S-H v Kingston upon Hull City Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Mr Justice Charles,Lord Justice Pill |
| Judgment Date | 14 May 2008 |
| Neutral Citation | [2008] EWCA Civ 493 |
| Docket Number | Case No: B4/2008/0615 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2008 |
[2008] EWCA Civ 493
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION,
HULL DISTRICT REGISTRY
HIS HONOUR JUDGE JACK, SITTING AS A HIGH COURT JUDGE
LOWER COURT NOS:
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Wilson and
Mr Justice Charles
Case No: B4/2008/0615
KH07P05855 & KH08A05091
Miss Judith Parker QC and Mrs Sally Collins (instructed by Williamsons, Hull) appeared for the Appellant, the mother.
Mr Stephen Cobb QC and Miss Taryn Lee (instructed by Hull City Council Legal Services) appeared for the First Respondents, the local authority.
Mr Geoffrey Hunter (instructed by Stamps, Hull) appeared for the Second Respondent, the father.
Hearing date: 2 May 2008
SECTION A: INTRODUCTION
This unusual case demonstrates that it will occasionally be proper for the court to grant a parent leave to apply to revoke a placement order under s.24(2)(a) of the Adoption and Children Act 2002 (“the Act”) notwithstanding the absence at present of any real prospect that a court would find it to be in the interests of the child to return to live with the parent.
The child is a boy, T, who was born on 7 April 2004 and so is now aged four. He failed to thrive in the home of his parents. When in June 2006, i.e. at age two years and two months, he was removed from their home and taken into foster care, he weighed 8.84kg (19lb 7oz). He has remained in foster care to date. But, at the time of the hearing before His Honour Judge Jack, sitting as a Judge of the Family Division in Hull, on 28 February 2008, i.e. when T was aged three years and 11 months, he weighed only 10kg (22lb). During his 21 months in foster care his highest weight, recorded in November 2007, was only 10.4kg (22lb 14oz). I need say no more in order to explain the grave concern in relation to T which exists on the part of Hull City Council (“Hull”), of his parents, of his foster carers, of the doctors who have sought to treat him, of Judge Jack and of the members of this court.
On 3 October 2007 Judge Jack had granted to Hull, who hold a full care order in relation to T, a placement order authorising them to place him for adoption. The first of the mother's two applications before the judge on 28 February 2008 was under s.24(2)(a) of the Act for leave to apply for revocation of the placement order. The father, who lives with the mother, supported the application. Hull opposed it. By a reserved written judgment handed down at a hearing on 5 March 2008, the judge refused the mother's first application.
The mother's second application was that the judge should make T a ward of the court or otherwise exercise the High Court's inherent jurisdiction by directing that further, specified medical examinations and appraisals of him be undertaken as a matter of urgency. Again the father supported it and Hull opposed it. By the same judgment, the judge also refused the mother's second application.
Unusually but in the circumstances very properly, the judge granted permission to the mother to appeal. On 2 May 2008 we heard the appeal. It was supported by the father but opposed by Hull. Miss Parker QC on behalf of the mother conceded at the outset that her appeal against the refusal of the second application raised difficult issues of principle. In response to our enquiry she also stated that, were she to succeed in her appeal against the refusal of the first application, she would have no need to press the appeal against the refusal of the second application. So we shelved the latter and heard argument from all sides on the former. We thereupon decided that the judge had erred in not giving leave to the mother to apply for revocation of the placement order and thus that we should allow the appeal in that respect and give her leave. Although we considered that our judgments on the point would be better if they were reserved and written, we were so conscious of the urgency of T's situation that we announced our decision at the end of the hearing. Upon the mother's undertaking to us forthwith to issue the application for revocation for which we were giving leave, we also arranged that a hearing for directions in relation to it be conducted by Charles J. (who was returning to sit in the Family Division, Principal Registry) on 9 May 2008.
