Case No: B4/2011/2176 & 2173 & 2217 
Neutral Citation Number: [2011] EWCA Civ 1161
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE WAINE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 18th August 2011

Before:

LORD JUSTICE HUGHES
and
LORD JUSTICE MCFARLANE
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Between:

	In the matter of M ( A child ) 	

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Mr Matthew Maynard (instructed by Towcester Family Law Practice) appeared on behalf of the First Appellant Mother

Mr Pettit appeared on behalf of the Second Appellant Father of K

Ms Johnson (instructed by Legal Services)  appeared on behalf of the Respondent Local Authorities.

Ms Akman (instructed by CAFCASS) appeared on behalf of the Respondent Children, by their Children’s Guardian.
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Judgment

Lord Justice McFarlane:

1.	This is an appeal brought initially by a mother in the course of ongoing care proceedings relating now to two young children but now also joined as an appellant by the father of the youngest child to whom we have given leave to appeal today. 

2.	The two children are N born on 13 October 2009 and therefore 21 months of age and K born on 29 July 2011, therefore only some two and a half weeks ago.  The mother is obviously the mother of M and K and Mr G, who is the other appellant, is the father of baby K.

3.	The court's involvement and the local authority's involvement in the mother's life has been very extensive and covers a substantial period.  She is the mother of three older children, who have been the subject of previous care proceedings before the courts in Northamptonshire, and those proceedings came to an end some two or three years ago with the final orders separating the mother from the children permanently.  The mother is reported to have longstanding personality difficulties, which stem, it is thought, probably from the experience she herself had as a child and a young person.

4.	The present proceedings arose from the mother's pregnancy and the birth of the eldest child, N, and those proceedings were being heard before the justices in Northamptonshire and came on for final hearing in December 2010.  The justices heard the case for five days and the principal issue before them was the mother's application for there to be no final order made on that occasion, but that the court should direct a residential assessment under section 38(6) of the Children Act 1989 for her and N to be assessed.  The justices were against her.  They therefore went for really the only other option before their court, which was to make a final care order which was the order that was made.  The mother appealed to the county court.  The appeal was delayed in being brought on, but was heard eventually by HHJ Waine in March 2011.  The court has the benefit of a transcript of Judge Waine's judgment on that occasion.  He was seized of the full detail of the case.  It seems principally that he overturned the justices because of the apparent failure of that court to give any clear reasons for their decision.  That, of course, did not tie Judge Waine to coming to a decision in favour of a residential assessment, as it were, as night follows day but he, armed as he was with all the material in the case, went on to grant the application for the section 38(6) residential assessment.  It is clear, as part of the background, that before Judge Waine on that occasion were reports from two psychologists, one in the previous proceedings and one more recently, both of which identifying longstanding personality traits in the mother's presentation that would require, on their opinion, a substantial amount of therapeutic intervention, which would take a deal of time before any useful results could be achieved.

5.	Notwithstanding that pessimistic opinion, the Children's Guardian was in favour of the mother being given a residential assessment with this new child and the judge too accepted that that was the appropriate way forward.

6.	By that time the mother was in fact pregnant with the child, who has happily now been born and is K, and the mother's partner Mr G, the father of K, was introduced at least to the guardian and the guardian formed a favourable initial impression of that individual. 

7.	We have been told that the expectation was that the residential assessment which had been indicated was to take place at a resource in Taunton in Somerset called Orchard House would include some therapeutic intervention for the mother.  No-one had the expectation that, whatever would be provided by Orchard House, would achieve to fulfilment a successful course of therapy, but some intervention would be provided and of course the mother might achieve some benefit from the very process of being amongst professionals 24 hours a day, seven days a week, at the assessment unit.  There was an identified need for the mother to change the way in which she was able to cooperate and work with professionals, in particular social workers.  The previous history had been marked by a high level of dishonesty and downright deviousness on the part of the mother in trying to hide herself, not disclosing the fact that she was pregnant and moving to a different area to avoid the attentions of the social services. That, it plainly was hoped, might change over the course of the residential assessment process.

