England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GUILDFORD COUNTY COURT
(His Honour Judge Cook)

		Royal Courts of Justice Strand London WC2 Tuesday, 8th May 2001

1. LORD JUSTICE THORPE: Mr. Lynn seeks permission to appeal and an extension of time in relation to an order made by His Honour Judge Cook committing a child, M.R. to the care of the local authority. His order is explained in a reserved judgment which he handed down on 10th January 2001. The applications were put before me on paper. I ordered this oral hearing on notice in view of the highly unusual consideration advanced by Mr. Lynn in his application and skeleton argument, namely that the judge had fallen asleep during the course of Mr. Lynn's final submissions. The direction I gave at the time was that this assertion should be conveyed to Judge Cook to give him the opportunity of responding. He responded to this court by letter of 18th February, in which he said that he had been particularly concerned to record Mr. Lynn's submissions and the assertion that he had fallen asleep accordingly came as a considerable surprise to him. He does recall that at some stage Mr. Lynn stopped speaking so as to ensure that he had the judge's full attention. Indeed, he says that his usher recollects Mr. Lynn asking something to the effect of whether the judge had heard him. A number of recollections have now reached the court, in addition to those of Mr. Lynn and the judge himself. We have statements from Mr. Lynn's client and her husband, as well as a statement from the solicitor's representative in court on the day that submissions were made, 8th December 2000. These statements tend to support Mr. Lynn's impression.
2. Against that we have a skeleton argument from Miss Corbett who represented the local authority on 8th December, in which Miss Corbett says that she supports the judge's recollection. She says:

"I remember that the learned judge had closed his eyes very briefly in the way that many judges do when they are contemplating what is being said to them."

3. Mrs Barnett, who represents the guardian ad litem, was not before the judge on the 8th, but she tells us today that both her instructing solicitor and the guardian herself, who were present on 8th December, fully support the judge's position. So we have no sort of opportunity to reach any conclusion as to what did happen on 8th December. All we can do is to notice that different people received different impressions as to the manner in which the judge responded to Mr. Lynn's submissions.
4. It does seem to me that the line taken in previous authorities should be firmly adopted in this field. They are to the effect that any objection on the basis of judicial conduct must be taken then and there at the trial. It is not something that counsel can, as it were, keep in reserve to parade on an application to this court. There can be no criticism at all of Mr. Lynn. He obviously dealt with a situation which he perceived to have arisen with customary good sense and diplomacy. Obviously judges are human. Obviously from time to time judges will lose concentration, even perhaps only for an instant, slip from conscious attention into unconscious slumber. The response from counsel meeting that situation has to lie somewhere along a scale that is proportionate to the situation. Obviously if Mr. Lynn had felt that this was a very serious loss of judicial concentration and consciousness he would have taken a more extreme line. Plainly, the sensible way in which he dealt with the situation reflected his perception that it was only a momentary loss of judicial concentration which could easily be repaired by a brief pause and then some reiteration of the ground that he was covering. There therefore can be nothing in this point that would begin to justify the grant of leave. Either nothing happened or, if anything happened that was below the high standard expected of a trial judge, then it was appropriately rectified by Mr. Lynn's sensible and sensitive reaction.
5. We come to the more substantial grounds of this application, a submission that the judge has failed to reason his conclusion or, alternatively, that his conclusion was disproportionate to the risks that had been established at trial. In order to evaluate the submissions it is necessary to sketch in very briefly an account of the issue.
6. The child whose future Judge Cook considered was M, born on 1st July 1997 to a very young mother, T, who was about 20 years of age. The maternal grandmother, whom Mr. Lynn represented, Mrs F, was only about 40 years of age, in a secure relationship with Mr. C. She was available as an alternative carer. At page 12 of his judgment the judge summarised the position of the parties, when he said:

"It came as no surprise during the course of the proceedings when counsel for T stated that she no longer sought the return of M to her care but still opposed the care plan for adoption, supporting her mother's application for M to reside in her care. The local authority's care plan continued to be that M be placed for adoption, preferably with her current foster carers.

