England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(His Honour Judge Wigmore)

		The Royal Courts of Justice The Strand London WC2A
		Wednesday 1 August 2001

Wednesday 1 August 2001

1. LORD JUSTICE THORPE: The mother is about 30 years of age. Since adolescence she has suffered from a condition subsequently diagnosed as menstrual mood disorder and that has contributed largely to a disability in dealing with her affairs in any consistent and orderly manner. Her elder child, J, was born on 21 August 1996. The parents did not marry and the father has not played a leading role in this litigation but he has throughout been entirely supportive of the mother's case.
2. On 22 May 1997 J was placed with a foster carer and she has been his primary carer effectively ever since. There was an attempt at rehabilitation between August and December 1997 but it was intermittent and the greater part of that period J spent with the foster carer. The first interim care order was made on 22 December 1997 and interim care orders continued thereafter as the proceedings developed. A second child, M, was born on 6 November 1998 and a second attempt to rehabilitate J to his mother was made briefly in June 1999. However, the prospects of rehabilitation thereafter did not appear strong and the adoption panel approved the foster carer as the most suitable match for J on 11 February 2000.
3. The proceedings in relation to J culminated seemingly in a hearing before His Honour Judge Wigmore on 21 June 2000. The order that was drawn to reflect his judgment provided for care to the local authority and a contact order which provided that:

"1) There be indirect contact between the mother and [J] save as allowed by the local authority if their social workers see that contact would be beneficial to [J].

2) There be sibling contact once every two months.

3) And that [J] is not to be told of the outcome of the hearing for 7 days."

4. The drafting of that order could very easily be much improved, but what essentially it sought to reflect was Judge Wigmore's conclusion that appears clearly from a note of his judgment which was taken by the lawyers attending and which has been agreed. The essential passage which I cite is in these terms:

"I have come to the conclusion I have sadly. I have for a long time hoped that I could one day see [J] back with his mother. This matter cannot be lengthened beyond today. It is clearly accepted by the [guardian ad litem] in evidence that it is in the best interests of [J] that he should be given the alternative of a permanent alternative placement and he should know that now. I have no doubt he will find it difficult not seeing as much of his mother as he is used to and knowing that there will not come a time when he can go back to her in the long run. No doubt it is for his welfare that matters be determined here and now. I therefore make a care order to the Local Authority in respect of [J] to Devon County Council. I will deal with contact all round later."

