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, WC2A 2LL Friday 22nd June 2001

LADY JUSTICE HALE:

1. This appeal raises an issue of some practical importance in proceedings for care and supervision orders under the Children Act 1989: what have the local authority to be in a position to prove at the time when they make the application? To what extent can they rely upon evidence, which emerges, or events, which take place between the date of the application and the final hearing?
2. These proceedings concern two children: D, born 16 April 1997, now aged four; and E, born 28 June 2000, now nearly a year old. The case was heard over eight days in January and February by His Honour Judge Cook in the Guildford County Court sitting at Staines County Court. On 26 April 2001 he declined to make care orders in respect of either child. In relation to D he found that the threshold criteria for making either a care or a supervision order set out in section 31(2) of the Children Act 1989 had not been proved. In relation to E, he found that the threshold criteria were made out, but made a supervision order instead of a care order. The local authority appeal, with the permission of the trial judge, on the point of law; they also appeal, with the permission of Thorpe LJ, on the merits. E's parents apply for permission to cross appeal against the finding that the threshold was made out in her case.
3. The mother of both children is KG. D's father was her second husband, DG, who died in May 2000. Hampshire County Council has been involved with the family for some time. The mother has a moderate learning disability and needs their help and support in caring for her children. D was particularly vulnerable as he was born prematurely and ill. He was placed on the Child Protection Register shortly after he suffered a cigarette burn inflicted by his father in January 1998. The father was prosecuted and excluded from the home as a condition of bail. These proceedings were not brought until 14 June 1999. The mother was then living with another partner, BA, but the local authority did not seek to remove D from home. The Guardian ad Litem advised that an interim care order was unnecessary. An interim care order was eventually obtained from the Family Proceedings Court on 22 September 1999. Even so, D was not removed from home until 26 October 1999 after an altercation when BA found the mother in bed with another man, MO. D has been in foster care ever since, with regular (supervised) contact with his mother.
4. During those proceedings, while pregnant with E, the mother moved from Hampshire to Surrey. E's father was originally assumed to be BA but later turned out to be MO. Surrey County Council held a pre-birth case conference and applied to the court the day after E was born. An interim care order was granted on 5 July 2000. She was discharged from hospital into foster care (with different foster parents) on 8 July 2000, with contact four times a week with her mother.
5. The two proceedings were consolidated and transferred to the county court. The two local authorities share the same representation. Surprisingly, however, the parents do not. The solicitors acting for the mother in D's case no longer have their franchise to act in these proceedings. The mother not surprisingly wanted them to continue to act for her. The Community Legal Service permitted them to do so, but not to act for her and the father in E's case. Fortunately the children share the same Guardian ad Litem.
6. When the case came on for final hearing, the authorities' care plan for both children was adoption, and it was hoped that they would be placed together. The guardian in his report considered adoption appropriate if the threshold criteria were made out. The court heard evidence from a clinical psychologist, Mr Crowther, a consultant child psychiatrist, Dr Tylden, and Ms Cooper on behalf of Reading Safer Families, as well as from the social worker, parents and guardian. It is to be inferred that the oral evidence put a somewhat different complexion on matters because by the end of the hearing the guardian was making no recommendation as to the orders should the threshold be proved. Furthermore he now supports the judge's refusal to make the care orders sought.

The Threshold

7. Section 31(2) of the Children Act 1989 provides:

'A court may only make a care order or a supervision order if it is satisfied -

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to -

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.'

8. The purpose of the threshold is to prevent the state interfering in the upbringing of children simply on the basis that it could do better than the parents. The Review of Child Care Law (1985, HMSO) put it this way, at para 2.13:

' . . . "the child is not the child of the state" and it is important in a free society to maintain the rich diversity of lifestyles, which is secured by permitting families a large measure of autonomy in the way in which they bring up their children. This is so even, or perhaps, particularly, in those families who through force of circumstances are in need of help from social services or other agencies. Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm to the child has been shown, however, his interests must clearly predominate.'

