England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE HULL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th August 2011

Lord Justice Thorpe:

1. This is a hearing which was set up by McFarlane LJ on 14 July. He explained his conclusion that the issue raised by the Appellant's Notice should be referred to a full court for consideration. The notice was amended at the judge's suggestion, as were the grounds of appeal. However, the notice attacks an order made by HHJ Hull in the Manchester County Court on 15 June but that order is only the middle of a continuum of three and it in itself essentially set up a further hearing to be properly prepared on the 4 July, so I think that the appellant, in coming to this court by Appellant's Notice which is neither dated nor sealed in my bundle, jumped the gun. The matter was considered by my Lady on 11 July when she had before her only the first two orders in this continuum, those of the 13 May and 15 June. She was aware of the hearing of the 4 July of course, because that was directed in the middle order of 15 June. And so it was that she decided to put the matter into court for investigation and that was the investigation conducted by McFarlane LJ.
2. Now the issue before HHJ Hull can be very shortly introduced. This is a large Slovakian family. There have been ongoing care proceedings for some time. Older children were removed. The last born child has a date of birth 18 March 2010 and so she remained with the mother and father following her birth and A, the 13 year old, who had been removed to foster care, returned home. So there was then a family of four -- mother, father, A and newborn B -- when at the beginning of May one of the intermediate children in foster care made statements to the effect that she had been sexually interfered with by her father. So that was an entirely new dimension in the public law proceedings which hitherto had concerned other issues such as neglect and emotional abuse.
3. The sex abuse allegation raised the stakes all round and resulted in the removal of B on 6 May. Now the mother is without any cloud of suspicion overhanging her. The father alone is seen as the dangerous one, the risk factor, and he departed, seemingly for Slovakia, on 14 May, the day after the first of this series of hearings.
4. So on 13 May was a hearing set up by the local authority to enable the court to consider the consequences of B's removal. It is plain that the mother questioned the need for B's removal and sought her return. So the judge on that occasion made an order which recorded the parents together seeking the return of B to the care of her mother on the basis that the father would move out of the home. Implicitly that was an application rejected, although not so recorded in the court order. I say implicitly because what the judge did adjourn for a hearing on 15 June was the issue of contact.
5. So it is to the judgment that I turn to see how the parents' application was dealt with. The judge is recorded as having said this:

"The other aspect, that baby B has been removed from the care of the parents, particularly the mother, has given me a great deal of concern because even though an interim care order is in place such a step is extreme and regarded as a step of last resort particularly here, where B is very young and the father is willing to leave the family home and undertake not to return until allowed. However, I remind myself that to some extent at the moment we are venturing into the unknown as we do not know what the children may say. In those circumstances the guardian is persuading me that the safest course is that as a holding exercise the baby should be removed, but again this should be reviewed when the children have been interviewed. "

6. So I pass to the middle of the three hearings, 15 June, and for that we have a long order which begins with no less than 11 recitals. Within those is recital 8:

"The mother sought the immediate return of B to her care or in the alternative contact on 5 occasions per week with her and a reversion to contact with the other children. The court indicated that the issue of B's placement with the mother should be reviewed at the hearing listed below on 4 July and statements in that regard are provided for below."

7. Then within the order paragraph 2 is to be noted. The mother's application for immediate return and/or discharge of interim care order is refused, but paragraph 5 required the local authority to file and serve a brief statement setting out its position in respect of interim placement of B with her mother. Paragraph 6 required the guardian to do the same. Paragraph 7 required the statement from the father. Paragraph 8 has a statement from the mother setting out her current position in respect of relationship with father, proposals for care of children, proposals for contact, and her long-term plans. And then paragraph 9 provided for the hearing on 4 July for two hours when the placement of B will be reviewed and the position of the parents clarified.
8. So I need hardly turn to the judgment of the 15 June, since it is manifest from the order that the judge was taking a course that could hardly be criticised. He was setting up a swift investigation and setting up steps that would be taken in preparation.
9. In his judgment the judge dealt with the difficulties of getting welfare information from Slovakia and the difficulties in sending a local expert to Slovakia. The judge said in relation to the mother:

"I am concerned over whether the mother is seeing enough of B given the logistics involved. I accept and I believe that I am supported by the guardian that the local authority are doing their best in the proposals they have made "

So that leads to what is obviously the crucial decision, namely the decision at the hearing of the 4 July following the implementation of the preparations provided for in the middle order.

10. The local authority filed their position statement of 1 June, and that is a document that scarcely touches on the issue to be decided by the judge. It simply sets out the arrangements for the children, a summary of events since 15 June and key issues for decision on 4 July. The guardian's position statement was more focussed on the issue for decision and in particular I draw attention to paragraph 1E in which, amongst his concerns, the guardian noted this :

"The mother has very recently indicated her wish to return to Slovakia once B is placed back in her care. This is inconsistent with her previous position and given her current situation of isolation there may be a risk of her leaving the country without permission and taking the child with her."

11. The guardian summarised his position in the final paragraph of his position statement:

"The protection and welfare of a young child is of paramount consideration and the current situation requires further assessment. Accordingly the guardian feels unable to support the mother's wish at this stage."

12. The father filed nothing in compliance with the direction. The mother did file her position statement, dated 4 July, the date of the hearing. Now in that the mother in relation to return to Slovakia was equivocal. She said in paragraph 11 that she was reconsidering her plan to return to Slovakia due to threats and the fact that the allegations against the father had not been investigated, but essentially on the issue for decision on the 4 July she said not very much. She said in paragraph 14 that she was seeking B's return immediately. She continued:

"B resided in my care from her birth until removal and she still appears very unsettled and upset to leave me when I have contact. I set out in my previous statement the concerns I have regarding B being placed in a placement which has no identity with her culture and no attempts being made to keep the identity with her culture."

13. She went on to deal with contact saying that, if she did not succeed on her application for the return she would want contact increased to five times a week. The local authority said that that was logistically impossible.
14. So it is to be noted that the judge's preparatory directions required position statements which would be amplified by submissions. There was no specific provision for evidence. There was no oral evidence. We have no transcript of the judgment, although the order of 15 June very clearly specified that there should be a transcript. So we have to do the best we can with material that is by no means satisfactory. But I think it is very important in weighing Mrs Crowley's submissions to see that this is a continuum of three hearings in quick succession, all of which address, as part of the decision-making process, the question of whether B could be safely returned. It is remarkable that the court was able to find judicial time so swiftly after the removal, and then so rapidly, as the judge moved from his initial appraisal to consider whether there had been sufficient development to allay suspicion.
15. Now Mrs Crowley makes the well reasoned criticism that the judge in his decision of 4 July is essentially one-sided in his reasoning. What he said, as it is to be extracted from the transcript is only this:

"The final hearing is listed on 10 October. The immediate issues which arise today are return of B, who is a baby, to her mother and in relation to contact between mother and children. In relation to baby B she was in the mother's care together with A until relatively recently, but was taken away when issues arose in relation to the father. Counsel makes a plea for return of the baby to the mother, but in relation to that the local authority and guardian are very much opposed to immediate return. They point to inconsistencies in the mother's position as she said on different occasions that it is her intention to return with B to Slovakia. On other occasions she says she wants to stay in this country, now her official position, and look after all the children. There are also issues in relation to A. He attended school with evidence of a slap mark said to be caused by the mother, which she disputes. There are also issues on who is living at the family home, and what degree of management there is by the mother. Against all that background it does not seem to me that I can make a decision returning B to the mother. The position is altogether too uncertain."

He then goes on to deal with the possible enlargement of contact and is plainly not impressed by the local authority's plea of logistical impossibility.

16. In relation to the ultimate question, does the judgment of the 4 July sufficiently justify the refusal of the mother's application, I say at once two things. First, we are handicapped in not having transcripts. Secondly, it is important to read these three judgments together and, so read, it is quite plain that the judge correctly directed himself from the outset that removal was draconian and that clearly serious consideration needed to be given to returning B if that could be achieved without prejudice to her welfare and protection. The judge was entitled to place weight on the guardian's concerns, albeit that there was no statement of evidence identifying when the mother made the statement that caused particular concern of abduction.
17. I have come to the conclusion that it would be quite impossible for this court to advance beyond a conclusion that the matter had not been investigated below with the profundity that it required. The notion of setting up some profounder investigation of this as an interim issue is to me unthinkable. There is only an eight-week run to the final hearing and it is at that hearing that all issues in relation to B fall to be decided.
18. Although this is an unsatisfactory investigation in some respects, we must I think have particular regard to the difficulties caused for the court when an unexpected situation blows up during the interlocutory stages. We have to recognise that the court has made a judge available not only swiftly but repeatedly and we must have regard to the importance of supporting trial judges when they are reaching interim decisions in cases that they have had under their management throughout.
19. So for all those reasons I would dismiss this appeal.

Lady Justice Black:

20. I agree. The judge was in my view entitled to reach the conclusion to which he came and, taken together with the May judgment in particular, he explained his reasons for his decision sufficiently.

Order: Appeal dismissed