8.	Thus it was that on 29 or, it may be, 30 March 2011 that the mother and N went to reside at Orchard House and there they still reside to this day in mid-August.  The assessment progressed.  It was anticipated that it would end in the early part of July with a final report being given to the court before the middle or end of July.  The timetable had slipped to a degree because of some delay in starting the placement itself.

9.	However, by the time early July was reached Orchard House filed what purported to be a final report.  That is a substantial document running to some 49 pages and that was presented at the court or available from 6 July, but by that time Orchard House were recommending a further period of assessment for eight weeks to cover the birth of the new baby, who was expected to be born on 31st July, but was born two days earlier on 29th July.

10.	That issue came before the court and Judge Waine again on 11 July.  The local authority were initially contesting an extension, but the guardian, as is plain from her position statement filed for that hearing, favoured an extension of the placement at Orchard House and, in effect, the matter was compromised by agreement that there would be an extension, but that it would only last until 15 August.  One advantage of that timescale, in addition to it covering the expectant birth of the baby, would be that it would also cover a period of paternity leave that Mr G was to have.  Prior to that stage, Mr G, who works I think an hour and a half's drive away from Orchard House, had only been able to come to the placement at weekends when, as I understand it, there is less staff intervention and in any event it is a very different set-up from he, the partner/father, being present on a full-time basis and Orchard House not only wanted to see how the mother reacted to the arrival of the new baby but also to see how the couple operated in partnership over that period.  

11.	By 11 July three significant events had taken place whilst the mother had been at Orchard House.  They occurred on 6, 7 and 8 July.  However, no report of those events was made to the guardian, the social worker or the judge at the 11 July hearing by Orchard House and one assumes that the mother did not mention them either and so that extension was agreed to in ignorance of those events.  I am not going to dwell on the detail of the three events, but they are significant in that each of them indicates the mother exhibiting precisely the same sort of behaviour that had led to initial concerns about her parenting all those months before and prior to the assessment.  In particular they exhibit two separate traits.  One is the mother's failure to be 100 per cent committed or consistent in being with her child and looking to her child's needs in different situations.  For example, on one occasion she is reported to have left the child in a taxi whilst she went a short distance to a cashpoint machine.  The second manifestation of the mother's personality arising from at least two of these events is that, when challenged about them, instead of being straight with the professionals, she initially sought to deny them and, as the judge found, lied about them when challenged. 

12.	And so, in terms of their significance, they were not only worrying as events in themselves, but they were three separate but clustered examples of the mother exhibiting very similar behaviour to the behaviour that had led to some of the original concerns in the first place and this after a period of some 16 weeks or so in the residential assessment unit.  When the local authority were told about these events on, I think, 20 July they took the view that there was no continued merit in the residential placement continuing and they put in a application to the court to truncate the assessment process at that stage and stop it even before 15 August.

13.	There was a hearing before the court on 29 July, but that was the day in which the mother gave birth to K and the hearing could only be before the local district judge, who took the view, rightly in my view, that this was a matter for HHJ Waine.  The first time that Judge Waine could hear the case was Tuesday 9 August.  By that stage we are told by Ms Johnson, counsel for the two local authorities (there being a separate local authority now for baby K), that, because the 9 August was so close to the end of the current span of the assessment, that a pragmatic view would have been taken that the assessment would end as planned on 15 August rather than troubling the court to decide the issue of whether it should end six or so days earlier. 

14.	However, what happened on 9 August at court was a surprise, it would seem, to all of the professionals gathered there.  Dr Tantam, who is the psychologist who has represented Orchard House at court certainly in recent proceedings, came to court and indicated two new matters.  The first was that Orchard House would recommend a further extension of six weeks to the assessment, taking it on through August and into the second half of September.  Secondly Dr Tantam indicated that Orchard House required, as it were, a pre-condition for this extension of six weeks to be valuable and effective that Mr G give up his job at least for that period so that he would come and reside full time at the unit.  This "news" of Orchard House’s changed position was no doubt discussed by the professionals at court before the case came before HHJ Waine which was not until the middle of the afternoon .  HHJ Waine heard evidence from Dr Tantam, it seems over the course of something like two hours, and at the conclusion of that evidence he delivered himself of an indication to all of the parties.  The indication has been reduced to writing by counsel and it is effectively agreed, and because it forms part of the basis of the mother's appeal to this court I propose to read part of it into this judgment.  