9. Once the threshold is crossed, the court has to decide what order, if any, to make. In doing so, section 1 of the 1989 Act applies: the child's welfare is the paramount consideration (s 1(1)), a checklist of factors is to be considered in determining his welfare, including the options available to the court (s 1(3)), and the court is not to make any order unless to do so will be better for the child than making none (s 1(5)). It is common ground that the court can take into account all the information available at the date of the hearing in deciding what order to make if the threshold has been crossed: the order is clearly looking to future, and it would be contrary to child's best interests to turn a blind eye to relevant matters occurring after the proceedings began.
10. Equally, however, it is common ground that the date at which the threshold has to be crossed is when the local authority first intervened to protect the child: that is, either the date of the application or, if child protection measures (police protection or an emergency protection order) have been continuously in place since before then, the date when those began: see Re M (A Minor)(Care Order: Threshold Conditions) [1994] 2 AC 424. In that case, the child's father had murdered the mother. The trial judge found that at the time when the protection process began the child was suffering significant harm, 'in that he has suffered ill-treatment by being permanently deprived of the love and care of his mother when she was murdered in his presence . . . I am also satisfied that if an order were not made the child would be likely to suffer significant harm in that he is a small child with special needs, has no permanent home, and the only person with parental responsibility is the father who is unable to exercise it appropriately . . . ' The Court of Appeal held that the appropriate date was the date of the hearing. By then the child had been in foster care for 16 months and there was nothing to indicate that he was still suffering significant harm or that he was likely to do so as there was a suitable home available with his mother's cousin. The House of Lords allowed the appeal. Lord Templeman put the matter thus, at p 440B to D:

'Restrictions on the right of a local authority to apply for a care order were imposed by section 31 to prevent a local authority interfering too readily with the rights and responsibilities of parents. A local authority cannot apply for a care order unless at the date of the application the child is suffering or is likely to suffer significant harm. Once the local authority has ground for making the application the court has jurisdiction to grant that application. If between the date of the application and the date of the judgment of the court, circumstances arise which make a care order unnecessary or undesirable, the local authority can withdraw its application for a care order or the court can refuse to make a care order.'

11. Re M was concerned with both the actual and likely harm limbs of section 31(2)(a). Although much of the discussion was directed at when the condition that the child 'is suffering' significant harm must be met, the case also raised the problem of likely harm: by the time of the hearing his father was serving his sentence but alternative loving homes were available with the foster mother or with his mother's cousin. It would be odd indeed if actual and likely harm had to be judged at different dates. Further, the policy considerations are equally strong in each case. Just as it would be odd if the local authority were precluded from obtaining a care order on the ground of actual harm because their own intervention had cured the problem, it would be odd if a court could make an order based on the likelihood of harm from an immediate return home even though the factual basis for the interim removal had not been proved and the proceedings had taken so long to be heard that a return home would be unsettling for the child. Obviously, if the initial likelihood of harm has been removed or reduced by later events (such as the separation of the mother from an abusive partner) the court may decline to make a care order because it will not be best for the child. By contrast, a local authority may launch proceedings on the basis that a child in local authority accommodation is likely to suffer harm if returned home, because that would be so at date when the application was made.
12. However, real life is not quite as simple as this. Care cases, like all children cases; look to the future and not the past. Things are changing all the time while the case progresses. The local authority are not required to plead their case at the outset or indeed at all. It is now the practice in many courts to require the local authority before the final hearing to make a clear statement of the facts they wish the court to find and the basis upon which they allege that the threshold is crossed. In my view this should be routine, so that the parents can know the case they have to meet and have a fair opportunity to meet it. The judge lamented the lack of such a statement in this case.
13. But it is often the case that measures are taken to protect a child, often in something of an emergency, before anything approaching a full picture has emerged. The question then is the extent to which the local authority can rely upon matters, which have come to light or taken place since the proceedings began. At one end of the spectrum, there will often be information discovered after the relevant date, which throws light on what the facts were at the relevant date. The most obvious examples are further medical evidence about the injuries which promoted removal, new complaints by the child about other forms of abuse within the home or admissions made by the parents. Often these will emerge in the course of expert assessments conducted partly for the purpose of establishing the threshold and partly for the purpose of considering the way forward.
14. At other end of spectrum, there may be entirely new events which introduce a completely different risk which did not exist at the relevant date. Examples of this are not so easy to devise: it could be that proceedings are begun because a baby has suffered injuries which turn out to be completely accidental; unfortunately, the stress and strain of the proceedings has led to one parent leaving home and the complete collapse of the other. More commonly, the removal of the child on the basis of suspicions, which turn out to be unwarranted, may make it harder for the child to return home.
15. In the middle are new events, which may, or may not, be capable of proving that there was a risk of significant harm at the relevant time. Acts of violence occurring while the proceedings are pending might be capable of showing that a risk of such violence existed when the proceedings began. Subsequent neglect or abuse might be capable of showing that such neglect or abuse was likely when the proceedings were brought. This raises more difficult questions because there are obvious dangers of retrospectively validating a concern which was not in fact justified at the time: there may, after all, be other reasons for things to go badly wrong after proceedings are started.

