England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
CAERNARFON DISTRICT REGISTRY
(His Honour Judge Barnett
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Thursday 13th September, 2001

1. LORD JUSTICE THORPE: D G E H was born on 11th September 2000 to R A S H, who was then and remains herself a minor. He was born of a relationship between R and an older man, and in the circumstances it is not surprising that D's father has played no part in his life.
2. There were also sorts of anxieties and complications within the family history which fully justified the local authority in placing D's name on the At Risk Register within days of his birth, and before he was a month old they issued an application for an interim care order and arranged for his removal almost immediately thereafter to the care of foster parents.
3. There is no doubt that during the period in which D has been well cared for by foster parents the local authority afforded R every opportunity to demonstrate her commitment to D and correspondingly for D to form crucial attachments to R. But, no criticism of anybody simply as a matter of record, R did not spend nearly as much time with D as she might have done and, in particular, did not avail herself of opportunities to stay overnight in the foster parents' homes to provide the experience of a 24-hour relationship, both her to D and D to her.
4. Again as a matter of record, the local authority issued an application for an interim care order in respect of R herself on 29th November 2000 and much later, on 12th June 2001, an application to free D for adoption. It is not necessary to say anything of the care proceedings in relation to R, save to say that they are still pending. There is a fixture before the judge in early October. However, the interim care order in respect of R was discharged on 13th August, a discharge that no doubt reflects the fact that R is now happily engaged to a young man, G R, who has secure employment and who is recognised by all parties to these proceedings to be personable and responsible. So it may be that the hazards that led to the issue of the application on 29th November 2000 have been resolved by that relationship. We have been told this afternoon that G R and R are setting up home together later this week, each leaving the home of their respective parents, and we are told that G R has a wide circle of young friends, some or most of whom are married and themselves have young children.
5. The relationship between the two of them seems to have had its commencement in May, although it is significant that R would not have attained the age of 16 until 22nd June 2001. The formal announcement of their engagement came on 7th July. There was a directions hearing before the judge on the 12th, and it was at the directions hearing that R's solicitor learned for the first time of this important development.
6. It seems to me that the professional reaction was suitably swift, since a statement from the mother relying on this new development was filed on 16th July. Of course there was every need for speed, since the final hearing to determine the application for a care order in respect of D and a freeing application were fixed to commence before His Honour Judge Barnett in Chester on 25th July.
7. At the opening Miss Lloyd sought an adjournment of the proceedings to enable an orange book assessment to be undertaken of the relationship between the young couple and its impact on R's capacity to offer good enough parenting for the future.
8. The judge refused that application and his reasons comprise the first of the three judgments which we review this afternoon. In refusing the application he said that it was extraordinary that the development had not been canvassed on 12th July and that it seemed to him that the application came far too late in the day.
9. Both those conclusions seem to me to approach injustice to the young couple. Certainly it seems to me that it was hardly open to the judge to criticise R's legal representatives. After all, they were learning of the engagement for the first time at the directions appointment and it is, in my view, reasonable that they should first seek to put the development in evidence and perhaps discuss its consequence with Miss Lloyd before raising it with the court.
10. The notion that the application came far too late I also find difficult to accept. After all, the application was being made within 18 days of the engagement itself. But all this criticism is met by Mr Lloyd for the local authority. Mr Lloyd's points out that all the judge said was that he was not going to adjourn on that day but continue the trial and keep the need for adjournment under constant review. He said:

"If it appears that there is a good and substantial reason that the Court would be assisted by a further assessment I will say so."

11. So I am quite satisfied that the management adopted by the judge on 25th July was well within the broad discretionary ambit.
12. The case had a three-day estimate and overran. The judge heard the end of the evidence and submissions on 31st July. He reserved. He gave judgment on 13th August in Warrington, on the care application only initially. His principal judgment extends to some 17 pages as noted by solicitors and at the end of it he granted the care order sought. He then proceeded to take the application for a freeing order. He heard some evidence as to placement, but no evidence from the mother who was too distressed by the outcome of the care proceedings. However, Miss Lloyd, on her behalf, was content for the matter to be dealt with on that afternoon without adjournment. The judge reviewed the statutory steps that he had to take, and he reviewed the relevant authority and expressed the conclusion that in all the circumstances the mother's consent to the freeing order was being unreasonably withheld. He dispensed with her consent and freed D for adoption.
13. The mother at all relevant stages sought permission to appeal orders adverse to her. But such applications were refused by the judge and on 31st August an application for permission and for expedition was received by this court. There seems to have been rather poor communication between the local authority and the mother's solicitors in the wake of the judgment below. It seems that although the mother had been led to think that contact would be maintained until placement - indeed the care plan apparently said as much - and although on 13th August the placement officer said that no family had been identified for D, the mother's contact was terminated within three days of judgment and D was placed with prospective adopters on 2nd September, two days before service of the application to this court for permission. Miss Lloyd has complained of that, saying that had she known what was going on she might have applied for a stay. Mr Lloyd reasonably responds that his clients had no reason to know that the mother had not accepted the outcome on reflection. They had no notice that she was moving this court until after the placement.
14. It seems to me that this appeal today should be decided without reference to developments in the aftermath which should not, in my opinion, go to the advantage of one party or the disadvantage of another.
15. So it seems to me that our task is to evaluate Miss Lloyd's attack on the judge's judgment on the care application. Her essential criticism is that the judge was quite wrong to shut out an expert assessment of the significance of the engagement between the couple and the potential which it had for upbringing within the natural family. She is particularly critical of the judge's finding that G R could not possibly provide a complementary factor to the mother's shortcomings. She says that there was simply no evidence to justify that finding. G R had himself given evidence and he had made a favourable impression on the judge and on all parties. Of course the relationship was in its infancy and any assessment of its future prospects would necessarily be tentative. But the tentative assessment of an expert would be of more value than the tentative assessment of a judge, and plainly there was an obligation on the judge to obtain such a tentative expert assessment before making a draconian decision which would not only deny the mother the opportunity of caring for her baby, but which would project D into a manifestly second best future as an adopted child.
16. In reading the judgment I was troubled by what seemed to be a sentence from the judge's lips at the end of page 13, when he said, or seemed to say:

