England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE GREENE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th January 2013

Lord Justice McFarlane:

1. The court has before it this afternoon two separate applications for permission to appeal relating to the same proceedings. The case was conducted in the Peterborough County Court before HHJ Greene, and it related to three young children: K, a boy born on 10 January 2003, and therefore now just over ten years of age; A, a girl born on 22 January 2010, therefore very shortly to be three; and the youngest child, another girl called KA, born on 5 August 2011, and so now some 17 months of age. The proceedings were concluded before HHJ Greene in June 2012, and in a reserved judgment given on 26 June he summarises the evidence that the court had heard over the course of, I think, a three-day hearing earlier that month, and concluded that all three children should be the subject of care orders to the local authority; that the care plan for the eldest child, the boy, K, should be endorsed, with him going to foster care; but that the plan for the two younger children, the two girls, A and KA, would be for them to be placed for adoption, and the judge therefore made a care order in their case but went on to dispense with the consent of the two parents to adoption and made a placement for adoption order.
2. It is against those orders that the two applicants now seek permission to appeal. The primary applicant is the children's mother, Miss G, and the second applicant is the children's maternal grandmother, Mrs G. Both of them act in person for the purposes of these two applications, and each has filed a Notice of Appeal supported by short grounds of appeal, which are different in each of the two cases; and in the case of the grandmother, she has helpfully set out first of all in writing a number of the "factual errors" that she seeks to rely upon, and then I think more recently has prepared a six-paragraph document headed "Reasons for Appeal".
3. In addition, this afternoon the mother has had the benefit of assistance from Mrs Julie Haynes, a McKenzie Friend, who comes into the case late in the day, who has not seen all of the court papers but who has now read the judgment and has spent the time, unduly long as it may have been because of delays in this courtroom earlier today, that she has had available this morning and early afternoon to take the mother's instructions.
4. It is necessary to say something in a little more detail about what the case was about. It is a case which has, on any view, a sad history, and it is a history which goes back over a period of some years. It is plain that in the care of the elder boy, K, the mother, and indeed her mother, had had some difficulties, but they were being supported over the course of a period of time by the local authority. K was living until matters came to a head in the home of the maternal grandmother; she is a lady who has certain health difficulties herself. The events that crystallised matters in relation to her care of K arose in March 2011. On an occasion in March, emergency services were called to the house and a paramedic was so concerned as to the situation that he found, which is described in paragraph 11 of the judgment, that he made a referral to social services. Some short time after that on 31 March, social workers visited the property, and they too found the condition, to use the judge's words, "to be appalling", and at that point by agreement K went to live with his mother. Matters, however, developed; the mother was having difficulties in looking after K as matters progressed, and as time went on she of course had the care by then of young baby A. She was expecting the child who was born in August, baby KA, and the proceedings, although I do not have a clear date for them, seem to have come into existence in the summer of 2011, either before or shortly after the birth of baby KA.
5. A further complication was visited upon this unfortunate family by the fact that KA was born with health difficulties and required accommodation in the maternity ward throughout the whole of what remained of August and early September. It is recorded in paragraph 14 of the judgment that when KA was only some four days old, she was found on the floor of the hospital ward or room where she and the mother were, and the mother was unable to explain how or why the baby came to be in that position. There was concern that the mother may have dropped the baby, although I note that there is absolutely no record of any injury on this very young baby had she been dropped. It does not seem that the judge made any finding against the mother in that regard, but at the time it will have been a matter of concern that the mother seemingly could not explain how or why the baby came to be on the floor.
6. There was a further occasion on 20 August. By that time, KA was apparently ready for discharge, and I am told the plan was that she would be discharged into the mother's care. However, on 20 August KA stopped breathing whilst in the mother's care. The mother sought assistance from the medical staff nearby. The case of the stoppage of breathing was never ascertained and there was plainly no adverse finding against the mother in that regard, but the fact that this had happened caused there to be a change of plan by the medical authorities, who advised that it was no longer safe for the baby to be discharged into the mother's care. An interim care order was apparently obtained and K went to live with foster carers. She remained in foster care from that time onwards.
