England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HER HONOUR JUDGE PENNA
MH12C00568

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/05/2014

Lady Justice Black:

1. This appeal is from orders made on 29 August 2013 by HHJ Penna in relation to four children whose ages range from 12 years old down to 4 years old. Judge Penna made care orders in relation to all four children and placement orders in relation to the two youngest children. The appeal is brought by the children's mother (M) with permission from Lewison LJ.
2. In the court below, the parties were the local authority (LA), M, Mr H who is the father of the oldest two children, Mr J who is the father of the youngest two children and the children's guardian (the guardian). Mr J had disappeared from the scene and did not appear in person or through a legal representative. Mr H was on a religious retreat so did not attend himself but he was represented, at least at the start of the hearing before Judge Penna. The other parties were all represented.
3. Before us, LA and the guardian were again represented. M was in person; we do not know why she did not have legal representation. Neither of the fathers attended. I do not think that Mr J has been traced. Mr H's former solicitors were contacted by the Civil Appeals Office and confirmed that they had written to his last known address informing him of the date of the appeal hearing.
4. M originally put forward two grounds of appeal but Lewison LJ only permitted her to rely upon one. In the order that he made, the ground is said to be "that the judgment is inadequately reasoned". The judgment that Lewison LJ gave when granting permission explained rather more fully what the Lord Justice considered required attention from this court. The whole of his short judgment is instructive but it may be sufficient to repeat §4 here:

"The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother's grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made."

Lewison LJ also referred to the decision of this court in Re B-S (Children) [2013] EWCA Civ 1146 and expressed his concern as to whether Judge Penna had adequately reasoned her way to the conclusion that she reached.

5. Lewison LJ's assessment of the case was borne out by the fuller examination of it that we carried out during the appeal hearing. Having heard argument, conscious of the need for the children's future to be determined without further delay, we announced that we had decided that the appeal must be allowed and the case sent back for rehearing by a different judge. We said that we would give our reasons in writing later and that is the purpose of this judgment.

Some practice points arising

6. This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.
7. The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant's proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.
8. It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.
9. I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult.

A short history

10. M was married to Mr H by whom she had her two eldest children. They separated in approximately 2003. In 2005, the children were sent by M to Pakistan to live with her parents, remaining there for a number of years. Also in about 2005, M met Mr J. Mr J had committed a sexual offence against a young girl which resulted in a conviction in 2006. He was ordered to remain on the sex offenders register for 5 years. In 2007, M married Mr J. Their two children were born in 2008 and 2009.
11. The eldest two children returned to this country to live with M and Mr J in 2009. In July 2011, an issue arose as to whether there had been non-accidental injury to one of the eldest children. LA intervened and assessed the situation. The concern about the injury ultimately came to nothing when it was concluded that it was accidental. There were, however, further investigations into the implications of Mr J's conviction about which, it can be seen, LA knew by the time of the core assessment of 4 August 2011 (see for example F164o in the care proceedings bundle). A working agreement was reached between M, Mr J, and LA providing for Mr J not to live at the family home until investigations and assessment were completed. Then, in May 2012, LA closed the case. Presumably from then on, Mr J was free to reside at the family home again; he may even have been able to do so from an earlier date.
12. What revived LA's involvement with the family was the making of sexual allegations against Mr J by M's 15 year old niece, S, who asserted that she had had a protracted sexual relationship with him. S also alleged that M used to sleep in another room so that she, S, could share Mr J's bed at the family home and had offered to divorce Mr J so that S could have a relationship with him. On 21 August 2012, the police went to the family home to arrest Mr J and M in connection with the allegations. There was a scene, in the presence of the children, during which M bit the police officers and attempted to jump from the window. The social work evidence is that the police officers arrested M for aiding and abetting sexual offences with a minor.
13. M denied knowing anything about matters. Mr J admitted to the police that he had had sexual relations with S but later retracted his admission following S having retracted her allegations. Mr J said he had made his admission because S had threatened to kill herself and the children.
14. Meanwhile, the children were taken into care on police protection orders and placed with relatives. Shortly thereafter, emergency protection orders were made and they went to foster carers. They have remained in foster care ever since.

Preparations for the care/placement hearing

15. Counsel for the local authority, then (as now) Mr Crabtree, set out in a document entitled "Local Authority Formulation as to the Threshold Criteria", dated 28 July 2013, the grounds upon which LA put their case in relation to the threshold. It was based on a likelihood of harm. It was wide ranging including:

i) reference to allegations having been made of domestic violence between Mr H and M

ii) an assertion that M had abdicated her responsibility to the eldest two children by sending them to Pakistan

iii) reference to M having married Mr J in the knowledge that he had pleaded guilty to the 2006 offence

iv) an assertion that Mr J had sexually abused S in August 2012

v) an assertion that M did not accept Mr J's guilt either in relation to the 2006 offence or the events of 2012

vi) reference to M's actions when the police attended to arrest F, for which it was said she had not provided a satisfactory explanation.