"If [D] was 2 months instead of 10 months I would probably agree to a further assessment but I must give priority to [D] and he cannot wait any longer."

17. It might well be said: why not; what is the fundamental difference between a 2-month and a 10-month baby? The fundamental development did not occur until D was 10 months and surely it came in time for him.
18. But Mr Lloyd for the local authority has pointed out - and Miss Lloyd for the mother agrees - that in fact the sentence that I have cited was itself a citation by the judge from the evidence of either the guardian or her expert. That casts the paragraph in an entirely different light.
19. The judge had the advantage of an expert witness, a clinical psychologist, Lesley Anne Timms. Of her he said:

"In reaching the conclusion I reach, I would draw heavily on the report and evidence of Lesley Ann Timms. It was balanced and reasoned and I found her views compelling."

20. He then cited at length from her reports in which she was pretty critical of the mother and particularly of the mother's performance during the early months of D's life. Mr Lloyd has stressed the citation at page 16 of the judgment, where Mrs Timms had said of R:

"I urged her, if she was serious about having [D] return to her care, to greatly increase the periods of time she spent with him and especially overnight stays, as this information would be crucial when the Judge was considering [D]'s needs. However, in between my two interviews with her, she did not visit at all."

21. Mrs Timms had had little opportunity to consider the new relationship, the guardian had only learned of it days before the hearing and her attempts to interview G R in advance of the trial had not proved successful. Her first meeting with him was accordingly at court on the 25th. However, we are told by counsel that Mrs Timms' advice to the judge on this issue was that the development, whatever its potential, simply came too late for D.
22. The judge made two findings which constitute high hurdles for the appellant to cross. He found that the loss of the foster carer will be significant for D, and he accepted the view of the professionals that the sooner D moved the better and that any delay would be to his detriment. The second hurdle lies in the finding that the mother herself is not capable of meeting D's needs and that G R, even doing his best, could not possibly compensate for her shortcomings.
23. In the end, the appeal probably boils down to a submission advanced by Mr Lloyd for the local authority. The judge had the responsibility of choosing between the future urged by the local authority and the guardian and the future urged by Miss Lloyd for the mother. It was perhaps for him not a difficult choice. Perhaps for another judge it would have been a difficult choice. Perhaps another judge would have acceded to Miss Lloyd's application, or, if not to that, then to her final submission. But it cannot be said that this judge exceeded the broad ambit of discretion in arriving at the conclusion that the care order was necessarily made to meet the needs of the child.
24. I am in no doubt that that submission must succeed. I regard this as a tragic case for the mother. I am reasonably confident that the outcome lay in the history of events between D's birth and her engagement. Had she shown the sort of commitment to D, had she spent the time with D that all the professionals hoped of her, I hazard that there would have been a different outcome. Of course that she was not able to do so was the tragedy. But she herself was going through very difficult circumstances, being the child of a very troubled family with huge difficulties in the home, difficulties that have been very much reduced if not resolved by the separation between her parents.
25. However, history cannot be rewritten nor its consequences avoided. I am perfectly satisfied, having heard full submissions, that the judge was fully entitled to make the order which he did and that the appeal against it fails.
26. It seems to me that that conclusion largely answers any attack upon the third judgment delivered by the judge, that is his judgment of 13th August on the freeing application. Once he had reached the conclusion that D could not be cared for by his mother and had to go for a childhood in some other family, plainly the advantages of adoption were outstanding. That brings into play the reaction of the hypothetical reasonable parent, who would recognise that if she were disqualified then any alternative had to have the legal status of parent and would accordingly, however painful so to do, have given consent. On that basis the judge was in my opinion entitled to dispense with the mother's consent and make the freeing order.
27. For all those reasons, I would myself dismiss these appeals.
28. LORD JUSTICE LONGMORE: I agree and there is nothing that I can usefully add.
ORDER: Application for permission to appeal allowed; appeal dismissed; no order for costs save legal aid assessment. (Order not part of approved judgment)