England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
MR RECORDER SAPSFORD QC
LOWER COURT NO: LS09C05050

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/09/2009

Lord Justice Wilson:

1. Calderdale Metropolitan Borough Council ("the local authority") appeal against a refusal by Mr Recorder Sapsford QC, sitting as if in the Leeds County Court on 29 July 2009, to find that, in relation to a child, the threshold set by s.31(2) of the Children Act 1989 ("the Act") for the making of a care order had been crossed. The child was a girl, M, who was born on 24 January 2009 and who is therefore aged eight months. She was taken into the interim care of the local authority on 27 January 2009. Such was therefore the date in relation to which the local authority had to satisfy the recorder that the threshold had been crossed.
2. Another, older, half-sibling of M was also the subject of parallel proceedings which the recorder was considering at the same time. She was a girl, O, who was born on 1 August 2007 and who is therefore two years old. The girls share the same mother but have different fathers. O's father plays no part in the proceedings and thus it will be convenient to describe M's father as "the father". O had been taken into interim care on about 7 November 2007, i.e. when she was aged about three months. Both children remained in short-term foster care under interim care orders at the time of the recorder's judgment.
3. It was prior to the birth of M that the recorder had embarked upon the hearing in respect of O. He conducted that part of the hearing for five days beginning on 1 December 2008 and then adjourned it in order that a psychological assessment might be obtained in respect of each of the parents. The recorder knew that the mother was heavily pregnant; and no doubt it was anticipated that, when the baby was born, care proceedings would also be taken in respect of him or her and that they would be consolidated with the proceedings in relation to O. Such was what occurred. Thus when, on 22 June 2009, the recorder embarked upon a further, albeit interrupted, hearing of eight days, such related to M as well as to O. On 8 July 2009 the hearing was concluded and the parties filed written final submissions. Following its dissemination to the parties in draft, the recorder's written judgment was handed down at a hearing conducted by video-link between him in London and the parties and their advocates in Leeds on 29 July 2009.
4. For reasons which I will explain, there was never any real doubt but that, in respect of O, the threshold was crossed on the basis (to which the local authority ultimately confined their contention) that she was likely to suffer significant physical and emotional harm. During the hearing in June/July 2009 the mother formally conceded that, in respect of O, the threshold was crossed; the father reasonably took the line that, in that O was not his child, it was not for him formally to associate himself with that concession. The only live issue in relation to O, fully recognised even at the time when the hearing was adjourned on 5 December 2008, was whether the parents had, between November 2007 and the date of the hearing, made sufficient progress in stabilising their lives to make the rehabilitation of O to them the optimum outcome for her. In relation to M, however, the parents made no concession about the threshold and actively argued – albeit not at length – that it was not crossed. Perhaps their lawyers considered that a concession that, in January 2009, M had been likely to suffer significant harm might detract from their essential case that the time had come for the court to restore both the girls to their care. The resumed hearing beginning on 22 June 2009 was thus an amalgamation of what was in reality only an outcome hearing in respect of O with what was both a threshold and, if crossed, an outcome hearing in respect of M. Although it was obviously appropriate that the proceedings should be thus consolidated, the addition of proceedings in respect of other children to existing care proceedings may give rise to a danger that issues will become blurred: see the judgment of this court in Re P (children) (care proceedings: split hearing) [2007] EWCA Civ 1265, [2008] 1 FCR 74.
5. In the consolidated proceedings the local authority were of course the applicants. The mother was the first respondent. The father was the second respondent. The maternal grandmother, who has the permanent care of a third child born to the mother by a third father, namely a boy now aged four, was the third respondent. And the girls, by their Children's Guardian, were the fourth and fifth respondents.
6. The care plans in respect of the girls were that they should be placed for adoption; and so applications for placement orders were added to the applications for care orders. The Children's Guardian supported the care plans. As I have indicated, the parents opposed them. In the event the recorder decided that, in respect of M, the threshold was not crossed. The result, of course, that she should return forthwith to the home of the parents. She has not done so only because, in granting permission to appeal on paper, Hughes LJ made a care order referable to her under s.40 of the Act pending conclusion of this appeal. In relation to O, the recorder's decision was that the parents had made such strides since November 2007 in ordering their lives that, on a trial basis, the optimum outcome for her would be that she should be restored into their care. Unsurprisingly the recorder preferred that O's return to the parents should, at any rate initially, be under the auspices of a full care order and, to that end, he adjourned the hearing in relation to O in order that the local authority might consider whether, in the light of his judgment, to amend their care plan in order to embrace his proposal of rehabilitation. He provided that a further hearing should take place by video-link yesterday, at which he should receive the local authority's considered response.
7. Mr Harrison QC, who today appears with Mrs Cross on behalf of the local authority, tells us that, notwithstanding their substantial continuing reservations about the viability of rehabilitation, the local authority are looking with cautious respect at the recorder's conclusions, in particular through the eyes of a freshly appointed social worker; and that yesterday Mrs Cross indicated to the recorder that, given time (namely about three months) in which to make substantial further enquiries, for example with the psychologist, and to develop a raft of proposals, the local authority might perhaps then amend their care plan as in principle to accord with the recorder's conclusion. Mr Harrison points out, for example, that one of the recorder's findings was that the mother had an unhealthy emotional dependence on the maternal grandmother and that, in the final paragraph of his judgment, he wrote:

