England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS DISTRICT REGISTRY
FROM HIS HONOUR JUDGE HEATON QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 October 2011

Lord Justice Thorpe:

1. This appeal concerns a child who was born on [a date in] 2008. The appeal is brought by the maternal aunt, Ms M. There is an awful lot of violence in the story behind the appeal. The first and most significant is that on 2 November this year the child's parents were involved in a violent quarrel which left his mother dead and his father faces a murder charge. He has entered a plea of not guilty. Other areas of violence surround the relationship between Ms M and D. He was involved in a violent incident in November 2010 which resulted in criminal charges. There are really three timetables running - the timetable in the Children Act proceedings relating to the child and the criminal proceedings running in relation to each of these two men. The murder charge is timed for trial on 21 November and obviously the outcome of that trial will have some impact on planning for this child.
2. The proceedings in relation to D are more detailed. It seems that as far as the police were concerned, he was not within their grasp, but rather on the run. However, he was involved in a particularly unpleasant violent incident at Ms M's home in January and it is a mystery to me as to how he was not then apprehended. It seems that he finally came into police charge on 9 May when he was remanded in custody. So he has been in custody since then. He came to trial on 23 August when he was sentenced to two years' imprisonment. His earliest release date is unascertained, but it is likely to be after 30 April 2012 which is the date fixed for the final hearing in the Children Act public law proceedings relating to this child.
3. Obviously the death of the mother was a huge tragedy and a huge shock for both the maternal and the paternal family. There is, sadly, no concord between those two sides and the police, as a matter of emergency, placed the child immediately with the appellant. As Ms Sally Bradley QC has emphasised, the appellant was at that date a single woman in stable employment and the owner of her own home. In the most commendable way she took the child into her care and terminated her employment to be available at all times. She has provided security and continuity ever since. She has continued the nursery school which the child was attending prior to the death of his mother.
4. It seems that she took out an application for a parental responsibility order on 12 May. Initially she had the support of the local authority, although they indicated in May that they would be issuing public law proceedings. They applied for an interim care order on 21 June, the order being made without contention on 27 June. Of course at that time the management plan was for the child to remain with the appellant. It seems that the case was listed before a judge of the Division, Peter Jackson J, on 18 July when he laid down the litigation timetable culminating in the trial on 13 April. It seems that there was to be a short directions appointment on 4 August for directions to be given as to abstract testing of a sample to be provided by the appellant. It is not in dispute that she has been, and maybe still is, a cannabis user.
5. On that occasion the local authority, without any prior notice, announced that they were no longer content with the family arrangement, but sought to move the child into foster care. They had of course the power so to do under the interim care order, but, understandably and responsibly, sought the prior approval of the court before making such a change. It seems that the judge, HHJ Heaton QC, took the situation in hand and there were hearings on 5, 11 and 12 August. On the last occasion the guardian gave her evidence. Oral submissions were made on the appellant's behalf and the matter adjourned for reserved judgment. It was of course during that reservation that D was sentenced and, accordingly, further submissions were made in writing. Plainly from the appellant's point of view there was the forensic opportunity to advance the submission that as far as the child was concerned, all risk centred round D and if he was not to be at large in the interlocutory stages, there was no justification or need for the proposed move.
6. The judgment was handed down on 25 August. It is a judgment that runs to some 186 paragraphs spread over 45 pages. On any view, it is a conspicuously comprehensive and careful judgment. An application for permission to appeal flowed from his decision to endorse the local authority's revised care plan, supported, as it was, by the guardian's submissions. The application for permission came of course from Ms M.
7. The refusal by the circuit judge led to an extraordinarily swift approach to this court. It seems that the appellant's notice was filed and sealed on the Friday of the judgment and on the following day, the 26th, the papers were laid before Hughes LJ, who granted permission to appeal on one ground only. In his full and careful reasons he explained why he rejected all grounds but ground 6. In relation to that he said:

"I give leave on the sole ground […] that even on the judge's careful and unchallengeable findings of primary fact, and on his assessment of the truthfulness of Ms M, it is arguable that the case for immediate removal of the child (albeit from a family member not from a parent) on an interim application was not made out (Re L-A)."

