Case No: B4/2013/1485
Neutral Citation Number: [2013] EWCA Civ 926
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
Her Honour Judge Hughes QC
NJ12C00087
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2013
Before:

LADY JUSTICE ARDEN
LADY JUSTICE RAFFERTY
and
LORD JUSTICE RYDER
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In the Matter of S (A Child)

Between :

K	

Appellant	
	- and -		
	The London Borough of Brent
& Ors	Respondent	

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Ms Leanne Targett-Parker (instructed by Neirizi Swan) for the Appellant, ‘K’
Mr Giles Bain (who did not appear below) (instructed by Jyoti Dholakia) for the Respondent local authority
Ms Cherry Harding (who did not appear below) (instructed by Hayes Law LLP) for the Respondent child, ‘S’ by her Children’s Guardian
The child’s parents, M and F, were neither present nor represented

Hearing date: 25 June 2013
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Judgment
Lord Justice Ryder: 
1.	S is the 17 month old daughter of parents who I shall call M and F.  M is 25 and F is 26.  S has lived with K, her paternal grandmother, since February 2012.  K is the appellant and the child’s primary carer.  On 31 May 2013 Her Honour Judge Hughes QC made a care order in respect of S on the application of the local authority, the London Borough of Brent.  K appeals that order supported by M and F and by the children’s guardian.
2.	An application was made to stay the care order which was granted, it being the intention of the local authority to remove S from her grandmother.  The stay was briefly extended to allow for an urgent hearing of the permission application and, if granted, an appeal to follow on.  We heard the application and appeal on 25 June 2013, granted permission on one ground and allowed the appeal on that ground with reasons to follow, setting aside the care order and directing an urgent re-hearing.  We gave detailed case management directions requiring the local authority to file evidence with the court below about the options for the child’s permanent placement.   
3.	The background circumstances are that M has previously had a daughter removed from her care.  That child has a different father, is now aged seven and is cared for by her father and paternal grandmother.  As a consequence, M was monitored by the local authority during her pregnancy and after the birth of S.  The parents cared for S until a violent incident on 28 February 2012 as a consequence of which F left home with his daughter to go to his mother’s i.e. the paternal grandmother’s home where S has remained to this day.  K has been S’s primary carer since F moved out in May 2012.  Both parents accepted that they cannot safely care for their child and the threshold facts sufficient to satisfy section 31 of the Children Act 1989 were conceded by them.  It can be deduced from the judgment of the court below that the threshold included the circumstances in which M had threatened F with a knife while he held the child and each of the parents’ failure to look after or cope with the care of their child.  The key issue which remained in the proceedings was which of the available permanent placements was in the best interests of S.    
4.	The local authority began care proceedings in June 2012 and having been granted permission K made an application for a special guardianship order within those proceedings.  Despite having a care plan which describes an adoptive placement for S, the local authority failed to begin placement order proceedings even though unopposed directions were made to facilitate concurrent proceedings.  We were told that a decision was made on 16 April 2013 by the local authority’s agency decision maker which would have permitted a placement order application to be made.  There was neither any adequate explanation for the long delay in that occurring nor for the fact that the permanence report of the local authority was not put in evidence before the court below.   
5.	The local authority did not oppose the directions in the proposed placement order proceedings, they simply ignored them on more than one occasion, something for which their senior officers have now unreservedly apologised to this court.  Aside from the unacceptable and arguably contemptuous attitude that this evidenced by the cavalier treatment of the Rules and directions of the court, it was an attitude of mind that led to the failure to file adequate evidence about the available placements which at least contributed to the successful ground of appeal and which led this court to make a proportionate costs order against the local authority.  
6.	There are two other features of this case which are unsatisfactory.  The first is that whether or not the court expressed a timetable for the child in accordance with Rule 12.23 Family Procedure Rules 2010 (FPR 2010) and paragraphs 3.1, 3.2 to 3.9, 5.2, 5.3 and 26.12 of the practice direction then in force: Practice Direction 12A – Public Law Proceedings Guide to Case Management April 2010, reflecting the duties upon the court imposed by sections 1 and 32 of the Children Act 1989, no notice was taken of it and its existence was not recorded on the face of the relevant case management order.  The second relates to the first in that the case management judge gave time for a specific opportunity for family mediation to be investigated which was relevant to the possibility of the child remaining with the paternal grandmother.  An adjournment was granted for that to happen and yet neither the parties nor the final hearing judge (who came to the case without having been involved in its case management) was appraised of the implications flowing from that adjournment i.e. what any party had to do to succeed and within what timetable for the adjournment to be effective and consistent with the welfare of S.  
