England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AN EXTENSION OF TIME, A STAY OF EXECUTION
AND PERMISSION TO RELY ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Monday, 20th May 2002

1. LORD JUSTICE THORPE: Mr and Mrs K seek permission to appeal the judgment of Her Honour Judge Andrew given in Canterbury County Court on 7th December 2001. The order that she made on that day committed the children in question to the care of the applicant local authority and gave that authority discretion to terminate contact between the children and their natural parents, Mr and Mrs K. The children in question are T and R, who are respectively 6½ and 2½. There are two older children who are the children of Mrs K, but not of Mr K; they are respectively Kr and M. Kr and M are in long term foster care.
2. The effect of the order of 7th December was to commit T and R on the road towards adoption. That was the local authority's proposal in the care plan. However there has been no application, either for an adoption order or for a freeing order. Mrs K tells me this morning that T and R have been matched for adoption and that the match is to go before the relevant committee on 29th May. Obviously, if the local authority continue in their present plan there will have to be further proceedings in the County Court either by way of an application for an adoption order or by way of an application for a freeing order. Mr and Mrs K would obviously participate in those proceedings.
3. I briefly sketch in the background. There was an initial referral when, in August 2000, Mrs K involved social services in allegations of domestic violence. The relationship between Mr and Mrs K was then about five years old. That resulted in investigations, including memorandum interviews of the older children, which revealed quite serious excessive chastisement and other abuse of the children - the older children - and criminal proceedings resulted. In January 2001 Mrs K pleaded guilty to charges of cruelty for which she was sentenced to a term of imprisonment. However on 25th April, following trial at the Crown Court, Mr K was acquitted of charges of cruelty.
4. The Family Justice proceedings - the public law proceedings - were initiated by the local authority in the Canterbury County Court and were directed for a split hearing. So it was on 23rd May that Judge Andrew gave her judgment on the factual issues that necessarily had to be established as a prelude to the subsequent disposal hearing. The judge made a number of significant findings which were preceded by some assessment of the parents. She said at page 7 of her first judgment:

"Having pleaded guilty to criminal charges and served time in prison, Mrs K reconciled with Mr K and on being released on the tagging system went to live with him again on 10 April, eight days before his own trial on similar charges in the Crown Court. In this court it is clear that Mrs K has determined to admit anything and everything to exonerate Mr K, this being an effort to maintain her relationship with him and thereby, she hopes, to have her children returned to her. Having suffered on her account dreadful abuse in care herself, at the hands of her foster carers, she is desperate to prevent her children suffering the same fate, and it seems no exaggeration to say that she will say anything to prevent it."

5. In relation to the parties, she said later in this judgment:

"Having watched Mr K in the witness box and, indeed, Mrs K, it seems to me that both these people were driven to the end of their tether, but that does not excuse their conduct towards these children. The children were scared, in particular Mark and Mrs K was unable to protect them. It seems that at times she was barely able to keep her hands off them. Mr K was not able to accept any responsibility, in real terms, for the role he played."

6. Towards the end of the judgment she made her findings in relation to the schedule advanced by the local authority. She made specific findings in relation to each and every one of the issues presented, some 56 in their totality. It is unnecessary for me to record, other than to say, that she found the majority of the issues raised proved.
7. The second hearing - the disposal hearing - culminated in her judgment of 7th December. Within that judgment she obviously placed considerable stress on the evidence of two experts, one Dr Conn, and the other Mr Flatman. Dr Conn had been jointly instructed, the guardian ad litem's solicitor being the lead solicitor for the purposes of his instruction. I have in the papers the first two pages of Dr Conn's subsequent report which reveal that background to his involvement and which also sets out his qualifications and experience. Suffice it to say that his own compilation of his curriculum vitae suggests that he was profoundly well qualified to carry out the task that the guardian set him. His report, when delivered, was extremely critical of Mr and Mrs K and unhelpful to their cause, namely the cause of rehabilitation.
8. Accordingly, the court allowed the parents to seek an expert of their own choosing. They were able, at short notice, to involve another psychologist, Mr Flatman who spent, as I am told, a day getting into the case, but ultimately seems broadly to have agreed with Dr Conn on all issues. As the judge said at page 3 of her second judgment:

"However, I have to take into account that, from the point of view of the children, the evidence of both Dr Conn and Mr Flatman, an expert called in on behalf of Mr and Mrs K, is that the problems caused by them and/or contributed to by them have caused these four children to be significantly harmed.

Dr Conn's evidence, with which Mr Flatman agreed, was that there was a deep-seated need for psychotherapy in both these parents, the length of which, if engaged, would be well outside any reasonable timescale applicable to T and R. I accept that Mr K does not does not in any way accept the findings of the experts. He simply cannot understand why the experts have given the evidence they have to this court. It must be said, however, that his demeanour in the witness box and the manner in which he dealt with the presentation of his evidence, and in response to cross-examination, demonstrated beyond anything the difficulties expressed by both Mr Flatman and Dr Conn in their reports, and reinforced me in my view that I must accept the evidence of Dr Conn and Mr Flatman, and in particular the guardian in considering disposal of these proceedings."

9. The judge then dealt with the facts. The parents' case was supported by the foster carer of the two younger children, Mrs Hammond. The judge said of that:

" ..... the fact that she had been embroiled in the machinations of the K family in the way she had gives credence to the other evidence that has been before this court, and in particular to that of the experts, as to the ability of Mr and Mrs K to manipulate. In saying that, I am quite prepared to accept that they may not realise that that is what they are doing; but that is the effect of what they do, and it is unacceptable."

10. Later in her judgment she said:

"My paramount consideration has to be the welfare of these children, and the evidence of the experts is so overwhelming in this case that there is no way, with the best will in the world, that either Mr or Mrs K, even if they committed tomorrow to therapy, would be able to accomplish what is required within a timescale that is reasonable for R and T."

11. The judge recorded on the next page of her judgment a very moving poem which Mrs K had written and which Mr Flatman had said was, on one level, a genuine expression of love. But he had continued that it was particularly a narcissistic opportunity to draw attention to herself. He continued that they, that is Mr and Mrs K, do it naturally. They occupy all the time and space. They expand their needs to fill the whole picture. The judge said of that:

"Unfortunately that is what I have found to be the case. They cannot help it, that is why they need help."

12. Later in her judgment she considered the Human Rights Act considerations at page 13. Then, in the final conclusion, having made the orders which she made, she said to the parents that -

" ..... there is no harder decision that a court has to make than to separate children from their parents."

13. The application to this court for permission to appeal is approximately 4½ weeks out of time. However Mrs K has explained this morning that that was a consequence of an out-dated leaflet available in the Canterbury County Court entitled "I Want to Appeal." The County Court have subsequently accepted that that leaflet should never have been available to members of the public and, accordingly, I place no reliance on the lateness of the application.
14. The case that has been advocated this morning entirely by Mrs K, on behalf of both of them, is as eloquent and as moving as the pleas that were put before the judge. She has reiterated that all she wants is a chance to prove that they can be the parents that society expects of them and that it is fundamentally unjust that they should have a continuing relationship with the two elder children, who they accept they have harmed, but not with the two younger children who they say have not been the victims of harm.
15. They have shown me correspondence that they have had with a Dr Millen in the USA to whom they have turned for support in their attempt to destroy the value of Dr Conn's opinion by the assertion that he misconducted the psychometric tests. They have also shown me recent letters from the local health services and, particularly, a long letter, dated 12th April, from Dr Robin Royston to Mr K's general practitioner. He explains why he was not prepared to do other than discharge Mr K from the books of his mental health or community health care team. However it is evident from reading Dr Royston's letter that he badly lacked information as to the background. He had to reach his assessments essentially on what Mr K told him.
16. I have also been shown a letter from the British Psychological Society which shows that the complaint that the parents have made against Dr Conn is to be considered by the society's Investigatory Committee on Wednesday, 22nd May. I have read Mrs K's response to that letter of notification, an extensive letter of 29th April. Towards its close she asked for copies of Dr Conn's submissions to the committee, but she says that her letter of 29th April has not been answered.
17. As a matter of principle, this is an application which does not meet the high tests set by this court in determining whether or not to allow the appellate process to expand into further hearings, whether adjourned hearings for permission on notice or for the full stage of appeal. After all, the judge had to reach what was an extremely hard decision on the evidence. As she acknowledged at the outset of her first judgment, this is a tragic case. But judges have to harden their hearts against tragedy and put, first and foremost, as their goal and target, the protection of children and the advancement of their welfare. The judge's findings at the first hearing in May were comprehensive and fully justified the local authority's subsequent design of the care plan. That judgment stands. As far as I know, it was not the subject of any application for permission to appeal.
18. The subsequent judgment had to reflect the gravity of those findings; it had to reflect her assessment of the personalties of the parents and, above all, it had to reflect the expert evidence of Dr Conn and Mr Flatman. In a sense, accepting, as she did, the evidence of Dr Conn and Mr Flatman, arriving at critical findings in respect of the parents' personalties, the care order that she made was an inevitable order supported, as it was, by the guardian ad litem. So, the almost inevitable judgment on this application for permission must be to dismiss it.
19. However there is one point that gives me real concern. If I were to dismiss this application today - 20th May - and if the Investigatory Committee at its meeting in two days' time were to uphold the complaint against Dr Conn and were to find that his methods of work were unprofessional or otherwise fundamentally flawed, then it could well be said that the underlying basis for the judicial decision on 7th December had been in whole or part undermined.
20. Accordingly, I will not dismiss this application for permission today. But I will invite Mr and Mrs K to send to the Civil Appeals Office, addressed for the attention of Mrs di Mambro, the outcome of the meeting of the committee on Wednesday next. Should the committee dismiss the complaint against Dr Conn, then this application will be dismissed. However in the event that thecommittee makes any substantial finding against Dr Conn, then I will give Mrs K the opportunity of restoring this application for further argument. In the meantime I will say that this judgment should be transcribed at public expense and made available to Mrs K so that she is in no doubt at all as to where she stands at the end of this hearing today. Mrs K is that clear?
21. THE APPLICANT MRS K: Yes, my Lord.
22. LORD JUSTICE THORPE: We will await the outcome of the committee's hearing on Wednesday. You must copy to Mrs de Mambro the letter of notification which you receive from the committee.
23. THE APPLICANT MRS K: Yes, my Lord.
Order: Application adjourned