8. He further directed that the appeal should be listed either in September or, if not, in early October. The citation from the reasons of Hughes LJ leads me to record that there was no issue as to the law that the judge was to apply in the court below, nor has there been any issue in this court. The judge dealt with the law very briefly, saying that he proposed to direct himself by reference to the decision of this court in the case of Re LA and that reflected the agreement of the Bar and no criticism has been made of the judge's approach. He put it very succinctly paragraph 151:

"As to the law, I propose to apply exactly the test in Re LA. I see no reason to depart from that test in law."

9. The simple and familiar question in this appeal is whether the appellant can puncture the judge's reasoned explanation of his discretionary choice. That is never an easy task for an appellant when the judge in the court below has had a choice between two identified alternatives and where the guardian is clear in recommending the judge to choose the management proposed by the local authority. The position endures in this court where the appellant's skeleton has been answered in the local authority's skeleton written by Miss Singleton QC and Mr Swiffen. The skeleton argument from Ms Garnham for the guardian fully supports the local authority's opposition to the appeal.
10. The appellant's case has been argued with customary skill and charm by Ms Bradley QC and quite rightly emphasises that Ms M has done a wonderful job for this child coming to aid in tragic circumstances. She has made considerable personal sacrifices so to do and she remains committed to achieving the best, both in the short and long term. Ms Bradley also rightly emphasises that to remove the child from such a secure situation to the unfamiliarity and uncertainty of a foster care home will inevitably be distressing and therefore harmful. She builds her case on the submission that the local authority acted with undue haste and with insufficient reflection on 4 August. She suggests that they were propelled in the wrong direction by advice given by a retired consultant child psychiatrist on the previous day. There may be something in that.
11. However, whatever criticism might validly be addressed to the origin of the issue, the fact is that it grew and evolved over the course of the days of judicial investigation, so that in the end what the judge was considering was not just the relationship between Ms M and D; he was not just considering what risks or dangers flowed from that, but he was considering the whole perspective in the light of all the investigations that had been made and all the knowledge that had been built up during the course of the proceedings.
12. Ms Bradley, with the skill and experience that she has, seeks to isolate a single paragraph of the judgment, paragraph 178, and to submit that that demonstrates judicial misdirection and error. The paragraph in isolation reads:

"Against that background, how is the Local Authority to identify the risk? Is it a coherent child protection plan for the Local Authority to wait anxiously on the sidelines in the hope that either there is no risk, or that if there is such a risk to hope that the Local Authority gets wind of it before there is unhappy development? In my judgment not."

13. It is not the most felicitous paragraph in the judgment, but it is very important to emphasise that it cannot legitimately be read in isolation. The judge introduces the question with the phrase "Against that background." What is that background? It is the whole judicial analysis commencing at paragraph 158. In the following paragraphs he considers a number of matters on which the local authority had sought to reply and explained why he rejected them.
14. Then in paragraph 159 he went on to say:

"I turn now to the balance of the issues raised by the Local Authority with support of the Guardian."

He identified them as: 1) Ms M's understanding of the risks posed to her in the context of domestic violence; 2) her use of recreational drugs and, 3) her ability to be open and honest with and co-operate with professionals charged with the welfare of the child. It was the third of those factors which obviously caused the judge the greatest concern for he went on to say in the following paragraph:

"I am afraid that I found her to be an unreliable and unconvincing witness."

15. Specifically in paragraphs 161, 162, and 163, he rejected her evidence on specific issues of some importance. Then in paragraph 165 he found that she has been dishonest not only as to her relationship with Mr D, but also as to her use of recreational drugs. That led him to the conclusion that:

"The aunt is still failing to co-operate with the court and those charged with welfare of the child."

