ON APPEAL FROM THE FAMILY COURT AT HERTFORD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
LADY JUSTICE ELISABETH LAING
| H-W (Children: Proportionality)
Sharan Bhachu (instructed by Hertfordshire County Council) for
the Respondent Local Authority
Baldip Singh (instructed by Philcox Gray Solicitors) for the 2nd Respondent Father
The 3rd Respondent Father appeared in person
Emily Beer (instructed by Crane & Staples Solicitors) for the 4th Respondent Father
Amanda Meusz (instructed by David Barney & Co Solicitors) for the Respondent Children by their Children's Guardian
Hearing date : 23 September 2021
Crown Copyright ©
Lord Justice Peter Jackson:
The present proceedings
"Within the household were two adults responsible for the care of the children, and whilst F3 treated the children as children of the family the parental responsibility for the children lay with M. Whilst there was straightforward evidence of co-parenting I concluded that the lead in respect of the children came from M, and understandably so.
What is plain and clear is that M loves all her children and wants to protect them from harm, provide a good childhood to them, ensure their education and provide for their needs. That M loves all her children, and equally, provided her with a dilemma to which she was not herself equal or in conjunction with F3. I was struck by how upset she had become, even having to turn off her video feed, when A, her son was seen on the screen, the first time that she would have seen him for some time. It is no criticism to say that that showed me how much this mother remains engaged with her son. Therein lay the dilemma for her when A fell into difficulty and trouble notwithstanding the fact that significant resources were put in by the Local Authority to assist A with his life… Sadly, A's vulnerability was noted and preyed upon by criminal elements in the community so that his accommodation was overtaken by drug users, he was attacked, his premises left insecure to the extent that the police reasonably became concerned for his safety with threats to his life having been made and those of his mother and unborn child. It is at this stage that I find that M became overwhelmed by the needs of A. It is plain and clear that A needed protection, he remained very vulnerable in the community and he had no accommodation available to him after about 1 November 2019.
I find that by 4 November 2019 this mother in seeking to protect A took him back into her home, in the knowledge that he posed a significant risk of sexual harm to her daughters. She allowed herself to push that concern to the back of her mind, falsely persuaded herself that she and F3 could supervise a regime that would allow A to remain in their home whilst protecting the girls from the risk of sexual harm that both knew A posed to the girls. I do find that by 5 November 2019 the mother had told the leaving care worker that A was back home. I do find that it was the intention of the mother that he stay there for a brief period of time whilst his premises were made secure. No real effort was made to secure his premises until eventually he left on 19 November 2019. What had started out as a short stay grew and grew and the risk grew with each day that A remained in the home. The level of supervision that this mother knew that A required by her imposition of her rules was not tenable for such a lengthy stay. From A's perspective temptation was no doubt in his path each day. The mother failed to turn to the Local Authority for help and assistance in the knowledge that the path she had taken of allowing A into the home would not be ratified by children's services on the part of her four girls. She sought by mentioning A was staying at her home to the leaving care worker on 5 November 2019, to lay the groundwork for protecting her decision. I do find that when the police had first suggested that A returned to her care that she had expressed her reservations to police but nonetheless went on to accept A back into her home. For a period of approximately two weeks the mother allowed herself to be persuaded that all was well, no doubt pushing to the back of her mind what she well knew about the risk that A posed to the girls, a risk of sexual harm. The decision to allow A to sleep in B's room, was of course convenient because space was at a premium but failed to consider the risk of harm, and sexual harm, that A posed to B. It may be that B was older but she remained in need of proper protection from such a clear risk of sexual harm and the decision was one for the adults to take. The decision to extend the stay was a risk that this mother was prepared to take to protect A whilst leaving the girls at risk of sexual harm from him within their home. This was not a risk that they were exposed to until their mother took the decision to allow A to stay initially for a few days and then for two weeks. Even when A had perpetrated the assault upon E which was sexually motivated on 18 November 2019 the mother allowed A to remain in the home that same night, whilst expressing the belief that what E and B had told her was true. If no other aspect shows it, that aspect shows how the mother was prepared to place A's needs above the needs of her girls who once more were left at risk of significant harm from A.
Thereafter the position of the mother, in my judgement, takes a turn for the worse. The mother fails to notify the authorities of the predicament, is discussing with B if she should tell the police and/or the social services. For her own reasons now, even though A went back to his own premises on 19 November 2019, I find it took until 21 November for the mother to start to disclose, initially to the leaving care team the harm which she believed A had perpetrated, allegations made by both B and E against A. It is plain and clear that the mother took that time because she was aware of the potential consequences of her decision-making upon her family."
