E (Through Her Children's Guardian) v A Mother
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Lindblom,Lord Justice Floyd |
| Judgment Date | 12 September 2019 |
| Neutral Citation | [2019] EWCA Civ 1557 |
| Docket Number | Case No: B4/2019/1789 AND 1828 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 September 2019 |
[2019] EWCA Civ 1557
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LIVERPOOL
HH Judge Greensmith
LV18C04157
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Lindblom
and
Lord Justice Baker
Case No: B4/2019/1789 AND 1828
In the Matter of the Children Act 1989
And in the Matter of E (A Child) (Refusal of Placement Order)
Mark Senior (instructed by MSB Solicitors) for the First Appellant, the child, by her guardian
Damian Sanders (instructed by Local Authority solicitor) for the Second Appellant,
Joanna Mallon (instructed by Morecrofts LLP) for the First Respondent mother
Jamil Khan (instructed by RMNJ Solicitors) for the Second Respondent father
Hearing dates: 12 September 2019
Approved Judgment
Introduction
This is an appeal by a local authority and children's guardian against an order made by HH Judge Greensmith on 25 June 2019 refusing an application for a placement order in respect of a child, hereafter referred to as E, born in November 2018 and is therefore now aged 10 months. E had been in foster care under an interim care order since birth. Within the proceedings, the local authority applied for a care order and placement order on the basis of a care plan for adoption. At the hearing, the local authority plan was supported by the guardian. E's parents opposed the plan and asked the court to return E to their care.
The judge took a different course altogether. He concluded that the child's welfare would be best served by what he described as a “cohesive plan which will support future rehabilitation”. He found that there were reasonable grounds to believe that, within a period of 12 to 15 months, the parents would undertake work which would enable them to resume care of their daughter and that, in the interim, she should remain in foster care. He therefore indicated that he would dismiss the application for a placement order in due course and meanwhile adjourned the proceedings to a further hearing on 17 September 2019 and directed the local authority to prepare a revised care plan reflecting his assessment of risk.
The kernel of his decision was expressed in paragraph 46 of his judgment:
“Unusually time is on the side of this child. There is, in my view just enough time to demonstrate that change is possible and sustainable within the timetable for the child. We have not reached a position where nothing else but adoption will do.”
The local authority and guardian filed notices of appeal. On 22 August, King LJ granted permission to appeal and listed the hearing before us today.
Background
The origins of difficulties for this family lie the parents' chaotic lifestyle involving drug and alcohol abuse, domestic violence and, in the mother's case, mental health difficulties. The police have been called out to attend incidents of alleged domestic abuse on over 40 occasions. The mother has made a number of attempts at suicide, including, on one occasion, jumping from a bridge, as a result of which she sustained extensive injuries. In 2016, the parents' two older children were removed from their care and subsequently made subject to special guardianship orders in favour of their paternal grandmother.
By 2018, the parents' circumstances had seemingly deteriorated further. Both were taking heroin and, in the mother's case, crack cocaine. The mother was pregnant again and in November gave birth to E. The local authority applied for a care order and were granted an interim order under which E was placed in foster care. In the course of proceedings, a psychological report was commissioned from Ms Helen Roberts who concluded that it was unlikely that the parents would engage successfully with therapy. The father was opposed to entering therapy, holding that he was able to overcome his problems without it. The mother expressed a willingness to undergo therapy, but Ms Roberts concluded that she could not do so successfully in the context of her dysfunctional relationship with the father.
In the course of 2019, there were some signs of improvements in the parents' circumstances. The father obtained a job. The couple also obtained rented accommodation having previously been homeless. There were some possible signs of a reduction in their drug taking. On the other hand, incidents of domestic abuse and arguments continued and the police were called out again on more than one occasion during the currency of the proceedings.
At the hearing in June 2019, the court was presented with a document setting out the grounds on which the local authority contended that the threshold criteria for making a care order under s.31(2) of the Children Act 1989 were satisfied. The document gave details of how it was said that E would be at risk of physical and/or emotional harm as a result of specified allegations of domestic violence between the parents, alcohol and drug abuse, the parents' chaotic lifestyle, their failure to engage with and access appropriate services, the mother's mental health difficulties and the parents' lack of insight into professional concerns. The local authority's threshold document was accepted by the parents and the court. The issue for the court to determine, therefore, was what order should be made in the light of the agreed threshold. The local authority care plan was for adoption and an application was put before the court for a placement order under sections 21 and 22 of the Adoption and Children Act 2002. The applications were supported by the children's guardian. The parents sought the immediate return of the child to their care.
The judge had before him a substantial bundle of papers, including Ms Roberts' psychological assessment, a parenting assessment by the social worker, several reports by a drug-taking agency on samples provided by the parents over a period of nine months or so, documents disclosed by the police relating to the allegations of domestic abuse, statements by the parents, and the guardian's report and analysis. At the conclusion of the hearing, the judge delivered judgment which I consider in some detail below. He then made an order which included the following provisions:
“(f) On 25 June 2019 the court found that:
(1) threshold for the purposes of s.31(2) of the Children Act 1990 satisfied on the basis put forward by the local authority in the agreed threshold statement dated 1 May 2019;
(2) E remains at risk of suffering significant harm as a result of the care she would receive from her mother and father;
(3) no suitable kinship carer has been identified;
(4) on all the evidence and on analysing the welfare checklist, the welfare of E requires the making of a care order, but not in accordance with the final care plan of the local authority;
(5) on all the evidence and on analysing the welfare checklist, the welfare of E requires her to remain in foster care pending the implementation of a prolonged plan of rehabilitation;
(6) the basis upon which the court required the making of the final care order pursuant to a prolonged plan of rehabilitation whilst E remained in foster care is set out in detail within the agreed written judgment of the court annexed hereto;
(7) the court will expect the local authority to pay for support where that is not available from the NHS within a period that it has the chance to work and its efficacy assessed within a timetable for the child which the court proposes might be 12 to 15 months.
(g) On 25 June 2019, the court directed that the matter be listed on 17 September 2019 on a part-heard basis for the making of a final care order, approval of the amended care plan and the dismissal of the placement proceedings.”
The guardian and local authority both filed notices of appeal against the order. It is convenient to deal here with a preliminary point raised by the respondents, namely whether the appeal is premature. It is said that, given that no final order has yet been made, the local authority and guardian should have awaited the outcome of the hearing next week at which it would be open to them to invite the court to vary or discharge the June 2019 order. For my part, I think the local authority and guardian rightly decided that, if an appeal against the judge's decision was to be launched, it was appropriate to do so immediately after the judgment in June 2019 in which he made findings about risk and set out his decision concerning the future care of the child. In saying that, I record that we have been told that, since the hearing in June, there have been three further incidents of alleged domestic abuse when the police have been called, the most recent only 10 days ago on 2 September, and a further incident in which the mother assaulted a police officer and another person, as a result of which she was prosecuted and received a community sentence. It is possible therefore that, if this appeal were to be dismissed, Judge Greensmith at the hearing next week might take a different course to that set out in his June judgment. But to my mind, that does not undermine the view taken by the guardian and local authority that any appeal against the judge's decision in June should be determined as quickly as possible.
The judgment
The judge described the parents' life as having been “impregnated by drug abuse, domestic violence and poor mental health” which he described as “the toxic trio”. He recorded that the parents admit that they have spent periods homeless, at times rough sleeping on an allotment, and have a documented and admitted history of drug use, including cocaine, cannabis and opiates. He described the level of domestic violence between them as “substantial” and said that on a number of occasions, the mother has made...
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