7. By then, as I say, the level of professional concern was such that the proceedings had started, and obviously the social workers had been aware of the pregnancy and the need to plan for the birth of the child and the mother's ability to care for, then, two younger children. A residential assessment was arranged at a unit called The Croft, and the mother went there on 3 October 2011 and remained there for some seven or eight weeks until 24 November. The placement at the Croft was plainly a very significant event in terms of evidence-gathering and in understanding the mother's abilities and disabilities in providing consistent and safe care to her two young children, or indeed either of them.
8. The judge deals with the assessment of The Croft in detail in his judgment, but it is right to say that really from the start the level of professional concern as to the mother's ability was high, and, despite quite intensive intervention and support, it remained high and led to a negative conclusion as to her ability to care for the children on her own in the community, even with support. The final report from the Croft concluded that the children would suffer significant harm if returned to the mother's care. Thus the care plan developed into the one that was put before the judge at the hearings in June.
9. Nothing I have said in my short summary and record of the mother's abilities or lack of abilities is in any way to be critical of her as an individual; indeed, the same can be said of the maternal grandmother. Both of them are spoken of by the judge in his judgment in very positive terms in terms of their motivation and their love for each of these three children. This is a case where if all the will in the world could deliver good and safe care to these three children they would be extremely well cared for given the high level of motivation and love that both of these two ladies have and wish to display towards the children.
10. Sadly, because of the disabilities which are described by the judge in his judgment separately in relation to the mother and the maternal grandmother, there are impediments internally within their makeup which makes it, he found, impossible for them to deliver safe or good enough care. In the mother's case, again matters have been more complicated even than they were at the start of the proceedings. It had been understood that she may have learning disabilities or learning difficulties, and I use those terms distinctly as the grandmother seeks to distinguish between them. But it was only in December 2011 that the mother was assessed at the clinic of Professor Baron-Cohen in Cambridge, and the diagnosis offered was that she may have a mild manifestation of Asperger's Syndrome together with whatever learning impediment she might have. Part of her learning disability would seem to be an inability to retain very short-term memory as to what has gone on or needs to go on on a day-to-day or an hour-to-hour basis.
11. Part of the case before the judge was to see whether that diagnosis in relation to Asperger's would have made any difference to the way in which the workers at the Croft assessment centre had approached the mother in the period of three months before the diagnosis was given in December 2011. The judge canvassed this with the principal worker from The Croft, who was Dr Joanne Holmes, a psychiatrist. The judge was plainly impressed with Dr Holmes' evidence, and she concluded that had she known of the more sophisticated diagnosis that Professor Baron-Cohen's clinic was able to offer, that would not have altered their approach to supporting the mother, which had included offering support and intervention in a way which would have done all it could to meet the deficits that that diagnosis might indicate.
12. The judge heard evidence from Dr Holmes. He also heard evidence from Dr Leanne Horrocks, who is a psychologist and who had conducted an assessment of the mother and grandmother and the mother's brother, P, who lives with the grandmother. Again, that assessment formed part of the picture that I have already described of disabilities and difficulties that each of those two ladies had and it was relied upon by the judge.
13. In terms of professional evidence, however, it is necessary to mention another witness, Dr Janjua, who was a community paediatrician who had been known to this family over the course of some years. She initially was introduced into the case to give factual evidence as to the care of the children, but in the event during the course of the hearing she was keen to offer her professional expert opinion. That was an opinion that was favourable to the family and plainly they sought to rely upon it. The judge excluded any reliance on Dr Janjua's opinion, again for reasons which he gives more fully in the judgment but partly on the basis that Dr Janjua had not had access to the papers in the case, had not been instructed to conduct an expert assessment, had not carried out an assessment of K and indeed had not seen him within the last four years and had only had occasional reports about him from the mother and the grandmother. The judge concluded that despite Dr Janjua's qualifications and position he found her evidence to "lack balance, objectivity or judgment", and he rejected it.
14. So far as the threshold criteria are concerned, I am in some difficulties at this hearing in that the paperwork submitted by the two applicants does not include the threshold document. But I have read enough of the judgment to understand the basis upon which the threshold was put, and the judge plainly found that it was proved. It is unlikely in a case such as this, with a substantial history of this type and where it is recorded that the social worker was particularly positively motivated towards the mother at earlier stages of the case, for there to be a serious possibility that the findings as to threshold could be challenged on appeal. The real focus of my concern is to look at what the judge did in terms of his conclusion on the welfare issues in the case and whether he is open to the possibility of an appeal on the basis that he was wrong in law or plainly wrong in the way he exercised his discretion in making the care orders on all three children and sanctioning adoption for the younger two.