What happened here?

16. In their closing submissions, the local authority alleged that D had suffered actual harm in two respects. The first was the cigarette burn inflicted by his father on 28 January 1998. His father was prosecuted and eventually found guilty of causing actual bodily harm. But he had separated from the mother before the proceedings began and later died. It was not alleged that the mother was implicated or had failed to take proper steps to protect D. No proceedings were taken to protect him at the time. Clearly by June 1999 the harm, which he had suffered as a result, had gone. This is a good example of the difference between a child who 'has suffered' significant harm (as in the draft Children Bill put before Parliament) and a child who 'is suffering' such harm when the proceedings begin. Hence the judge ruled that 'the cigarette burn cannot and should not have been any part of the reasons for, or justification of, the commencement of these proceedings or the removal of D nearly 20 months later.'
17. The second was that his 'development was significantly impaired as a result of the shortcomings in the Mother's parenting relating in particular to the lack of physical, emotional and intellectual stimulation.' D had been born very premature, so that some delay in his development was inevitable. The local authority faced the difficulty that the professionals' views up until shortly before the proceedings began had been that he was a cheerful happy baby whose development was satisfactory. The health visitor, for example, saw him in May 1999 for his two year assessment and reported that he was ' . . .very happy and sociable. Plays appropriately with toys. Enjoys books. Reported to sleep well and generally enjoy his food.' There was a brief report from his consultant paediatrician, Dr Holmes-Smith, stating that 'Since however he went into foster care his general development abilities and behaviour have improved out of all recognition and his intellectual development is catching up.' The report did not discuss in detail the extent and possible causes of such 'catch up'. The judge commented that 'there is a danger of reading too much into the progress of a child which is put into the full time care of dedicated professionals.' He therefore concluded that, although there were matters of concern, they fell 'a long way short of evidence that D was suffering significant harm at the time of the application, or after his removal, let alone identifying what that harm was.'
18. There could be no question of actual harm to E, as she had been removed from her mother's care soon after birth. As to the risk of future harm to either child, the local authority summed up their case thus: 'the Mother does not have, and is unable to learn, the necessary skills to be able to parent either of the children safely or consistently to a standard which will meet their diverse and changing needs.' They referred to five more specific concerns: the mother's vulnerability to people who presented a real risk to children; doubts about the continuing co-operation of the mother and her partner BA; the mother's personal relationships; the mother's 'self-reported difficulty in showing physical affection'; and the mother's parenting abilities and capacity to learn, especially in the light of D's special needs.
19. The judge quoted the passage from Lord Templeman's speech in Re M, which I have quoted above. He commented that Lord Templeman 'did not there envisage events or evidence retrospectively validating the Local Authority in making the application.' After further quotations from the speech of Lord McKay in Re M, he continued:

'Does this mean that if a Local Authority acts precipitately before there is a likelihood of significant harm, but subsequent events and evidence would justify the making of a care order, the court is not able to take those subsequent events and evidence into account when considering the threshold criteria. I think that must be the position. In those circumstances is the Local Authority's only remedy to start further care proceedings based on the information now in its possession.'

He then pointed out that when the proceedings began,

' . . . although there were concerns about DG and the other men in the mother's life, none of the subsequent expert evidence to which I have referred was at that date available. It is of significance that although the application for a care order was made on 14 June 1999, D was not in fact removed from the mother's care until 26 October 1999, and that even then the Guardian opposed the making of an interim care order at the hearing of 21 September 1999 on the grounds it was unnecessary. Accordingly D remained in his mother's care for over four months after the Local Authority had alleged he was likely to suffer significant harm in her care without him in fact having suffered such harm, either from the mother or from her associates. In my view the Local Authority has not established that their proper and understandable concerns about the mother amounted to a likelihood that D would suffer significant harm if he remained in her care.'

20. In relation to E, however, he pointed out that by June 2000, the Local Authority had the reports of Mr Crowther and Reading Safer Families 'expressing concern about her ability to parent one, let alone two, children with or without adequate support from social services and a stable relationship with a partner.' The various concerns were recited in a report by the Surrey social worker, based mainly on information from Hampshire about D, 'and there is no doubt that there was such a real possibility of significant harm at that time as to meet the second limb of section 31(2)(a)'. Hence he found the threshold of likely harm crossed in relation to E.