7.	It is to avoid this situation that recitals are to be contained in all case management orders setting out the key issues, the positions of the parties at the hearing, the timetable for the child and for the proceedings and the reasons for any adjournment and/or the appointment of an expert (see, for example, paragraphs 3.5 and 5.3 of the then existing PD12A).  Although this case proceeded under the rules and practice directions in force until 1 July 2013, the recording of the timetable for the child, the key issues in the proceedings and the parties’ positions in respect of the same and the court’s purpose in taking a particular course have been good practice since 2008.  Practitioners should be aware of the mandatory elements of that good practice which have been carried through to the new practice direction which came into force on 1 July 2013: Practice Direction 36C – Pilot Scheme: Care and Supervision and Other Proceedings under Part 4 of the Children Act 1989 and the Annex to PD36C: Pilot Practice Direction 12A – Care and supervision and Other Part 4 Proceedings: Guide to Case Management.  The Family Court Guide containing these provisions can be accessed at http://www.judiciary.gov.uk/publications-and-reports/FamilyCourtGuide.  In accordance with the overriding objective, each of the parties has a duty to co-operate with the court to ensure that there is compliance.
8.	An unusual feature of the case on the facts was that despite the parents having conceded the factual threshold for public law proceedings, the welfare determination of the court at the interim hearings which took place had at no stage necessitated an interim care order being made, despite application being made for the same by the local authority.  If it is recollected that the child was placed with her grandmother for the duration of the proceedings, then it is reasonably clear that the court below had come to the conclusion that at least ‘the better of the argument’ on an interim basis must have rested with the grandmother.  That is consistent with the adjournment permitted by the case management judge to test the likely success of family mediation with the object of reducing one of the risks to the child in any proposed placement with the paternal grandmother.
9.	The parties’ positions at the final hearing were as follows.  The local authority sought a care order with a view to an adoptive placement.  They had identified concurrent carers i.e. foster carers who were available to become adoptive applicants should that be considered appropriate within the outstanding placement and adoption approvals processes.  K sought a special guardianship order supported by her son, F, and the children’s guardian.  S’s parents accepted that they were not able to care for her.
10.	The evidence heard by the judge was exclusively about K and her family.  That evidence concentrated on the risks: K’s hoarding and the attendant hazards for a child, K’s historic non co-operation with and attitude to professional help, the difficult family relationships including the behaviours of her son, K’s history of parenting and her tendency to minimise the stress factors which could compromise her care of S.  There was disputed evidence that K’s position had improved and the question posed in evidence was whether that/any improvement was sustainable.  The context was the evidence from the deputy team leader who gave the local authority’s social work evidence, the independent social worker who undertook the special guardianship report and the children’s guardian, which was accepted by the judge, that K provided S with good physical and emotional care and that they had a warm relationship and a good emotional bond.
11.	On any basis, as the children’s guardian fairly conceded, the evidence in support of a special guardianship order was “a finely balanced case”.  One element of that balance was the evidence of the children’s guardian relating to the local authority’s proposal to remove S from K which was that:
“[removal would be] absolutely devastating for [S].  It would be deeply traumatic for her and probably cause lasting emotional damage.  Such a removal should only be undertaken in extreme circumstances and if the risk of significant harm was considerable…”
12.	Although that was the written evidence of the guardian which we were told was maintained in oral evidence, the judge did not refer to the same or to the evidence of the independent social worker relating to the risks inherent in the removal of S from K’s care.  The judge did not analyse that evidence save to say in conclusion that:
“I found myself satisfied that the risk of harm to [S] remaining with her grandmother is greater than would be removal at this stage in her life.”
13.	The only reference to the adoptive placement proposed by the local authority and her scrutiny of the care plan was the judge’s conclusion at paragraph [23] of her judgment:
“I have come to the conclusion that whilst the Guardian is right and it is a balancing exercise and upon careful analysis and an examination of all the component parts I conclude that the risks to [S] in remaining with the grandmother are outweighed by her need for a stable and secure future and I have concluded that I should refuse her application for a Special Guardianship Order and agree to a Care Order in favour of the Local Authority… ”
14.	In a lengthy skeleton argument (some 114 paragraphs over 23 pages with 13 authorities), counsel for the grandmother accurately described the key issues in the proceedings as being: the state of the paternal grandmother’s property which was obsessively cluttered, the (poor) relationship between K, F and M, the risk to the success of the placement posed by K’s eldest son and the (poor) engagement between K and the professionals who had assessed her.  The local authority assessments of the family were negative.  An independent social worker who was instructed to compile a special guardianship order report stated that she could not confidently recommend a special guardianship order but on the other hand did not support the local authority’s care plan or recommendation that S be removed from her grandmother.  The children’s guardian firmly opposed the removal of S from her grandmother.
15.	It is possible to identify from the parties skeleton arguments six grounds which are before this court, namely whether the judge:
i)	misquoted or misunderstood the evidence of the independent social worker and the children’s guardian as to whether and if so to what extent each of them recommended a special guardianship order and as to whether the prognosis of the family mediation was good or poor;
ii)	failed to give any or any adequate reasons for rejecting the advice of the children’s guardian and the independent social worker who was an expert appointed by the court in accordance with Part 25 of the Family Procedure Rules 2010 [FPR 2010];
iii)	wrongly relied upon her own chance observations about the relationships of family members outside the court room without disclosing those observations to the parties and inviting evidence and/or submissions about them before revealing them in judgment;
