TL v Hammersmith and Fulham London Borough Council and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Date | 2011 |
| Year | 2011 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Interim care order – Residential parenting assessment – Case management – Mother’s first two children being taken into care – Care proceedings being issued in relation to third child prior to birth – Interim care order being granted – Mother unsuccessfully applying for residential parenting assessment – Mother appealing – Whether judge erring in refusing to allow residential assessment to take place – Children Act 1989, s 38(6) – Human Rights Act 1998, Sch 1, Pt I, arts 6, 8.
The mother had three children by three different men. Following the birth of her first child when she was 15, she underwent a number of unsuccessful assessments under s 38(6) of the Children Act 1989, with the result that the child was made the subject of a care order on 4 July 2000 and adopted. Following the birth of her second child, the mother and the child’s father underwent residential assessments which were unsuccessful, that child being made the subject of a final care order on 4 February 2005. Neither child had any contact with the mother. The younger child was so negatively affected by his time in the care of his parents that the original care plan for adoption proved impossible to put into effect, and he was made the subject of a special guardianship order in favour of his foster carer on 13 November 2007. The mother was diagnosed as suffering from a borderline personality disorder and an emotionally unstable personality disorder, as well as depression. In May 2009, she began psychotherapy with an assessment service, which subsequently confirmed her attendance at combined groups and individual psychotherapy sessions as well as psychiatric outpatient appointments. Well in advance of the birth of the third child, S, in December 2010, the local authority signalled its intention to bring care proceedings under Pt IV of the 1989 Act as soon as S was born. It did so on 30 December 2010, before applying to the Family Proceedings Court for an interim care order and the separation of the mother and S, who, at that stage, was still in hospital. The mother was present and represented at the hearing on 12 January 2011, although she did not give oral evidence. Having heard oral evidence from the local authority social worker and the guardian (who supported the local authority), the justices made an interim care order until 9 March 2011. The mother appealed against the order and made an application for a stay to the Principal Registry of the Family Division. The judge refused the application for a stay, but directed that the appeal be heard
on 25 January on the basis that S remained in the meantime with the mother. On 14 January, the mother applied for a residential parenting assessment pursuant to s 38(6) of the 1989 Act. On 25 January, when dismissing the appeal, the judge adjourned that application ‘to be further considered, but not adjudicated’ at a ‘[r]eview/further case management’ hearing before her on 14 March 2011. She also granted the mother permission to instruct a consultant adult psychiatrist and a consultant clinical psychologist to report on the issue of what further assessment, if any, was recommended. Both subsequently advised the judge against such an assessment. On 21 March, the judge heard and dismissed the s 38(6) application on the basis of, inter alia, the psychiatrist’s assessment that the mother had made little progress in her psychotherapy. The judge held that it was likely that the mother would not be emotionally available to care for S for a further two years and that S could not wait that long. On appeal against that decision, the mother principally submitted that the judge had failed to give due weight to the fact that, without a residential assessment, she would be forced to go into a final hearing without an important piece of evidence and without having been given the opportunity to demonstrate that, despite her history, she had the capacity to parent her child. The judge’s decision had therefore, it was submitted, frustrated her ability to enjoy a fair trial as guaranteed by art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998). The mother also argued that her right to respect for her family life, protected by art 8 of the Convention, had been breached.
Held – The mother’s criticisms of the judge’s case management were misplaced; the judge had managed the case in an impeccable way. She had looked at the timetable for S, whose future had needed to be decided as a matter of urgency. She had, accordingly, been right in January 2011 to cut through the case and to ask the critical questions of whether S’s welfare warranted an assessment under s 38(6) of the 1989 Act and whether there was evidence that the mother would be able to care adequately for S within the child’s timetable. In the circumstances, the judge had been entitled to accept the evidence and to come to the conclusion that a s 38(6) assessment of the child was pointless. It was also necessary to reject the argument that the judge’s refusal of an assessment under s 38(6) of the 1989 Act had been unfair to the mother. The two experts instructed by the mother advised the judge against such an assessment; there could not be a breach of art 6 of the Convention when the evidence called by the party alleging breach did not establish the case which that party wished to present. It was necessary to bear in mind what the judge had been deciding, namely an application under s 38(6) of the 1989 Act. It would remain open to the mother at the final hearing, if the two experts adhered to their views, to apply for permission to cross-examine them, not about a s 38(6) assessment of S, but about her capacity to provide ‘good enough’ parenting for her child in the long term.