Mrs F, having supported the rehabilitation of M to T and then having conceded that this was not in M's best interests, made out a formidable case that M should be placed with her, under a residence order."

7. The local authority's position was largely supported by the guardian ad litem, although there was a difference on a point of detail.
8. The judge had the advantage of hearing from two experts, Dr. Vetere, who was broadly supportive of the family's desire to retain the responsibility for M, and Dr. O'Keeffe, who was extremely doubtful of the wisdom of that possibility. Additionally the judge had an assessment of Mrs F as carer carried out by Jill Nancolas, a social worker with the local authority's permanency team. Mrs Nancolas opposed Mrs F's formidable application in reasoning that was summarised by counsel for the local authority in nine specific paragraphs. I should add that the very great difficulties in the case largely if not entirely stem from the fact that M was born with a serious heart condition, hypoplastic left heart syndrome. The judge had an assessment from Dr. Tulloh, a consultant paediatric cardiologist, who explained just how serious this condition is, having required three major operations to correct and very high levels of hygiene and care thereafter.
9. I come to Mr. Lynn's first submission, namely that the judicial conclusion was insufficiently reasoned. In making that decision he refers to a passage in the judgment of Holman J in the reported case of B v B [1997] 2 FLR 602. Holman J, sitting in this court, said of a judgment by a Recorder:

"Try as I might . . . I have been unable to discern from the judgment as a whole what reason or reasons, or what balancing of the factors, actually finally led him to decide this case as he did."

10. Mr. Lynn says that this is another example of the same gross deficiency. He says that the conclusion at page 22 of the judgment, reading as follows:

"This therefore leaves no alternative to making a care order based on the local authority's plan to place M for adoption"

is a plainly unreasoned conclusion. He says that it is largely preceded by a summary of the evidence.

11. That would be well enough were it not for the long paragraph that immediately precedes the conclusion. It starts at the foot of page 21. It is a whole page in length and it can be briefly summarised thus. First, the judge felt that if M were to live with Mrs F, T would play a continuing and increasing role in M's parenting, thereby exposing M to the risks of neglect and poor hygiene that resulted in her removal from T's care. Of course, it is obvious that the consequences of neglect and poor hygiene for a child suffering from this rare condition are greater than would be the consequences for what might be described as a normal child. Secondly, the judge went on to make the observation that there would be serious risk of emotional confusion to M, since the three would be in an emotional triangle and it would be difficult if not impossible for M to understand a situation in which she was being mothered by her grandmother, with her mother living close by and closely involved.
12. That reasoning implicitly endorses the assessment of Mrs Nancolas. Of the nine paragraphs summarised by counsel, paragraphs 1, 7 and 9 are clearly the foundation for the judge's reasoning. I do not therefore see any force in that submission.
13. Secondly, Mr. Lynn says that the judge's option for the draconian outcome of a care order was plainly disproportionate to the risks against which M had to be guarded. He refers to the judgment of Hale LJ in the case of Re C and B [2001] 1 FLR 611. That was a case decided on 30th March 2000 in which Hale LJ, no doubt desiring to prepare the profession for the advent of the Human Rights Act, emphasised the importance of proportionality. However, it was a case in which, as appears from paragraph 17, any risk of harm to the child in question was harm to his intellectual and emotional development at a considerably later stage. Accordingly, that authority is clearly distinguishable from the present where M would be at immediate risk of very serious consequences, extending to death itself, were she exposed to neglect and poor hygiene. Despite all Mr. Lynn's able efforts, I do not see that there is any basis upon which this court could review a discretionary determination of an experienced circuit judge in a difficult case, finely balanced, a conclusion which in my opinion was sufficiently reasoned. For all those reasons I would dismiss these applications.
14. MR. JUSTICE BELL: I agree.
Order: Applications refused; public funded costs assessment. (Order not part of the judgment of the court)