COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR RECORDER TOLSON QC
PLYMOUTH COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LADY JUSTICE BLACK
| PLYMOUTH CITY COUNCIL
|- and -
Mr Jo Farquharson (instructed by Messrs Woollcombe Yonge) appeared for the First Respondent, the mother.
The Second Respondent father of the two younger children (Messrs Nash & Co. solicitors) did not appear and was not respresented.
The Third Respondents the children, acting by their Guardian (Messrs Foot Anstey solicitors) were represented by a written skeleton argument by Mr Mark Horton.
Hearing dates : 21st October 2010
Crown Copyright ©
Lady Justice Black :
"9…..If there is no reasonable prospect of rehabilitation with her then they must find a long term home away from their family and so care orders would be a minimum requirement. In K's case, if I were to make a care order, this would permit the care plan to be realised. He would remain in long term foster care. There are subsidiary questions concerning contact: his mother seeks more than the local authority is prepared to offer.
10. In the case of Co and C a care order would be but a step on the road to the realisation of the care plan which is for adoption of the children together, and with a relatively complex regime of contact to family members….If rehabilitation is ruled out then the local authority and the guardian invite me to make placement orders, dispensing with the parents' consent to placement for adoption under section 52(1)(b) ACA 2002 on the grounds that the children's welfare requires such consent to be dispensed with. A placement order would replace any care order. The care plan would then be realised, although again there would be subsidiary questions concerning contact."
"I hope that she will address her difficulties. I believe there is a chance that she may. However, the evidence is such that no sensible care planning could proceed upon the basis of the slim chance demonstrated."
"….this case is not 'heavyweight' in terms of the allegations against the parents, but is one that in terms of welfare disposal is subtle in many ways. I believe there are difficult questions concerning (i) the degree of disturbance to Co and C; (ii) the strength of their ties to their natural family; and, (iii) the Co's ability to 'bond' with female carers."
"(i) I am left troubled by the process by which she came to be instructed; (ii) her conclusions in respect of K and various other opinions offered during her evidence (some are mentioned later in this judgment) served to cause me to doubt her experience and expertise in this area; and as a result, I was left feeling on uncertain ground (iii) on all significant matters, in particular the degree of disturbance exhibited by the children; and (iv) the extent of [her] influence on the local authority and guardian."
Instruction of the psychologist
Expertise of the psychologist
"….on the application of those principles to this case, the judge was at liberty to depart from the opinion of the experts, even if unanimous, on issues of future placement and management and perhaps even on attachment, balancing risks as against advantages. But in this instance I am of the clear opinion that the expert evidence in the assessment of the father's damaged core personality and continuing emotional and psychological instability was not evidence open to the judge to reject simply on the basis of impressions which he had formed of the father, not as to his truth, but as to his core, from witness box exposure." [my italics]
"Even the most experienced and insightful family judge does not have the specialised training and skills of consultant psychiatrists and paediatricians who spend their lives working with damaged adults and children. Discourse between a judge and a witness in the course of a contentious hearing is very different from that which can take place in a consulting room."
"I was a salaried NHS worker on my Doctorate. It is funded by the NHS and then I obtained a full-time job….in the Child and Adolescent Mental Health team doing part-time Sure Start, which is an under 5s project, and part-time for the generic Child and Adolescent Mental Health Team…"
She explained that the Sure Start post had ended but she remained in the other post. The work she did alongside it for the company had involved 7 or 8 cases.
Recommendation of adoption for K
"was to offer several opinions that I do not believe would have been offered by someone with more experience."
"it was only after the difficulties [with adoption for K] had been pointed out to her in a string of well-formulated questions on behalf of the mother that she even considered long-term fostering for K."
"deserves the opportunity to have a permanent sense of family who want him to join their family. This differs from long-term fostering in which a child is never permanently 'claimed' by the carers (although I do appreciate that foster carers with alternative motivation to foster do exist) and thus there is a greater possibility of placement change and being placed with respite carers during his childhood. A child with attachment difficulties would not do well, emotionally, with being placed with respite carers at all and would only reinforce the child's internal sense of isolation, abandonment and self-reliance. That would be detrimental to the long-term prognosis for K in terms of him being enabled to develop healthy and trusting relationships with a primary carer." (Supplementary Report paragraph 10).
Other opinions offered during her evidence
"This may be the first time in her 5 ˝ years that Co has been able to achieve these gains. They should not, in my judgment, be underestimated. I am troubled because of [the psychologist's] inexperience in accepting her picture of Co as a disturbed child with complex needs. However, if she is right in this – and she may well be – then little of it appears to be showing at present after a year in Mr and Mrs B's care."
"I guess I wouldn't want the court to get too caught up on this idea that Co is going to sabotage her placement through the female carer."
"In an adoptive placement, the [requirement that the children be the only children in the placement] would probably mean that the children would be with first time parents: this does not sit easily in my judgment with [the psychologist's] view that particularly skilled parents would be required for these children."
They submit that the Recorder's reference to "particularly skilled parents" shows that he had not understood the psychologist's evidence correctly and this led him to be unfairly critical of her. What she was saying, the local authority say, was that the children needed "a good deal of parenting", that having a teenager present would distract from meeting their needs, and that Co needed someone who was there no matter what. This did not mean, they submit, that she was advising that they needed particularly skilled parents but that they needed a lot of attention and time.
"First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc. v. Medeva Ltd.  RPC 1:
"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. ….. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
These observations about the constraints of time and language, whilst expressed here in the context of findings of fact and the evaluation of such findings, are equally valid in relation to other aspects of a judgment.
Adoption versus fostering for these children
"In short, nowhere can I find any thought process that has led the local authority or the guardian on from the point of the crossing of the threshold and the ruling out of rehabilitation (i.e. the outcome of the care proceedings) to a conclusion that only adoption will do for the 2 younger children. The documents read as if is simply the age of the children – that is to say a general principle – that leads to the conclusion…..In many cases involving no established family connections and little 'baggage' that might be sufficient, but I do not believe it is so in this case."
"….it tends to confirm my view that there has been too much emphasis on a supposed principle in favour of adoption for children of these ages and insufficient concentration on the particular circumstances of these children."
Grounds 9, 10 and 11: the factors taken into account by the Recorder and his balancing of them
The outcome of the local authority's appeal against the dismissal of the placement orders
Ground 1: final care orders should not have been made when rejecting the placement order applications
Lord Justice Toulson
Lord Justice Carnwath