S (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Bean,Lord Justice David Richards |
| Judgment Date | 08 August 2018 |
| Neutral Citation | [2018] EWCA Civ 2512 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/0771-B4/2018/0769 |
| Date | 08 August 2018 |
[2018] EWCA Civ 2512
IN THE COURT OF APPEAL (CIVIL) DIVISION
On Appeal From Central London Family Court
(hhj Oliver)
The Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Bean
Lady Justice King
Lord Justice David Richards
Case No: B4/2018/0771-B4/2018/0769
Mr R Beddo (instructed by Tyrer Roxburgh LLP) appeared on behalf of the First | Appellant Mother
Mr M Richardson (instructed by Burke Niazi) appeared on behalf of the Second Appellant Father
Mr T Parker (instructed by Legal Services, London Borough of Islington) appeared on behalf of the Respondent Local Authority
Ms K Tompkins (Instructed by Creighton and Partners) provided written submissions on behalf of the Child's guardian
This is an appeal against an order made by HHJ Oliver on 7 March 2018. By his order, the judge declined to direct the local authority to return a child, “S” to the care of the appellant mother (“the mother”) upon his anticipated release from hospital where he was being treated for meningitis.
The issue before the court is whether the judge:
i) had jurisdiction to make the order sought and;
ii) was in any event wrong in his approach to the application. In particular, should the judge have referred to and applied the protocol in Re: DE (Child) under a Care Order; Injunction under Human Rights Act 1998 [2014] EWFC 6; [2015] 1 FLR 1001 (“ Re: DE”) relating to cases where a local authority wishes to remove a child to foster care who is currently placed at home under a care order.
Background
S was born on 13 December 2016 (19 months). He is the son of the mother and the second respondent, the father. The mother has a teenage daughter, H, from an earlier relationship.
In January 2016, care proceedings were concluded in relation to H who had been taken into care in May 2016. With the mother's agreement, H went to live with her grandmother. H had been removed from home as a result of the relationship between the mother and father which, as was described by District Judge Alderson (who heard the subsequent care proceedings in relation to S), was “characterised by alcohol consumed by both parties, but more important and additionally, alcohol which fuelled regular domestic violence within the household”.
Matters came to a head in May 2016, resulting in H being taken into care. By the time the care proceedings in relation to S came to be determined by District Judge Alderson on 26 May 2017, there was (save for a self-reported glass of wine on either one, or possibly two occasions) “absolutely no evidence at all” that the mother had consumed any alcohol since May 2016.
Following the birth of S, care proceedings were issued and the mother and S moved to live in a mother and baby unit. They were still there at the date of the final hearing and finally moved out into their own accommodation on 9 June 2017.
In a careful and insightful judgment, DJ Alderson analysed the application for a care order against the backdrop that it was accepted by the local authority that the mother's relationship with S was “excellent”. They were bonded; they had formed a close attachment to each other and with the wider family. There were no complaints whatsoever about the mother's ability to parent on “a normal parenting basis”.
The judge considered the welfare checklist, and was of the view that the local authority had underplayed the effect on S if he were taken from his mother's care. The effect on him of separation would have been “substantial” and thereafter, he would have been subject to chronic delays before a permanent placement was found for him.
The judge concluded at 73:
“For all those reasons, I consider that the welfare of [S] demands that, if at all possible, he stay in the care of his mother and the wider family. If at all possible, it requires his parents to stay away from alcohol and it requires his parents to stay away from each other. That is not an easy thing to ask of anyone. 74. You have gone a long way down that road. It has been said that your motivation is caused by compulsion. This is arguable but I know many psychiatrists who would say that it does not matter what causes the motivation, motivation is important and the important thing is that it sticks. I am going to be making a Care Order subject to many conditions, subject to written agreements, subject to court orders and subject to you being honest not only with yourselves but with each other, with [S], with [H] and with the local authority. I believe you can do it but if you do not there is only one place where this matter will go and you will have both lost your son.”
The District Judge went on to make a care order with the care plan being for S to live with the mother at home, subject to a written agreement.
The written agreement (referred to by the District Judge) required the mother to be abstinent from alcohol and said at (iii):
“If [the mother] is aware of [the father] drinking alcohol, or if there are any incidence of direct or indirect domestic violence, she should inform social care.”
The agreement also provided that, in the event that the local authority sought the removal of S from his mother's care, she was to be given 10 days' notice in writing.
On 9 June 2017, the mother and S left the mother and baby unit and moved back into the community, where their progress was good. In their skeleton argument in the appeal, the local authority appeared to “play down” that progress, but the fact remains that in October 2017, the local authority decided to reduce the support which was in place for the mother which had included, amongst other things, home-aid going into the home three days a week. On 5 December 2017, the local authority at a meeting publicly congratulated the mother on her progress and said that it was anticipated that, all being well, they would be looking to discharge the care order in relation to S during the course of 2018.
On 27 December 2017, the mother took S to the Whittington Hospital as he was unwell. He was diagnosed as suffering from acute gastroenteritis. The mother was advised to visit her GP within the next two days. The mother duly went to the GP the following day and medication was prescribed.
By the evening of 29 December, the mother was becoming increasingly concerned for S. He was listless, not accepting food and vomiting. Given that he was not having dirty nappies, the mother had her doubts about the diagnosis of gastroenteritis.
The mother's case at trial was that the fact of S's illness had, through family connections, come to the attention of the father. What is undoubtedly the case is that at approximately 2.00 am on 30 December, the father arrived at the mother's home. The mechanism which allowed her to unlock the outside door from her flat was broken, and she therefore went downstairs and opened the door to the father.
The detail of what happened next is not wholly clear and it would not be appropriate for this court to try to work through the ensuing events minute by minute. What is clear is that the father came into the mother's home, and that he accused her of being a bad mother on account of S's illness. The mother alleges that he then assaulted her, which caused her to hit her head and possibly to lose consciousness momentarily. The mother rang 999 and the police responded quickly by coming to the house. Even so, by the time they arrived, the father had left.
The police officer who attended, PC Tonse, made a statement on 30 December 2017. The statement was made up from notes which had been made up a few hours after she had attended the mother's flat. The statement described the mother's account, that the father had come to the address to check on the baby and had accused her of being a bad mother. The police officer recorded that the mother had told the officer that she had had three beers. The officer said that, although the mother's speech was slow, it was not slurred. The mother told the officer the she thought she had last eaten at 5.00 pm the previous day.
What is apparent from the police statement and the transcript of evidence is that the mother was extremely distressed and, while she described “being hit by her ex-partner”, the focus of her distress was on her baby. PC Tonse described how the paramedics did some checks on S and that they had said there were “no concerns for his health”, hence, they said, the reason why the hospital and GP had not taken any further action. The officer described how the mother just kept saying that the baby was not right and disagreeing...
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