I will therefore explain why I, for my part, concluded that the judge should have given the mother leave to apply for revocation of the placement order. Although we did not hear oral argument on the appeal against the refusal of the second application, we read the excellent skeleton arguments upon it filed on behalf of all three parties. In a postscript to this judgment I will append brief comments, for what they are worth, about that part of the appeal.
SECTION B: THE BACKGROUND
The parents, who live together, have three children. They are two girls, aged 7 and 5, and T. The girls live with the parents under a supervision order; and Hull have no plans to seek to remove them. The parents are not married but the father has parental responsibility for all three children.
By January 2005, when he was only nine months old, T's condition was causing professional concern. He had been feeding poorly and suffering chest infections so he was then admitted to hospital for several days, was fed by a naso-gastric tube and gained in weight. Later that year there were two further admissions which gave rise to similar, albeit temporary, gain. In December 2005 T was referred to a Failure to Thrive Clinic in Leeds administered by Dr Hobbs, a consultant paediatrician. In May 2006 Dr Hobbs took the drastic step of discharging T, not because he was better but because Dr Hobbs considered that the mother was refusing to cooperate in his plan for T's treatment. Dr Hobbs may well thereby have precipitated Hull's application for a care order. It was issued on 2 June 2006, led to T's removal from home under an interim care order on 9 June 2006 and came to be heard by Judge Jack on a substantive basis in May 2007. By the beginning of that hearing Hull's care plan had become that T should be adopted. The hearing proceeded for eight days, whereupon the parents withdrew their opposition to Hull's application. Thus, on 15 May 2007, the judge approved the care plan and, by consent, made the care order.
During the eleven months between the issue of the application for a care order and the substantive hearing a mass of evidence, including professional evidence, both paediatric, psychiatric and psychological, had been assembled in furtherance of the complex enquiry into why T had so seriously failed to thrive in the home of the parents; and no doubt the enquiry required attention to be given to his continuing failure to thrive in foster care. During the eight days of hearing for which the application remained contested the judge read all the written evidence and heard substantial oral evidence. In the event, however, there was no need for him to give judgment. At the hearing of the appeal Mr Cobb QC on behalf of Hull observed that it would have been of value for us to have had some summary of that evidence by the judge. When, as a judge of the Division, I found myself in such circumstances, I usually gave a short judgment in which I described the stage which the proceedings had reached and how they had reached it and in which, while taking care to say nothing still controversial, I briefly referred to some of the important evidence which seemed to demonstrate the suitability for the child of the agreed terms.
What is clear, however, is that a strenuous attempt on the part of the parents in the care proceedings to establish that T's failure to thrive in their home had had, or might well have had, an organic cause failed to collect professional support, even from their own paediatric expert. Dr Hobbs gave damning evidence that T had no organic problem and that the conjunction of the mother's own past eating disorder and of her defective attachment to T had led to her gross mishandling of his feeding. There was also substantial evidence that she had not cooperated with professional attempts to address the problem. Indeed Mr Cobb told us that all the experts agreed that T had suffered profound psychological maltreatment at the hands of the mother. In his judgment dated 5 March 2008 the judge recalled that in his oral evidence in May 2007 Dr Hobbs had observed that T's behaviour patterns in relation to feeding were very entrenched and, no doubt in the light of the grave continuation of the problems until that date, that the suitability of the second short-term foster home, to which T had moved in October 2006, might need review. Such was the gist of the evidence which, on the eighth day of the hearing, led the mother, in her revised written response to Hull's threshold document, to accept that T had “suffered significant physical and emotional harm and neglect evidenced by his psychosocial failure to thrive and his significant attachment difficulties with [her]”.
The care plan provided that the parents and the girls should continue to have supervised contact with T once a month until he was placed for adoption. In that he has not been so placed, contact has continued to date; and it has been satisfactory.
At the hearing before us no one could remember whether the parents actively consented to the placement order made by the judge on 3 October 2007. But, even if they did not give their consent, they...
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