"Assessing this large extended family is a challenge, which I have tried to address by providing first an overview of the family as a whole and then answering the specific instructions. I view this assessment as a work in progress, in the sense that my report will need to be put together with parenting assessments of M and F3 for important decisions regarding the future of the three girls to be made…
At the end of reading 1324 pages of documents, including five substantial Judgments and many assessments, and medical records (not including the still to be read medical records for F2), and conducting 26 hours of interviews with eight family members (unfortunately not including B), I am left with questions and conclusions that do not readily fall into the specific categories that are raised below.
I have questioned how it has happened that the same matters have come before the Local Authority repeatedly about this extended family, but definitive changes have not been made. I was particularly interested in the balancing exercise that the Children's Guardian undertook in the 2014/15 proceedings, in which she tried to balance the risks to the children against removal versus the risks of them suffering more harm if they remained in their mother's care. She came down on the side of believing that the children would suffer more from removal, which the Local Authority have advocated more than once over the years.
I found myself considering this question myself. On the one hand it becomes increasingly apparent over the years of Judgments and assessments that matters in the family have not changed greatly. The presentation of the children and the state of the home are described as just adequate. The children struggle in their education. Boundaries are broken. Sexual abuse emerges repeatedly as a risk.
Yet, on the other hand, it is difficult to imagine how C, D, and E would manage separation from their mother much less how M would manage separation from them. And this conundrum also will impact on F, who I have not been asked to include in this assessment.
I link this to a question about what it is that makes it so difficult to develop a concise picture of what is happening in this extended family. The Judgments are dense and lengthy. The assessments repeat information at length. All of it seems important, and yet, not really much changes over time.
I do not purport to have answers to these questions, but I think it important to raise them.
I found as I proceeded through the interviews and reading the documents that some features emerged that seem significant to me. The first is the sheer number of people involved. M herself reports approximately 11 half-siblings. The six children, including A and B, have, by my count, 19 half-siblings from their five fathers' other relationships. F2's children are not only half-siblings to E, but also are cousins to all the children.
Second, it is apparent that several members of the family have learning difficulties and/or psychological difficulties, which also affect their ability to take on board findings and other information.
Third, as the ARC report showed, many of the family members have suffered developmental trauma, and this, too, takes a toll on their ability to attend to new information.
In addition, I found all the family members I interviewed to be skilful at deflecting. I think that this is a key aspect of their presentation. It means that important issues are not discussed directly. Although much is said, even more is left out. Sometimes, information is left out through outright avoidance or control; D is particularly masterful at controlling, whereas E is more likely to control what happens in the interview by hiding under the table and becoming distressed. Other times, information is left out through avowed lack of memory; F2 was particularly inclined to say that he just could not remember.
A considerable aspect of the deflection, which possibly becomes actual distortion, was what was found or not found that I took to turning back to the Judgments repeatedly, checking them to remind myself what the findings actually were. This shows how difficult it is to stand by the truth in the presence of this distorting process…
In summary, as a family group, they are large to the extent that it is difficult to keep track of the various members. They deflect and distort key information. Their ability to take on board the findings is further compromised by learning difficulties for some of them. Sexual impropriety, as victims and as perpetrators, runs through the family."
"[M's] ability to parent is, in my view, uncertain. Her limitations will not change. She is likely to continue to cling closely to her children, who are dependent on her and struggle to achieve independence, but love and want to be with her. Her ability to provide a higher level of parenting is non-existent. She is likely to continue as she is, with the only possibility for improvement being the increased stability that F3 seems to have brought to the family. I think it likely that her ability to recognise and protect her daughters from sexual harm is unlikely to change, as this is a major blind spot for her."
"[F3]… presents as a man who is committed to his children and has brought increased stability to the family. He is not without his short-comings, which include his poor judgment in getting together with M after being with her mother, and also his questionable protection of G, when he was living with the family."
"F2 maintains a keen interest in E, and she appreciates his attention to her. However, emotional instability, as well as his history of seducing M over the course of several years, would make it impossible for him to become her primary, caregiving parent."
