TT (Children: Discharge of Care Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Nicola Davies,Lady Justice King |
| Judgment Date | 20 May 2021 |
| Neutral Citation | [2021] EWCA Civ 742 |
| Docket Number | Case No: B4/2021/0081 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2021 |
[2021] EWCA Civ 742
Lady Justice King
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case No: B4/2021/0081
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT KINGSTON-UPON-HULL
HHJ Whybrow
KH18C10474
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Taylor (instructed by Ridley & Hall Legal Limited) for the Appellant Mother
Ashley Lord (instructed by North East Lincolnshire Borough Council) for the Respondent Local Authority
The 2 nd and 3 rd Respondent Fathers were not present or represented
Sharon Tappin (instructed by John Barkers Solicitors Ltd) for the Respondent Children by their Children's Guardian
Hearing date: 6 May 2021
Approved Judgment
The mother of six young children has appealed from the refusal of her application for the discharge of care orders in relation to three of the children, now aged 6, 5 and 4. In doing so, she raises arguments about the correct legal approach to applications under s. 39 Children Act 1989 (‘the Act’). At the end of the hearing, we informed the parties that the appeal would be dismissed. These are my reasons for agreeing with that decision.
The mother, who is in her mid-20s, does not have the care of any of the six children but she currently sees them all for contact. The children have four different fathers. In September 2016, the eldest child was taken to hospital with serious injuries which were found to be the result of sexual abuse by the father of the three children concerned in this appeal (I will refer to him as ‘the father’). The children went to live with the mother's mother (‘the grandmother’), where they were later joined by the mother. In June 2017, care orders were made and the mother signed a safety plan, which made it clear there was to be no contact between the children and the father. However, the local authority discovered that the mother and father were continuing their relationship and it gave notice to remove the children in June 2018. Information then indicated that the family was preparing to abscond to Spain, and the children were taken into foster care.
In July 2018, the mother issued an application for the discharge of the care orders with a view to the children returning to her care. On 27 November 2020, that application, which had evidently been seriously delayed, was refused by His Honour Judge Whybrow (‘the Judge’) after an eight day hearing. He also made an order for the eldest child to live with her own father, where she had been living since August 2018; that order is not appealed.
The mother sought permission to appeal, which I granted in part on 25 March 2021. In doing so, I noted that it was doubtful that any of the grounds of appeal had a real prospect of success, but that there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM v Carmarthenshire County Council [2018] EWFC 36, also reported as M v Carmarthenshire County Council [2018] 3 WLR 1126 (‘ GM v Carmarthenshire’). In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child's best interests. For the reasons given later in this judgment, these statements are not correct and should not be followed.
Since the making of the care orders, the mother has had two further children, born in September 2019 and in January 2021. There are ongoing care proceedings in relation to both children, who have different fathers. The fact that the mother was pregnant again at the time of the hearing at the end of last year was unknown to the court. In April 2021, the father was convicted of serious sexual offences against the eldest child and is awaiting sentence.
The judgment
The judgment occupies over 40 pages of transcript. The Judge reviewed the history leading to the making of the care orders, and referred to a number of matters discovered since. These included the fact that the mother now admitted that, in an attempt to cover up for the father, she had told very serious lies about what had happened when the injuries to the eldest child were discovered. Then, after the care orders were made, she had repeatedly lied about having separated from the father, and had pretended to believe that the abuse had occurred. More recently, she had represented herself as having no debts when in fact she had such high arrears of rent that an eviction notice had been issued. These lies, and others, were described by the Judge as “a massive breach of trust”. On the other hand, he noted that the mother had done a substantial amount of work since 2018 to improve her situation by taking courses and engaging in long-term personal counselling. The question, he said, was whether the work she had done was sufficient to make good the risks that followed from the previous lies.