15. In the documents that have been filed by the mother and grandmother, they make a number of points. They are shortly put and they are the more attractive for that. In the mother's case, she stresses that Article 8 of the European Convention on Human Rights requires the court in this context to have respect to her and the children's right to a family life. That is plainly the case, and I have been keen in reading what I have of the judge's judgment to see that he starts from the proposition that the children should be with their mother and only comes to an adverse conclusion if that is necessary and in proportion to the need to protect them. Secondly, the mother refers to the Autism Act and indicates that she has been given no support to assist her following the diagnosis in December 2011. For the purposes of this hearing I am assuming that that is correct and I am sure that she is being straight with the court in that regard. Of course, that is a matter between her as an adult and the local authority who are providing resources in that regard. The important thing from my perspective is to see how it played into the Children Act proceedings and whether the judge had regard to what could be offered to a lady with her diagnosis that might make it easier for her to act effectively as a mother to her children.
16. Looking at it in albeit the filter that I have to because I only have the judgment, it does seem to me that that was a point that was pretty high on the judge's agenda, and why he was particularly keen to see whether the Croft assessment should have been approached in a different way now that the professionals knew of the diagnosis. Again, I cannot see that the judge is open to criticism or there being a prospect of success of an appeal on that point.
17. Both the mother and the grandmother say that the judge was wrong in the approach he took to Dr Janjua's evidence, and the judge should not have belittled the weight that he could put upon her evidence and should not have -- to use the mother's phrase -- thrown out the evidence of that doctor. I have summarised Dr Janjua's contribution. Taking the judge's account of the matter as he sets it out, it seems to me that he would have been entirely justified in taking the step that he did given his appraisal of the lack of information that Dr Janjua had and the partisan way that he perceived her to have been drawn into the case. Again, it does not seem to me that that is a point that would have a reasonable prospect of success on appeal.
18. Finally, looking at the mother's list of points, both she and her mother say that there were a number of factual errors in the documentation that was put before the court. Trying to tease out the detail, I am assisted by the grandmother's "List of Errors", and they really fall into three that are listed there. First of all, it is said that in April 2011 one document describes the mother as being bright and intelligent whereas by December 2011 there is the diagnosis from Professor Baron-Cohen's clinic of Asperger's Syndrome and learning difficulties. The point being made is that the two cannot both be right and that there was a lack of solid ground in terms of understanding as to quite what the mother's abilities were at any one time. Secondly, it is said that in April 2011 the social workers were saying that K had a squint whereas later it was confirmed that he did not. The third point that was referred to is the point I have already dealt about whether or not the young baby was "dropped" in the hospital ward.
19. I take account of those matters, which again I accept insofar as the report of the mother's condition and the boy's squint is concerned will be made out on the documents. In any case that comes before the court, it is highly unlikely that all of the details will be one hundred per cent accurate. What is of supreme importance is that the judge who has to make the decision at the final hearing has clear and reliable material before him or her and is not misled either deliberately or unwittingly into getting the wrong information about the circumstances of the family or the children. There is no indication before me that by the time the case got on before HHJ Greene he was in ignorance of the need to understand in detail about the mother's abilities and would not have been misled by conflicting descriptions of her. He was aware that different things had been said at different times about her diagnosis, and he records those in his judgment. The question of whether or not K had a squint is really, in the scheme of the issues in this case, not relevant and does not feature in the judge's judgment. It does not seem to me that the errors, which I accept are properly pointed out by the two applicants, will have been issues that affected the judge's judgment.
20. I do accept that it is incumbent on all the professionals in cases such as this, where the stakes could not be higher, where two children are being removed from a family under orders sanctioning adoption, to get everything right, and to put the information in as accurate and correct detail as possible. That should be what is aimed for, but the fact that that did not happen here in the respects to which I have been alerted does not lead me to say that the outcome was plainly wrong or open to criticism on appeal at this stage.
