mccombe
and
Lord Justice Ryder
Case No: B4/2013/1280
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Swansea County Court
Her Honour Judge Mifflin
FN12C00001
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Lorna Meyer QC (instructed by Cameron Jones Hussell and Howe) for the Appellant mother
Mr Robin Tolson QC with Ms Clare Templeman (instructed by Neath Port Talbot County Borough Council Legal Department) for the First Respondent local authority
The Second Respondent father and the Fourth Respondent paternal grandparents appeared in person
Mr Charles Geekie QC (instructed by Llewellyn-Jones) for the Third Respondent Child by her Children's Guardian
The Fifth Respondent maternal grandfather did not appear and was not represented
Background:
This is a case about a mother, RW, who made serious but false allegations of sexual and physical abuse that she said had been perpetrated upon her by others. In care proceedings in the county court her child, who I shall call W, has been held to be at risk of significant emotional harm. On 25 April 2013 the judge decided to make a care order in respect of W on the basis that she would remain in the care of and living with RW. It is from that order that this appeal is brought by RW. The local authority, Neath Port Talbot County Borough Council, who were the applicants for a care order in respect of the child, refuse to accept the judge's evaluation of risk arising out of the findings of fact. The question for this court is whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and mother.
RW's appeal is supported by the local authority. There is no Respondent's Notice. The appeal is opposed by father, MH, the paternal grandparents, CH and SH, who appear in person, and by the children's guardian. The maternal grandfather, AW, has taken no part in the appeal. I shall limit this court's commentary upon some of the issues in the proceedings because, as will become clear, there remain decisions to be made about W.
W was born on 5 December 2011 and is now aged 21 months. The local authority issued an application for a care order on 3 January 2012 and mother and baby were placed in a specialist mother and baby foster care placement on 13 January 2012. Prior to the foster placement, mother and W had lived with W's maternal grandmother. The foster placement broke down in September 2012 but was replaced by a similar arrangement so that mother has never been separated from W. On 25 April 2013 the court made a care order, after which and by agreement, mother and W moved to live in independent accommodation, where they remain.
W has not been harmed by anyone. The case has always been about the likelihood of harm to her. The local authority's application was made on the basis that RW had made allegations in September 2007 that she had been sexually abused by her three older brothers and physically abused by her parents. Despite this alleged history, RW was saying that her family posed no risk to her or to W and that she intended to live with one or other of them. The key issue as originally described was the nature and extent of the risk to W presented by various members of the maternal family and the capability of RW to protect W and herself (as W's primary carer) from the same.
The local authority's case was that RW's allegations of abuse were probably true, that she had been persuaded to withdraw her allegations and that she was unable to protect her child from the risks presented by her own family. RW's case was that she had fabricated the allegations and that there was no risk. The court invited the local authority to consider what its case would be if the mother's position on the facts was preferred. Their position at that time was that if mother was found to be lying (in her initial allegations) they would not seek to argue that the jurisdictional "threshold" in section 31 of the Children Act 1989 [CA 1989] was satisfied and would not want an order.
There followed a 10 day fact finding hearing involving five extended family members who were required to answer the allegations made against them within which consideration was give to the legal question of whether facts existed which were sufficient to satisfy the threshold in section 31. There is a careful and detailed judgment of 4 August 2012 in which the judge concludes that the allegations of sexual and physical abuse made by mother were false. The interveners were discharged from the proceedings. The judge went further than holding that the allegations were not proved. She found as a fact that mother had lied in 2007 and had on occasion repeated and embellished the lies up to the time of W's birth. The findings were conveniently summarised by the judge at the beginning of her welfare judgment in the following terms:
"the Court found that RW had made up appalling allegations against those closest to her and maintained them over a period of time. Those allegations divided the family and continue to do so. However, the Court went further and found that RW continued to lie about other matters and embellish lies that she had already told. Indeed her need to lie continued even during the evidence she gave to the Court."
So far as the threshold was concerned, the local authority's stance remained that they declined to pursue the proceedings because the court had come to the conclusion that the allegations were false. Contrary to authority, as I shall in due course describe, they declined the judge's invitation to pursue the proceedings on an alternative threshold based upon the court's conclusions. As a consequence, the judge adjourned the proceedings and directed a report from Professor Gray, an independent expert in psychology, on the threshold issues "to assist the Court to understand Mother's behaviour". That case management direction was not appealed and the letter of instruction to Professor Gray was agreed by all parties.
The judge undertook an evaluation of the interim threshold based upon the findings that she had made and held that:
i) Mother's tendency to lie was a maladaptive way of dealing with the prevailing circumstances (which were not at that stage identified) at the times she told the untruths;
ii) If she continued to invent serious allegations or lies about significant issues, that might seriously impact on the child's emotional wellbeing and her ability to deal with the child's needs;
iii) It was necessary for the question whether the child is at risk of suffering significant emotional harm if cared for by mother to be addressed by expert evidence.
That formulation was not appealed and was sufficient to satisfy the threshold for an interim care order in section 38 CA 1989, that is where the court "is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)".
The judge was then asked to consider whether mother and child could move from the mother and baby foster placement into independent living. After hearing further evidence and submissions over another three days, the judge gave a judgment on 7 September 2012 declining to hold that the proposed move was in the interests of the child. That judgment was not appealed.
The welfare hearing took place over 11 days in January and February 2013. By that time, applications had been made by the paternal grandparents for a residence order, supported by the child's father, and also by the maternal grandfather to be considered as an alternative carer to mother should the court conclude that W could not remain with RW. One of the more significant witnesses at the hearing was Professor Gray. After hearing the oral evidence the paternal grandparents decided not to pursue their application. The children's guardian had hitherto provisionally supported them. The guardian changed her position to accepting that W should not be separated from her mother provided that the local authority shared parental responsibility with mother that is, provided a care order was made.
Following receipt of the psychologist's report, the local authority revised its position and submitted a new threshold document describing the risk to which the child was subject as "[W] (i) will come to behave in similar ways; and/or, (ii) will be emotionally and, hence, developmentally harmed by this behaviour […] The effects of mother's behaviour, illness and personality are such that the consequences of it upon [W] cannot be alleviated in ways which would sometimes be available and which do not involve an order under Part IV CA 89 […] The threat of suicide […] is a further risk to [W]". They argued for the continuation of the child's placement with her mother in the community and asked for a supervision order. Mother submitted that the threshold was not satisfied or in the alternative, if it was, that no order or a supervision order was a proportionate response to the threshold. The children's guardian remained of the opinion that a care order was necessary and was unhappy about the content of the local authority's care plan and in particular their rejection of the risk identified by the court.
At the welfare hearing...
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