The competing plans for the three children were on the one hand rehabilitation to their mother and on the other for them to remain in long term foster care, that being the plan of the local authority, supported by the Children's Guardian. At an earlier stage the local authority had issued an application for placement orders, but it had withdrawn it in the light of the progress seemingly being made by the mother. It was this feature of the case, which was accompanied by repeated psychological and other assessments, that had led to the proceedings taking so long.
The Judge carefully reviewed the evidence of the twelve witnesses, including that of the mother, the grandmother (with whom she had been living), her aunt and her counsellor. He also referred extensively to the evidence of a psychologist, who had reported several times on the mother, and who gave evidence.
The Judge found some positives in the mother's evidence in terms of her openness about past mistakes, but he concluded:
“110. The downside is that I was left with the conclusion that [she] has repeatedly made similar mistakes such that her words cannot be relied on. Whether it is because she is putting her needs first, ahead of the children, I do not know. She said she makes ‘stupid mistakes’ that she regrets. I think her efforts in the witness box to be honest are positive, but it will take a prolonged period of honesty and reliability and good choices for the court to have any confidence in her decision-making.”
Further, for reasons that he explained, the Judge was unimpressed by the evidence of the grandmother and aunt and did not consider that they would offer any level of protection for the children.
After reviewing the law in relation to the discharge of care orders – I return to this below – the Judge directed himself about the assessment of risk and about lies and the need to ensure that they did not eclipse other welfare considerations. In doing so, he said this:
“173. I do not say that this mother and this father lie about everything. This case is not an assessment of credibility about facts. It is an assessment of welfare where the mother has a track record of gross dishonesty. The assessment of the mother is that she still struggles to maintain a true position and has difficulties due to her vulnerability, a vulnerability to the influences of others and her own needs and limitations. She is likely to struggle in the same way again. In a sense, there is a real possibility that she will do the same again if faced with a choice of putting her own emotional needs ahead or behind the emotional needs of her children.
174. The risk is not simply of her lying but of her exposing the children to physical, emotional or sexual harm due to her vulnerability. She is likely to struggle to see what is happening and that it is harmful; and she is likely to be unreliable to take steps to protect the children, for example, to report harm to the local authority. That such harm is likely to occur is a real possibility which cannot be ignored in view of the gravity of that harm if it were to occur. For example, if the children were to have access to [the father] or another man who poses a risk of abuse.
175. The steps in mitigation which would reduce this risk would include a reliable safety plan, including local authority and professional visits, family monitoring and surveillance. Sadly here, the court can have no faith that the family as a whole could manage to protect. Local authority visits would not be enough. It would need to be 24/7 surveillance to prevent this mother exposing the children to a risk of harm. I say that would be inadvertently rather than deliberately due to her vulnerability rather than malice. Even if the children were to return home, the local authority would need a care order to monitor this and [they] would need to share parental responsibility [to] enable the children's arrangements to be controlled in so far as they can and to take action, for example to remove the children if that became necessary and to control contact arrangements for the children with others. These are very significant factors in the welfare checklist and I will deal further below with other parts of the checklist. These factors...
To continue reading
Request your trial
-
A Mother and A Health and Social Care Trust and A Father and A Father and in the matter of an application for injunctive relief pursuant to the Human Rights Act and in the matter of the discharge of care orders in the matter of ST a Boy ages 10½ years and EA a girl aged 5 years
...emotional and physical wellbeing. The Legal Position Discharge of a care order [13] Lady Justice King in a recent judgment of Re TT [2021] EWCA Civ 742 reviewed the existing case-law in respect of applications to discharge care orders and helpfully set out the legal principles that should a......
-
A Mother and A Father and A Health and Social Care Trust and in the matter of TY (No 2) (A male child aged 4 years)
...law relating to the discharge of a care order [7] Recently Jackson LJ carried out a thorough review of the law in the case of Re TT [2021] EWCA Civ 742, and I consider that it is not necessary to go beyond that judgment. The legislative framework is summarised at para [21]: “The combined ef......