W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Pill |
| Judgment Date | 12 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1828 |
| Docket Number | Case No: B4/2012/2700 |
| Date | 12 December 2012 |
| Court | Court of Appeal (Civil Division) |
[2012] EWCA Civ 1828
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE BOND)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Mcfarlane
Case No: B4/2012/2700
Ms Samantha King (instructed by Powell Spencer and Partners Solicitors) appeared on behalf of the Appellant.
Mr Leo Curran and Ms Carol Davies (instructed by Poole Borough Council) appeared on behalf of the Respondent.
This is an appeal brought with the permission of Munby LJ from the determination made by HHJ Bond sitting in the Bournemouth County Court in a judgment dated 11 September 2012. The case before the judge related to the welfare of a young child, whom I will refer to as S, a girl who was born on 21 July 2011 The parents of S had only but days before her birth been in court in front of the same judge in proceedings relating to the older children of the mother. Both parents are now aged 33; the eldest child, B, a girl born in May 2005, is now aged 7; the next eldest, a girl, M, born in June 2007, now aged 5; and the youngest of those three older children, another girl, born in November 2009, now aged 3, had been the subject of care proceedings following their removal from the care of the mother and the father on 1 July 2010, a year before, effectively, young S's birth.
The judge had, in the course of those care proceedings, conducted a very full investigation of the care which those three young girls had received in the home of their mother and over the three years or so prior to the proceedings, and in particular investigating what, if any, potential there was for one, two or three of those girls to be brought up either by the mother and the father themselves or within the wider family. He concluded at the end of that process that it was not safe to return those three girls to the family. He accepted the recommendation of an independent social worker, to the effect that the girls required better than good enough parenting; they required parenting which included an element that could establish some repair of the harm done to the children because of the experiences that they had in the mother's care, and he concluded that they should move forward to adoption. He made placement for adoption orders in each case on 1 July 2011, some three weeks precisely before young S was born.
It is not necessary in this judgment to go into extensive detail as to why it was that the three girls fell into the category that I have just described or what it was that did or did not happen to them in their mother's care. The mother has a personality difficulty which is described, as I will come to in more detail, by the psychiatrist, Dr Sheppard, instructed in the case, which leads to her acting in a way which is impulsive and, from a young child's point of view, on occasions harmful, when no doubt she does not wish to act in that way but her own self-motivation at those moments takes over and takes her away from being a safe and good parent. Thus it was that the judge found that the children had been neglected, both physically and emotionally, that there had been some physical harm caused to the children and that generally, over the course of time —and it seems that matters had gone on for a significant time before the local authority eventually took action to remove the children —the children individually, and collectively, and cumulatively, because of these experiences, had suffered significant harm.
Although obviously the authorities were aware that the mother was expecting young S, it was not possible to draw her case into the case of the older three children which concluded in July. An application for a care order was issued soon after her birth and she was effectively removed from the mother's care —she had been born a month prematurely —at or around the time when she was due for discharge for hospital. She went into foster care and there she remained; and the issue for the court, when it came to consider her case, was to consider first of all whether she was in circumstances which met the statutory threshold under Section 31 of the Children Act 1989, and that could only be (because she had no history in the care of the parents), because she was likely to suffer significant harm because of the way the older children had been looked after; and secondly, if that threshold was met, what was the best plan for her future?
The case, despite the wealth of knowledge that had been amassed and the prompt issue of proceedings, did not come on for determination before HHJ Bond until April 2012. The local authority in fact was a different local authority (the authority previously had been Dorset County Council, but the parents have now moved, no doubt albeit a short distance, but into the local authority area of Poole Borough Council). The mother was able to demonstrate to the judge that Poole Borough Council had approached the case with a single plan, which was for S to be adopted, and had closed its mind to any necessity to act openly, fairly, or in any way which looked with fresh eyes at these parents, as they were in the second half of 2011 and early 2012, to make a fresh assessment of them and entertain the prospect of this baby being cared for by them. The judge was taken to the decision of Munby J, as he then was, in the case of Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730, where, in familiar terms to those who practice family law, the judge emphasised that the Article 6 rights of parents, and the Article 8 rights of children and parents, do not simply focus upon what goes on in the courtroom. The process as a whole, including that operated by the local authority, must be one which is fair; and HHJ Bond, at the hearing in April 2012, concluded that the approach adopted by Poole Borough Council to these two parents and this baby was not fair in that sense; they had been ruled out before they started; and the judge was persuaded that the case should not be determined at that hearing, but the matter should be adjourned and come back before the court at a slot which had conveniently opened up in July for final determination.
In part the judge was persuaded to take that course because the mother had by that stage embarked upon Dialectic Behavioural Therapy ("DBT"), designed to help her adjust her behaviour in the future in a way which did not present itself often, or at all, as it had in the past. It was also agreed that an independent social worker, a Mr Lamprey, would be instructed so that he might help the parents with aspects of their relationship, and address in particular features of domestic violence, so that, in the same way, future behaviour might be of a different calibre to that that had been witnessed occasionally in the past. The judge also was mindful of the report of Dr Sheppard, who had seen the mother in February of 2012, and at that very interview the mother had demonstrated once again behaviour where she had been unable to control her emotional presentation, and Dr Sheppard had indicated that, before she could be given a positive bill of health in terms of there being some greater confidence for her ability to control these aspects of her life in the future, some six months needed to go by from February without any noted further worrying incidents.
So for those various factors, but also, it is clear from the judgment, because the judge considered the parents had thus far been unfairly treated by the process as a whole, he adjourned the final determination.
When the matter came back before him in July he heard the case in full and he reserved his judgment, and it is that judgment and the conclusion of that process which was given after some short delay on 21 September.
The conclusion that the judge reached was between two completely diverse choices: the only two options before the court were either a placement with the parents, which would have had to be under a supervision order because the local authority would not contemplate placement with the parents under a care order; and that was at one end of the spectrum of options, and at the other end was endorsing the care plan for adoption and making a placement for adoption order. No intervening option was put forward by either side, given the age of the child and the unavailability of any alternative family placement in the community or wider family.
Of those two options, for the reasons which he sets out in an extensive judgment, HHJ Bond chose the more draconian. He made a care order, he dispensed with the consent of both parents to adoption and he made a placement for adoption order, and it is against those orders that the parents now appeal.
The appeal is brought by the parents acting in person, and I share the view that Munby LJ formed of the parents' documentation, which is that, despite the lack of legal representation but with the assistance of a family friend who has knowledge of these matters, the parents have been able to put forward short, succinct, but very clear grounds of appeal supported by a skeleton argument which can be described in similarly positive terms. In granting permission to appeal Munby LJ was plainly impressed by that material, impressed by the potential for there to be some global unfairness in this case and persuaded that that background, and the finely balanced decision that the judge had to make, justified the case being looked at in far more detail than is possible at a one-sided short permission to appeal hearing but at a full hearing of this court that has now taken place.
In the intervening period the...
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W (A Child) and Another
...Child) [2012] EWCA Civ 1564. The appeal was dismissed by the full court (Pill and McFarlane LJJ) on 12 December 2012: Re W (A Child) [2012] EWCA Civ 1828. 4 The child was placed with prospective adopters on 19 November 2012. On 24 April 2013 the adoption application was issued. On 15 May 20......