Furthermore, it would not be unethical for the psychotherapist to give evidence, with the mother’s permission, that in his or her opinion the mother had made sufficient progress to care for S. Accordingly, there was had been no breach of art 6. As to art 8, every care case involved a balance between the rights of children and their parents to respect for their family life. In the instant case, however, the judge had been fully aware of those matters; there had been no breach of the mother’s art 8 rights. In the circumstances, it was quite impossible to say that she had been plainly wrong, with the result that the appeal would be dismissed (see [53], [55]–[56], [58]–[61], below).
Cases referred to in judgmentsB (Care Proceedings: Expert Witness), Re[2007] EWCA Civ 556, [2007] 2 FLR 979.
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, CA.
C (A Minor) (Interim Care Order: Residential Assessment), Re[1997] 1 FCR 149, [1996] 4 All ER 871, [1997] AC 489, [1997] 1 FLR 1, [1996] 3 WLR 1098.
G (a child) (interim care order: residential assessment), Re[2005] UKHL 68, [2005] 3 FCR 621, [2006] 1 All ER 706, [2006] 1 AC 576, [2005] 3 All ER 1166, [2006] 1 FLR 601.
J (a child) (care proceedings: assessment), Re[2009] EWCA Civ 1210, [2010] 1 FLR 1290.
K (a child) (care order), Re[2007] EWCA Civ 697, [2007] 2 FLR 1066.
L (children) (care order: residential assessment), Re[2007] EWCA Civ 213, [2007] 3 FCR 259, [2007] 1 FLR 1270.
M (a child) (care order), Re[2009] EWCA Civ 315, [2009] 2 FLR 950.
AppealThe mother appealed, with permission given on paper by Ward LJ on 10 May 2011, against an order made by Judge Judith Hughes QC on 21 March 2011 refusing her application for a residential parenting assessment pursuant to s 38(6) of the Children Act 1989. The facts are set out in the judgment of Sir Nicholas Wall P.
Mark Twomey (instructed by Duncan Lewis) for the mother.
Christopher Poole for the local authority.
15 July 2011. The following judgments were delivered.
SIR NICHOLAS WALL P. Introduction[1] This is an appeal (for which permission was given on paper by Ward LJ on 10 May 2011) against an order made by Judge Judith Hughes QC on 21 March 2011 refusing an application by the appellant for a residential parenting assessment pursuant to s 38(6) of the Children Act 1989 (the 1989
Act). It raises a number of important issues for practising family lawyers and for judges, and it is principally for this reason that we reserved judgment at the conclusion of the argument on 22 June 2011.
[2] In giving permission to appeal, Ward LJ commented:
‘Although it is obviously difficult to appeal a case management decision as this is, I am persuaded to give permission mainly because (1) without a favourable assessment this child is likely to be removed from mother permanently and (2) given that she has made some (but maybe not enough) change, it is arguably not fair to snuff out the only chances of this child remaining within the family.’
[3] As the proceedings are ongoing, this, in my judgment, is a case to which reporting restrictions should apply. Accordingly, I propose to identify only the local authority, the judge and the lawyers. The local authority is the London Borough of Hammersmith and Fulham. The mother is the appellant, and the child who is the subject of care proceedings under Pt IV of the 1989 Act is ‘S’.
[4] Section 38(6) of the Act permits the court, when making an interim care or supervision order to ‘give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child’. One of the leading cases in the House of Lords (Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] 1 FCR 149, [1996] 4 All ER 871 (Re C)), decides (inter alia) that the purpose of the section is to order an assessment of the child such as is required to enable the court to make a proper decision about him or her at the final hearing of the application. It also decides that it is impossible to assess a young child divorced from his or her environment, and that the assessment includes the relationship between the...
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