England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE CURRIE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd November 2012

Mrs Justice Baron:

1. This is an appeal by DC, to whom I shall refer as "the mother", in respect of an order made by HHJ Currie made on 7 September 2012. On that occasion the judge dealt with an application by a local authority for care orders in respect of the mother's seven children and a placement order in respect of the two youngest, namely E, who was born on [a date in] 2005 (she is now 7½ years) and M, who was born on [a date in] 2009 (she is 3 years and 8 months old).
2. The mother has seven children in total: the eldest, B, is 15½; K, just 14; F, 12½; C, 11; and R, 10 years. The father of the six youngest children is PS, with whom the mother had a long-term relationship, albeit that it was volatile and punctuated by domestic violence. The mother herself had a very difficult childhood with the result, through no fault of her own, she was left with many long-term problems. For the purposes of this appeal, her difficulties can be summed up as an emotional attachment disorder. As a result of the neglect that she suffered as a child, she does not have the coping mechanisms with which to provide for her children's emotional wellbeing. She accepts that the threshold criteria set out in the local authority's care plan were justified. By the date of the trial two of her children had already been removed from care and one had chosen to leave home. She was caring only for the four youngest members of the family. She made great efforts to improve her parenting and engaged fully in the programme set by the local authority. Indeed, there was praise in the judgment for the attempt that she had made to become a better parent. Unfortunately, despite all her good work, the clinical psychologist, a Philip Murphy, concluded that without long-term therapy she would not be able to parent successfully within the timeframe available for the children. He put it thus:

"This matter has been discussed in the preceding sections of the report, as have the implications for the children's well-being if [D] and [P] maintain their currently poor patterns of parenting. Specifically, for each parent, their psychological vulnerabilities undermine their ability to recognise either the harm their children may suffer, or the role that the parent has in causing such harm. This lack of insight may remit to a degree following successful completion of the treatments described for the parents below. In the interim however, although the parents may pay lip service to the advice and recommendations of professionals, their inability to grasp the need for this advice will undermine their ability to make use of it…

Considering first [D's] treatment needs, she has suffered an appallingly abusive childhood which has given rise to a chronic pattern of emotional and personality vulnerabilities, together with significant anger management problems and a normalised perception of conflict and turbulence within the home."

His conclusion was that even if she had therapy for a period of eighteen months she should not be able to care for her children or even have unsupervised contact to them. In the light of this and all the other evidence care orders were made in respect of all seven children.

3. The judge was then concerned to deal with the 2 youngest children. The local authority's plan in respect of them was that they should be placed for adoption. If possible, they should be placed with one family but, if that were not possible, then separately. Knowing that there would be difficulties in achieving such a placement, the local authority had in mind parallel planning in respect of these children. The thrust of this appeal is in relation to the placement orders which the judge made. It is clear that the mother finds it extremely difficult (which is understandable) to consider that two of her children may be treated differently from their five siblings.
4. The grounds of appeal are discursive in nature but the distillation appears to be as follows. The first ground asserts that the judge's decision was plainly wrong because the care plan is respect of the girls was unrealistic, would not achieve certainty or provide the unity which the judge envisaged. The second ground is to the effect that the judge's decision was plainly wrong because there was insufficient explanation as to how the children would adapt to being adopted and to being treated differently from their older siblings. The third ground relied upon the argument that the judge did not set out a careful analysis pursuant to the terms of Section 1(4)(f) of the Adoption and Children Act 2002 and, insofar as he made comments in relation to that Section, he incorrectly stated:

"then subsection (f), which relates to the relationship of a child which the child has with relatives or any other person, is not material for these purposes."

The respondents to this appeal accept that this latter expression contained an unfortunate use of language, but they submit, this should be read in the context of the judgment as a whole with the result that this ground is unsustainable. The fourth ground of appeal is more specific and asserts that the care plans for the adoption of E and M does not provide for similar treatment to their older siblings and therefore the decision to grant placement orders was plainly wrong.

5. The grounds of appeal also contemplate that this court should lay down general principles in relation to the way that sibling groups should be dealt with in the context of care proceedings. Speaking for myself, I would decline to make any pronouncements of a general nature because each case is unique and different on its facts. The court will always be required to provide bespoke solutions targeted on the needs of each particular child. Accordingly general guidance in this field would not be in point.
6. When considering whether to make placement orders, the judge had to dispense with the consent of the parents under Section 52(1) of the Act, which provides:

"The judge can only dispense with parental consent if the welfare of the child requires it, and the paramount consideration is the child's welfare throughout their life."

7. The test to be applied was enshrined in Re P [2008] 2 FLR, and it is clear from the judgment of Wall LJ, as he then was, in paragraph 126 that:

"Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child's welfare "requires" adoption as opposed to something short of adoption. A child's circumstances may "require" statutory intervention, perhaps may even "require" the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily "require" that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is "required" is adoption."

We have been referred specifically to other passages in Re P. In particular:

"125. This is the context in which the critical word "requires" is used in section 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective "requires" does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.

