England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th February 2009

Lord Justice Thorpe:

1. On 9 October 2008 HHJ Michael Taylor, sitting in Newcastle, had before him an application for an interim care order in respect of five children of the mother. They are respectively J1, who is 11; C, who is 8; D, 6; J2, 3; and R, 2. The application was brought by the Northumberland County Council and resisted by the mother in particular. There had been indications from the judge at the trial stage that he was not minded to remove any of the five on an interim basis, but there had been developments in the two or three days before the 9^th which caused concern. He heard extensive submissions from the parties represented over the course of the 9^th and reserved his judgment to enable him to reflect overnight and to announce his conclusion at 2.00pm on the following day. In his judgment he decided that the mother could cope in the interim with the three elder children, but that leaving all five with her was setting her up to fail, and that the wisest course was to remove the two younger children to foster care during the interlocutory stages of the case. There were specific areas of concern in relation to those two younger children.
2. The essential reasoning of the judge is to be found in paragraphs 26 and 29, where he explains that, in his words:

"I think this is a case for partial removal. I am satisfied that there is a real risk of harm to the two younger children. I think mother is over-stretched. I think that the breakdown of her relationship with [CP … has left her without some support]."

And then in paragraph 29 he says:

"Therefore, given those circumstances, I think that mother can cope in the relative short term whilst enquiries are carried out with the three elder at home. I think if she has to have [the two younger] at the same time whilst the assessments are going on and leading up to the hearing […], I fear her prospects at the hearing will be less good than they will be if she is caring for the three of them. If she can successfully demonstrate over the next months that she can care properly [with the three elder children], it will put her in a stronger position to seek the return of the other two children to her care."

3. The application for permission was brought to this court and was the subject of a very recent direction by Wall LJ for listing on notice, with appeal to follow if permission were granted. That order recognised that there had been substantial developments in the court below in the interim, in particular an order that the judge had made in relation to the three elder children was withdrawn and rightly withdrawn, and he had reaffirmed his decision that the two younger children would be better served by the continuation of the foster placement. So it was essentially to give the mother an opportunity to argue in this court that the younger children should be with her during the interlocutory stages that Wall LJ made his direction.
4. So we have this morning Ms Sweeting, who has consistently represented the mother, advancing her application for permission in the face of opposition from Mr Gray for the local authority, Ms Smith for one of the fathers involved, Mr D, and Ms Giovanni for the guardian. We have not called on the respondents since, with all due respect to Ms Sweeting's submission, I regard this application as without solid foundation. The main complaint is that the judge did not sufficiently warn Ms Sweeting of the possibility of removing only two of the children; and accordingly, she says that she did not have sufficient opportunity to address his principal concern that leaving all five with the mother was setting her up to fail. Mr Gray for the local authority says that the possibility had been mooted during the course of his submissions.
5. But even assuming that Ms Sweeting is correct in her complaint, it would not in my view justify the grant of permission, since it was not a complaint that she raised with the judge in advancing her application for permission to appeal. As she has frankly said, it is something she has conceived of later. Mr Lord, Hughes LJ, directed her to the reality that, even had she raised the objection, there was really nothing that she could have added to her submissions which she had not already said and which had not been already considered by the judge.
6. So in reviewing the decision in relation to the two younger children, I reach the conclusions that (1) the judge directed himself correctly as to the law; (2) that he exercised a very broad discretionary decision; and (3) that he sufficiently reasoned his conclusion. So, on those three grounds I would refuse the application for permission.
7. However, I add as a footnote that very recently reports have been received, in great detail, from a chartered clinical psychologist and also from an independent social worker. Those two reports demonstrate beyond doubt that the decision taken by the judge -- a discretionary decision taken by the judge -- has proved with hindsight to have been a wise one, and it would be unthinkable for this court to accede to Ms Sweeting's submissions and to return the children to the mother between this date and the date of the final hearing at the end of July. So I would simply refuse the application for permission.

Lord Justice Lloyd:

8. I agree.

Lord Justice Hughes:

9. I also agree.

Order: Application refused.