5. So what Judge Wigmore sought to achieve on 21 June was finality and certainty, by committing J to long-term care and limiting the mother's future contact to indirect contact save for such direct contacted as the local authority might regard as beneficial. It was also his intention that J be told of this new certainty. The task of communicating his future was given to Jackie Moon, who had been his social worker since August 1999.
6. Following the making of the order there were in fact direct contacts between J and his mother in the months of July, August and September. During that period, on 4 October, M was placed with his mother, a reflection of the fact that she was making good progress, under very close medical supervision, in controlling her mood disorder.
7. It may be that it was this progress that encouraged her to issue an application for contact to J on 4 December 2000, and on 4 January 2001 an application to discharge the care order. On the face of it these two applications challenged all that the judge had decided in June 2000 and at first blush would seem to have come much too quickly after the earlier determination. The local authority, possibly in response, possibly simply to progress the management of the case, issued an application for a freeing order in respect of J on 13 February 2001, the foster carer having been approved as the prospective adopter two days earlier.
8. The mother also issued an application to discharge M's care order on 25 April 2001 and it subsequently succeeded. The issue as to J's future was fixed for trial on 4 June 2001. Unfortunately the trial was aborted as a result of judicial illness but opportunity was taken for an expert meeting.
9. The experts were Dr McLeod, the local child and adolescent psychiatrist, who had been in the case from its outset. His assessment and opinion had been sought by the guardian ad litem. An expert had been instructed on the mother's behalf, Dr Ambelas, who is also a child and adolescent psychiatrist but he practices in Leicester and it is clear that he was selected to give advice because he is an expert in menstrual mood disorder in adolescents.
10. The meeting on 4 June resulted in a detailed note which showed that the options considered by the two experts were carefully recorded and ranged from adoption through residence order to the foster carer to some degree of shared care. Indeed, the notion of shared care was one that attracted Dr Ambelas and for which he contended during his exchanges with Dr McLeod. Of course any furtherance of that theory depended completely upon the willingness of the mother and the foster carer to share and in the intervening period between the meeting of the experts and the fixture before Judge Wigmore on 2 July it was very clearly established that there was not that willingness and shared care was simply not an option.
11. The trial was fixed for three days, with the fourth day reserved for judgment. At the trial both Dr McLeod and Dr Ambelas gave evidence, as did the guardian ad litem and Mrs Moon. There was another expert, not in the sphere of child care but in the sphere of adult psychiatry. He was Dr Speller, the doctor who had responsibility for treating the mother's disorder and for prescribing. He had furnished two written reports but was not available for the trial, simply because he was on holiday. All this evidence was taken on 2 and 3 July, and on the morning of 4 July counsel made their submissions, Mr Coleman for the local authority, Mr Horowitz QC for the parents, and Mr Storey QC for the guardian ad litem.
12. As Mr Coleman has emphasised, the judge was not under any pressure when counsel concluded their submissions at about 12.15 on the third day. He might have taken time to consider his judgment and delivered it at the end of that day. He might equally have taken the rest of that day and delivered judgment on the following day, the day reserved for that purpose. But he gave an extempore judgment there and then, discharging the care order and expressing the hope that J would be returned to his mother and brother in time to start in a new school at the beginning of the September term.
13. Applications for permission to appeal were immediately advanced by the local authority with the support of the guardian ad litem and the judge granted permission. He expressed the hope that this court would expedite the appeal and, if at all possible, conclude it this term. That we have been able to do and we heard argument from Mr Coleman and Mr Horowitz yesterday. Mr Storey, although briefed for the appeal, very responsibly decided not to appear since all that he wished to say would be covered by Mr Coleman's submission. He did, however, submit a full written skeleton.
14. Mr Coleman contends that the judge's decision was plainly wrong. There was no expert who advocated discharge of the care order. Indeed, Dr McLeod, the guardian ad litem and Mrs Moon advised against it in the strongest terms. Mr Coleman submits that there was no sufficient explanation in the judgment for the rejection of this united expert voice. In so far as there is any explanation to be found, it is little more than the judge's feel of the case and his confidence in the mother's achievement in having remained free from any episode of her disorder over the course of a period of thirteen months. Then Mr Coleman submits that since the child's timescale simply had not permitted discharge in June 2000, still less could it permit discharge in July 2001. Essentially, Mr Coleman submits that the die was cast in June 2000 and there was no room for a judicial U-turn.
15. Mr Horowitz, for the mother, in a characteristically elegant submission relies on the mother's health improvement between the two judgments and her achievements in making a secure and warm home for M. Secondly, he submits that, although the experts were of one view, they had acknowledged the validity of other options and the guardian ad litem had admitted to wrestling over the course of three days before reaching his conclusion. Thirdly, he submits that any interference by the state in family life requires continuing justification, which was absent in this case. Fourthly, he points to the fact that in reporting to the court in June 2000, the guardian ad litem had ruled out the possibility of rehabilitation for M. That is simply an illustration of how professional judgment may be confounded by later events. Fifthly, Mr Horowitz points out that Dr McLeod in his evidence had acknowledged the risks of adoption.
16. It is in my opinion important to stress that Dr McLeod was the local child and adolescent psychiatrist who had been in this case throughout. Dr Ambelas was essentially an expert in adolescent menstrual mood disorder and Mr Horowitz accepts that the judge was right to place little reliance on his opinion. In any event, his opinion did not rise much higher than supporting a case for shared care. So discharge had no professional support.
17. How then did the judge come to his decision? Of course it is easy to criticise an extempore judgment but I detect a fatal flaw at a relatively early stage, where the judge sought to summarise the choices that faced him. He said this:

"The mother's case now, if I may put it very basically, is this. She is accepted by the professionals as being a very good mother for [M]. They have accepted that there is really no likelihood of her being any danger to [M], or they would not have agreed to the discharge of the care order in respect of [M]; and she has the support, in this case, of Dr Speller, who says – Dr Speller is the psychiatrist currently who treats her, with help and advice from Professor Brockington – that there is no reason that he can see that if she is looking after [M] well she could not also look after [J] well; and indeed he says that the confidence and boost that the discharge of the care order on [M] has given her would be enhanced if a discharge were also given in respect of [J], and [J] were able to come back and live with her. What the mother is saying now is: 'Here we are; I am clear of my psychiatric difficulties. I am looking after [M]. [J] is [M's] brother. His right place now is to come back and live with me and his brother in our family home.' Put that way, it is very hard to argue against it.

However, the other side of the coin - and this is the case of the local authority – is: 'We have gone much too far now for [J] to be uprooted from his situation with the foster carer. . . He has become part of the foster carer's family. He has been there over four years out of the less-than-five years of his life. Previous rehabilitation attempts with his mother failed. It would be an absolute disaster now, first of all to uproot him from this settled family in which he lives, and it would be even worse if he were to go back to his mother and that that should break down, and he would then have lost the settled roots that he has with [the foster carer] without having found any in his birth family."