"It is important to highlight that M and F3 have worked well with the Local Authority during this assessment; they made sure to attend every session, taking care to rearrange those they could not attend and gave thought to their answers and the conversations that took place. M and F3 remained in contact with the Social Worker during the assessment to explain if they needed things moving or rearranging. They remained actively involved, even during very emotionally challenging discussions…
The Local Authority considers that [the children] will also need an environment that supports them to explore their experiences and family's experiences and therefore agrees with Dr Freedman that it is uncertain that M and F3 could provide this. This is linked to M and F3's limited understanding of the concerns and limited acceptance of the facts that were found at the most recent Fact Finding Hearing in December 2020.
The Local Authority is also very concerned that there has been a significant decline in C and E's presentation at school over the past 3 years. Both C and E were reported to be academically able students, keen to learn and thoroughly enjoy school. However, now, they both present considerably differently. C has had periods of being unable to attend school at all, stating that their anxiety prevents them getting ready in the mornings or feeling able to cope. C has also stated that they find coping difficult during the school day, although they do not always feel able to confide in school staff. E too is unable to access learning; she is entirely emotionally dysregulated and is falling further and further below age-related expectations. E's school have sought specialist support and are in the process of seeking an Education Health and Care plan due to her emotional and social needs.
The Local Authority is deeply concerned that although C, D and E need psychotherapy, as recommended by Dr Freedman to come to terms with their experiences and the abuse they have suffered, they will not be able to access this, nor be supported to engage as fully as possible whilst in the care of M and F3 due to the observed block that the children have when talking to a professional…
C, D, E and F have experienced significant, protracted neglect and significant harm in the form of physical and sexual abuse throughout their lives. M and F3 have been involved in numerous referrals to the Local Authority over the lives of the children, however they have been wholly unable to discuss at any depth their involvement and the impact of their behaviour on the children. The Local Authority wonder whether this is due to a lack of understanding about a parent-child relationship and how it can be impacted as children grow, or whether it is an unwillingness in M and F3 to acknowledge that they need to change. Dr Freedman notes that M has a significant blind-spot in relation to the threat A poses to the children, however the Local Authority wonder whether this goes further and questions M's capacity to change.
Positively, M and F3 appear to have maintained the family rules since implementing them earlier this year and this appears to have helped the children manage their behaviour more regularly at home. M has supported D to move school and obtain an Education Health Care Plan (EHCP) and is working with E's school to get an EHCP too. However, there continue to be concerns regarding the impact of the children's experiences on their behaviour and development as C, D and E are currently unable to meet their educational potential, which is a considerable decline in their presentation since the beginning of this current period of intervention and support...
In order to care for the children, M and F3 would need to engage in the following:
- Developing a greater understanding of children's emotional needs and how this affects behaviour;
- Psychoeducation regarding the impact of trauma and developmental trauma on children's emotions, mental health and behaviour development;
- Training in therapeutic parenting and Non-Violent Resistance or similar strategies to ensure they develop skills to attune to the children emotionally and respond without using shouting or physical violence when the children "act out";
- To encourage the children to talk to professionals, by modelling this and demonstrating this to the children.
However, for the above to be successful M and F3 need to be able to accept the concerns held by professionals and to acknowledge that the children have experienced significant trauma linked to the care provided to them by M and F3.
The Local Authority notes that similar support has already been provided via the numerous parenting courses, ARC support and various interventions with the family over the past 20 years, yet M and more recently F3 have been unable to develop adequate skills to ensure the children's safety. Due to this, the support that would be required to keep [the children] safe in M and F3's care is so high that it would be impossible to provide.
When considering all of the above and balancing the risk of harm, the Local Authority conclude that M and F3 are unable to care for the children for the remainder of their minority."
"The Local Authority have considered their assessments together with mine, and they have reached a conclusion that the four girls should be removed from the care of their mother and F3. The Local Authority's assessments found that safeguarding of the children in the family is inadequate and that the girls are not being supported and encouraged to achieve to their potentials. In this context, it is not surprising that the Local Authority are seeking removal of the children.
In proposing separate placements, the Local Authority are responding to the diverse needs of the children. I think it likely that C, in particular, will struggle with being separated from her family. It might help for her to have a higher level of contact with her mother and with B than her younger siblings will have."
When giving evidence, she confirmed that she positively supported the care plans.
"128. She told me that things were unlikely to change for the mother as she does believe she has a blind spot in respect of A. She told me that there were a lot of strengths in her parenting to the extent of looking after F's needs in the middle of the pandemic and these proceedings. Her capacity to protect from sexual harm where she is aware of the risk, she feels she does not have the psychological resilience to undertake the necessary work, or to put that into practice. The mother had undertaken an assessment with Dr T and had asked for advice from professionals and engaged with a number of agencies. She acknowledged those efforts that the mother had made to make improvements to her parenting relationship. But she still considers that the mother has not acknowledged the concerns of the Local Authority prior to undertaking that work."
