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 CANTERBURY COUNTY COURT
(His Honour Judge Peppitt QC)

		Royal Courts of Justice Strand London WC2 Thursday 20th December, 2001

1. LORD JUSTICE WARD: This is an application being made by the mother of a boy a few days short of his fifth birthday for permission to appeal against the order made by His Honour Judge Peppitt QC at the Canterbury County Court, as long ago as 5th January 1999 when he placed the child into the care of the Kent County Council.
2. This matter was listed in this court for 11.30am. I am told that the mother may not have telephoned the court yesterday, as requested to do, to ascertain the time of the hearing and the court number. She does not appear, although it is now 11.50. I shall proceed in her absence, partly because her absence has characterised so many of the hearings in this long, drawn-out care proceedings which took place in the County Court.
3. I regret that this application must be dismissed. I regret it because the mother clearly has immense personal difficulties and one cannot but feel sorry for her. I dismiss it for three principal reasons. The first is that she brings her application way out of time. She is nearly one year and 10 months late. No satisfactory explanation is given for that delay and, although I would be willing to be as lenient as I can be, the court cannot tolerate that latitude, for there must be some finality to litigation. Moreover, on looking at the merits there are, as I shall indicate, sadly none that would lead the court to think that this was an appropriate appeal.
4. The second reason seems to me to be utterly fatal to the appeal. Let me explain that in more detail by reference to the facts.
5. The mother is a Danish citizen, who arrived in England on 1st December 1996 and gave birth to her son in Margate three weeks later. She clearly had difficulties with the Danish authorities, who had from time to time treated her and even detained her under the Danish Psychiatry Act in August 1996, though that decision was reversed in September. There was evidence before the court to suggest that the mother lacked the preparation to care for her child, and as a result the child was put on the child protection register shortly after birth. Her mental condition has caused continuing concern at all times, and she has seen a variety of psychiatrists from time to time.
6. Advancing the case forward to the conclusion of this care hearing, the position is this. The local authority had striven with might and main to try and keep mother and child together, and had proposed a care plan which would enable her to subject herself to assessment with the child so that they could monitor her capabilities to care, perhaps under supervision and perhaps with some help. However, her disappearance frustrated that. Her refusal to co-operate frustrated that, and in the end the local authority had no option but to change the care plan and take up a request made at quite a late stage by the maternal grandmother in Denmark to have the boy live with her. On investigation in Denmark the Danish authorities were concerned about that, primarily because of the grandmother's age, but they proposed that they could find a suitable foster placement close to the maternal grandmother which would enable some contact with the family to be maintained.
7. When the judge made the care order which is now under attack, it was made on the basis of that plan being implemented and it has been implemented. The first step was that the local authority obtained the leave of the court to remove the boy permanently from the jurisdiction and then, on 15th October, after he had left the country, the care order was discharged. So the second reason utterly fatal to this application is that it has become wholly academic.
8. The mother appeals the care order. She would wish therefore the care proceedings to be reheard, if this court did not itself dismiss them, but the court has already taken that step. The care order having been discharged, there is absolutely nothing that could come from this litigation.
9. The third main reason is the sad lack of merit in the appeal. The mother complains that the judge was wrong to prefer the psychiatric evidence of Dr Earle, a psychiatrist, and Mr Maggs, a psychologist, against the opinion of the psychiatrist she put forward for the court, Dr Tannock. The judge was of the view that the issue before him could be stated in these terms:

"... does the mother suffer from a personal defect falling short of schizophrenia or any mental illness such as to make it unsafe to return [S] to her care without a professional assessment at a Mother & Baby Unit such as the Cassell? This is the view of Doctor Earle and of Mr Maggs. Or, is the mother perfectly capable of caring for [S] in the community with back-up from the welfare authorities?"

10. That, I add, was the view of Dr Tannock, though he was even prepared to go slightly further and say that she could care in the community with help from the Camden authority and his unit at the hospital in London.
11. In having no real hesitation in preferring the evidence of Dr Earle and Mr Maggs, the judge supported that conclusion with full reasons. Firstly, that Dr Earle and Mr Maggs were child-oriented in their expertise. That may cut both ways. Dr Tannock was an adult psychiatrist and much depended upon an assessment of the adult patient, the mother. But the second reason is crucial. The judge preferred the evidence of Dr Earle, whom he found to be "the more convincing witness". He criticised Dr Tannock, saying that he:

"... offered his opinion with more confidence than the facts of the case justify."

12. That is exactly the kind of approach with which this court would find it impossible to interfere.
13. Thirdly, and for the judge most importantly, the diagnosis of Dr Earle and Mr Maggs provided an explanation for the mother's behaviour, which he described as that "of an unbalanced woman, whatever its cause", and that Dr Tannock could not easily explain some of the mother's "extraordinary behaviour".
14. Finally, the judge observed that Dr Tannock had not been given a full and frank account in some instances by the mother, for example, her denial of a threat to throw S into the harbour at a time when she was in some mental distress. So the judge had no hesitation in deciding that the mother's behaviour, so extraordinary as it had been during her unhappy times, would have put the boy at risk and that he was at risk of significant harm satisfying section 31 of the Children Act 1989.
15. I should add, lest this judgment is to be read elsewhere, that it is a case where the judge bent over backwards to be sympathetic to the mother. I commend his approach at page 14 of the judgment, where he said:

"With the benefit of hindsight I think that it would have been in [S]'s interest if I had insisted upon hearing the case finally in its early stages. This has been by far the longest running application for a care order ever to come before me. But I and, I think, the other parties were anxious to ensure that [S] should be reunited if at all possible, with his mother or at least with his mother's family, if that were at all a possibility. I therefore gave the mother, an intelligent and educated woman, for all her faults, more latitude than perhaps I should."

16. As one reads the judgment it is apparent that the mother failed to attend the court on innumerable occasions, failed to co-operate, has failed to attend here today, has done nothing about the proceedings that I can tell since the order was made, and has, I am afraid, behaved as characteristically after the judgment as she had done before it.
17. She contends that her human rights have been interfered with. She complains of a breach of Article 8, the interference with her private life. But the order that has been made is one made in accordance with the law. It is necessary in a democratic society for the protection of the health and for the rights and freedoms of the child, whose private rights are as much at stake as hers, and the competing rights where held in proper balance. There is no invasion of her Article 8 rights. She complains of a breach of Article 6. The passage I have just read from the judgment indicates just how concerned the judge was to give her a fair hearing. He prevailed upon counsel to attend and assist the mother and assist the court when otherwise legal representation may have been discharged. Far from this being an unfair trial, if it is to be criticised in any way at all it is that the judge gave her undue latitude. There is no possible complaint on that ground.
18. This is, sadly, a hopeless application. It must therefore be dismissed. But in view of the mother's absence, I will direct that the order be not drawn until 18th January to give the mother an opportunity to apply to this court to reinstate her application. I would ask that the Court Office write to her to inform her of what has happened and of the need for her to react to that direction.
ORDER: Applications for permission to appeal and an extension of time refused. (Order not part of approved judgment)