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 SWANSEA COUNTY COURT
(HER HONOUR JUDGE FURNESS)

		Royal Courts of Justice Strand London, WC2 Friday, 25th October 2002

Friday, 25th October 2002

1. LADY JUSTICE HALE: The applicant is not here this morning, although it is now five past eleven and the usher has called her yet again. The letter informing her of today's hearing was dated 11th October 2002 and sent to her address in Dyfatty Street, Wain Wen, Swansea. She was advised to telephone the office after 3 o'clock yesterday to confirm the court-room number and the time of this hearing. No such telephone call was received. In the circumstances I propose to consider and determine the application. There is reason to believe that the applicant has been properly informed of this hearing but has decided, for whatever reason, not to attend.
2. The applicant applies for permission to appeal against the decisions of the Swansea County Court relating to her daughter, A, who was born on 30th January 1999 and so is now aged three and three quarters. The Appellant's Notice refers to the first of those orders, an interim care order made by His Honour Judge Furness on 4th August 2000. This was not the first interim care order, because there was such an order made, I assume by a family proceedings court, on 21st July 2000. After a series of interim care orders a full care order was made by His Honour Judge Wyn Richards on 10th August 2001. Then, most recently, a freeing for adoption order was made by His Honour Judge Wyn Richards on 22nd February 2002.
3. This application was not set down until 8th October 2002, although the Appellant's Notice was first received by the Civil Appeals Office on 2nd July. The applicant therefore needs a very substantial extension of time, even from the freeing for adoption order made in February. She gives no reason at all for the delay which has taken place, despite the fact that she herself in her skeleton argument places great emphasis on the detriment to the child's welfare which stems from such delay. In the case of a child who has been the subject of care proceedings and freeing for adoption, this court will be particularly reluctant to grant an extension without a very good reason and a very good case on the merits. In this case no reason has been given and so I cannot grant an extension of time and, in any event, this is not a very good case on the merits.
4. The mother has three older children, L, D and K, from her relationship with Mr H. They are all now living with him, D and K under care orders made at the same time as A's. A is the mother's child by her relationship, which was current through most of these proceedings and may still be current, with Mr R.
5. The proceedings were prompted by complaints from D that he had been hit by Mr R in the course of domestic violence. The behaviour of the parents at a child protection conference on 19th July 2001 gave rise to such concern that a police protection order was made, at the instance of the police officer who was at that conference, and D was removed from school and placed with his father that very day. Care proceedings were then brought in relation to all three of the children living with the mother and Mr R. On 21st July K was also placed with her father. A, who was then 18 months old, was placed with foster parents.
6. A difficult period followed where there were problems in arranging contact with the children and the parents were unwilling to take part in a detailed risk assessment, although there were expert assessments before the judge in the care proceedings. He found as follows:

" ... in addition to the many noisy and distressing arguments and visits by the police, the children witnessed incidents of violence between Miss W and Mr R. D and, less frequently, K were also subjected to violence by Mr R. Both Miss W and D sustained injuries as a result of his violence. I also find that incidents of violence increased in frequency over time. There were times when I find the children were treated inappropriately by being confined to their rooms and unreasonable restrictions imposed upon their movements. Miss W [that is the mother] failed both to protect the children or to be sensitive to and to meet their emotional needs. She minimised and denied the degree of conflict in the relationship with Mr R and maintained the relationship over and above her relationship with D and K."

The judge accepted the highly impressive and compelling evidence given by the expert witnesses of their assessments of Miss W and Mr R, including Dr Westman's opinion:

" ... that Miss W's capacity to parent the children was not good enough to prevent the children suffering emotional harm."

And said:

" ... that A would be at high risk of suffering harm if returned to her parent's care. Miss W and Mr R have been unable to cooperate with the professionals involved in this assessment to allow a thorough appraisal of risk. However, the information from diverse sources suggest that the couple have a highly dysfunctional and dangerous relationship which not only places them at risk but also any children in their care."

The judge therefore found that the threshold criteria in section 31(2) of the Children Act 1989 were proved. He approved a care plan to place D and K with their father and to place A for adoption. In fact A had already been placed with her prospective adopters, in the role of foster parents, shortly before the hearing. He permitted the local authority to refuse contact between A and her parents. Unlike the older children, there was no-one within the extended family who could look after her.