At the same time, the Guardian was unable to recommend adoption for F without a special guardianship assessment of B being undertaken. She made this recommendation even though B had only recently turned 18 and was suffering from depression, anxiety and possible PTSD, matters that had led the Local Authority to a negative viability assessment.
The Judgment under appeal
"10. I want to deal briefly with the history of the case. Ordinarily the history of the case can be found contained in the judgment provided for the fact-finding hearing, and there is, to an extent, a history attached to that fact-finding judgment that I gave in December of last year. But the allegations were discrete and specific in respect of the fact-finding allegation. Yet now they are rather more wide ranging for the girls. F joined these proceedings shortly after her birth…, and so as I say now there are four girls to consider in respect of the final outcome at the final analysis."
"69 Dr Freedman's difficulty was that she did not acknowledge the difference in law between a fact being proved and, if it was not proved, the binary nature of it not having happened. I have taken that into account in assessing the evidence of Dr Freedman. I have to say that the evidence of Dr Freedman in all other respects was clear and certain. She was wholly unshaken during the course of cross-examination. She has come to a clear opinion and a clear view that she was able to share with the court and she had a clear knowledge of the evidence that had led her to those conclusions."
"89… I have to say that I was impressed with this mother who found herself in court, under pressure, with the spotlight on her, and able to give me a very good pen picture of her children, that showed me not only that she knew her children and understood her children, but that she had a deep love and emotional connection with all of her children.
90. It coincides really with what all of the children say, which is of course that they do not want to leave the care of their mother. They want to remain at home and in the care of their mother because clearly there is a relationship between them that is a good and positive relationship in some ways. Although in other ways perhaps not so much."
"101. There were one or two areas in her examination which caused me concern. This reliance upon the fact that she had not understood the judgment of 2013 of HHJ Peter Wright about sexual abuse of B and G by A, her by F2, and her repeating that as a justification for what happened in November 2019. I simply do not accept that evidence from the mother. The mother can, from time to time, tell untruths. There are many reasons why people may tell untruths within these proceedings, but my view of her telling this untruth there was to seek to lessen the impact of her decision in 2019, notwithstanding the fact that she purports to acknowledge that decision and acknowledge the findings that I made in 2020."
"106 The mother of course in my view, and F3 also in my view, made the situation much worse by their delay in notifying the authorities properly of the abuse that they knew had happened because the mother said she believed the account that E had given to her. They left it an unforgivable three days to notify the parties, although he did leave the next day. I found in December 2020 that the mother even asked B to house A in her bedroom for that additional night that he stayed over, showing I think a total lack of understanding of the nature and extent of the harm that was perpetrated. Yet in these proceedings she tells me that E at school has been "20 times" worse at school since that harm was perpetrated upon her."
"108. But I equally find that the decision of the mother in 2017 to take E to the holiday camp with F2 was fraught with as much difficulty and risk of harm."
"110. [It] was in many ways as bad a decision as letting A into her home in November 2019. Fortunately, as far as we know, the consequences of taking E on holiday at Butlin's with F2 in 2017 were not as bad… But the mother could not have failed to know that the father would have posed the same degree of harm to E that he had posed to her. She took a chance because she felt that she was supervising. The same chance that she took and F3 took in November 2019 because they thought they were supervising A.
111. It clearly shows that whatever protective behaviour work they had undertaken prior to that, that protective behaviour work was not working for E in particular, because E was at significant risk of harm in 2017 and was at significant risk of harm, and was significantly harmed, in November 2019."
"98. She described to me an incident when she went to Butlin's in 2017 with F2 and E. She went on that holiday to try and give E some time with herself and her father, making things as normal as she could, in her mind, for E. The result of that was, I think, she wished that she had not taken E to see F2 because he was difficult from time to time, and I think she had had quite a time of it in Butlin's in 2017 for a week with F2 and E. But he had promised her that he would behave so she had gone for E's benefit and she would not now do it again, and she was not still in a relationship at that time with F2.
99. She acknowledged that they shared the same property for that week away. But she had felt that she could manage it well but she found it really hard. She told me:
"F2 has always been supervised seeing E once a month because of the risk he poses to young girls and children."
