England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(HER HONOUR JUDGE BUTLER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th February 2013

Lord Justice McFarlane:

1. This is an application for permission to appeal made in a notice filed on 12 November 2012 seeking to challenge the determinations made by HHJ Butler QC sitting in the Nottingham County Court ostensibly in an order of 4 October 2012 when a final order sanctioning the placement of a child for adoption was made but in reality also challenging an earlier determination on 23 August 2012 when the judge ruled that the child cannot in her best interests be returned to live with either of her two parents.
2. The application for permission is made by the child's father. I will refer to the child simply by the initial of her first name, L. She was born on [a date in] 2009 and is therefore now some few months over the age of three.
3. The history of the case is of some moderate level of concern by social services when the mother and the father lived together as they did for a short time measured in the span of three or so months in Devon. They continued to have contact with each other after their separation with L living with the mother but again all three of them in the area of Devon County Council.
4. Case conference decisions placed L on the Child Protection Register initially in August 2010 in the category of neglect and then in April 2011 in the category of acute emotional harm. It is not necessary for me to go into the details of these matters in this short judgment but in brief there was a level of concern arising out of the volatile relationship between the father and the mother and the potential for the child to be exposed to that.
5. Matters moved on and escalated when the mother formed a relationship with another man and moved with him to live in Nottinghamshire. On 22 August 2011 young L, who was still less than two years old, was admitted to hospital with an horrific injury which indicated that she, at that very young age, had been the subject of penetrative sexual abuse. She was also found to have a number of physical injuries including fractures and bruises. None of these can be attributed at all to the father who had remained living in Devon, but as a result of those gross symptoms L was removed from the care of the mother and her then partner and has been in foster care ever since.
6. The care proceedings were conducted in the county court and a fact finding hearing took place on 17 April 2012, during which it was noted that the father conceded that the threshold criteria were met with regard to his relationship with the child and the mother arising from the arguments that had taken place. The bulk of the hearing was however focussed upon determining which of the various physical signs seen on young L were the result of assault or non-accidental injury and seeking to identify who was the perpetrator of these serious injuries. The judge accomplished that task, identified the mother's partner as the perpetrator but identified the mother as very significantly failing to protect her young daughter.
7. The case went off for further assessments to be undertaken and at the hearing on 23 August the judge conducted an appraisal resulting in the decision to rule out a return to the care of both parents, and it is effectively against that decision that the father now seeks permission to appeal.
8. My difficulty this morning in coming to a view as to the merits of his appeal arises from the fact that I have very little documentation upon which to form a view. I do have a note of the judgment given by HHJ Butler on 23 August but very little of the case file. The judge states in the early words of the note:

"I have read … assessments, reports, addendums, assessments of parents."

But there is no quotation in the judgment for any of those assessment materials. The judge seemingly ruled the father out on the basis of his past aggressive conduct as it was alleged to be and she noted that the father's mother, Mrs KP, and his grandmother, Mrs SM, had both stated that he was "aggressive". One piece of information I do have is that both of those ladies, one of whom sits in court before me today, do not accept that they spoke in those terms but I do not have the raw material, the social worker statement, that records what it was that the judge was referring to.

9. The judge knew that the father had undertaken some anger management counselling and had paid for that off his own bat (the first three sessions had been undertaken) but the judge ruled that this was too little too late to alter her view, which was that the father could not, because of his aggression, be considered as a good enough or safe enough parent for young L.
10. At the hearing the order records that the father, who was represented by counsel, applied to instruct an independent social worker to carry out a further assessment of him. That application, as the order records, was dismissed by the judge but nothing in the note of judgment that I have seen actually refers to the application or the judge's reasons for refusing it.
11. At the subsequent hearing on 4 October the judge knew that the father had completed his anger management course and I have now read the report of Lynne Taylor-Binns which records that indeed he did complete all six sessions and she gives him a positive assessment in terms of his ability in the future to control any difficulties with his anger. But again the judge dismissed that material as being insufficient to alter her previous view on the basis that the psychologist had not read the court bundle and that the father's ability actually to deliver restrained and safe anger management had not been tested in practice by a period of time following the conclusion of the work. So the judge maintained her view that young L should not be placed in the father's care and she went on to make the placement for adoption orders.
12. The father acts in person. He waited until the October hearing before considering launching an appeal. He then lost his legal representation because legal aid ceased at that point and he filed a notice of appeal five or six weeks after the determination. That took some time to progress through this court, no doubt partly awaiting the note of judgment that we have got. His grounds of appeal are attractively short but are limited to challenging the assertion that he was a violent and an aggressive person. He says "This is not true" and he indicates that he has the wherewithal to provide a home for his daughter.
13. Having encountered the father today, assisted as he is by his grandmother, Mrs SM, and teasing out what took place at the hearing, it does seem to me that his principal complaint, if it was put into the language of lawyers familiar with these proceedings, is that the assessment process was flawed. He says that the assessment of him was limited to the social worker from Nottinghamshire coming down to Devon to see him for the period of an hour or so and that was that. It was not on that view, he would say, a proper or thorough assessment. In addition Mrs SM tells me that one of her daughters, Mrs JC, was assessed (she is a lady in her mid-fifties), that Mrs JC has worked as a carer for the elderly for some time and she was offering a home for L at least for the foreseeable future. I am told she was ruled out on the grounds of her age. Another daughter was assessed and again it is said that was not a satisfactory arrangement because they were given no notice that the social worker was going to attend. In addition, as I have indicated, I have no knowledge of why the judge refused the father's application for an independent social worker report.
14. I am concerned enough about what I have been told about that process and concerned that the judge really does not deal with it in the note of her judgment of the August hearing that I have read to consider that this needs looking at in more detail. I therefore propose to adjourn the application for permission to appeal for it to be listed for a three hour hearing before three judges, one of whom could be a High Court judge, on notice to the other parties with the full appeal to follow if permission is granted. I am also going to direct that there be a transcript prepared of each of the three judgments given by the judge and that is to be prepared on an urgent basis and there is also to be a transcript of the part of the hearing in which the judge refused the application for instruction of an independent social worker.
15. Hopefully armed with that material and armed with access to the statements and reports that were before the judge which the local authority will, I direct, prepare in an appeal bundle, the judges who hear the application when it comes back will be able to decide if there is merit in the appeal and, if there is, whether the appeal succeeds.
16. I have stressed to the father this morning that it will be of great assistance to him and to the court, and ultimately to young L, if he can be represented by lawyers at the next hearing. It is a matter for the Legal Services Commission whether legal aid is extended for this but I consider that there is sufficient merit in this case to justify legal aid being granted and that the process before the court will be significantly eased and enhanced if the father has a lawyer representing him. I will direct that this judgment which I have just given be transcribed again on an urgent basis. That is my decision.

Order: Application adjourned