ON APPEAL FROM SHEFFIELD DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE VOS
|J (A child)|
Miss Daisy Hughes (instructed by Philcox Gray) for the First Respondent
Mr Nicholas O'Brien (instructed by Legal and Democratic Services, Rotherham Metropolitan Borough Council) for the Second Respondent
Hearing date: 19 February 2015
Crown Copyright ©
Lord Justice McFarlane :
"I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application."
"Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child's right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?"
i) In March 2013 the couple had an altercation following a night out on an occasion when they had both been drinking. This was prior to the mother becoming pregnant. The mother incurred a black eye and a bite mark to her face. The parents admitted these basic circumstances and accepted that the father must have been responsible for the mother's injuries. The judge simply records the account without comment.
ii) On 1st March 2014 the police were called to the parents' property. The police log notes that some of the mother's clothes had been thrown out of the window of the property and that the mother initially complained that she had been assaulted.
iii) On 4th March 2014 the social worker made an unannounced visit and observed that the mother had bruising to her right eye. Initially the mother gave an account of being struck by a suitcase whilst she was lifting it out of the loft. Later she described having received the injury by being struck by someone's elbow on the dance floor of a club during a night out the previous week.
iv) On 8th April 2014, during an assessment session, the mother is recorded as having described occasions when the father had been controlling, for example cutting up her nicest clothes. The report states that she went on to say "when he was punching me everyone jumped in but when I was punching him no one did". In his judgment the judge reports that the mother denies giving this as an account of an actual event, but rather as an example of what other people might do. The judge simply states "well that explanation I frankly do not accept". He makes no finding as to the alleged assertion by the mother that the father had in the past cut up her clothing.
"She put them in this order, domestic abuse first; (Mother) struggles to accept advice second; third that she did not get engaged in the assessment; and fourthly and most importantly she says she does not need advice."
"The incident of March 2014 was described by (mother) to (social worker) as being a stupid argument and that they argued over little things. It is far more than a silly little argument, it is a very serious incident in my judgment of domestic abuse and the potential that it has to cause harm not only to the adults but to their child."
"35. As to the application for a residential assessment, in my judgment it would not work, it would not help me to make a decision in relation to the future of this child, it is a decision that I have to make, and that is whether this child would be safe with them in the community. I do not think a residential assessment would work in the first place for the reasons given by [the guardian] and [the social worker], and neither do I think it would assist me in reaching the conclusion I have to reach which is one of the child potentially living with the parents in the community. I also agree that residential assessment is far more intensive compared with the foster placement and the scrutiny that she was under at a foster care placement which broke down and which caused a breach of the contract of expectations and, to use [the guardian's] expression, I think to give them a 24/7 residential assessment would set them up to fail. In addition this case involves a baby who needs his future settling, the proceedings were commenced 8 months ago and further delay is proposed by the parents in their undergoing a residential assessment for a period of at least 3 months, leading to a further delay, if that assessment fails of about 6 months, therefore outwit[h] the protocol."
"…is it possible that the Local Authority could provide a package of support to maintain the child in the family? Unhappily the history of this case which I have just been going through tells me that the answer to this most firmly is no, no package of support can be provided which will work and I come back to what the Guardian said to me in evidence, that these parents are on a journey which at best is only just beginning. This child's right to a family life cannot be provided by these parents and there is no member of the extended family to step into the breach. The significant damage which would be occasioned to this child is in the same bracket as the damage which has been caused to both these two young parents, and in particular the mother, and that would be occasioned to the child were the child to be in the care of these parents. The threshold is proved and on the evidence I adopt paragraphs 1,2,3,4(a)(b)(c)(e)(f)(g) and (h) I therefore concur with the Local Authority's application, that there must be a Care order for the reasons that I have given.
37. The local authority seek a placement order and in this they are supported by the Guardian. I consider that the child's welfare throughout his life demands that he becomes a placed person. I also consider his human rights and the fact that he is entitled to his own forever family. Accordingly I make a placement order as requested and dispense with consent of the parents.
38. I pause there to remark about, to effectively state the obvious, that in recent times the Court of Appeal have made a variety of decisions which deal with the long-term welfare of a child once the adoption process has started. I am sure [counsel] will explain to the mother, and so will [counsel] explain to her Client what I am referring to, but at the moment my judgment is that this child needs to go along the process of adoption and I confirm the Local Authority's application has been granted, a Care Order and Placement Order."
1. The child, [J] has suffered and is likely to suffer significant harm and the likelihood of harm is attributable to the care likely to be given to him, if the order is not made, not being what it would be reasonable to expect a parent to give to him.
2. The local authority relies upon events occurring on or before 24 December 2013; that being the date on which it first intervened to protect the child (re M (Minor) (Care Order: Threshold Conditions)  2 AC 242).
3. The local authority further relies upon events occurring since 24 December 2013 which are capable of proving the state of affairs at the date of intervention (re G (Care Proceedings: Threshold Conditions)  2 FLR 1111).
4. The local authority relies upon the following facts:
a) (Mother) and (Father) have lacked positive parenting role models.
b) (Mother) and (Father) have not always been honest with professionals. For example:
i) During the course of the parenting assessment the first respondent was not initially honest about how she came to sustain a black eye; and
ii) The second respondent, initially, failed to disclose the extent of his cannabis misuse.
c) (Mother) and (Father) have failed to consistently engage with professionals and accept the support provided.
e) (Mother) and (Father) have shown a lack of understanding with to respect to domestic abuse and the impact this has on a child. Prior to the birth of (J) there was an incident whereby both parents injured each other. (Mother) hit (Father) with a shoe and (Father) bit (Mother). On 1 March 2014 the police were contacted by a member of the public with regards to an incident of domestic abuse between (Mother) and (Father).
f) (Mother) and (Father) lack appropriate positive support networks.
g) (Father) has a history of cannabis misuse. On 27 January 2013 he received a caution for possession of cannabis.
h) Throughout the assessment process (Mother) and (Father) have displayed emotional immaturity."
"I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors)  EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?"
In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father's evidence to make good her submission that this judgment falls well short of what is required.
"It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority's concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J's exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father's] substance misuse. It is my professional opinion that many of the local authority's concerns relate to the lack of maturity of the couple."
In that paragraph 'Domestic Violence' must, even on the judge's findings, be confined to the assault a year prior to J's birth, clothes being thrown out of a window in March 2014 and the mother's reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father's admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.
"I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."
"It needs to know what the nature of the local authority case is; what the essential factual basis of the case is; what the evidence is upon which the local authority relies to establish its case; what the local authority is asking the court, and why."
Nothing that I have said concerning the threshold document in this case is intended in any way to contradict or alter the advice that the President has given on this topic and I would, indeed, go further and expressly welcome and endorse the importance that the President has attributed to the need for there to be linkage between the individual facts relied upon and the requirements of s 31 where, at paragraph 12 in Re A (above), he says:
"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A+B+C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through to a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts." (emphasis in original)
Lord Justice Vos
Lord Justice Aikens
i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that "nothing else will do", when having regard to the overriding requirements of the child's welfare.
ii) If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".
iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.
iv) The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.)
v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]".
vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare. The court must guard against "social engineering".
vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
viii) In considering a local authority's application for a care order for adoption the judge must have regard to the "welfare checklist" in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child's welfare "throughout his life" in accordance with section 1(2) of the 2002 Act. In dispensing with the parents' consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent)  2 RLR 625.