She thought that he had posed a risk and that is why she had gone on that holiday to Butlin's and why she had supervised it. But she acknowledged that it was not a good idea to do that at all. She said that they had separate rooms but acknowledged that there was a risk, that they had to share a bathroom for instance. But she did not see that at the time, she told me:
"It was his outbursts and the way that he was talking to E, but not sexual allegations that had caused problems within the week.""
"86… I found F3 to be without a side to him. He seemed to be remembering the evidence that he provided to me. He seemed to be giving me a straightforward and honest account of that which he now felt. His position had, to an extent, moved since his final statement in that he was now expressing himself clear and certain that he knew and understood what had gone wrong in November 2019 and he expressed his certainty that that would not happen again."
"146. I accept and acknowledge that these are parents who love their children dearly. The relationship that F3 has with the girls, C, D and E, who are not his children, is a good father and family relationship, I acknowledge."
However, he found F3 to be culpable for allowing A into the home, For example:
"166. My view of the parents is this. That F3 is very much led by the decision-making process of the mother. He was questioned by his own lawyer as to whether he would make some of the decisions but came back to the fact that, "Actually no." They have a discussion but it is really M who takes the decision in respect of the family. I determined that he did connive in the decision-making process in that he did not stand firm, that he did not take action in the knowledge that A had sexually assaulted his own son at a much earlier time."
"143. So the proposals of the parties are that F3 and M seek to have the children remain in their care and they are satisfied that they can be a sufficiently protective measure to prevent again any further harm, particularly future sexual harm caused by A, because they simply will not let him pass the threshold. That is their case. They maintain that the girls will be devastated by the removal from the care of their mother, with whom have always lived, and will not settle in foster care and it will not promote their interests. Actually, they say the girls are all improving at school and so in the circumstances this is exactly the wrong time to seek to remove the children from their care."
"147… The Local Authority is simple in its assertion; the parents have failed to protect the children before. That failure of the parents - and here I refer to F3 and M only …to protect the four children living in their care at home on 18 November by allowing A to have stayed there from 11 November onwards. By failing to notify the Local Authority of the extent of the harm perpetrated upon E, and the other children by A on that occasion, shows that those parents are not able and do not understand how they got themselves in that position and allowed A to do just that.
148. They are supported in that view by the clear evidence of the one expert in the case and indeed the Children's Guardian. They assert that the Guardian is wrong to suggest that there should be a further assessment of B for the reasons that I earlier found, and they seek a Final Placement Order in respect of E within these proceedings."
(Wishes and feelings)
"151… They are of an age where they are able to express their wishes and feelings. Their ability to understand all of the issues in the case, of course, is limited by their age and also by the various difficulties that each of them have, which are enunciated and outlined in the evidence. But their wishes and feelings are expressed clearly and forcibly that they wish to remain in the care of their mother. C's description of the view that the Local Authority have of removing her to foster care is that, "It is just dumb.""
"152. Their physical, emotional and educational needs are various because their emotional needs are very different… All of the children need to be in an environment where they have carers who are attuned to their emotional difficulties, who will understand the outbursts that the children make from time to time, and in particularly in the early days of foster care, and who have the skills and abilities to deal with those emotional needs there and then… Clearly they have many different and pressing needs with respect to their physical, emotional and educational development."
"155. So the view of the Local Authority is, and the view of the Guardian is, and the views of the social workers are, and the view of Dr Freedman is, that they need better than ordinary parenting. Reparative parenting that is able to deal with their emotional and educational needs in a way that which neither M or F3, or indeed F2, could achieve."
"156. The likely effect upon them of a change in circumstances has been a significant factor in this case. The contention of the parents' lawyers is that to move the children… to foster care will be to irreparably harm them. None of the children want that. None of the children will understand that. Each of them will react to that. Some of them may react with their feet and run away from foster care…
157. The likely effect, the parents say, is nothing short of destructive for the girls. They point out the fact that nothing has been done with the girls to set them up for this massive change. The girls do not know that they are to be moved to separate foster placements if they are to move to foster placements, although some of them will of course suspect what is going to happen at the conclusion of these proceedings. But there will be a huge disruption to their living arrangements, a huge loss to them of their failure to live within their family, and it may be that there will be some short to medium term significant effect upon their ability to settle within their new foster placement.
158. There is always a risk in foster placements of a breakdown of the foster placement if a child is so disruptive that they simply cannot settle. Of course the Local Authority plan is that they would seek to support those foster placements and in the event there are other foster placements available upon breakdown. But one needs to seek to avoid for the children as far as possible that kind of effect, which has been described within the proceedings as a domino effect where one foster placement quickly collapses upon the collapse of the preceding foster placement."