"In my judgment, rehabilitation is more likely to be successful if the grandmother withdraws from the day to day lives of Mother and Father and the children. Although I cannot make such an order, I would nevertheless invite the Local Authority to look into the possibilities of providing the couple with suitable alternative accommodation away from their present environment."

Mr Harrison convincingly points out that any geographical separation of the two households (which presently lie within ten minutes' walk), even if practicable, will take time and that, in the light of the facts both that the grandmother is looking after the mother's son, with whom both she and the girls have contact, and that at present the mother is indeed emotionally dependent on the grandmother, the problems of achieving greater separation between them are far more than geographical.

8. Mr Harrison goes on to tell us, however, that yesterday the recorder responded that a delay of three months would be likely to be unacceptable for O; and that he adjourned the hearing only until 22 September, pending the outcome of this appeal and on the express basis that, absent the filing of an amended care plan by then, he might well replace the interim care order referable to O (and, subject to this appeal, any such order referable to M) with only a supervision order (or orders) in order to achieve the restoration of the girls then and there to the parents. Cooperation between the court and the local authority in an awkward situation of this kind is very greatly in the interests of O (and of M); and I hope that there might be some give-and-take on both sides in relation to timing which would preserve the potential for it. All of us would no doubt wish to avoid another appeal by the local authority on 22 September against an allegedly premature restoration of the girls to the parents, otherwise than under care orders made pursuant to amended care plans which, given more time, the local authority might well have been prepared to place before the court.
9. It is of course by no means theoretically impossible for the court to find the threshold crossed in relation to one child of the mother but not in relation to another. In the present case the dates at which the threshold was required to be crossed were, of course, different. Nevertheless it is accepted by counsel to be unusual for a court to reach opposite conclusions about the threshold in relation to two half-siblings in circumstances in which the evidence showed such gross parenting deficits as were shown in relation to O as at November 2007 and in circumstances in which the date relevant to the enquiry referable to M was only 14 months later.
10. In this appeal in which the local authority invite this court both to set aside the judge's refusal to find that, in relation to M, the threshold was crossed and to substitute a finding that it was indeed crossed, they are supported by the Children's Guardian. Opposition to the appeal comes, of course, from the parents, supported by the grandmother. But Mr Bickerdike, who appears in this court on behalf of the father, courageously concedes that, in his approach to the threshold in M's case, the recorder "probably" made an error and that most, albeit (so he submitted) not all, judges properly instructing themselves would have found that the threshold was crossed.
11. In the recorder's own word the mother's lifestyle between the date of O's birth and the date, about two months later, when she was taken into care was "chaotic". During that period the mother began her relationship with the father, who was a heroin addict and had a history of criminal activity, including for violence, which had already caused him to spend about ten years of his life in prison. During those two months the mother herself was misusing both drugs and alcohol and was admitted to hospital following an adverse reaction to them. She was moving with O from home to home; she was refusing to cooperate with the housing support officer in securing a proper home for O; and, when O herself was admitted to hospital with bronchiolitis, the mother three times refused even to disclose her address to the hospital. The mother was using her sister, whose own children had been taken into care, as a carer for O; and on other occasions the mother took O with her to a friend who was also abusing drugs and alcohol and brought her into contact with other drug users and addicts. There was also an occasion when the father grabbed the mother's throat, apparently while she was holding O.
12. The recorder found that the removal of O from the mother in November 2007 had so affected her that she had, during the following period of 20 months, reformed her life. His finding was that she had forsaken all use of alcohol and drugs, as had the father who, instead, had been placed on, and had adhered to, a methadone programme. The fact remained, however, that in March 2008 the mother had made elaborate allegations of continuing physical and indeed sexual abuse on the part of the father towards her; but, almost immediately, she had retracted the allegations as false, initially on the basis that they had been precipitated by her ingestion of the anti-depressant drug, amitriptyline. Of course, whether they were true or false, the very existence of the allegations was a source of considerable concern. Furthermore in July 2008 the mother had cut her wrists. The fact remained, however, that the conduct of the parents during periods of supervised contact with O and, once born, also with M had been exemplary; and it is clear that both parents made a profoundly favourable impression upon the recorder during their no doubt extensive appearances in the witness box.
13. I must be careful not to fall, or even be thought to fall, into the trap into which the recorder is said to have fallen. I must not confuse his conclusion about the optimum outcome for O with the subject-matter of this appeal, namely the threshold in respect of M. Nevertheless it is of relevance to the appeal to note that the recorder's conclusion that the changes in the parents since November 2007 were sufficient to justify the attempted rehabilitation of O into their home was not a conclusion shared by any of the professionals who gave evidence to him. This the recorder squarely recognised. Four professionals, namely a social worker, the clinical psychologist for whose report the recorder had directed the adjournment in December 2008, an independent social worker and the Children's Guardian all gave evidence that the changes were too insubstantial to warrant rehabilitation. A fortiori those witnesses suggested to the recorder that M had in January 2009 been likely to suffer significant harm.
14. The role of this court today is to enquire into whether the recorder's conclusion of mixed law and fact that the threshold in relation to M was not crossed is a conclusion which is (to use a general word not in my view inappropriate in this context) safe.
15. The crucial authority in relation to the likelihood of significant harm for the purposes of s.31 of the Act is the decision of the House of Lords in In Re H (Minors) (SEXUAL ABUSE: STANDARD OF PROOF) [1996] AC 563 and in particular the speech of Lord Nicholls. In this context there are three crucial passages in his speech. First, at 585F,:

"In my view, therefore, the context shows that in s.31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."

Second, at 590 B – C,:

"The same, familiar approach is applicable when a court is considering whether the threshold conditions in s.31(2)(a) are established. Here, as much as anywhere else, the court's conclusion must be founded on a factual base. … That is clearly so in the first limb of s.31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm … Similarly with the second limb: there must be facts which the court can properly conclude there is a real possibility that the child will suffer harm in the future."

And third, at 592G,:

"… Parliament decided that the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low."

16. Of the exposition of Lord Nicholls, the most important feature for the recorder to have carried into his analysis was, obviously, that the requirement that the significant harm should be "likely" did not mean that it had to be "probable" in the sense of "more probable than not" but that it had only to be a real possibility or one which could not sensibly be ignored.
17. The fact is that, although, as I will show, he had before him the decision in In Re H, the recorder did not, in his reserved, written judgment, advert to this feature. In my view his omission to advert to it should not be regarded as fatal to the safety of his conclusion if the surrounding statements in the judgment support an inference that he had it well in mind.
18. Unfortunately I have been reluctantly drawn to the conclusion that on the contrary the statements in the recorder's judgment which surround his conclusion about the threshold generate real concern about his approach to the word "likely". The recorder announced his conclusion in the following terms:

"In respect of [O], the threshold is conceded. In respect of [M] in my judgment, the local authority have not satisfied me to the required standard … It does not follow that the threshold is met in relation to [M] because it is conceded by the mother in relation to [O]."

