England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TAUNTON COUNTY COURT
H.H. JUDGE O'MALLEY
(LOWER COURT NO TA06C00018)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/07/2007

Sir Mark Potter, P:

1. This is the judgment of the court. It concerns an appeal by Somerset County Council ("the local authority") against an interim disposal of care proceedings made by His Honour Judge O'Malley in the Taunton County Court on 12 March 2007. The orders which the judge made following a very short hearing on that date were largely consequential upon a reserved judgment which he had disseminated on 19 February 2007, following a four day hearing beginning on 12 February 2007, at which the parties contemplated that the local authority's application for care orders would be the subject of a final disposal. Whilst that reserved judgment is not formally the subject of the appeal, the local authority in effect attack the judge's reasoning within it just as much as, the short judgment dated 12 March 2007 which was its consequence.
2. The orders were made in care proceedings relating to a family of six children, namely a boy, L, now aged ten, a girl, K, now aged eight, a girl, C, now aged seven, a girl, E, now aged six, a girl, T, now aged four and a girl, L, now aged three. It will be convenient in this judgment to describe the first respondent as the mother and the second respondent as the father. However, the descriptions are not strictly accurate. The oldest three children are the children of the mother by the third respondent. The fourth child, E, is the child of the father and the fourth respondent. Neither the third nor the fourth respondent has taken part in the proceedings other than to express support for the local authority's applications. The two youngest children are the natural children of the mother and the father. All six children are represented in these proceedings by their Children's Guardian, Mr Beauchamp.
3. The mother and the father began to cohabit in 2001 and were married in 2002. Following a period of separation between 2002 and 2003, all six children resided with them until 6 June 2006, when, in circumstances to which we will shortly refer, they were taken into short-term foster care. They continued in short-term foster care, and at the time of the hearings in February and March 2007, they were spread between four different foster homes where, as result of the judge's determinations, they still remain.
4. At the substantive hearing in February 2007 it was the contention of the local authority, supported by the guardian and the expert witnesses, that all six children should be made subject to full care orders under plans which propose that, subject in the case of L to the possibility that he might remain in his existing foster home as a long term placement, all six children should be adopted. In his judgment on 19 February 2007 the judge refused to endorse the care plans and instead decided that, in his words, "there was still time to explore the possibility that the parents might be able to address their problems and provide a family home for the children". He stated that he favoured "an initially short postponement of the final decision in order that the parents may have a final chance of keeping the family together". He directed that the applications be restored to him in the following month for further directions in order that he could discern the amount of progress which the parents had made in the intervening weeks. On 12 March 2007, at a hearing which lasted for about one hour and at which no further oral evidence was given, the judge surveyed a few letters referable to some efforts which the parents had apparently made in starting to address their problems and thereupon he made the orders under appeal. Instead of making full care orders he made interim care orders. He directed the parents to file further statements and that the matter be listed before him for further directions on 10 April 2007. At the same time he gave permission to the local authority and to the Children's Guardian to appeal to this court against his refusal to make permanent care orders.
5. In the event it is only the local authority which has brought the appeal; however the Children's Guardian actively supports it. The parents, of course, oppose it.
6. When, on 28 June 2007 we heard this appeal, the situation immediately confronting us was that, as a result of the judge's decision, right or wrong, the parents had three months earlier received an indication from the court that they were to be given one further opportunity to demonstrate improvement in their capacity to care for their children to an adequate extent and directions had been given and acted on to that end. Without opposition, the local authority, the mother and the father, by their counsel, all invited us to look at a number of documents upon which the parents sought to rely by way of additional evidence which were reflective of attempts, whether significant and sufficient or otherwise, on the part of the parents to take the opportunity which the judge had given to them. Very properly, notwithstanding their profound disagreement with the disposal favoured by the judge, the local authority had, without prejudice to the appeal, entered into a written agreement with the parents for specified steps to be taken along the path which the judge had favoured, a number of those steps having been implemented.
7. From the outset of the hearing before us, we were exercised by the fact that, whatever the strength in principle of the arguments of the local authority and the guardian against the course favoured by the judge, the fact was that over three months had passed in which, at the judge's invitation, the parents had taken certain steps, (the sufficiency of which is in issue,) towards being able to present themselves as adequate candidates for the resumption of care of the children. The local authority, supported by the guardian, were nonetheless inviting us to hold that these steps were insufficient and to conclude that, in all the circumstances, the prospect of rehabilitation of all or any of the children to the parents, or to one or the other of them, was so remote that we should allow the appeal, approve the care plans, make full care orders and allow the permanent placements of the children to proceed. The parents on the other hand were protesting vigorously at the negative construction placed and prognosis advanced by the local authority and the guardian upon the recent evidence.
