England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Guildford County Court
Her Honour Judge Cushing
NZ12C00014

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/05/2014

Lord Justice Ryder:

1. Ms. S has 5 children who are aged 20, 18, 16, 3 and 2. The father of each child takes no part in these proceedings and the fathers of the three youngest children take no part in their lives.
2. Care proceedings in respect of the three younger children were commenced by Surrey County Council as long ago as 31 January 2012. Final orders were made in those proceedings on 18 October 2013 by Her Honour Judge Cushing, a specialist family circuit judge sitting in the Guildford County Court.
3. By consent and having regard to the age of the eldest child in the proceedings, the court made no order on the application relating to her on the basis that the young woman concerned is to live in 'supported independent living' i.e. not at the family home. During the proceedings this young woman had a child of her own at the age of only 15 and on 23 September 2013 that baby was made the subject of care and placement orders under the Children Act 1989 and the Adoption and Children Act 2002.
4. There is no appeal against the determinations of the judge relating to either the 16 year old child or her baby.
5. The two younger children with whom this court is concerned were ordered to be placed under the supervision of the local authority for a period of 12 months. It was explained in the judgment that application could be made to extend that period if necessary and if the plan for the children was unsuccessful, an application could be made for them to be placed in care with a view to adoption. The plan is that they remain at home in the care of their mother on the express basis that this is the last chance for the mother to look after her children.
6. This is a neglect case. The local authority has been involved with the mother and her children since 1995. The historic picture put before the court was bleak. It was alleged that the mother had failed to provide boundaries for her children, failed to supervise them, neglected them, was responsible for their poor school attendance, antisocial behaviour, drug use and criminality. It will readily be appreciated that these are historic concerns. The two younger children are only three and two years of age. The primary assertion in relation to these two children is that there is a risk of harm associated with mother's reluctance to co-operate with professionals, her own fluctuating emotional state and the effect that a likely repetition of the history of her care of the elder children would have on the younger children's emotional development and well being.
7. The jurisdictional threshold in section 31 of the 1989 Act was found to be satisfied on the basis of factual concessions made by the mother. The judge made additional findings of fact against the mother in paragraphs 33 to 37 of her judgment as part of her overall determination of the case. Given the factual context, the judge's decision to grant supervision orders to the local authority rather than care orders with a view to adoption was brave and may have been, as she acknowledged, both difficult and marginal, but that does not mean that it was wrong.
8. The appeal by the local authority is a challenge to the judge's welfare analysis and proportionality evaluation. There is no challenge to any finding of fact, which is hardly surprising given that the judge accepted the evidence relating to the history and the present circumstances of the family upon which the local authority relied.
9. The grounds of appeal which were attractively and carefully presented by Ms Moore on behalf of the local authority can be summarised as follows:

1. The judge departed from the recommendations of all of the professional and expert witnesses.

2. The judge did not reason her departure from that evidence.

3. The judge did not place sufficient weight on the history of neglect, the lack of co-operation with professionals and the risk of harm to the children.

4. The judge did not adequately analyse the welfare risk in the context of the checklist in section 1(3) of the 1989 Act or the welfare options for the future.

5. The judge made errors of law in her description of the availability of further court process to protect the children by the making of care orders should the plan fail.

6. The judge was inconsistent in the terms of a summary of her conclusions which she announced on 10 October 2013 one week before the perfected judgment was handed down on 18 October 2013.

