England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TEESSIDE COMBINE COURT
(HER HONOUR JUDGE HALLAM)

		Royal Courts of Justice Strand London WC2A 2LL
		26 June 2013

LORD JUSTICE MCFARLANE:

1. This is an application made by the mother of a child who is still very young, a girl whose initials of her first names are LM, born on [a date in] 2012 and therefore now some 11 months old. The appeal focuses on a determination made by HHJ Hallam sitting at Teesside Combined Court on 23 May 2013 in the course of care proceedings relating to LM. It is plain to me, coming as I do to this case from a standing start, that there is a very extensive history. The history in part relates to the three older children born to this mother: a girl, C, born in [a date in] 2005; a boy, R, born in [a date in] 2007; and another boy, L, born in [a date in] 2009. Those three children were all subject to public law proceedings brought by the local authority in March 2011, and they concluded in orders made by HHJ Hallam in May 2012. The children were placed variously each with members of the maternal or paternal family, two of them under supervision orders. The conclusion was that it was not in the interests of any of the three children to be placed in the mother's care.
2. Again, offering no more than a summary, the reasons for that decision, which was the removal of the three children from the mother who had been caring for them, and a decision that (a) the threshold criterion section 31 of the Children Act were satisfied in relation to the care given by the mother, and (b) that they should not be returned to the mother's care, was justified, apparently not on any shortfall in the mother's ability to provide practical day-to-day parenting to her children, but arose from the mother's personality and her ability to act in a way which would cause the children significant harm to their emotional and social development.
3. By the time the mother was expecting the birth of the child who became LM, she reasonably apprehended that the local authority would be concerned to be involved in relation to that child's well being, and the mother went to Southern Ireland. Proceedings and procedures between the jurisdiction here in England and Wales and that in Southern Ireland, both between the courts and also social services, led eventually to LM being brought over to this jurisdiction, and the case came before Cobb J on 27 March 2013, where he, having heard extensive argument, made holding orders making interim care orders in relation to LM and holding that the jurisdiction of the court to make determinations for the future was the court in England and Wales.
4. Subsequently at a further hearing on 29 April, Cobb J again dealt with the case. He adjourned making any decisions as to case management and interim orders to Judge Hallam, and he transferred the case back to her. Thus it was that the matter came before Judge Hallam on 23 May, as I have indicated. The only record I have of that hearing is a note prepared by the local authority's barristers. The mother has a copy of that note. She makes no point about it and as notes go it does seem to be relatively full. The note itself shows that the focus of the mother's case before Judge Hallam on 23 May was to apply for a residential assessment direction under section 38(6) of the Children Act. In particular the mother made two points: first of all, that such a residential assessment was justified in this case; but secondly, it is the unfortunate fact that LM had by that stage already moved eight or nine times between one foster parent or another. The current foster parents are due to go away on holiday, and the mother said that the opportunity of LM having to move somewhere else should be seized upon by the court for her to move to the residential assessment with the mother, and if it worked well, the mother would retain the care of LM under whatever order the court would then make. But if the assessment was negative, LM would return to the foster carers that she has currently been placed with. It was that application that Judge Hallam primarily heard and refused. It is against that determination that the mother seeks permission to appeal today.
5. Separately, the mother tells me that she was expressly asking for the court to discharge the interim care order at that hearing and make an interim supervision order. I am bound to say that if that was a primary issue before Judge Hallam, it does not surface by any reference to it in the note of the judgment that we have got. The mother has shown me the statement that she prepared for that hearing, and certainly in the copy of the statement she was able to show me, it again did not feature in any prominent way. I therefore approach the case on the basis that the judge was not considering making an interim supervision order at that hearing.