8. At the end of a short hearing, we announced that we felt unable to take the course commended by the local authority. It was now June 2007, not February or March 2007, and there had undoubtedly been some (albeit disputed) progress by the parents. As a result, it was necessary for there to be a more professional, measured appraisal of whether, in the circumstances which now obtain, there was a sufficient prospect, within an acceptable time frame, of reunification of the children with the parents so as to permit further investment of the children's time in exploration of it. That was an appraisal which, on the material before us, we were in no position to conduct. We therefore stated that, for reasons which would be given (and which we now set out), we proposed to allow the appeal; however, instead of making full care orders, we would transfer the application for such orders, together with the applications for adoptive placement orders which have never been heard, to the High Court, Family Division and direct that they be heard by Mr Justice Coleridge, sitting either in Exeter or in Bristol, on 26 and 27 September 2007.
9. In those circumstances we consider it appropriate to give our reasons shortly and in general terms.
10. On a superficial level, as the judge clearly considered, there are parallels between the facts of the present case and those in a case decided in this court a year ago, namely Re L (children)(care proceedings) [2006] 3 FCR 301. As in Re L, the facts in the present case are not that the parents had actively mistreated any of the children but rather that, by reason of their own personal difficulties and deficits, they had been struggling to provide adequate care for the children. In particular, the parents in the present case, unlike those in Re L, have, among their other difficulties, been beset by a drink problem which has seriously undermined their capacity to provide safe and consistent care and attention for the children. The other parallel with Re L is that the removal of the children into foster care was precipitated by an allegation of fact (in this case violence on the part of the mother towards the fourth child E) which, at an earlier fact finding hearing, had not been established to the satisfaction of the judge. In other major respects, however, the cases were very different.
11. By, at any rate, 2005 (before any suggestion of violence arose) the local authority had become concerned about inadequacies in the parents' care of the children. A core assessment conducted in November 2005 articulated concerns about neglect of the children, including missed medical appointments, poor school attendance and lack of routine; about the alcohol consumption of the parents; and about their lack of response to professional involvement. By March 2006 the local authority's concerns had increased and all six children were placed on the Child Protection Register as being at risk of neglect and emotional abuse. Ultimately, on 1 June 2006, the local authority issued an application to the court for supervision orders.
12. On 6 June 2006, however, a large bruise was noticed at school upon the face of E. She apparently indicated that the mother had caused it by kicking her. That incident precipitated the immediate removal of all six children into short-term foster care and the substitution of an application by the local authority for care orders. In the event, following a threshold hearing conducted by the judge on 7 and 8 November 2006, at which the father gave evidence but which the mother felt unable to attend, the judge surveyed the evidence of her assault upon E and found the allegation not established.
13. Despite this finding, it was agreed; by all parties that the threshold set by s.31 of the Children Act 1989 was crossed by reference to a number of other matters. By a "threshold document", to which all parties subscribed, it was agreed that in June 2006 all six children had been suffering or were likely to suffer emotional harm, including in particular neglect; that the children had not been attending school regularly or had been late in attending it; that there had been a long history of failed medical appointments referable to them; that clinical depression suffered by the mother had affected her ability to care for them and had led to unacceptable levels of her shouting at the children; that the children had been exposed to noisy arguments between the parents; that the care of the children was likely to have been significantly affected by excessive alcohol consumption on the part of the parents; that the father was suffering from alcohol-induced neuropathy; that in June 2006 he had been consuming excess alcohol on a daily basis, namely about four litres of beer or cider; and that the parents had not engaged with necessary efforts on the part of the local authority to support them.
14. At the second stage of the hearing, namely as to "disposal" or "outcome", conducted over the four days in February 2007, the parents did not attend court at all. Counsel appeared on behalf of each of them and regularly took instructions from them by telephone. Their counsel explained to the court that the parents considered that the pain attendant upon their presence at a hearing at which in their view the children were likely to be placed for adoption would be intolerable. Evidence was given by Dr Airey, a consultant adult psychiatrist, who had undertaken an assessment of both parents; by Dr Blagg, who had prepared a psychological report on the parents and the children; by the allocated social worker and by the guardian. In broad terms that professional evidence was unanimously to the effect that the problems confronting the parents and preventing them from providing adequate care for the children were so chronic that there was no reasonable chance of sufficient improvement within a time-frame appropriate for the children, in view of their ages and particularly in light of the fact that they had already been in short-term foster care for about nine months. That said, however, Dr Blagg in particular admitted that he had found the case "hugely difficult" and that, were the father able to abstain from alcohol for upwards of a year, the prospects for reunification of the family might change completely.
