ON APPEAL FROM THE SWANSEA COUNTY COURT
HER HONOUR JUDGE MIFFLIN
LOWER COURT NO: SA09C00194
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE STANLEY BURNTON
| Re D (A Child)
- and –
|- and -
City and County of Swansea
KD (A Child by her Children's Guardian)
appeared for the Appellants.
Mr Stephen Bellamy QC and Mr Philip Harris-Jenkins (instructed by The City and Council of Swansea on behalf of the First Respondent and by Messrs T Llewellyn Jones, Neath,
on behalf of the Second Respondent), appeared for the Respondents.
Hearing date: 14 December 2010
Crown Copyright ©
Lord Justice Wilson:
"They have set their face against any proper analysis in the situation, and have not even adhered to the basic practice of keeping written records of their decision-making. This is in my judgement shambolic and an unacceptable way to deal with these difficult issues."
"It is likely, given the tenor of [Dr X's] evidence, that the additional information would have served to produce results in respect of risk which may have been higher. Therefore, for the purposes of considering the issue of risk …, the court is unlikely to have before it another assessment which is more favourable to the parents than that produced by [Dr X]."
"However, this court has come to the conclusion that, for the purposes of considering risk, [the father] is unlikely, given the matters raised by the court, to have a more favourable report than that already provided by [Dr X]."
"This court has made a decision on the basis of the risk identified by [Dr X] as being low and has made findings that, even on that basis, neither [of the parents] are properly able to support the model suggested by Mr Cullen; or indeed any model that would properly secure this child's safety within the home. In those circumstances it appears to the court that there is little point in a second expert assessing risk, since the court's findings about the parents will stand. Similarly in my judgment, bearing in mind the body of the findings in the judgment, there is no room for any further work towards reunification …"
Although she did not make it entirely clear, I infer that the judge's rejection of the possibility of "any further work towards reunification" was a rejection of the sustained contention on behalf of each parent that the court should adjourn for about 16 weeks in order that Mr Cullen should undertake his proposed work.
"For the detailed reasons set out in the judgment the court took a different view to that taken by Mr Cullen and [Dr X] as to the level of risk posed by [the father] and [the mother's] ability to manage that risk. In light of the detailed findings there was no evidential basis for any further assessment."
(a) The judge elected at an early stage of the proceedings in effect to attach no significance to the reports of the Lucy Faithfull Foundation. The parents accept that the judge's decision in that regard reflects water which has long since passed under the bridge and they do not invite this court to conclude that the judge was otherwise than entitled to put that evidence to one side.
(b) The judge then directed the commission of a risk assessment by a clinical psychologist, namely Dr X. She did so because she regarded that evidence as necessary to her determination of the proceedings.
(c) Dr X's assessment was that the risk posed to the father to C was low. For reasons which this court has not allowed the parents to challenge, the judge rejected Dr X's methodology.
(d) Nevertheless the judge was prepared, at any rate in her substantive judgment, to proceed on the basis of Dr X's conclusion that the risk was low. It was on that basis that she rejected the possibility of adjournment for a further psychological report.
(e) Dr X's opinion that the risk was low had been directed by the judge to be the foundation of an enquiry by Mr Cullen whether such a risk could be managed. She had directed him to become involved in the enquiry because in her view his report on management of it was necessary to her determination of the proceedings.
(f) In that, at any rate in her substantive judgment, the judge proceeded on the basis, recommended by Dr X, that the risk was low, the judge did not jettison the assessment of risk upon which Mr Cullen had founded his report and in particular, his recommendation to be allowed to do a short piece of work with the parents for up to 16 weeks.
(g) The judge rejected the request of the parents for an adjournment for that purpose by reference, and only by reference, to her assessment of the significance of her own factual findings about the parents. In particular, no doubt, the judge had in mind her firm finding that the father had intended to have actual sexual relations with the girl or girls who had been under discussion in the emails.
(h) In twice stressing, in reference to the possibility of a second psychological report, that the father could do no better than a reassertion of the conclusions of Dr X, the judge surely ignored that, were the second report to lack the methodological flaws discerned by the judge in Dr X's report but, nevertheless, to reach the same conclusion about the level of risk, the father could indeed have done better.
(i) But it was surely for Mr Cullen himself to assess whether the judge's findings about the parents rendered his recommendation for a short piece of work other than worthwhile. In attractively realistic submissions which are the trademark of his advocacy Mr Bellamy conceded before us that, were the judge to have been invited upon delivery of her judgment in May 2010 to authorise its communication to Mr Cullen, with a view to his reporting whether in his view the short piece of work remained worthwhile, it would have been difficult for the local authority and the guardian to oppose it and for the judge to reject it. Thereupon, of course, we asked Mr Bellamy to explain why, if such had been a proper course to be taken in May 2010, it was no longer a proper course to be taken by the time of the hearing before us in December 2010. Mr Bellamy made clear that he did not deny that it remained a proper course but that a short adjournment in order only to consult Mr Cullen should be the limit of any such course now to be taken.
(j) Lastly, notwithstanding that the transcript of her judgment was in front of her when the judge wrote her supplementary responses, there is a substantial discrepancy between the express basis of the judgment, namely that the risk posed by the father was low, and the suggestion in the supplementary response that the judge had taken a different view about the level of risk posed by the father from that taken by Dr X and therefore by Mr Cullen. Constrained to acknowledge the contradiction, Mr Bellamy sought to play down its significance. In my view, however, the supplementary response dislodges the basis of the judgment. If, in fact, the judge was paying only lip-service to the level of risk appraised by Dr X, and inherited by Mr Cullen, and if in fact she was proceeding on the basis that the risk to K was at a higher level, then she was proceeding without expert endorsement and she was rejecting the idea of a further psychological assessment on a false basis, namely that she would in any event adopt the level of risk assessed by Dr X.
(a) that forthwith the local authority should send to Mr Cullen copies of the transcript of the judge's judgment dated 7 May 2010 and of her supplementary response dated 8 July 2010 and that, as soon as practicable, they should send to him our own judgments, once handed down;
(b) that Mr Cullen should report in writing to all parties as to whether, in the light in particular of the judge's findings of fact about the parents and the decision of this court, it would in his view remain worthwhile for the piece of work for up to 16 weeks which he had recommended to be undertaken;
(c) that, were he to report that it remained worthwhile to undertake the work, Mr Cullen should, subject to any contrary direction given pursuant to (d) below, proceed to conduct it for as long as he continued to consider it to be worthwhile;
(d) that, upon receipt of Mr Cullen's report, each parent, the local authority and the guardian should each be at liberty to apply urgently to the court identified in (e) below for further directions; and
(e) that the judge to hear any application pursuant to (d) above and, in any event, to conclude the hearing of the local authority's application for a full care order should either, if practicable, be Mr Justice Roderic Wood, the Family Division liaison judge for Wales, in which event the proceedings should be transferred to the High Court, Family Division, Swansea District Registry or, if not practicable, be another circuit judge in the Swansea County Court. I should add that Mr Bellamy strongly argued that HHJ Mifflin should retain conduct of the proceedings; but it was on balance my view that, notwithstanding the experience and high reputation of the judge, it would place her in an uncomfortable position to be required in the present circumstances to proceed with a case which she had resolved should be concluded in a particular way.
Lord Justice Stanley Burnton:
Lord Justice Rix: