Case No: B4 / 2011 / 1582 
Neutral Citation Number: [2011] EWCA Civ 1044
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
HER HONOUR JUDGE MARSHALL
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 14th July 2011

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RIMER
and
MR JUSTICE MCFARLANE
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In the matter of A-H (Children)

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Mr Harrison (instructed by Dutton Gregory LLP) appeared on behalf of the Appellant.

Mr D Garside, Mr Nothur (L/A) and M Blout as guardian (instructed by Abels Solicitors) appeared on behalf of the Respondents.
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Judgment
Mr Justice McFarlane:

1.	This is an appeal made by the mother of three children.  The children are subject to ongoing care proceedings in the Portsmouth County Court.  The children are T, who was born in March 1999 and therefore now aged 12; K, born in July 2000 and therefore very shortly to be 11 years of age; and Z, born in April 2006, and therefore aged 5.  All three of these girls have lived with the mother for all their lives until the intervention of the authorities following allegations of sexual abuse made in 2009 against Mr H, who is the father of the youngest child and who is married to the mother and was living in the family home.  

2.	The allegations were investigated in March 2011.  T was interviewed under the Achieving Best Evidence process on 12 March 2011.  Mr H [‘the father’] was subject to police bail and required to stay away from home and, although the two younger children were removed to a family friend overnight on 11 March, they both returned to the mother's care.

3.	Arrangements were made with the mother to ensure that Mr H did not have any unsupervised contact with them.  Child protection arrangements were put into place through a child protection case conference and a written agreement with the mother, and those two younger children, K and Z, remained in the mother's care from the time these allegations became current in March until their removal following an interim care order made by HHJ Marshall  on 9 June, a period of some three months; and it is the decision of HHJ Marshall made in the Portsmouth County Court (but in fact sitting at Southampton) on 9 June which is the subject of the mother's appeal.

4.	Permission to appeal was granted by Hughes LJ on 29 June and therefore the hearing this morning has been the substantive appeal hearing.

5.	To summarise the grounds of appeal on behalf of the mother is a straightforward task.  When the matter first came on at a hearing on a slightly earlier date before HHJ Marshall there was a unanimity of view between the mother and the local authority as to the continuation of the two children's placement with the mother, albeit subject to the protective umbrella of the arrangements that had been put in place.  However, by the time the matter came before HHJ Marshall CAFCASS had appointed a duty guardian, a Mr Williams, who, having been exposed to the detail of the case, took a different view as to the assessment of risk.  Mr Williams, albeit that he had not interviewed either of the parents or seen any of the young persons, was clear that, because of the nature of the sexual abuse allegations and because of the mother's response to those allegations, placement at home with the mother was not in the children's best interests. 

6.	Thus, at the hearing before HHJ Marshall the local authority's position was put under the spotlight by the judge, in effect during the hearing -- and it is plain from the judge's judgment that this was so -- the judge had begun to come to a view which was in line with that of the guardian, and the local authority were encouraged to reconsider their care plan.  By the time the judge came to give her judgment she was, in effect, deciding whether or not it was in the children's best interests to remain in the care of the mother or to be placed in foster care under an interim care order.  Her conclusion was that the latter was justified.  She therefore made an interim care order on the basis of the revised plan put forward by the local authority which endorsed placement in foster care.

7.	Mr Harrison, counsel on behalf of the mother, has assisted this court by distilling his argument into a very clear skeleton argument, and, although that runs to a number of grounds, the kernel of his position is that removal of these two children as at 9 June was not justified as being in their best interests.  He refers to the case law, and indeed the most useful summary of the position under case law is contained in the case of Re LA [2009] EWCA Civ 822; [2010] 1 FLR 80, and in the decision of the court (Thorpe and Maurice Kay LJJ) the various authorities are summarised.  Thorpe LJ confirmed that it was established that the test should be that separation of children and parents would only be ordered if the child's safety demanded such separation.

8.	The submission made by Mr Harrison with force is that, if the circumstances of the case are looked at in the round, separation in order to meet the child's needs for safety was not justified in this case.  Mr Harrison accepts that the level of concern will have commenced at a high level given the substance, namely sexual abuse, of T’s original allegations.  He accepts that additionally T has reported that the eldest of the two children, K, has complained to her of some sexual interference from Mr H, although when seen K did not adhere to that complaint.

9.	There is also concern, which again Mr Harrison accepts, that the mother is in a difficult position in, on the one hand accepting that "something" has happened to her eldest daughter, but not being able to accept that the father is the culprit. So Mr Harrison's position, candidly but correctly, before this court is that had these two younger children been removed on Day 1 in March, that decision may not have been something about which the mother, in the course of any appeal process, could have made any valid complaint.  But his case is that between March and 9 June the mother had established an impressive track record of cooperating with the local authority and abiding by the terms of the agreement, in particular ensuring that the children did not come into any unsupervised contact with Mr H; and it is the case that there is no evidence to the contrary; indeed the evidence from the local authority, and indeed from the judge's own appraisal of the mother, is positive.  She presents herself as someone who is wishing to cooperate with this unwelcome but necessary process, and to do so in a way which not only, as it were, toes the line and abides by the letter of the arrangement; it is said by the local authority and confirmed by their counsel, Mr Nothur, this morning that a lot of the information the social services now have about this family has come because the mother herself has volunteered it to the social workers.  And so Mr Harrison says that, standing back and looking at the whole picture, not only the reasons for concern about the welfare of these children but also now the impressive track record that the mother has established, the judge should not have come to the decision to which she arrived.