15.	After describing his state of being in something of a dilemma, partly because of the juxtaposition of the ending of the assessment and the birth of the baby, HHJ Waine said this: 

"Have to say that despite my reservations about whether can work, if we said 15th August as the closing date then Orchard House are not able to provide a report which is meaningful, so much still unknown. 

In a sense, all the time spent may be [a] waste of time from [the court's] perspective, there are positives of what has happened there,  horrors of early part of July looked at through psychologist’s eyes are understandable. 

I feel I have to say I am driven to the conclusion that the only appropriate course is for: frankly, to be give another 6  weeks to see if this can be made to work. 

Also troubling me that Guardian has not had the advantage of hearing Dr Tantum's evidence and child's solicitor is restricted by instructions before coming into court. 

I would just find it terribly difficult to say parents given a fair opportunity if they were not given the further six weeks.  I bear in mind conflict that the child having relationship with mother, another 6 weeks would make any separation more acute. Frankly elevating the professional skills of Dr Tantum above the legal and other skills of those involved in the case at the moment. 

If [the local authority] say categorically 'no' we need to find a way of continuing this hearing.  Thursday is a possibility."

I read that counsel's note out effectively verbatim.  I am sure HHJ Waine was more felicitous in his actual delivery.  

16.	One or two points arise from that note and the first is to record that the guardian was on annual leave and had not been present in court to hear Dr Tantam's evidence.  The second is that by then the court was sitting beyond the end of the ordinary sitting day and the judge was indicating that if it carried on the case would continue on Thursday.  I am told by counsel who were present before the judge and are now present before us that, following that indication of the judge's current thinking, the local authority asked for a short break to consider their position, but on their return indicated that they still did not agree to the extension of the Orchard House placement beyond the end of that week.

17.	All parties in sequence, it was the local authorities first then the parents, indicated that they did not intend to call any oral evidence and therefore the final part of the case, mainly submissions and judgment, was adjourned to be heard on Thursday 11 August.

18.	At that hearing the judge heard submissions in full from all parties, starting we have been told with the two local authorities and then the guardian, who was by then against the extension of the placement at Orchard House.  He then heard submissions on behalf of the two parents and then short additional submissions from the guardian.

19.	Contrary to the state of mind that he described in his indication on Tuesday evening, the learned judge then delivered a judgment at some length in which he dismissed the application for the extension of the section 38(6) direction, effectively leading to the placement coming to an end over the weekend prior to Monday 15 August, and it is that refusal to grant a further section 38(6) assessment at Orchard House for those six weeks that the mother (and now the father) seeks to appeal at this hearing.  

20.	In the course of this judgment I do not propose to read in detail from the learned judge's judgment.  It is, I hope, sufficient for me to summarise his approach.  By the time he came to give this judgment it is plain that he had renewed his knowledge of the cause for concern that lay behind the worries about this mother as a parent.  That was based on the psychological assessments to which I have already made reference and the pessimistic prognosis for there to be a deal of time spent in therapy with this mother before she could begin to benefit from the therapy and before positive changes could be seen in her presentation.  The judge, having reminded himself of that aspect of the case, recorded the three events in July to which I have already made reference and he regarded those as significant aspects of the history of the case.  He also recorded that Dr Tantam had not been able to provide as much therapeutic input to the mother directly during her time at Orchard House as might optimistically have been hoped for, that not being a criticism of anybody but being a reflection of the mother's availability to engage in therapy as she moved forward through her pregnancy and also how she coped with the day-to-day life at Orchard House.

21.	The judge also, in his judgment, considered Mr G, K's father's position.  I have already made reference to the fact that Mr G will have heard, as everyone else did at court on 9 August, that he was to be required to come to Orchard House, then and there effectively, to take part fully in this six week extension.  He, we are told by Mr Pettit and accept, readily decided that he would commit himself to taking part in the full assessment and that was what he, through Mr Pettit, offered to the judge as his position.  The judge looked beyond that and, in particular at paragraph 46 of his judgment, and it is right to record that we only have an unapproved copy of the judgment of August, sought to look beyond the six weeks and express a view as to whether it was realistic to think of this father, who has certainly been in the same job I think for the last ten years and has a good work record, committing himself as a would be primary or joint primary carer in the long term.  The judge was not optimistic that this would be something that Mr G would be capable of.  

