Case No: B4/2013/1344
Neutral Citation Number: [2013] EWCA Civ 1018
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HER HONOUR JUDGE MURFITT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 16th July 2013

Before:

LORD JUSTICE LLOYD
LORD JUSTICE JACKSON
LORD JUSTICE RYDER

- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF R (CHILDREN)

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Ms T Pritchard (instructed by Milner Elledge) appeared on behalf of the Appellant
Ms A Thain (instructed by Essex County Council) appeared on behalf of the Respondent

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Ryder:

1.	The appellant, who I shall call M, is the mother of three children, who are the subject of care and placement order proceedings issued by Essex County Council.  Her previous partner, the father of the two youngest children, B and C, I shall call F.  The children, who I shall refer to as A, B and C, are as follows.  A, a boy who is aged eight, has been placed with his maternal grandmother with the agreement of all relevant parties.  She now has the benefit of a special guardianship order in respect of him.  No appeal is brought against that decision.  The two younger children, B and C, were made the subject of care and placement orders by HHJ Murfitt in the Chelmsford County Court on 30 April 2013.  It is against that decision that this appeal is brought.

2.	The threshold facts sufficient to satisfy section 31 of the Children Act 1989 were not opposed by the parents.  Furthermore, once the final hearing of the applications had begun, both parents accepted that, whether together or apart, they were unable to care for the children.  

3.	There was a late application by M, who had recently separated from F, to be given time to repair her life.  That application was rightly rejected by the judge at the beginning of the final hearing as being outside the children’s timetable i.e. contrary to their welfare.  The consequence was that the welfare decision that faced the court was a choice between the family’s plan, which was for a placement with the paternal grandparents, or the local authority’s care plan, which was for an adoptive placement outside the extended family.  

4.	The threshold and facts as found by the court included the following: 
•	A long history of terrifying and serious domestic violence perpetrated on M by F in front of the children, to the extent that the eight-year-old boy would refuse to go home because he was so scared; 
•	A history of association with and use of illegal drugs by the parents; 
•	The neglect of the children in unhygienic home conditions; 
•	The parents’ lack of understanding of the children’s wider practical and emotional care needs; and 
•	The significant impact on the children of the abuse and neglect, including developmental delay.  

5.	This was not a case of a questionable threshold for the state’s intervention.  This was emotional abuse and neglect that had already taken its toll on the children such that the effects were measurable.  It has to be said that for any member of the family to have tolerated that bespeaks a situation of concern and an inference of lack of insight or an inability to protect the children that is worrying.

6.	The children were described as needing better than “good enough” parenting as a consequence of the abusive and neglectful care of their parents.  In simple terms, despite their compassion and devotion to the children, the paternal grandparents were said to be unable to provide the above average parenting the children required.

7.	The local authority’s reasoning, supported by the children’s guardian, as accepted by the judge, is set out in the final recommendation of an annex B report to the court on the application for the placement order, as follows:

“Placement order

In my opinion, a Care Order is the only appropriate method of ensuring that [C] is kept safe from harm and that she is meeting her developmental milestones.  If the Court granted a Care Order then this would allow the Local Authority to permanency (sic) plan for [C] and safeguard her accordingly.”   

In support of that recommendation the local authority social worker and report writer  had produced a statement of evidence to the court and gave oral evidence upon which she was cross-examined. 

8.	The judge’s judgment identifies the following features.  The paternal grandparents have a conflict of loyalty with the father of the children and a tendency to minimise issues in relation to him.  They were described as being vulnerable to father, who does not respect the ordinary civil law conventions to the extent that injunctions were thought to be ineffective as a protection against him.  In addition, and by way of example, he had threatened to kidnap the children from their alternative carers.  It was held that the paternal grandparents had a lack of insight into the difficulties that there would be with contact and a lack of insight into the abuse and neglectful care in the parents’ home given the regularity of their contact over time.  Alongside this, specific difficulties were identified, including:  their accommodation, in particular the size of the same; the schooling of their own children; and the needs of their daughter, a 15-year-old who had tragically been raped while at school.