18. In my opinion that is a plain distortion of the issue that the judge had to decide. To advance Dr Speller as being an expert supporter for the mother's cause is not acceptable. Dr Speller was in a patient relationship with the mother. He was not child centred. He did not give oral evidence and had he done so he would have faced cross-examination from Mr Coleman along the lines that, first, his prognosis in July 2001 was not substantially different from his prognosis in June 2000 and, secondly, that in any event it was quite impossible to confine the mother's psychiatric and other difficulties to the one area of menstrual mood disorder. What the judge has equally not brought in on the other side of the scale is that the case was not just the case of the local authority but it was very much the case of the guardian ad litem, who of course had instructed Dr McLeod and whose opinion he had followed throughout. But within that passage may be the explanation for the route taken by the judge to conclusion.
19. There is in my opinion within this judgment no sufficient recognition of the unequivocal and really irreversible decision to reject the option of discharge in June 2000. There is insufficient recognition of the consequential communication to J and to the foster carer and to their reliance upon the judge's ruling. As the foster carer said, she had dropped her emotional guard, liberated by the judgment of June 2000, and inevitably that must have led to an emotional reaction from J towards her. Once those processes have been set in train, the opportunity for a judicial reconsideration and a judicial reverse from forward gear to backward gear hardly exists.
20. Equally I do not think that the judge sufficiently recognised the importance of the child's timescale. What might have been feasible for M was simply impossible for J. His whole life had effectively been spent with the foster carer. She was his psychological mother. He had seen his biological mother only seven times in the previous twelve months and on each time comparatively briefly. Shifting a child of five with such attachments to a natural parent who had played so small a part in his life is fraught with risk that was insufficiently acknowledged by the judge. Of course the mother had done well between June 2000 and June 20001, and all credit to her for that. But, quite simply, the achievement came too late for J.
21. It is fairly said by Mr Horowitz that the experts regarded this as difficult case and wrestled with it. But what they were essentially wrestling with was the choice between options other than discharge. It does not seem to me that the submission in relation to the limitations on the state's interference carried his case any further. Here, of course, just as the mother has a right to respect for her family life, so too does the foster carer, so too does J himself. In the end, the paramount consideration of J's welfare must prevail, whether we look to domestic authority or to authority in the European court.
22. I have reached the very sad conclusion that this decision was plainly wrong. The judge's kind heart no doubt went out to the mother. No doubt he was also swayed by Mr Horowitz's advocacy, always persuasive. But it does seem to me clear that it is the duty of this court to correct manifest error, and in my opinion the discharge of the care order cannot stand.
23. That leaves the question of what order should go in its place. Perhaps unusually, the judge dealt with the local authority's application for a freeing order before he had ruled on the application to discharge. He recorded the mother's case at page 8 of his judgment thus:

"It is said on behalf of the mother that even if the care order is not discharged, she is not being unreasonable in objecting to adoption, first of all because this is an unusual case where there has been continuing attachment between [J] and his mother over the years, where it is proposed that he should continue to have links with his mother which will be more than mere identity contact, where it is proposed that he should cement the links with his brother, [M], and this really is not a case where it is appropriate that there should be an adoption, but that if the care order is not to be discharged, then [J] should remain with the foster carer under a care order, as he is now, and the present regime, as it were, continued."

24. Of that he said at page 10:

"A lifetime, or a childhood, spent in the care of the local authority is not a good thing; and although this is perhaps then a bit out of order, I think I would deal with the application for a freeing order in this way, and say that if the child is not to go home to mother I see the only feasible alternative as being an adoption order. Therefore I would say that, although I fully understand the emotions involved – and I think I can say I fully understand certainly a father's emotions involved in this sort of case - I come to the conclusion that any reasonable parent in the position of [the father and mother] would have to acknowledge that it was best for the child in those circumstances to be adopted, and that the consent to that adoption would therefore be being unreasonably withheld; but in a sense, of course, I have dealt with that out of order, because what I have not yet dealt with is the application to discharge the care order."

25. in support of this at page 11B he said:

". . . the only alternatives left, therefore, are either that the child returns to mother or that the child is adopted by [the foster carer]."

26. Then finally at page 17, he said:

"Having come to that conclusion, then of course the question of a freeing order does not arise; but I have dealt with the matter in the way I have just in case it should happen to go further, so that any other court may know what my views would have been had I decided that the care order should not be discharged. The choice in my mind has been a stark one – adoption with [the foster carer] or return to Mother."

27. Mr Coleman initially suggested that perhaps this court might return the formality of making the freeing order to Judge Wigmore, who would be able to complete the judicial task in reliance on the evidence he heard earlier this month and on perhaps some further submissions. That seems to me to be unrealistic. It would face him with the task of making a token judgment, and in any event Mr Coleman informs us that Judge Wigmore formally retired in February 2001. So for all those reasons it seems to me that it must be incumbent upon this court, in reliance on the judge's assessment, to accompany the restoration of the care order with a freeing order to allow J to move as swiftly as possible into his new legal future. Those then are the orders I would propose.
28. MR JUSTICE WILSON: I agree.
ORDER: Application allowed. Permission for the local authority to disclose to the solicitors to the foster carer such papers as they may see fit from the current proceedings both in the Court of Appeal and the court below. Legal aid taxation (under the old system) of the mother's costs. (Order not part of approved judgment)