22.	The judge came to his conclusion by reminding himself of the need for fairness of the overall approach.  That, as the quotation from what he had said on Tuesday makes plain, was a matter he had in his mind. He said at paragraph 42 : 

"I have also of course got to adopt a fair approach to both the parents in the case and give them all reasonable opportunities within the context of the children's welfare to argue a full and proper case before the court.  When it came towards the end of the hearing on Tuesday the 9th I did express my then thoughts that it was difficult to see how they could be in that position if that further assessment did not take place"

He then goes on paragraph 43: 

"I have listened with great care to the arguments that have been put forward on all sides and, as I said at the opening of this judgment, I have given the matter a great deal of anxious personal thought.

44. I fear that the decision I have now come to is that, although that effective process could undoubtedly provide the court with some possible answers to the future, in no way is it in the end going to be in a position to deal with the deep psychological problems which this mother undoubtedly has.  The two psychologists have reported that in both the original proceedings and these proceedings have spoken about the absolute need for psychological work to be done with the mother and really, as is typical in these cases, a long time period of intervention certainly approaching a year if not longer."

23.	The judge then refers to the delay that had already taken place in the case and it is right to record that the delay he will have been referring to resulted from the fact that N had been born in October 2009 and was therefore, as I have indicated, 21 months into her life and 21 months into the proceedings.

24.	Having looked at all the matters that he rehearses in his judgment, the judge at paragraph 49 says on balance he came back to the position that, despite his original indications, he did not think it was possible for there to be any value in the extended assessment and so he refused to sanction its taking place.

25.	The mother and the father now seek to make common cause to challenge that decision and they do so effectively on two separate bases.  The first is to complain about the procedure adopted by the learned judge and the point is made in ground 1 and ground 2 of Mr Maynard's grounds of appeal which effectively make the same point from different angles.  Mr Maynard refers to the apparently very clear terms that the learned judge uttered in his indication on Tuesday evening and complains that the judge, having given such a clear indication, the process that then followed was not a proper or a fair process, but because it left the mother with the expectation that the result was going to flow in her favour, she cut her forensic cloth accordingly.  She did not attend the hearing on the second day on the advice of her lawyer and in terms, in paragraph 9 of the grounds of appeal, Mr Maynard says:

“The mother was denied the opportunity to give oral evidence to address the concerns of the court."

26.	For the father Mr Pettit joins in with those submissions, but adds his own, which is to the effect that, if the father's ability to commit was going to be in question, then Mr Pettit would have sought to call him to give oral evidence in the course of the process.  

27.	It is right to record that these papers were put before me for urgent consideration on Monday of this week to consider whether leave to appeal should be granted and, having read the extremely helpful and clear summary of the proceedings prepared by Mr Maynard, which has the double benefit not only of being clear and thorough but also now effectively agreed to by the other parties, I too was concerned that there may have been some procedural irregularity or procedural unfairness in the way in which the judge had been so plain on Tuesday that his mind was heading in one direction and then, at the end of submissions on the Thursday, delivered a judgment which was entirely to the contrary.

28.	The submissions made this afternoon have been very helpful in clarifying what went on in court, and I have already summarised the detail of those matters.  In reply to the question ‘what oral evidence might have been called if the indication had not been given’, Mr Maynard candidly and in my view inevitably answers that the mother may well not have been called to give evidence in any event.  It certainly seems to me that the mother's contribution orally would not have added to the judge's knowledge of the case, certainly not necessarily in her favour.  This was a case of receiving the core input from Orchard House and then the subject of submissions.

29.	Equally, whilst I understand in human terms the mother's position leaving court on Tuesday evening with no doubt some optimism in her mind from the judge's words, not being in court and not seeing the process, which then reversed itself and went in the other direction.  An absence from court, however, does not for me indicate a procedural irregularity sufficient to cause concern about the validity of the whole process.