iv)	failed to consider the welfare of the child in the context of the timetable for the child anticipated in the adjournment decision of the case management judge to allow family mediation to take place;
v)	failed to analyse the benefits and detriments of the two permanent placement options before the court and in particular, the welfare factors and the balance of risk of harm relating to adoption having regard to risk of harm in removal of S from K’s care;
vi)	wrongly decided that it was proportionate and/or necessary to make the care order.
16.	At the outset of the appeal the court was faced with an application for an adjournment, despite the urgency of the child’s position.  That was said to be necessary because there was as yet no transcript of evidence upon which the grounds relating to the misquotation or misunderstanding of evidence could be exampled and no agreed note from counsel, not least because most of the counsel before this court were not involved in the court below.  A 68 page note existed, but in the circumstance that it could not be agreed it was not placed before us.  Determination of the issues enumerated at (i), (ii), and (vi) above depended upon a close analysis of the oral and written evidence and that simply was not possible in the absence of any record of the oral evidence that was heard.
17.	The question whether the judge relied upon a chance observation of family relationships out of the court room might have been an important procedural irregularity were it to be a decisive as to a fact in issue or to have any decisive impact on a value judgment of the court.  On the facts of this case it was no more than an ill advised example used by the judge in the context that there was ample objective evidence to the same effect.  Its effect was de minimis and we would not have given permission for that ground to be pursued in isolation or together with any other ground, there being insufficient prospects of success in the same.
18.	An analysis of the nature and extent of the mediation opportunity and its success or otherwise and any consequent prognosis for change depended in part upon the missing record of oral evidence and in part upon the decision of the case management judge who provided for the mediation opportunity.  As I have remarked, that decision did not lead to a recital or recording in a case management order nor was there a transcribed or agreed note of the relevant judgment or ruling. 
19.	This court was however able to consider the ground of appeal that I have summarised at paragraph [11] (v) i.e. whether the judge’ conclusion that a care order based upon a care plan for adoption was supported by sufficient reasoning or evidence.
20.	The judge’s conclusion about the care plan for adoption as set out at paragraph [23] of her judgment was the only reference to the necessity for a care order based upon a plan for adoption outside the birth family.  As I have already remarked, there was no analysis of the contrary views expressed by the children’s guardian and the independent social worker which were not recorded in the judgment.  Furthermore, the judge failed to address the evidence relating to the factors in the welfare checklist either in relation to the application for a care order or a special guardianship order.  If authority is needed for the fact that the checklist is as relevant to the latter application as the former it can be found at Re S (A Child) [2007] EWCA Civ 54 at [26].  
21.	The only reasoning for the conclusion expressed is that the risks in remaining with K are outweighed by the advantages of adoption.  An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options is missing.  Putting to one side the oral evidence, the children’s guardian had filed clear written evidence which it is common ground she did not alter that S would suffer significant emotional harm if removed from her grandmother’s care.  I have already quoted the written opinion of the children’s guardian.  That was neither identified as a welfare factor nor analysed.  In addition, she said that the risks that there were relating to a placement with K could be managed.  Ms Cherry Harding who very ably represented the interests of the child before this court confirmed that the guardian’s position did not change in oral evidence and that remains her opinion today.  
22.	In that context, what was the evidence that was available to the judge to support her conclusion?  There was no permanence report analysing the merits which on the facts of this case there could have been.  Sadly, there was little or no evidence about the relative merits of the placement options nor any evidence about why an adoptive placement was necessary or feasible.
23.	The allocated social worker in her written statement recommended that [S] needed:
“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment.  [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood
Adoption will give [S] the security and permanency that she requires.  The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families… ”
24.	With respect to the social worker, who was no longer in the employment of the local authority at the time of the hearing and whose whereabouts were not ascertained so that she could be called, that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption.  The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available.  Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.  
25.	The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:
“Special Guardianship Order:  This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family.  I do not consider that the situation within the family is suitable at present for this Order to be made.
Adoption: [S] could be placed with a family where she should experience stability and security without conflict.  This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”
26.	In order to choose between the options the judge needed evidence which was not provided.  The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings.   That vitiated her evaluative judgment which was accordingly wrong.
27.	The court was unable to consider the permission application in relation to the grounds which could not pursued for lack of source material and in respect of those grounds, permission was refused and the appeal dismissed.  Permission was granted in respect of the one ground upon which the appeal has been successfully determined and for the reasons set out above, the appeal was allowed on that ground.
Lady Justice Rafferty
28.	I agree
Lady Justice Arden
29.	I also agree.