IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
[LOWER COURT No: TA05COOO57]
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE WILSON
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS ANNE BELL (instructed by Messrs Padoes, Somerset TA6 3YB, through the Official Solicitor) appeared on behalf of the 2nd Appellant, the mother.
MISS SUSAN CAMPBELL (instructed by Somerset County Council, Somerset TA1 4DY) appeared on behalf of the Respondent, the local authority.
Crown Copyright ©
(a) One of the most difficult categories is that in which the case against the parents is not that they have actively mistreated their child but simply that, by reason of their learning difficulties or other such deficits, they lack the mental and other resources with which to provide him with adequate emotional or physical care.
(b) A situation pregnant with almost intolerable injustice to the parents but which nevertheless has - sometimes but only after the closest enquiry - to be tolerated in the interests of the child, is that in which his removal into interim foster care is prompted by an allegation which turns out to be entirely false but in which other quite different material has later emerged which is said to justify his continued, long-term removal.
(c) If the evidence is that the child is thriving in interim foster care, it is easy for a judge, tempted by the prospect of a full care order, to fail to scrutinise the evidence with the necessary rigour before holding that the threshold to the making of a care order, set by s.31(2) of the Children Act 1989, is crossed.
(d) In proceedings in which in the interests of the child there are few limits to the nature of the material capable of being presented to the court, to its sources, or to the mode of its adduction or analysis, it is easy for a judge to forget that, as was stressed by Lord Nicholls in Re H and R (Child Sexual Abuse: Standard of Proof)  1 FLR 80 at 102 B-D, neither limb of the threshold can be crossed save upon proof of relevant facts. So, when considering the threshold, the judge must, as it were, shake the material before him through a sieve; and it is only by reference to the residue of hard factual averments, which the local authority should have sought to identify in their threshold document and which the parents should have been given a full opportunity to challenge, that he can, if he finds them established, proceed to hold that the threshold is crossed.
"If after a local authority had initiated protective arrangements the need for these had terminated, because the child's welfare had been satisfactorily provided for otherwise, in any subsequent proceedings, it would not be possible to found jurisdiction on the situation at the time of initiation of these arrangements."
(a) alleged that the father was prone to be aggressive with the mother, with neighbours and others, and that at times he criticised the mother in front of the children and so placed them at risk of emotional and physical abuse;
(b) reiterated the allegation of failure to protect G from the assault in 2003;
(c) suggested that the deficiencies of the parents exposed the children to the risk of harm and neglect;
(d) asserted that the children had exhibited evidence of emotional disturbance at school; and
(e) contended that the children had suffered significant emotional harm in the care of the parents by exposure, in the case of G, to the assault in 2003 and, in the case of both children, to violent emotions when exposed to serious rows between the parents, including physical assaults by the father upon the mother and her reaction to them in banging her head against the wall.
"When I had heard submissions on the threshold criteria from counsel for the two parents I told the other advocates that I would not need to hear from them as I was minded to find that the threshold criteria were satisfied. I do so on the basis that at the material time the children were suffering significant harm and were likely to suffer significant harm due to deficiencies in the care given them by their parents. There is evidence that the children were exposed to rows between the parents that led to violence inflicted by the father on the mother or by the mother on herself and that the children suffered some emotional harm in the result. In this respect I accept the evidence of Mrs Westmacott, which was thorough and cogent. As to the 'belting' allegation, [this was] not only not proved to the high degree of cogency required, but I consider for a variety of reasons that it is very unlikely that the father ever used a belt on his children. The allegation did however lead to the removal of the children and to the scrutiny of these two unfortunate parents by Mrs Westmacott, which has in turn led to the conclusion, which again I accept, that there is a likelihood of further harm if the court's powers are not exercised."
"It is understood that you will not deal independently with any one party without reference to the others and it is essential that there are no informal unrecorded discussions ... with any of the professionals ... involved in the case ... If documents are exchanged with one party, please copy them to all others."