30.	The other matter that does need to be investigated and has been investigated this afternoon is whether, as it were, on the back of the indication those representing the parents "pulled their punches" in the way that they approached the making of submissions.  I am now satisfied, having heard both Mr Maynard and Mr Pettit, that that was not the case.  It was apparent through the submissions of the local authority and the guardian, which will have dwelt upon the mother's core psychological and personality condition as identified by the psychologists, that this issue was very much to the fore.  Also, as seasoned advocates, they noted that the judge did not decide to proceed to judgment having heard the three opposing submissions, but called on them, the mother and the father's counsel, to address him in full and Mr Maynard and Mr Pettit confirm that they did address the judge across the merits of the whole case.

31.	Again, I am grateful to counsel for their clear and candid account of what went on and, having heard the process described to me, I am now satisfied that there was no procedural irregularity or unfairness in the way in which this necessarily dislocated process was undertaken.  Trying to put myself in the shoes of the judge it is possible to contemplate a judge hearing Dr Tantam's evidence, not at that stage being renewed in his knowledge of all of the details of the case, having a more rounded view and in particular a recollection of the psychological evidence by the time the case came back on, on the Thursday.

32.	What then of the second of substantial assault that the appellants make upon the judge's judgment?  It is effectively to submit that the judge was plainly wrong in failing to make this extension, plainly wrong both in the sense that the evidence justified extension as being necessary for the court process, but also wrong as against the authorities that have been handed down by the Court of Appeal over recent years in terms of the overall fairness of a process and allowing substantial leeway to parents to put forward a positive case at the final hearing.

33.	If I deal with that second aspect first.  I wish to make it absolutely plain that, at this hearing which has been brought on this afternoon at very short notice and on an urgent basis and during this extempore judgment that I now give, it is not my intention to utter anything that is intended to add to the precedent issuing from these courts on this topic.  I do that because of the practical situation that I have just described but I also do that in the knowledge that another constitution of this court presided over by the President, Moore-Bick LJ and Black LJ as recently as 15 July 2011 have in fact traversed this territory and given detailed judgments. I refer to the case of Re S  [2011] EWCA Civ 812.  Again, I do not propose to dwell on that judgment in this case but in the judgment in particular of Black LJ the court is taken on a tour through the decided authorities on this aspect of the law. In particular reference is made to the case of Re L and H [2007] EWCA Civ 213; [2007] 1 FLR 1370. That is an important case because it is a case that is referred to by the parents' counsel in their submissions and, seemingly from his use of language as to the fairness of parents being able to present a positive case at a final hearing, was in the mind of the learned judge.  I do no more than refer to paragraph 93 of Black LJ's judgment in the Re S case, which is in these terms:

“In so far as the earlier of the Court of Appeal decisions to which I have referred contain passages which might be taken to suggest that a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority, I am sure that this was not what the court intended. The President made that clear in the passage I have just quoted from Re J. Still less is there a principle such as that for which Mr Twomey contends, namely that  "parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made". Such a principle is unworkable not least because, sadly, there are cases in which the parents are plainly not able to care for their children and in which no amount of assessment or evidence gathering will enable them to put forward a positive case.”

34.	If, when he made his utterance on the Tuesday afternoon (9 August) HHJ Waine had Re L and H in mind it is unlikely that he was referred to Re S and the correction, as I see it, being offered by Black LJ in the paragraph to which I have just made reference. It seems to me that that part of Mr Maynard's submission in which he said to us this afternoon that the mother has “a right” to put a positive case at the final hearing overstates the position.  The approach has to be for the judge tasked with deciding the issue under section 38(6) doing so on the facts of the particular case and, in particular, with the guidance of the House of Lords in mind in Re C and Re G to which we have been referred.

35.	The overall purpose is for the judge to ensure that he has the necessary evidence by the way of assessment process or otherwise to make the right and well informed decision for the child and the particular case.