7. Then followed the application to free for adoption. By then the parents had been evicted from their rented accommodation. They had spent some time living rough or in a tent and then found a one-bedroom flat, where Mr R was still living at the time of the freeing application, but the mother had moved into a two-bedroom flat a short distance away. Mr R was represented by counsel at the hearing. The mother had, however, dispensed with the services of her solicitors and counsel shortly beforehand.
8. The judge gave a long and careful judgment. He considered the law governing applications under section 18 of the Adoption Act 1976. There were two questions: whether adoption would promote the welfare of the child and whether the parent's consent could be dispensed with on the ground that it was being unreasonably withheld. Strictly, only the mother's consent was needed because the father did not have parental responsibility. The court cannot dispense with that consent unless the child has already been placed or is likely to be so; and, if the father does not have parental responsibility, the court must be satisfied either that he has no intention of applying for a residence order or that, if he did apply, he would be likely to fail. Those latter two criteria were clearly met in this case.
9. The judge had little difficulty in concluding that adoption would promote the child's welfare. The evidence from a senior social work practitioner and the guardian were that she was well placed, doing well, making good progress, happy and could not be removed from that placement without detriment to her welfare. Dr Westman in the care proceedings had advised that adoption, rather than long-term fostering, was appropriate for such a young child who could not be cared for within her natural family.
10. It appears from the judgment that the parents were greatly concerned about her religious upbringing. Section 7 of the Adoption Act requires an adoption agency to have regard, so far as is practicable, to any wishes of the child's parents as to the religious upbringing of the child. The prospective adopters were non-observing Christians but with Christian values and took A to Sunday school. The parents seemed to have rather differing religious views, whether Baptist or being of more mediterranean orientation, but undoubtedly within the Judaeon-Christian tradition. The judge concluded that the placement was appropriate. He gave careful consideration to the parents' religious objections. He directed himself on the test to be applied when dispensing with consent -- either that of a hypothetical reasonable parent in the circumstances or the advantages of adoption being such as to justify proceeding without the parents' consent. He had little difficulty in concluding that a reasonable parent would agree to adoption in all the circumstances of this case. The advantages of adoptions were, in his words, "obvious and overwhelming".
11. It is clear that the judge was well aware in both judgments, in the care proceedings and in the freeing for adoption hearing, of the general proposition that children should be brought up, whenever possible, within their own family with access to their own birthright and identity; but interference with that right may be justified if it is necessary and proportionate to the legitimate aim of protecting the health and the rights of the child.
12. The mother's argument in this application is somewhat difficult to disentangle. It seems to rely upon the absence of fact-finding at the outset of the proceedings, coupled with the delay in coming to a final hearing. She argues that, if the facts had been investigated at the outset, the court would not have found the threshold proven. The delay in arranging the final hearing was detrimental to the child's welfare. The assessments which the authorities wished to conduct were invasive of the parents' freedom, in the absence of prior findings of fact, and the guardian's argument seemed to be that to return the child to the family would be detrimental because of the length of time that she had been separated from them. The mother also accuses the court of being biased in favour of the local authority and the professionals, counsel for the guardian of having another agenda and everyone of not understanding the parents' perspective perhaps because "our terms are too technical".
13. I can understand an argument that before removing a child from her family or insisting that parents engage in intrusive social work or psychiatric assessments there should be a threshold for doing so. There is, indeed, such a threshold provided in section 38 of the Children Act 1989. I have no reason to suppose that that threshold was not investigated in the course of the proceedings. It is, of course, one which depends upon reasonable grounds to believe that the circumstances with respect to the child are as mentioned in section 31(2) of the 1989 Act. Once those reasonable grounds are established, then the authorities must take the proper steps to protect the child from harm and to assess the true nature of the risks to which that child will be subjected.
14. Furthermore, the parents were represented during the care proceedings. They had ample opportunity to make their case then. The time for appealing against either the interim care orders or the full care order was then, not now. There has been no explanation given for why she is seeking to do so this late in the day. Once it has been determined that a little girl cannot safely be looked after within her own home her security and stability in a new family life may be the only solution if she is not to suffer even more. Obviously this is a drastic interference with family life which is only justified in strong cases, but I have absolutely no reason to believe that the county court was wrong to decide that this was just such a case.
15. This application must therefore be dismissed.
Order: Application dismissed. The Applicant should have a copy of this judgment at public expense. (Order does not form part of approved judgment)