6. Before leaving that point, it is of note that the question of whether or not an interim care order should be in force was considered by Cobb J in his April judgment, and he deals with it from paragraph 28 onwards. At paragraph 32 he holds that it could not be in LM's interests now to sanction her placement in the mother's care as LM has not seen her mother for the past five months, which then was more than half of the baby's life, and so little is known about the mother's living arrangements. From the material I have seen, that situation had not significantly moved on in favour of the mother by the time the case came before Judge Hallam three or four weeks later.
7. So the proposed appeal against the continuation of the interim care order in my view simply does not get off the ground if the target is the decision made by Judge Hallam on 23 May.
8. The mother has rightly referred to the now substantial list of determinations by this court and the High Court as to when a child should or should not be removed from a parent under an interim care order. That is not a matter for me today. It is a matter that has been determined by Cobb J in March and then again in April, and it does seem to me on my summary reading of the matters that there is sufficient material based on the previous proceedings and the findings made in those proceedings to justify proceeding cautiously as to the interim arrangements for young LM. That does not preclude the mother making a further application to Judge Hallam to alter the interim arrangements, but she needs to do that plainly and expressly and by showing exactly what it is she wants to provide in terms of accommodation and arrangements for supervision.
9. The real issue I think I have to consider today is whether the mother has a reasonable prospect of persuading the Court of Appeal that Judge Hallam's decision not to sanction residential assessment should be set aside. The context in which the judge's decision fell to be determined is this: under the rules as they now are, the judge could only sanction a residential assessment if she concluded that it was "necessary" for the just resolution of the proceedings. The second context is that following the Supreme Court decision of ten days ago in the case of Re B [2013] UKSC 33, the test I have to apply is not to look and see whether Judge Hallam was "plainly wrong" before the Court of Appeal could intervene, but simply to question whether she was "wrong" or not.
10. Happily, on one basis, this case is not about a mother who is incompetent or unable to provide ordinary, good enough or even good physical and practical care for her children. Unhappily, and frustratingly for all involved, I dare say, particularly the mother and the children, the concern about the mother's ability to parent is more subtle and harder to pinpoint, but it arises from her personality and the potential for the children to be upset by unpredictable actions or words that she may from time to time exhibit.
11. Judge Hallam concluded in the note we have that a residential assessment was not necessary because enough was known about the mother's practical day-to-day parenting and that that was not a fundamental issue in the case. She said "the fundamental issues in this case ... are psychological and psychiatric". On that basis, reading the note as best I can, the judge concluded that a residential assessment, which is, as we all know, focused upon practical parenting, was not going to provide more evidence that would have been of use to the court. It therefore seems to me entirely understandable that Judge Hallam said that it was not "necessary" to conduct a residential assessment, and the Court of Appeal would not hold that she was "wrong" in that determination.
12. During the course of submissions, I have heard a lot from the mother. In preparing for this hearing, I have read a great deal of the material that she has put in. It is plain from what I have read that the situation in which she lived when the children were removed from her care in 2011 may well have moved on, particularly in terms of her use or abuse of alcohol and also in other respects. It is also her case that the children, who are already subject of orders, now have a more relaxed and more regular contact arrangement with her. It is a hope that as this case moves on, the mother will work co-operatively with the local authority, accepting that there is some bedrock to the concern that they have, and continuing to do what she can to alter her presentation as an individual and as a parent. That is as a matter for her.
13. Meeting each hearing head on with a challenge is unlikely to progress matters. She has profound concerns about the whole process, but hitherto she has not filed an appeal against the final orders made in May 2012, and she gives some explanation as to why that is the case. It is the case that there has been no appeal, it is the case that the findings of fact made in 2012 were made and are now, as it were, on the record. Both Cobb J and HHJ Hallam were entitled to use those findings as a starting point for their case management decisions and decisions as to the interim care arrangements for young LM.
14. Having made those various observations, I am plain, despite the clear way in which the mother puts the case, that targeting this order made by Judge Hallam on this occasion is not one that will give her a reasonable prospect of appeal, and I therefore refuse permission to appeal.

Order: Application refused