Conclusion on the threshold

21. Ms Davis on behalf of the local authority argues that the judge was confusing the date upon which the threshold must have been crossed with the evidence needed to prove that it was. He also confused later-acquired evidence with later-occurring events. He was quite entitled to take the later assessments into account in considering whether the authority had proved that there was in June 1999 a real risk of D suffering significant harm at some later date. Indeed, Mr McCormick on behalf of the mother now concedes (as he did not below) that the local authority do not have to be in possession of all the information upon which they wish to rely at the date of the application. He accepts that later acquired information as to the state of affairs at the relevant date can be taken into account.
22. In my view he is right to make that concession. It is a commonplace in legal proceedings that evidence gathering continues after the proceedings are begun and there is usually nothing to prevent its being used in accordance with the rules. It would be absurd if evidence coming to light during the proceedings, such as further medical evidence on the interpretation of X-rays and scans, further complaints by the children, or confessions by the parents, could not be taken into account to show what the situation was at the relevant time.
23. Mr McCormick does not accept, however, that the local authority can rely upon later events even if these are relevant to proving the state of affairs when the proceedings began. I would agree with him that later events cannot be relied upon unless they are capable of showing what the position was at the relevant time. But if they are capable of proving this, then in my view they should be admitted for that purpose. It will then be a matter for the judge to consider how much weight they should be given. This will not always be an easy task. I can, however, give a concrete example from my own judicial experience: a baby boy was found to be suffering from several fractures of different dates. The question was whether these were attributable to a lack of care from his mother or her present partner or from elsewhere in particular his father. The assessments of the mother and her partner were generally favourable and the boy was returned to live with them. Shortly afterwards he suffered two new fractures. That fact was clearly relevant in proving that the threshold was made out when the proceedings were begun some considerable time earlier.
24. This does not mean that a local authority can launch proceedings 'on a wing and a prayer', as Mr McCormick put it, in the Micawberish hope that something will turn up. Where there are not 'reasonable grounds for believing' that the threshold criteria exist, the authority will not be able to obtain either an interim care order or an interim supervision order (see s 38(2) of the 1989 Act); and without such an order the court will not be able to order a medical or psychiatric examination or other assessment of the child (see s 38(6) of the 1989 Act). The parents may well succeed in obtaining a summary dismissal of the case or even a judicial review of the authority's decision to bring proceedings. In practice, while one may sometimes wish that the local authority had done more assessment before the proceedings were begun, this is because the proceedings are then delayed by the need to gather more information, rather than because the authority have launched them without a good reason. Courts are more often frustrated by the authority's failure to launch proceedings than by their over-eagerness to do so.
25. In this case, therefore, in my view the judge was persuaded into uncharacteristic error. The information as to the mother's general abilities and parenting capacities, which had come to light during the proceedings, was just as capable of showing what the risks were for D in June 1999 as it was of showing what the risks were for E in 2000. There was nothing to suggest that there had been a material change in her abilities over the intervening period. It was for the judge to assess the various opinions expressed, to decide which he preferred and which he did not, and reach a conclusion as to whether on the objective evidence and professional opinions the threshold had been crossed at the material time.
26. Does this mean that he should have found that D was likely to suffer significant harm, attributable to a likely lack of reasonable parental care, in June 1999? On the one hand, it can be argued that as D had not suffered harm by June 1999, or even by October 1999 when he was removed, the judge was entitled to conclude that he was unlikely to do so in future. The difference in result between D and E might be justified on the basis that the judge preferred the views of Mr Crowther and Dr Tylden to those of the local authority witnesses (in which he probably included Reading Safer Families, although they had been jointly instructed). The latter took the view that the mother was not equipped to meet the emotional and intellectual needs of any child, whereas the former felt that she might meet the needs of one child with appropriate support, but could only meet the needs of two children with both sufficient social support and a stable relationship.
27. Not without some hesitation, I have concluded that had the judge not misdirected himself on the evidence, which he could take into account, he would have found the threshold crossed for D as well as E. In exchanges after judgment he pointed out that '. . . I was dealing with D on the evidence available at the time, and I was certainly not saying that everything that has happened subsequently did not meet the threshold criteria.'