9.	In my judgment, those factors and reasons were sufficient to conclude that the placement of the children B and C with the paternal grandparents as the only members of the extended family who were available, was not in the interests of either of the children.

10.	The judge took into account the positive factors which were available to the paternal grandparents, in particular, their strong emotional bond with the children, their relationship since the birth of the children, their practical care of the children, and their general experience as carers of children together with the emphatic and positive references from relatives and members of the community.  The judge was entitled to conclude that even with these positive qualities they would not be able to provide above average parenting for the two children.  A placement with the paternal grandparents would not safeguard the children’s welfare by meeting their specific needs.  In the absence of any other proposal for the children’s care, it was in my judgment, inevitable that the court would conclude that a care order was necessary i.e. there was a need to share and exercise parental responsibility for these children.  There was no contrary professional evidence to that given by the local authority social worker and the children’s guardian.  The paternal grandparents had not made an application for a special guardianship order and accordingly there was no report before the court of the kind that one would expect on an application of that nature.  

11.	It is right to say that the balance of risk of harm relating to these two children was a marginal i.e. a difficult decision for the judge.  It was however a decision that was entirely within the range of value judgments and the broad discretion that she had.  In any event, Ms Pritchard, who pursued this appeal on behalf of mother, father and the paternal grandparents, did not criticize the social work evidence that was given in this case.  What she submitted was that the judge gave insufficient weight to the positive factors as against the negative factors in her evaluative judgment, and that she failed to apprehend that the social work evidence arose out of an assessment of the paternal grandparents as foster carers, which in her submission “raised the bar too high” when considering their ability to provide a permanent placement for the children.

12.	I have dealt with Ms Pritchard’s submissions in relation to the judge’s evaluative judgment and I conclude that the judge was entitled to come to the view that she did.  She was not wrong in the weight she gave to the positive and negative factors which arose out of the evidence.  I can deal with the second element of the submissions relatively quickly.  The judge was not in any way misled by the nature of the social work assessment.  She extracted the evidence of fact and opinion from the same and put it into her own assessment and evaluation.  There is nothing in the submission that we have heard which suggests that the standard of care expected of the paternal grandparents was set at too high a level.  Furthermore, I do not accept that the judge made an error in her approach to that standard or as to the burden of proof of any relevant facts:  the grandparents did not have to prove anything.  

13.	The real complaint in this appeal is that, having come to clear conclusions about the facts and value judgments that were in dispute, the judge did not analyse her decision in the terms required by the Adoption and Children 2002.  The judge was required to consider section 1(4) of that Act and in particular sections 1(4)(c) and 1(4)(f) as follows:  

“1(4) The court or adoption agency must have regard to the following matters (among others) -
[…]
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
[…]
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –
i.	the likelihood of any such relationship continuing and the value to  the child of its doing so,
ii.	the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
iii.	the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

14. She was also required to consider section 52 of the Act in relation to the dispensation of the consent of the parents:
“52 (1)   The Court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that –
[…]
(b) the welfare of the child requires the consent to be dispensed with.”.  .