10. I can deal with the last two grounds as short preliminary issues. At the end of the hearing on 10 October 2013 the judge decided to indicate what her decision was going to be before reserving judgment so as to give careful narrative reasons a week later. In her short preliminary observations the judge in bold but appropriate language addressed the mother directly about her failings and about the decision she had made, namely to give her one last chance.
11. Normally it would be unwise for a judge to give a preliminary indication unless it is absolutely necessary. Where time for reflection on the terms of a judgment is necessary, any immediate recollection of one's thoughts may turn out to be less than accurate by reference to the detail of material considered during a long hearing. That said, this mother was facing the removal of her children at the end of a prolonged set of proceedings: far too prolonged it has to be said. The children had remained at home throughout and the local authority had changed its position from wanting to support the children at home under a statutory order to removal of the children and adoption. The judge's decision to indicate her thinking was one of common humanity and was easily understandable. It allowed the point to be brought home directly to the mother and it allowed the local authority to consider the implications for their care plans (or more accurately, the non-statutory plans they would need to implement the proposed supervision orders) and their likely service support for the family.
12. The judge's perfected judgment is her concluded reasoning. Her preliminary observations are not. I do not detect any inconsistency between the two, but even if there was, the judge was entitled to reflect upon her reasoning and perfect her judgment and even, as the Supreme Court has recently explained, change her mind if the imperative of justice drove her to do so (see In the matter of L and B (Children) [2013] UKSC 8).
13. The error of law alleged relates to the interaction between sections 39 and 37 of the 1989 Act. It is said that the judge assumed that a care order could be substituted for a supervision order on the application of a local authority under section 39 for example, if the plan was not meeting the welfare of the children. Section 39(4) is relied upon by the local authority. That sub-section together with section 39(5) disapplies the need for the threshold in section 31 of the Act to be satisfied if a care order is to be substituted for by a supervision order on a variation application but not where a local authority wishes a supervision order to be substituted by a care order.
14. Where a local authority seeks to persuade a court that a care order is necessary in circumstances where a supervision order already exists, the court must be satisfied that the threshold in section 31 of the 1989 Act is met. The court must also analyse the welfare options, consider the section 31A care plan prepared by the local authority and undertake a proportionality evaluation of the interference proposed with the article 8 ECHR rights of the parties. That is not an automatic process and I do not think that the judge was indicating that it was.
15. Having regard to the context in which the judge's decision was made, I tend quite firmly to the view that what the judge was indicating was that 'one last chance' meant just that. The welfare options for the children were narrowing as time passed and every option other than removal and permanent placement away from the mother would have been tried. I do not believe that the judge's emphasis on the stark position that children and the mother faced demonstrates an error in law. In any event, a decision on the substitution of a care order for a supervision order has not been made and if it is to be an opportunity will then arise to ensure that the correct legal test is applied to that decision. Although by section 1(3)(g) of the 1989 Act the range of powers available to the court is a factor in the welfare analysis, it was not in my judgment afforded any undue or inappropriate weight in this case.