[…]

132. The need for care, sensitivity and intellectual rigour on the part of judges hearing applications for placement orders is, we think, reinforced by the fact that applications for placement orders will, regularly, be heard and will need to be determined immediately after the court has made a care order in relation to the same child: - see Re P-B referred to in paragraph 34 above, and the unreported decision of this court in Re EN (a child) KN [2007] EWCA Civ 264. It is not so long ago that the grant of only a short adjournment between the making of a care order and the application to free a child for adoption (albeit in the context of a litigant acting in person) was held by the European Court of Human Rights to be a breach of ECHR Article 6: - see P, C and S v United Kingdom [2002] 2 FLR 631. Whilst is it highly unlikely that any parents having to face the prospect of immediately sequential care and placement order will be unrepresented, the likely juxtaposition of the two applications is, in our judgment, an additional reason for the court to examine the cases with particular care."

8. The judge himself dealt with it thus, in paragraph 70 of his judgment:

"So far as the likely effect on each child of any change of circumstances, there is of course none in the case of the three oldest children. In the case of the four youngest, this will be dramatic and painful in the short term. But, given the context of a probable continuing and serious deficiencies in the parenting which they have received and will probably continue to receive, a change is necessary. On the evidence laid before the Court, the Court has no doubt that in the medium and longer term, the change in the care plan will be entirely beneficial. Even if an adoptive placement cannot be found [in respect of the two youngest children] quickly it cannot be said, and the Court does not accept, that that task is an impossible one. I accept the evidence of the Guardian that it is difficult to place two girls of this age together. The difficulties will increase with time, but the only solution to the problem is, or appears to be, that advanced of the twin tracking in [E's] case if no joint placement is to be found after six months. The potential for what Ms Hylton described as a 'limbo' is of course considerable, but the alternative, as starkly set out by Dr Murphy in a passage to which I have referred earlier (the 'brutal' experience) is, on balance, far worse than the disadvantages inherent in the course proposed by the local authority and endorsed by the Guardian.

71. Accordingly, in linking with that the children's ability to adapt to the change, the Court is as confident as it is possible to be in these circumstances that the children will adapt to the new circumstances, in the case of the two older of the younger quartet, to good foster homes. In the case of the two younger ones, the plan is adoption."

It is clear from that passage in the judgment that the judge considered and appreciated that the orders that he was going to make were draconian and that there was a difference in the distinction between an order for long-term fostering under a care order and a placement order in terms of a prospective adoption.

9. The assertion that the judge misdirected himself or did not specifically deal with the test enunciated in Re P is not made out. Having decided that the younger children were very close to each other and that the delay was likely to prejudice their welfare, he gave reasons why he considered a placement order was merited. He considered that it would be better if the children could be placed in a secure long-term home together, but should that not come to pass the judge considered separate placements preferable. He could not possibly prognosticate as to the future, but he did take into account the fact that the local authority were minded to undertake parallel planning and there was no practical alternative for these children, given that (by not appealing the care orders) the mother accepted that the children could not return to her care. Thus, ground 1, as I have enumerated it above, is not made out.
10. In respect of ground 2, the complaint is that the judge failed to consider the long-term effect on the children from being treated differently and, having found that the children could adapt, he did not then go on to consider the likely effect of this throughout their childhood to being adopted. The judge stated that adoption offered the best solution that could be found. There is nothing in the submissions that I have heard in oral submissions today or the written documents that make this ground sustainable.
11. Ground 3 relies on the fact that the judge did not specifically deal with the matters set out in subsection (4)(f) in a satisfactory manner. I accept the judge that the judge made an error when he stated that subsection (f) was "not material". But in the context of the judgment as a whole it is clear that he had the children's relationship with their siblings and other relatives fully in mind. I point to the fact that the care plans set out very fully that it was intended that the local authority would keep inter-sibling contact in place and under review. Their position being they were minded to offer contact on a regular basis, because it was accepted (especially as far as E was concerned) the children had a great knowledge of her family and would, subject to their development, wish to retain contact with siblings. Consequently I do not believe, although that is a technical error within the judgment, that that ground is made out.
12. In respect of ground 4 there is a fundamental difference in relation to the treatment of the siblings. It is true that the elder five siblings will remain in long-term fostering. That is because those children have a more serious degree of damage than their younger siblings as a result of being exposed to the difficulties at home for a longer period. Moreover, it is anticipated that it would be much more difficult, if not impossible, to find those children placements where they were likely to be adopted. The aim of the court was to exercise judgment with the priority what is being in the paramount interests of the children and their long-term welfare. The aim is to give them the best start in life, given the difficulties that they have experienced to date. Sometimes that will call for a different solution in respect of each child. In this case the judge heard evidence from acknowledged experts in the field as to the degree of damage that each of these children had suffered whilst with their parents. The circumstances were such that the judge was convinced that it made sense for E and M to be placed for adoption. The distinction between that solution and long term fostering for the other five siblings was illuminated in his judgment and was justified on the facts. In the final analysis it was an exercise of discretion which has not been undermined by anything which has been outlined in the excellent submissions on behalf of the appellant.
13. So, for my part, that fourth ground is not made out. I would dismiss this appeal.

Lord Justice Thorpe:

14. I agree.

Lord Justice Rimer:

15. I also agree.

Order: Appeal dismissed