15. It was the submission of the local authority and the guardian to us that, although of course the judge was right to note the bias in the law in favour of a life for children with their natural parents where possible, the evidence before the judge was such, and the overall assessment and prognosis of the experts so clear, as to justify the conclusion that the prospects of parental improvement within the relevant timeframe were insufficient to justify any further delay in making the final decision. They also complain that the judge did not explain his apparently contrary conclusion in any sufficient detail, not least because he was, departing from the unequivocal recommendation of the Guardian and the stated views of two experts. There is no need for us to rule upon these arguments and, in the light of our disposal of the case; we consider it preferable not to do so.
16. We are clear, that the local authority's appeal has to be allowed for a different, although linked, reason. Upon the assumption that even on the evidence before him (and he had not heard from the parents), it was nonetheless open to the judge in February and March 2007 to decline to make the orders sought by the local authority, and given that his intention was to provide the parents one further opportunity to demonstrate swift improvement, it was plainly incumbent upon him to provide a far more focussed and specific framework for the future conduct of the applications than he saw fit to provide. The regrettable position is that, not only did he fail to provide that framework on 12 March 2007, but he has since equally failed to do so, in effect dealing with the matter on a "pillar to post" basis with, even now, no structure or timetable provided for a final decision to be reached. Shortly the position is as follows.
17. All the judge did in February 2007 was to disseminate his judgment and to direct a short further hearing before him for directions a few weeks later. At the short further hearing on 12 March 2007 he did no more than to renew the interim care orders referable to the children; and to direct the parents to file further statements by 4 April 2007, listing the matter for further directions before himself for 30 minutes on 10 April 2007. In his short judgment, having surveyed recent letters from an alcohol addiction unit run by a local charity named "Turning Point" and from the father's GP, the significance or otherwise of which is better weighed by Mr Justice Coleridge in September than by us now, the judge said that he considered that the parents had done enough during the preceding three weeks to prevent him from making full care orders; that he considered that there should be a succession of further interim care orders; that a plan for reunification was urgently needed; that the court should keep control by renewing interim care orders until it was in place; that it was not for the court to devise a scheme whereby the parents should confront their problems, and in particular their addiction problems; that there was doubt whether the local authority would assist the parents in this regard; that it was for the parents' solicitors to put together some package or programme for them; and that "after a passage of time" it would be useful for Dr Airey and Dr Blagg to see the parents again and to assess their progress. At the subsequent short directions hearing on 10 April 2007 the judge repeated much the same sort of exercise and expressed much the same sort of sentiments as at the hearing on 12 March.
18. Both on the Western Circuit and in this court Judge O'Malley is held in profound respect in his conduct of family proceedings; and the present case well demonstrates the depth of his compassion and, perhaps also, of his courage. Nevertheless we are clear that, assuming it was properly open to him to take the course that he did, it was essential in the interests of the children that he should have required a specific raft of proposals to be laid before the court, analysed in detail on all sides, and, to the extent that they were approved, made the subject of directions. In particular, he should have laid down a specified timeframe providing for the judge's further substantial review, not at a series of short directions hearings, but at a hearing at which there would be a proper opportunity for consideration of whether, in the light of the sincere but no means confidence building efforts of the parents, investment of yet further time was justified, by reference, of course, to the best interests of the children. In other words, we consider that the judge's disposal fell substantially short of what was necessary by way of ongoing judicial control of the proceedings.
19. The appeal has, in our view, to be allowed not on the basis, which we have put to one side, of whether it was open to the judge on the evidence to make interim care orders rather than full care orders but on the basis that his order dated 12 March 2007 failed to lay down the focussed directions necessary for a timely final disposal.
20. As is already apparent, we consider that the preferable course is for transfer of the matter to a High Court Judge, namely Coleridge J, to conduct the remainder of the proceedings until their conclusion, whether in September 2007 or at a later date. In remitting the matter to him, we have no intention that he should hear the proceedings de novo. It is clear and it is accepted that, in his judgment disseminated on 19 February 2007, Judge O'Malley accurately summarised the history and background and the evidence which he had heard. It is in our view both practicable and desirable for Coleridge J to inherit that summary of the evidence as to the position in February 2007; to focus upon the various strands of evidence referable to events since February 2007; and to determine whether, in the light of the success or otherwise demonstrated by the parents in addressing their difficulties, it is in the interests of the children to continue further down the path favoured by Judge O'Malley or whether a final care order should be made. Thus, for the purposes of that hearing, we have, with the consent of all parties, made a series of directions with a view to the efficient collection and presentation of the relevant evidence as to the parents' progress including its professional appraisal by Dr Airey, Dr Blagg and the Guardian. We have also ordered that the parents attend and give evidence at the hearing on 26/27 September 2007.