36.	The submission that the judge's decision to refuse the section 38(6) direction in this case was plainly wrong involves the judge coming to a decision which is outside that which was reasonably open to him on the evidence in the case. It is plain that this mother had a judge who was capable of being very sympathetic to her position on the facts of the case and on the evidence.  He was the judge who granted the section 38(6) direction in March. The judge also relied upon the guardian's support for that at the time.  A number of matters had changed by the time the judge considered the case in the course of last week at the two hearings that I have described.  It seems to me that the judge, in the course of the judgment given on 11 August, identifies why he had now come to a different decision and why he no longer considers that a further period of assessment is justified.  He relies upon the July incidents.  He relies upon his view that the mother has not had the benefit of therapy and that the therapeutic need and the mother's underlying personality condition are, as it were, the backbone of the level of concern throughout this case and he identifies that that is not going to be moved on by any further assessment process.  It seems to me possible to argue that the case was finely balanced before the judge and obviously from the judge's own manifestation in what he said on Tuesday and what he said on Thursday he himself considered it finely balanced, but it is an adage well referred to in these courts that the more finely balanced a case may be the less appealable it will be on appeal because the more finely balanced it is the more centrally placed it must be within the circle of discretion and influence of the judge.

37.	Therefore from the mother's point of view, whilst I was troubled sufficiently by what had taken place to give permission to appeal, I now no longer am thus troubled and I would dismiss the appeal made by the mother.

38.	The separate argument raised by the father that is indeed on separate terms is the judge had not heard evidence from the father and delivered himself of a view as to the long term ability of the father to commit. The relevance of the father in these proceedings is to the new baby, K.  It will be entirely open to the father to give evidence and for that matter engage in non-residential discussion and assessment with the social workers and the guardian on this aspect of the case.  In the end the residential assessment of the family would only be as strong as its weakest link.  In this case the weakest link must be the mother and the judge's focus on the mother and using the mother's deficits and the lack of ability to progress over the next six weeks was in my view entirely justified and the father's separate standpoint does not lead me to change my overall conclusion which is that this appeal must be dismissed.

Lord Justice Hughes: 

39.	I agree. This very well argued appeal had been presented to us as turning entirely on particular circumstances of the case and I agree that it does.  When HHJ Waine allowed the appeal against the magistrates' refusal to order a residential assessment, he did so on the grounds that their reasoning was absent or defective.  He expressed the view then that it might well turn out that their decision would prove to be correct.  I am bound to say that the more that we have heard of the case the greater has been my impression that he has indeed been proved right about that.  None of that means that it was not both understandable and creditable that, even with this unhappy background and with three older children previously removed, a court should be astute to look with as much care as possible at whether mother either had changed or was on a sufficient course towards change to enable it to be possible to say that she would be able to care for her children safely.  For the same reasons, I understand entirely why the guardian's initial stance was that such an assessment was worth the inquiry.

40.	However by the time the judge came to reach the conclusion which is now before us the acid question was whether a further six weeks residential assessment would usefully assist the court in the eventual decision in the care proceedings that had to be made.  I am absolutely clear that his conclusion that it would not is unassailable.   

41.	Although there had been some signs of a possible upward trend in mother's behaviour, Dr Tantam rightly told the judge that the question was whether it could be maintained. The difficulty for the parents was twofold.  First there was clear evidence that it could not be maintained and had not been maintained even in the protective atmosphere of a residential assessment under close supervision, but secondly, even if there were to turn out to be just sufficient sign of progress to suggest long term further assessment, none of that was likely to bear fruit within a timetable acceptable at least for the older child, N.

42.	So far as the procedural matter is concerned the judge's remarks at the end of the first hearing did go significantly beyond a cautious statement of a provisional view.  That said, the parties all left court that night on the basis that the issue had not been concluded and needed argument on a future occasion.  They came back on the second day ready to address the question on its merits.  They did so in full and it is clear that the arguments addressed were precisely the same as they would have been if the judge had not said what he did.

43.	I agree that there is no question of mother having had any evidence to give which could have affected the conclusion on the question.  I also agree that, although father might have been able to give evidence about his readiness to abandon his occupation, the judge was clearly correct in his conclusion which was that what was under consideration was the prospect of joint care which meant that the safety of mother as a parent was critical.  It follows that there is in the end, for all the reasons that my Lord has so clearly, given no ground to be found to assist either  mother or father in the remarks offered by the judge at the conclusion of the first day.  They, together with his eventual judgment, undoubtedly do demonstrate that he applied himself conscientiously and anxiously to a difficult question but I am quite satisfied that the conclusion that he arrived at is one that cannot properly be challenged.

Order: Appeal dismissed