The appropriate orders

28. The judge made it quite plain that 'even if the threshold criteria had been satisfied I am of the view that adequate support from social services would avoid the risk of significant harm to D and I would have made a supervision order. I should not have contemplated making a care order unless the Local Authority had amended its care plan to provide for rehabilitation.'
29. In relation to E, however, it was a finely balanced decision, because of the view that the mother needed both support and a stable relationship to be able to look after two children. Although BA had not given evidence, and his character and personality were not such that a relationship with him could be described as stable; there was evidence of the beneficial impact he had had upon the household while D was there. Furthermore, the guardian had found E's father, MO, to be sensible and well meaning. 'He would certainly be a beneficial influence in E's life and he would be waiting in the wings if the mother's relationship with BA were to end.' E would have the positive advantage over D of her birth father being available to her and to provide additional support to the mother if needed. Hence she should not be deprived of the opportunity of growing up with her mother and her half brother.
30. A large number of arguments against these conclusions were raised in the grounds of appeal but Ms Davis has sensibly concentrated upon three. She complains, first, that the judge wrongly excluded from his consideration the opinion expressed by Dr Holmes-Smith: after pointing out that D's development had improved since going into foster care, the doctor commented that 'The very fact that he has improved so much in his new environment certainly mitigates [sic] against return to his previous environment.' She argues that the jointly commissioned report by Reading Safer Families had recommended that Dr Holmes-Smith 'be asked to report upon his opinion about D's "catch up" and his developmental process'. This report was prepared as a result.
31. The local authority have not sought to place before us any note or transcript of the judge's reasons for his ruling, other than the remark in his judgment that Dr Holmes-Smith had 'exceeded his brief'. Even supposing that the 'catch-up' was as great as suggested in the doctor's short statement, the report does not expand upon the possible reasons and there are several alternatives. D was very premature, and was ill soon afterwards, so that some delay was inevitable and he might have caught up anyway. He has also been diagnosed with mild cerebral palsy, which might have affected matters. The guardian agrees that the report was not helpful in setting out a detailed factual basis for the apparent conclusion and was rightly excluded. As Thorpe LJ has said, albeit in the context of alleged sexual abuse, 'It ought to be elementary for any professional working in the family justice system that the role of the expert to treat is not to be muddled with the role of the expert to report': see Re B (Sexual Abuse: Expert's Report) [2001] 1 FLR 871 at p 873D. If the local authority had wanted to make out a case on this basis, they should at the very least have provided a more detailed report at an earlier stage so that the mother's representatives could have considered whether an independent paediatric opinion should be obtained.
32. Secondly, Ms Davis argues that the judge should not have preferred the views of Mr Crowther and Dr Tylden over those of Reading Safer Families. Mr Crowther was a clinical psychologist specifically instructed to report upon the mother's intellectual abilities and functioning and how any difficulties might affect her parenting abilities and have an impact upon D. He had assessed her in some detail but had not seen her with D. Dr Tylden is a distinguished retired consultant child psychiatrist, but she had been instructed on behalf of the mother and had not had access to any of the papers in the case. Reading Safer Families had been jointly instructed to assess not only the mother's abilities but also D's needs and the quality of his attachments. Their views should therefore have been given greater weight.
33. The difficulty is that it is for the judge to assess the evidence before him and decide which he prefers. There would be no point in having an eight day trial if this court could substitute its own view for his without the benefit of having read all the evidence or seen and heard any of the witnesses. It is obvious in this case that the oral evidence had an impact upon the case, because it caused the guardian to modify his views. We do not even have the benefit of a transcript of the evidence, which might enable us to see whether or not the judge's conclusions could be supported.
34. Thirdly, she argues that Dr Tylden had stressed that the mother needed both social work support and a stable relationship to be able to parent two children. BA could not be relied upon to provide that stability and support. Dr Tylden had pointed to the need for him to address his alcohol problem. This again was very much a matter for the judge. But in the light of later events, it is significant that he placed so much weight on the support offered by MO, E's father. We are now told that he is about to move out of the wings and move in with the mother. It is also significant that the guardian supports the judge's conclusion: and he does so despite this forthcoming change in the family's arrangements.
35. In those circumstances the judge was entitled to reach the conclusion that the best interests of these two children lay in being reunited with their mother with the help and support of the local authority.

Conclusions

36. I would allow the appeal in relation to D to the extent of finding the threshold proved and making a supervision order. I would dismiss the appeal in relation to E. In that event, Mr Ailes on behalf of her parents does not press his application for permission to cross appeal on the ground that if the threshold was not crossed for D it was not crossed for E either. Had he done so, for the reasons explained in relation to D, he would not have succeeded. We await the authority's proposals for the return home of the children, the support to be offered to the family, and the scope of any requirements which might be included in the supervision orders.

LORD JUSTICE JONATHAN PARKER:

37. I agree.

LORD JUSTICE ALDOUS:

38. I also agree.
ORDER: Appeal allowed in relation to D to the extent of finding the threshold proved and making a supervision order; appeal dismissed in relation to E; permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)