10.	In order to succeed on the appeal Mr Harrison accepts that he has to go further than simply persuade the court that the judge's conclusion as to where the children should be was not sustainable.  He has to persuade the court that the judge's decision to make an interim care order was plainly wrong or in some other way not justified by the evidence before the court; and Mr Harrison, again rightly, accepts that that is an additional level to the height of the hurdle that he has to cross before this court.  An interim care order may well be justified and, if it is, then the plan, placement at home or placement in foster care, is a matter for the local authority.

11.	The criticism that Mr Harrison makes in respect of the process has an additional element.  He points to the fact that the guardian in post on 9 June, Mr Williams, was a duty guardian and that, whilst he expressed a very firm view to the judge, he did so from a position of only having read the papers and without having availed himself at the very least of meeting the parents and coming to his own evaluation in particular of the mother.  That description of Mr Williams' position is obviously correct.  The court today, hearing this matter a month or more after the learned judge, has the benefit of a report from the guardian who is now in post, Ella Leavey.  She is to be the children's guardian for the continuing process, and her report dated 7 July 2011, which runs to some 11 pages, goes into some detail of her own evaluation of the risks to the children's welfare and safety, and it is, in effect, on all fours with that of Mr Williams and the learned judge.  So if, as might have been the case, the learned judge herself accepted the need for caution in relying upon the paper opinion of Mr Williams and had adjourned the case for the full evaluation that has been undertaken, then the conclusion of that process would, it seems to me, to have been the same as that before the court. 

12.	Although the report of Ms Leavey does not contain any account of meeting with the parents and children (plans for that having been thwarted by the recent public service strike), she has now, we are told by Mr Blout, counsel for the guardian, met the parents and the children and there is no change in her recommendation.

13.	Looking at the matter as we do with the benefit of the detailed judgment of the learned judge, and looking at the structure through which Mr Harrison has to drive his appeal, it does appear to me that he has a formidable task ahead of him, albeit that I fully understand and accept the positive submissions that he makes about the mother's track record.  The learned judge, it is plain, conducted a detailed exercise in her own mind which she then transmitted in her oral judgment in looking at the history of the case.  Despite the positive view of the mother, the judge also considered that the mother had, perhaps inevitably in human terms, demonstrated an inability to come to a clear view about the allegations that were made and therefore had not presented herself as someone who could be of a mindset that might 100% be relied upon to protect the two young girls.

14.	The judge accepted the guardian's concerns that if the children were to remain with their mother they would be at risk of sexual, physical and emotional harm, the reference to physical harm being in particular to a finding in the medical examination of the eldest child of an injury that the child complains was inflicted by the mother with a coat hanger.  That is denied by the mother, but that further ground for concern comes in.  Emotional harm is a reference to the very difficult circumstances that the mother has in dealing with these allegations and that therefore the two children would have, living with the mother, in trying to understand what is being said and what they might or might not say if they are to be asked about any matters of sexual activity or the like.

15.	This is a very difficult human situation and the judge's view was that it was not emotionally safe, let alone safe in terms of physical or sexual risk, for the children to be with the mother at the moment while these matters play themselves out through the investigative process.

16.	To succeed in the appeal the mother has to persuade this court that the judge was plainly wrong or unjustified in coming to the view that she did.  Whilst I fully understand the mother's presentation of her case, it is in my view not possible to go that far and say that the learned judge was plainly wrong.  It seems to me that the learned judge was fully entitled to come to the view as to where the risks lie in this case and to come to the view, although she did not spell it out in words of one syllable.  It is plainly the view at which she did arrive, namely that the children's safety did demand their removal.

17.	Perhaps the key to looking at this matter is the acceptance by the mother, inevitably made, that if the children had been removed on Day One it would be difficult to complain about matters.  The difficulty that the mother has in understanding the judge's decision is because of the positive and impressive track record -- Mr Harrison called it the stellar piece of evidence -- which is the way in which she responsibly has conducted herself over the last three months.  That goes into the balance; it moves the case a degree or more from the position of the children having to be removed on Day One to ensure their safety, and it may be that at the hearing the mother and her legal team felt they were close to being able to persuade a judge to come to a favourable view.  It is an old adage that the more finely balanced a welfare decision is, the less appealable it can be, because it is absolutely fairly and squarely within the judge's discretion.

18.	Whilst I am impressed with the mother's cooperation and the positive things that are said about her, and whilst I for my part would encourage the mother to continue in that frame of mind despite the orders that are now in place, I take the view that this appeal should be dismissed and that it is not possible to criticise the judge's judgment as the mother has sought to do.

Lord Justice Mummery: 

19.	I agree.

Lord Justice Rimer: 

20.	I agree.

Order:  Appeal dismissed