15.	The judge dealt with the welfare factors in section 1 (4) of the 2002 Act at paragraphs 55 to 58, inclusive, of her judgment.  The judge described the evidence which she accepted which followed the statutory formulation.  She highlighted from that evidence the losses which the children were bound to experience as a consequence of the local authority’s care plan including the loss of their parents’ care, the loss of opportunity to grow up with A, their elder brother, and the loss of their extended family including grandparents, and uncles.  The judge described how that was balanced against the attachment that the children had to their new carers and the services that would be put in place to support them.  The judge specifically described the possibility of the severance of contact between the children and A as being “the hardest one” for her.  She said that “a shared childhood is undoubtedly an important ingredient in forming any person’s self image and identity”.  She balanced that against the risk of the disclosure of the children’s whereabouts to the wider family and the detrimental conflicts that could be engendered.  She described how the benefits to the younger children of having a permanent family of their own outweighed their birth family connections.  
16.	The judge went on to examine the capability that a permanent family would have in being able to meet the children’s emotional, social, practical and educational needs such that the children would be able to have stability, attachments, and permanence.  Again, the judge specifically considered those needs against the loss of their birth family that would be the consequence of an adoption plan.
17.	The judge considered the views and wishes of the adults in the children’s birth family and having assessed the impact on the children of the relationship with them being permanently severed and having regard to the welfare of the children throughout their lives she came to the conclusion:
“I regret (that) in the end I am not able to be satisfied that they will be equal to the task of meeting all of the children’s emotional as well as practical needs, or to providing them with a secure environment in which to develop, whilst also having to attend to the competing needs of their own family in all the circumstances.
I recognise that the making of a care order represents a considerable interference with the children’s right to a family life, but in the end I am satisfied it is both a necessary and proportionate response to their needs.  I also agree that after considering all other family and kinship care options, that making a placement order is most likely to provide these two children with the security of a permanent home with carers who are likely to meet all of their developmental needs, and enable them to attain their full potential in life.”
18.	Accepting, as I do, that the judge dealt with her reasons relating to section 1 of the 2002 Act in a variety of ways and at different parts of her judgment, I have come to the conclusion that taken together the judgment sufficiently evidences that the judge had in mind the statutory test that she was required to apply to the making of a care order and the separate consideration of the welfare checklist in the 2002 Act which is a pre-requisite to the making of a placement order.
19.	So far as section 52 of the 2002 Act is concerned, the judge had to be satisfied that the welfare of each of the children required their parents’ consent to be dispensed with.  In other words, their welfare necessitates adoption and nothing else short of that will do.  That formulation is derived from the terms of section 52 as explained by this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 CA at paragraphs 113 to 119 inclusive and, most recently as reiterated by the Supreme Court In the matter of B (A Child) [2013] UKSC 33.
20.	When a court comes to consider the dispensation of consent under section 52 of the 2002 Act, it has to be satisfied that the welfare of each child requires the parents’ consent to be dispensed with.  That requires evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.  I have already referred to the conclusions in the Annex B report in this case which set the scene for the judge’s decision.  It is equally clear from paragraphs 55 to 58, inclusive, of HHJ Murfitt’s judgment that she heard oral evidence in the same terms, which she accepted.
21.	Her final conclusion is set out at paragraph 58 of her judgment:  
“I recognise that the making of a care order represents a considerable interference with the children’s right to a family life, but in the end I am satisfied it is both a necessary and proportionate response to their needs.  I also agree that after considering all other family and kinship care options, the making of a placement order is most likely to provide these two children with the security of a permanent home with carers who are likely to meet all of their developmental needs, and enable them to attain their full potential in life.  I shall accordingly make the care order and dispense with the consent of the parents, M and F, to the making of a placement order on the grounds that the children’s welfare requires that I should do so.”
22.	The second sentence of that paragraph was an unfortunate use of language by the judge, in that it tends to suggest that the test which she applied was whether adoption was likely to meet the children’s needs.  That would not be a sufficient understanding of the test to dispense with the parents’ consent under section 52 of the 2002 Act.  However, when the judgment is read as a whole and having regard to the evidence which was before her I am satisfied that the judge had in mind the appropriate statutory test, that she applied it and that there was ample material upon which she could come to the conclusion that she did.
23.	During the course of submissions, the court has had placed before it an eloquent letter written by Ms H, who is the maternal grandmother, who holds a special guardianship order in relation to the older boy A.  That letter sets out with emphatic and emotional force why it is that the older brother wants contact with his younger siblings.  It comes as no surprise to this court that someone who is now of an age and understanding to start to express such views should want those around him to consider how in future he may remain in contact with his younger siblings.  It would equally be of no surprise to this court if the younger siblings express a similar view in due course.
24.	The judge dealt with ongoing sibling contact in the very last paragraph of her judgment.  In effect, she made a note to herself and a recommendation that sibling contact be considered for the long-term future.  That recommendation is one which is worthy of serious consideration by the local authority and any future adopter.  Likewise, a court if asked to consider the question should consider the judge’s recommendations very carefully.
25.	For the reasons that I have explained, I have, with regret, come to a clear conclusion, that the appeal should be dismissed and that the care and placement orders should stand.
Lord Justice Jackson:
26.	I agree.
Lord Justice Lloyd:
27.	I also agree.