21. The only separate matter that the grandmother raises, over and above the points I have already referred to, is that when the case opened on the first morning of the hearing she was a litigant-in-person. She had been joined as a party to the proceedings for obvious reasons. She had been the primary carer of K and may well have been a candidate to care for one to all three of the children or to assist her daughter in that task in the future. She was a litigant-in-person, she applied to have the assistance of a McKenzie Friend and the judge, for the reasons that he gives in paragraph three of his judgment, rejected that application. As it happened the grandmother had applied through her solicitors for legal aid and that seemingly was granted on or about the first day of the hearing, so that on the morning of the second day a barrister appeared representing the grandmother and conducted the case on her behalf thereafter, despite the fact that she was taken ill after lunch on that day and did not return either that day or the following day. That is an unfortunate history of the forensic events and certainly not the way matters should be ordered. Someone who has been joined as a party and who is, as it turned out, going to be entitled to legal aid, is entitled to have the decision to grant funding taken in a timely manner so that their legal representation can be prepared and ready for the beginning of the hearing; that did not happen in this case. The case of the grandmother, however, plainly was very largely the same as the case of the mother, who was represented by counsel and indeed counsel was instructed by William Bache and Co solicitors who, if they are not pre-eminent, they are very eminent in terms of being thoroughly versed in acting for parents in these sorts of proceedings.
22. Standing back and seeing whether the whole process should now be open to challenge because of a lack of effective representation for the grandmother in a timely way or throughout the process, I am driven to the conclusion that, unfortunate though it was, the difficulties with her representation are not of that order. The case went forward and the issues that are now being put before me by them were plainly before the judge when he came to his conclusion.
23. That is the case as it was put on paper by the two applicants but I have been assisted this afternoon by the fresh pair of eyes brought to the proceedings by Mrs Haynes as the mother's McKenzie Friend, and she, as a seasoned reader of judgments in these sorts of proceedings, rightly points out that the concluding paragraphs of the judgment, in particular paragraphs 71, 72 and 73 where the judge draws his conclusions and announces the outcome of the hearing, are notable by the absence of any reference from the judge to the relevant statutes which gave him jurisdiction to make the orders that he was making, absence of any reference to any of the particular elements in either of the two welfare checklists that applied and absent any reference to the principal case on the approach to be taken to dispensing with parental consent, namely the decision of Re P [2008] EWCA Civ 535, decided in 2008. Mrs Haynes therefore says that it must be questionable that the judge applied sufficient care to the decision that he was making and that the process that he adopted was not good enough in terms of being focused sufficiently on the tests that needed to be applied or one in which the judge engaged to the relevant degree of detail in the tasks that he had to undertake.
24. I understand that submission, and the judge in the way he has approached the judgement really invites that form of critical assessment. But when one looks at the words the judge used, it is plain that he must have had the principal statutory provisions in mind. He makes a care order. Mrs Haynes says he does not refer to which Act the care order is made under. But this is a highly experience family judge. It is unnecessary for him to refer to that level of jurisdiction. But of more importance is the way in which the test should be set up for a judge who is going to make the draconian decision to give the green light to adoption for two young children. The statute law and the case law following Re P indicates that the judge has to make the decision on the basis that the child's welfare requires the parents' consent to be dispensed with and that the choice has to be not simply that a care order is to be made and that is what is required. The judge has to focus upon adoption. When one looks at the judge's words in paragraph 72, short though they are, I consider that the judge plainly does have the test in mind. He says:

"Accordingly, the children's welfare positively requires that I dispense with the mother's and the father's consents in order to be able to make those orders."


He then goes on to make the placement for adoption order. He has identified earlier in that paragraph that the children (the two younger ones) need stability and security and for their needs to be met, and he considers that that can only be done by adoption.

25. It is, sadly, the force of the earlier stages of the judgment which shows why the judge took matters so shortly at the end of the text in paragraph 71 onwards. I say sadly because by the time the judge gets to that stage he has ruled out any other option for the two younger children. The assessments had resulted in such a negative appraisal of the ability of the mother and/or the grandmother to care for these young children. There was no other option available for them given the ages of the children, which were still very young. The idea of anything short of adoption would have laid the judge open to appeal if he had not made a placement order, and the local authority had sought to appeal it. I am afraid that this was a case which was not, by the time the judge came to the conclusion of his judgment, finely balanced. I say that I am afraid to say that because there is great sadness in that being the situation given the warmth and love that the mother and the grandmother wish to give to all three of these children and had sought to give in every day of the children's lives up to that time.
26. But my plain view is that this judgment is not one that it is going to be possible to challenge on appeal, and the only outcome for this hearing is to refuse permission to appeal in both cases.

Order: Applications refused.