"In my view [G] has already suffered significant harm in the care of her parents through being exposed to sexual abuse, violent emotions and physical assaults on her mother by her father and a degree of neglect of her medical needs. She has significant learning difficulties, related to language and communication which are similar to those of her parents and thus their ability to support her educationally is compromised. Her behaviour as reported by the school is very significantly different to that of her peers and there is evidence of considerable emotional disturbance."
" There are indications that [B] did not flourish in his parents' care and that his physical, behavioural, intellectual and social development were compromised by their inability to give him appropriate stimulation and support. Since he has been in the care of [the foster parents] there has been a marked change in his behaviour and competence within school. The school reports suggest that he is having difficulty with interpersonal relationships and that there is some evidence of emotional disturbance. He is not meeting his potential."
"It is highly likely that if the children were to return to their care there would be further episodes of violence and they would be at risk of further significant harm, emotionally, socially and physically."
"All of that seems to have created an emotional distress factor for them. Then there is the problem of [G] being sexually assaulted, which undoubtedly caused her significant harm and would have had a backlash on [B] as well. I would not subscribe to the view that their developmental delay was in any way -- if I can use the word -- the 'fault' of the parents, because I don't feel that they came to harm in that context specifically but I do think they came to emotional harm and I think that they have both probably been very, very damaged."
(a) In her report, just above her paragraphs set out at  and  above about G and B respectively, Mrs Westmacott had written:
"The difficulty with the ... family is not that there is obvious harm. Although there are allegations, this is not a situation where there is explicit malicious abuse or extreme abuse. On the contrary my concern in this family relates to the more subtle and ambiguous consequences on the children flowing from parental deficiencies."
And in cross-examination there was the following exchange between Mr Hickmet and Mrs Westmacott:
"Q ... What do you mean by 'ambiguous consequences'?
A. I am talking about the way that you can interpret things in different ways and how you can interpret behaviour differently and how -- it's all -- this is all very subtle. By 'ambiguous' I mean some of the consequences have been good of their behaviour, some of the consequences have been bad. It's difficult to get clear on this case.
Q. ... You are not clear ... what the consequences are for the future for the children flowing from these parental deficiencies that you have outlined?
A. No, I'm not clear. I can only do an estimate of risk."
So which was it? "Significant harm" or "subtle and ambiguous consequences"? Speaking for myself, I regard the two concepts as mutually exclusive.
(b) Miss Trumper, who appeared for the mother in the court below, elicited from Mrs Westmacott that, had she been asked to assess whether the children had suffered significant harm, she would have done further work. Faced, however, with the inevitable supplementary suggestion that, in the absence of such further work, her assertion of significant harm was not firmly founded, Mrs Westmacott reiterated her opinion that such harm had occurred "in emotional areas and specifically in relation to the after-effects of the sexual assault on [G]". In my view Mrs Westmacott's recognition of the need for further work substantially devalued her opinion.
(c) Miss Trumper, perhaps boldly, also chose to ask Mrs Westmacott whether in her opinion the parents were "good enough" parents. She reminded Mrs Westmacott that in 2001 a social worker had expressly recorded that the father was good enough as a father and as a carer and that, as recently as November 2004, the local authority, in closing the file on the sexual assault, must have considered likewise. Mrs Westmacott's response was that she could not answer the question whether the parents were good enough. It seems to me that, were the children suffering significant harm in the care of their parents and likely to continue to do so, there was, in the absence of any evidence of likely change in their parenting, only one answer to that question, namely that the parents were not good enough. In my view the fact that Mrs Westmacott felt unable to say so compounded the devaluation of her opinion.