"159. Their age, sex, background and other characteristics are that they are young girls who have come from a difficult background. They have been in proceedings for a large number of years, either themselves or with their mother or father, involved in proceedings. There has been sexual abuse within their family, where relationships within their family have been strained. Where their characteristics are that they love being at home, they love being in the care of their mother, but where their background has not allowed them to develop to their full potential. Each of them having suffered from some degree of developmental trauma and D having suffered from some neuro-developmental delay."
"160. So the harm that they have suffered is plain and clear for all to see in the evidence that is before me. Each of the children were in the home at the time when E was sexually abused by her brother, he having been allowed into the home by F3 and M at a time when they knew he was a risk and a serious risk of sexual harm to each one of them. Each of them had to live through that incident and E is, of course, living through the suffering. But so is C living through the suffering in understanding what happened to their younger sister. Perhaps it impacts slightly less upon D because D is rather consumed in her own world, which perhaps does not always have the same access to reality as the other girls have.
161. So the harm is plain and clear. They have lived in a home environment in which in their younger years was somewhat neglectful for them, and which has turned into a home which has been unsafe for them because of the decisions of M and F3, showing an inability to provide a home that is safe from A and safe from sexual abuse."
"162. The last issue is to look at the ability of each of the parents and their capability of meeting their needs, and the capability of B in meeting the needs of F. She puts herself forward as a carer for her.
163. I am afraid that I come to the conclusion that I acknowledge the clear evidence from Dr Freedman. Dr Freedman's evidence was challenged in one or two areas, and for good reason I acknowledge, that there are certain aspects of her evidence that I would not weigh in the balance when I come to my conclusion. But the clarity of the evidence of Dr Freedman about the risk of harm to the children, about the neglect of the parents, in assessing and taking action in respect of that harm, in the view of Dr Freedman the likelihood is that that harm could be occasioned to the children again if they remained in the care of F3 and M. That behaviour may be repeated and that there is no comfort or protection of the children in knowing that that would not be repeated.
164. That is the view of the social workers in the case, and it is plainly and clearly the view of the Children's Guardian.
165. So I have come to the conclusion that the parents are not capable of providing for the safe needs of C, D, E of F. Those children were each placed at risk of significant sexual harm. E suffered significant sexual harm. I cannot be satisfied that the parents have learned sufficiently, or understand or have the capability of learning and understanding, in the case of M, how to avoid that situation in the future. This was a decision that the parents took in conjunction with the other."
"168. I also weigh in the balance the mothers' decision-making process in 2017 to take E on a holiday with F2, a man who she has acknowledged is a man who sexually harmed her as a child, at a time when also she was supposed to be only providing supervised contact between F2 and E.
169. So I determine that for those reasons it would not be safe any longer for the children to remain in the care of F3 and M."
"176. I have carefully considered the Local Authority s.31A plan for a placement in foster care under a Care Order. It seems to me necessary so as to allow the children to be cared for in foster care and for the Local Authority to share parental responsibility with their parents and determine the extent to which their parents can exercise their parental responsibility. It is the only way, I think, of stopping the difficulties that the children have suffered in the care of their mother and in the care of one or more of their fathers throughout their lives, and I have concluded that each would continue to suffer if they remained in that care."
1. The court fell into error by relying on the flawed analysis of Dr Freedman as to the risk of harm to the extent it did, and was consequently wrong to rely on the evidence of the social workers and Children's Guardian that placed so much weight upon it.
2. The court did not properly consider the current risks to the children and its orders are disproportionate to the risks the children currently face.
When making our orders, both King LJ and I identified the real substance of the appeal as falling under the second ground.
"Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge's decision."
However, she argues that in this case, the Judge did not truly evaluate the harm that the children might suffer and did not properly balance up the positives and negatives of removal.
"… the only way, I think, of stopping the difficulties that the children have suffered in the care of their mother and in the care of one or more of their fathers throughout their lives, and I have concluded that each would continue to suffer if they remained in that care."
Lady Justice Elisabeth Laing:
Lord Justice Lewison:
"16. …There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child."
"The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask "are the local authority's concerns about the future parenting of the child by this witness justified?" The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge's decision about the future arrangements for a child."
"Thus an error in the balancing exercise justifies intervention only if it gives rise to a conclusion that the judge's determination was outside the generous ambit of reasonable disagreement or wrong within the meaning of the various expressions to which he had referred."