16. It is perhaps of note that in the event that the local authority went back to the court during or at the end of the supervision order period with a request to extend the period of supervision, and it then appeared to the court that care orders might be more appropriate, the court could impose interim care orders while making a section 37 direction that the local authority undertake an investigation of the children's circumstances under sections 37(1) and 38(1) of the 1989 Act. In that situation, the court need only be satisfied that there are reasonable grounds for believing that the circumstances with respect to the children are as mentioned in section 31(2), in order to provide interim protection for them. None of this detracts from a free standing emergency application that could be made by the local authority or a renewed application for care orders within which there could be an application for interim care orders with a proposal that the children be removed from the care of their mother.
17. The judge also alluded to the power in a supervisor to ask the court to give directions to enforce a supervision order, whether under schedule 3 of the 1989 Act or generally. This court has not been addressed on that question which I shall leave to be considered in a case where the point is fully argued on the facts. In summary, however, there are ample and swift mechanisms available to protect the children and if the judge had all or any of them in mind, that was appropriate given section 1(3)(g) of the 1989 Act.
18. Turning then to the judge's evaluative exercise, the whole of her judgment is a careful weighing of the respective merits of the children remaining at home or being adopted. The judgment is a narrative analysis of the welfare implications, positive and negative, of the realistic options. The decision in this case was made almost coincident with the judgment in Re B-S (Children) [2013] EWCA Civ 1146. Having regard to what this court said in Re W (A Child), Re H (Children) [2013] EWCA Civ 1177 at [16] and [18], it is important to consider whether the essence of what is required was demonstrated by the judge.
19. The judge was well aware that what she was deciding was contrary to the advice from the forensic expert and professional witnesses including the then social worker and the children's guardian. Her judgment is an exercise in reasoning why she disagreed with them. She was not obliged to take each witness's evidence, deconstruct it and re-construct her own reasoning in judgment. As long as clear and coherent reasons are demonstrated, the judge will have performed her task. In fact, as her judgment demonstrates, this judge took the central proposition from each expert in turn and analysed it.
20. A judge is entitled to construct a strategic analysis of the kind described in section 1(3) of the 1989 Act or section 1(4) of the 2002 Act from the evidence in the case including her own reasons for the conclusions she reaches. Indeed it is necessary that she does so to demonstrate a sufficient welfare analysis and proportionality evaluation. That does not require expert evidence. I question why so many experts were needed in this case. The task for the judge was straightforward. It was a welfare analysis and she was entitled to undertake that analysis herself, an exercise that is distinct from professional advice on an issue that is outside the expertise of the court: see Re N-B (Children) (Residence: expert evidence) [2002] EWCA Civ 1052; [2002] 3 FLR 259. I make it clear that Judge Cushing did not order or approve the instruction of the experts. Sadly there was no judicial continuity in this case and the judge came into the proceedings late in the day with a plethora of expert opinions already in existence.
21. In order to demonstrate whether an appropriate welfare analysis of the options was undertaken by the judge, one can distil from the judgment a balance sheet of welfare factors. I do not suggest that the Court of Appeal should be asked to perform this task in any other case, but given that the judge regarded this as a marginal and difficult decision, it is appropriate to construct a balance sheet in this way:

a) The detriments:

The threshold concessions and additional findings of fact relating to neglect

The inconsistency of the mother in her care of the children

The mother's inability to judge safety issues

The mother's personality traits short of a personality disorder which lead her to disbelieve professionals and to fail to develop a trusting or co-operative relationship to the extent that she is dismissive of them and extremely difficult to work with

The mother's emotional problems and needs as exemplified by her historic 'binge drinking'.

b) The benefits:

The eldest child is now independent and does not need the mother's direct care

The home conditions have improved and are now acceptable

Both children who are the subjects of the proceedings are developing satisfactorily, are physically well and have no developmental delay

There is evidence that one child has not suffered any harm including emotional harm; and he has secure attachments to his mother

The other child has particular needs which are genetic in origin and which the mother is able to meet ( although he has suffered emotional harm which it is not agreed that the mother can provide for)

The mother has insight into the history and a willingness to be assessed, co-operate and accept help.

22. That is a sufficient analytical basis for the orders that the judge made. It would be correct to observe that the analysis is not a proportionality evaluation. That would have necessitated a comparison of the welfare analysis for each placement / welfare option and a consideration of whether, having regard to the benefits and detriments of each option, the proportionality of interference proposed by the local authority was justified. The evidence as analysed and accepted by the court was capable of supporting a lesser intervention and order than that proposed by the local authority and the judge concluded that it had not been established that adoption was necessary.
23. Had the evidence in this case been compiled after Re B-S, the judge would no doubt have structured her reasoning somewhat differently so as to analyse each option available, particularly where the local authority's proposal was for removal of the children and an adoptive placement. In my judgment, that does not provide the local authority in this case with a successful ground of appeal. The logical consequence of the analysis that the judge conducted must be a conclusion that, on a comparative evaluation of the placement options, while remaining at home was a risk, it was a risk justified by the dis-proportionality of immediate removal and adoptive placement. For the judge to have concluded otherwise, she would have to have accepted evidence that she did not or, conversely, evidence that was not put before the court. If a local authority wishes to rely on research evidence relating to the prospects of success of 'second chance' assessments or 'trial placements' then it is good practice for them to do so overtly so that the other parties have the opportunity to ask questions of the social worker and children's guardian on the point and the judge can evaluate the applicability of the research to the facts of the case and the weight to be placed on the same.
24. Save as I have so far described, the judge explained her reasons in detail. She explained why she disagreed with the professional evidence – evidence that may not have been necessary because not all of it appears to have been relevant to the key issues in the case. This court has been carefully taken to parts of the professional evidence which it is submitted the judge should have adopted and which might have changed her overall determination. For my part, although I acknowledge that that evidence reflected the strength of the local authority's case on risk, it did not of necessity demonstrate that adoption was the preferred or only option. In any event, experts advise and judges decide. A judge is entitled to reason her disagreement with an opinion proffered to the court. Even if a judge accepts expert evidence, its weight in an analysis or evaluative exercise is still a matter for the judge.
25. That brings me to the remaining ground of appeal which is that the judge did not afford sufficient weight to one or other factor or to the evidence of one or other witness. This court will be very hesitant to interfere in a first instance court's decision on this basis. There is insufficient material for this court to say that the judge was wrong in her value judgments and in particular in her welfare analysis and proportionality evaluation. On the basis of the grounds placed before this court, I have come to the conclusion that I would dismiss this appeal.
26. I ought not to leave this case without dealing with an important issue that was not raised by the parties but which in my judgment underpins one of the problems in the case.
27. As the judge records, the care proceedings were pursued at the final hearing on the basis of proposed care plans which included placement for adoption. There were no placement order proceedings before the court relating to the two children with whom this court is concerned and to date none have been issued. That is because the local authority's 'agency decision maker' has not made the decision that is necessary to allow such proceedings to be issued. As I described in LB v LB Merton and LB (A Child) [2013] EWCA Civ 476, there is a statutory duty upon a local authority to make an application for a placement order in the circumstances set out in section 22 of the 2002 Act. By section 22(1) (c) and (d) those conditions were met in this case i.e. the local authority considered that the threshold conditions in section 31 of the 1989 Act were met and the local authority was satisfied that the children ought to be placed for adoption.
28. There was no reason why the local authority could not have obtained the agency decision maker's decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed 'permanence report' which describes the realistic placement options for the child including extended family and friends. The report describes the local authority's assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an 'annex A' report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.
29. In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker's decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children's guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker's decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.
30. Local authorities should be astute to timetable the decision of the agency decision maker so that all matters can be put before the court together without delay. There is no reason why concurrent applications would have caused delay and indeed they must not. It would be wrong to delay a necessary decision about a child's future. In this case, the local authority should have abided by the directions that the court gave which would have facilitated concurrent hearings. If as the local authority submit the mother was not co-operating in permitting medicals to be undertaken that are necessary for the agency decision maker's decision, they should have obtained a court order requiring the same. If the placement order evidence had been available to the judge, the local authority's case about adoption and the comparative exercise expected of the judge would have been much clearer. Although not relied upon by Judge Cushing, the absence of the agency decision maker's decision in this case and the evidence that would have supported the same is an additional reason why it would have been disproportionate to approve a care plan with a view to adoption.
31. I am very aware that in making the additional observations that I have about placement order evidence, the statutory framework and regulations concerning adoptive placements are likely to change this summer. When section 22C(9A) of the 1989 Act comes into force there will be associated with it an amended regulatory regime which will require a different decision to be made by the director of children's services of the local authority to permit the placement of a child with a local authority foster parent who is also a prospective adopter. Nothing I have said in this judgment touches upon how that decision is to be made or how and when evidence of that decision is to be presented to a court.

Lord Justice Davis:

32. As the judge emphasised, this was a difficult case. She had a difficult decision to make. For the reasons given by Ryder LJ, with whose judgment I agree, I can see no proper basis for interfering with the judge's conclusion.

Lord Justice Laws:

33. I agree with both judgments.