That led him paragraph 169 to address what he describe as a key issue. He put it thus:

"Are there grounds to be concerned that Miss Hugh does not understand risks that opposed to her, and thus the child in certain situations? If there are such concerns are they such as to justify removal of the child?"

16. In the following paragraph he noted that Mr D was not at large, but he continued: "However, this has never been a single issue of concern."
17. He then identified the factors in Ms M evidence which he had found worrying and he listed six considerations there. That led to the conclusion that she had so little appreciation of what in her life and in her social circle constituted risk and concluded that that was compounded by her inability to co-operate with officialdom or to be frank. Accordingly, he concluded that the submission that the local authority had failed to identify specific source of risks was not in this case a telling point. As he said:

"The aunt misled the local authority through its core assessment thereafter. The aunt has the capacity to be hold information. In my judgment, she continues to hold back important information."

18. That was the background to which he referred in paragraph 178, the paragraph criticised by Ms Bradley. Before reaching his conclusion, he sensibly applied the welfare check list and within that, as he had already noted in paragraph 180, he had to give proper weight to the good day to day care that Ms M had provided and to the inevitable emotional and psychological harm that the child would suffer if in care.
19. I have surveyed the judicial analysis at some length to explain my conclusion that Ms Bradley's attack on the judge fails. This was undoubtedly a finely balanced choice for the judge and I fully understand Ms Bradley's submission that instead of going for removal, the local authority might have first explored the possibility of setting up a sufficient protection plan which would have allowed the family placement to continue. Another judge in the court might have thought that there should be more investment in continuity and more exploration of protective measures, but the fact is that this judge has chosen the alternative course and has explained his choice in a careful judgment which withstands all criticisms for. For those reasons, I would dismiss this appeal.

Lord Justice McFarlane:

20. I agree, and for the reasons that my Lord has so clearly explained, I too would dismiss the appeal, but I would wish in doing so to say one or two words aimed at the future, and aimed particularly at Ms M and the local authority. It is undoubtedly the case that Ms M, in taking on the care of her niece as she did at this moment of crisis, gave enormously generously of her time and her abilities as a young woman to do her best to parent this young girl. There are many positives in the papers that we have read about the way she has gone about that and those are not to be forgotten. The blow that she now will experience at losing the care of her niece on a day to day basis is not one that I underestimate. My message to her is to not walk away from this process now and not walk away from T now. She, I suspect, has become a very, very important person to T who will now move on to foster care and this little girl will need to carry on seeing Ms M on a regular basis. Ms M now knows the areas of her abilities which are questioned by the judge. I would urge her to take a full part in the assessment process that is to take place.
21. So far as the local authority are concerned, they were rightly criticised by the learned judge for the way in which they worked the case, came to their decision and failed to work alongside Ms M or indeed communicate with her about it at the time. Bridges need to be built. The local authority need to understand that they have to regain a working relationship with her just as, I hope, she will try to maintain one with them.
22. I offer those remarks because it is all too easy to see how this blow to Ms M from the judge's decision, and now our confirmation of it, might cause her to act in a different way. I hope she is big enough to see this as a stage in the process and not the end of it. I hope for young T's case that everybody pulls together to see what safely can be arranged for the care of this young girl for the medium and longer term future. That is all I wish to say.

LORD JUSTICE THORPE: I would most firmly associate myself with My Lord's observations and I hope that the removal that follows from the dismissal of the appeal will be handled in a sensitive way and that real efforts will be made to offer generous contact in the period which is regrettably extended because we are looking at something like six months before there will be another profound investigation. No doubt you can discuss that amongst yourselves.

MS BRADLEY: My Lord, yes. I know that discussions have already taken place, both below during the days of that hearing and contact arrangements which I hope are in place which have been changed to reflect their submissions are also to be in place. I understand that the listing was in order to secure the availability of Moylan J given the nature of the issues and to accommodate the criminal trial to take place. It is a regrettable delay. I hope it will come before April. There is application for costs.

Order: Appeal dismissed