The document concluded:

"By reason of the matters above:

i) Mr J poses sexual risk to children; and

ii) M is either unable or unwilling to protect against the risk he poses and prefers to protect him rather than his victim or possible future victims;

iii) M is a manipulative, self-centred individual who cannot see the world from any other perspective other than her own and will lie with impunity if she believes it might be expedient for her to do so."

16. Earlier in the proceedings, on 7 February 2013, Judge Penna had considered whether there should be a separate fact finding hearing in relation to S's allegations and had decided that that was unnecessary, on the basis that the threshold did not rely on a single issue. She contemplated that the final hearing would be "a composite hearing [including] determination of threshold, which will focus upon threshold issues at the initial stage of the final hearing" (recital 12 to the order of 7 February 2013).

The final hearing

17. When it came to the final hearing, LA did not call S to give evidence, considering that this would be inappropriate given her retraction of her allegations. Mr J was not present to tell the court his version of events and to be cross-examined but Mr Crabtree told us that he did put LA's case on the 2012 allegations to M. She was found by the judge to be an unsatisfactory witness whose response to Mr J's conviction and S's allegation was "not simple to pin down" (§26 of the judgment). The judge recorded that M's evidence was that she thought that the allegations concerning S were "made out of jealousy" (§28). It appears therefore that M was not accepting that Mr J had abused S.
18. The judge did not make any finding that Mr J had done so. Her findings in relation to the threshold were expressed as follows:

"1. Mr J presents a clear risk of inappropriate sexual behaviour in relation to the children. This view is based upon his conviction dating back to 2006. Against the background of that conviction the allegations made by his niece S are particularly troubling."

2. M has not been consistent in her response to the risk presented by Mr J. Even after a fully contested hearing it is not clear whether she accepts that risk. In the circumstances she could not be relied upon as a protective factor for her children.

3. M struggles to achieve a clear understanding of the children's needs independently of her own and appears to struggle to distinguish between the truth and that which she would like to be the case." (§38)

19. She concluded that:

"[i]n the light of the foregoing, M cannot provide the children with consistent emotional care and is unable to protect them. I find that at the commencement of these proceedings they were at risk of significant harm both in terms of their emotional health and their need for protection from sexual risk." (§39)

20. She proceeded within a very few paragraphs thereafter to make the care and placement orders in relation to the children. Although she said that she had considered the powers available to the court, she did not refer to any less invasive possibilities than care and adoption orders or explain why she did not consider them feasible and why care/adoption was necessary. It seems that the evidence before her from the guardian and social services had not dealt with this in terms either. Our attention was invited to the fact that the evidence in this case and the judgment would have been prepared before this court's decision in Re B-S (supra) drew attention to the need for fully reasoned decision making by both social workers (and guardians) and courts. We must, of course, bear that in mind although the decision of the Supreme Court in, Re B (A child) [2013] UKSC 33 which particularly stressed that a care or adoption order is a last resort, was given on 12 June 2013.

The issues in this case

Risk of harm

21. The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M's response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.
22. Two points immediately stand out in relation to the sexual risk posed by Mr J.
23. First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M's case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children's in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.
24. Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M's attitude to the risk he poses would have to take into account LA's own attitude to that risk in May 2012. The risk flows principally from Mr J's 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M's attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M's failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M's attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.
25. This is a deficiency in the judgment which undermines the judge's welfare decision fatally in my view.
26. Without a sufficient evaluation of the risk flowing from Mr J's sexual activities, all that was left as a foundation for the judge's view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

The alternatives to care/adoption

27. Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.
28. Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M's case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.
29. Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).
30. The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children's placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.
31. As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.
32. For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out "a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options" (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

The next steps

33. We have ordered that the case be reheard so I do not wish to say more about the facts or about the difficult welfare decisions that will have to be taken than is necessary to demonstrate why I considered that the appeal must be allowed. I want to make it quite clear that nothing I say here should be taken to circumscribe the freedom of the new trial judge to determine what issues are relevant, what evidence will be heard, what facts are established and how they fit into the analysis of risk and influence the decision as to what arrangements are required for these children. I have formed no views at all as to what may be the outcome of the rehearing.
34. We directed that there should be a directions hearing as soon as possible in the local county court and Mr Crabtree kindly agreed to ensure that that was put in train immediately. We also directed that the rehearing should take place with as much expedition as is possible.

Lord Justice Kitchin:

35. I agree.

Lord Justice Longmore:

36. I also agree.