(d) Upon what, therefore, did Mrs Westmacott found her opinion of actual and likely significant harm? Notwithstanding intensive re-reading of her report and of the transcript of her oral evidence, I have encountered real difficulty in answering this question. Clearly her reading of files not made available to the parents influenced her. Clearly she did not dismiss - though equally she did not appear to assume to be true - the allegation that the father had whipped the children with belts. Clearly she paid substantial regard to the sexual assault on G, which the judge had soon dismissed as an inapt strut for the support of a finding of significant harm. Furthermore, so Miss Campbell submits, Mrs Westmacott relied to a considerable extent on her conversations with the children's teachers, records of which, if any, were never vouchsafed to the parents. In this regard it is no doubt important to remember that, by virtue of s.31(9) of the Act, "significant harm" includes the significant impairment of intellectual or social development. Mrs Westmacott reported that G's teacher had told her that since September 2005 there had been a marked difference in G's confidence, in her ability to make friends and in her receptive and expressive language; that B's special needs coordinator had told her (inconsistently with Mrs Westmacott's own finding, which was that he had an overall IQ of 98, i.e. much the strongest intellect in the family) that B was very poor intellectually; that B's teacher had said that he had settled better since September 2005; and that all the school staff agreed that the children had responded well to living in a stimulating foster home with many learning opportunities which the parents were unable to offer. The courts, however, do not - nor ever should - remove children from their biological parents on the basis that substitute parents would provide greater intellectual stimulus for them than they could.
(a) positively to reject the allegation of whipping;
(b) twice to reiterate his overall acceptance of the evidence of Mrs Westmacott, which he described as "thorough and cogent"; and
(c) to make only one specific finding, namely that the children had been exposed to rows between the parents, including violence by the father towards the mother or by the mother towards herself, which had led to the children suffering "some" (he did not say "significant") emotional harm. Although there was indeed evidence, including admissions on the part of the father to Mrs Westmacott, which entitled the judge to make that general finding of domestic violence, he had been right at an earlier stage of his judgment to observe that "the older allegations of domestic violence remained almost incapable of specific proof due to the mother's inconsistencies and her inadequacies as a witness".
(a) until September 2005 the children lived for all their lives, i.e. nine and six years, with their parents;
(b) (being a point not even addressed by the judge) until that time the local authority, although intimately involved in supporting the family, never sought to suggest, whether in care proceedings or otherwise, that the children's interests required their removal from the home of the parents;
(c) in September 2005 the children were summarily removed from the home on the basis of an allegation which the judge found to be not only not proved but very unlikely;
(d) since their removal the children, being of an age at which their wishes are significant, have continually expressed wishes and indeed demands to return to the parents;
(e) upon a profoundly flawed basis the judge has held that the threshold set by s.31(2) of the Act has been crossed;
(f) he has then proceeded to dismiss the application of the parents under s.38(6) of the Act for the direction of a residential assessment and, in doing so, he observed that, were the assessment to be negative, it would be a particularly bitter blow to the children;
(g) the guardian, who, by reason of the possibility of final disposal at the hearing before the judge, cannot be criticised for having reached her conclusion so early, has already reported that she cannot support the return of the children to the care of the parents; and
(h) the local authority, in contrast to their stance during previous years, are now so conclusively of the view that the children should never return to the parents that at the outset of the hearing before the judge they made a most unusual application to him, namely that, in the event that he was to hold that the threshold was crossed, he should thereupon proceed to direct that in the remainder of the proceedings no further consideration should even be given to whether the children should return to live with the parents.
(a) of the findings that in the care of the parents the children were suffering significant harm and were likely to continue to do so;
(b) of the absence of any realistic opportunity for the parents to demonstrate, whether in residential assessment or otherwise, that in the future such risks will be reduced; and
(c) of the firm opposition already expressed by the local authority and the guardian to the children's return to the parents
that, as things stand, the children have almost undoubtedly already in reality lost the chance of being reunited with the parents.
"If it were a choice of balancing the known defects of every parent with some added problems that this father has against idealised perfect adopters, in a very large number of cases children would immediately move out of the family circle and towards adopters. That would be social engineering and it is important to bear that in mind in looking at the problems which arise in this case. It was put far better than I could hope to put it by Lord Templeman in Re KD (A Minor) (Ward: Termination of Access)  1 AC 806 at p 812;  FCR 657 at p 660D:
'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'"
"I consider that it would be unfair to subject the parents, with all their disadvantages, to the stress of an assessment in an unfamiliar establishment of a kind likened in other case to a 'goldfish bowl'. Failure would be a particularly bitter blow to the children themselves and would make any eventual placement that much more problematic."