The question clearly arises: what was the standard which the recorder considered to be "required"? The answer seems likely to be collected from his remarks which immediately followed. He said that the test which he had applied in reaching his conclusions was as set out by the House of Lords in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS Intervening) [2008] UKHL 35, [2009] 1 AC 11, insofar as the House there explained its earlier decision in In Re H, which I have cited above. Thereupon the recorder cited first the passage in the speech of Lord Nicholls in the earlier case about the sliding standard of proof on the balance of probabilities and then the passages in the speech of Baroness Hale in which she rejected any sliding standard of proof and stressed that the standard of proof in the finding of facts in care proceedings was the simple balance of probabilities irrespective of the seriousness of the allegation. Although the balance of probabilities did properly play a part in the recorder's enquiry into the threshold in M's case, in that it had to be established on that balance that there were facts from which a real risk of significant harm might be inferred, the recorder's decision to explain his conclusion only by reference to aspects of jurisprudence which stress the balance of probabilities increases the index of my concern that he equated likelihood with probability.

19. When, prior to 29 July 2009, the recorder disseminated his draft judgment to the parties, some counsel made written comments in relation to them for his consideration prior to hand-down on that date. In her written comments counsel for the mother stated that it would assist the parties in relation to his finding about the threshold were he to clarify his reasons for rejecting the evidence of the psychologist and of the independent social worker that in January 2009 there was a likelihood of significant harm to M. In that regard she suggested four reasons why the recorder might have rejected the evidence of the psychologist and five reasons why he might have rejected the evidence of the independent social worker. In the event, as was of course his right, the recorder declined to add to his judgment in those respects.
20. There were, however, two very important alterations which the recorder made to his judgment following submissions by counsel prior to 29 July 2009. For, in a paragraph shortly after that which contained his conclusion about the threshold in M's case, he had, in his draft judgment, written:

"In my judgment, the care plan which was only finalised in May 2009 can also implement a trial rehabilitation with the Mother of her daughters."

Then, in a later paragraph, he had added three further sentences, as follows:

"In my judgment, the welfare of the children would be met by placing them with their parents for a trial period of 6 months when the Court will review the placement. I propose therefore to invite the Local Authority to reconsider their position and submit amended care plans. The children would remain under interim orders in the meantime but with very close supervision."

In their responses counsel of course pointed out to the recorder that his conclusion in relation to the threshold in M's case precluded the making of a further interim order in her case; precluded her return to the parents only for a trial period of six months; precluded very close supervision thereof; and precluded a review after six months. For the effect of his conclusion was, of course, that the proceedings in relation to M came to an end and she fell forthwith to be returned to the parents without any continuing local authority control. The recorder reacted to counsel's responses by altering his draft judgment so that the first sentence quoted above read that the trial rehabilitation should be only of O, rather than "her daughters", and so that the third of the additional sentences quoted above read that O, rather than "the children", would remain under an interim order. In the event, however, the recorder did not alter his references in the additional sentences to the placement of both children with their parents only for a trial period of six months; or to a review thereafter; or to the need for the submission of amended care "plans" rather than an amended care "plan". Most judges are – I know that I am – occasionally at risk of demonstrating in judgment a degree of confusion and inconsistency. But it is, I fear, obvious not only that, when he wrote the two later paragraphs, the recorder forgot the effect of his conclusion in relation to the threshold but also, more importantly, that he considered that the safety of M, as well as of O, required a degree of continuing local authority control following what should be only a trial placement back with the parents. That central conclusion of the recorder, taken in the context of unanimous professional opinion that it was too dangerous to restore either of the children to the parents at all, seems to me to be consistent only with a conclusion that, in M's case, there was a likelihood, or that certainly in January 2009 there had been a likelihood, that she would suffer significant harm if placed with the parents otherwise than under a care order.

21. For the above reasons I have been driven to the conclusion that the recorder's conclusion in relation to the threshold in M's case is unsafe and that it should be set aside. Should we go on to substitute a conclusion that the threshold was indeed crossed or should we remit the matter to him for further consideration? As I have just foreshadowed, I consider that the weight of the evidence – and of the recorder's own conclusion about the need for very close supervision of M in the months following what should be only a trial restoration to the parents – should embolden us to substitute a conclusion that the threshold was crossed. I propose that we should also make an interim care order referable to M so as to endure until the conclusion of the hearing to be conducted by the recorder on 22 September 2009. The patently beneficial result is that the court will now have precisely the same powers in relation to both of the girls.

Lord Justice Sullivan:

22. I agree.