England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STAFFORD DISTRICT REGISTRY
HIS HONOUR JUDGE PERRY
SQ14C00050

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/05/2016

Lady Justice Black:

The parties to the appeal

1. This appeal concerns four children. Three are girls: A who is 7 years old, C who has just turned 5 years old, and D who is 3 years old. B, a boy, is 6 years old. They are all the children of the appellant mother. These being care and placement order proceedings, they have had the benefit of the services of a children's guardian. The guardian and the local authority both resist the mother's appeal.
2. It has not been possible to trace the father of A, B and C. He has therefore never taken any part in the proceedings relating to the children. D's father is a party to the proceedings; he was represented at first instance but did not attend the hearing of the appeal and neither was he represented at it. To avoid confusion, I will refer to him in this judgment as "the father", as did the judge below.
3. The mother and father are nationals of the Czech Republic and the family has connections with that country and with Slovakia. Prior to the appeal hearing, a document was received from the Slovak Central Authority. It took the form of a request to intervene in the proceedings. As the Central Authority was seeking only to place the document before the court, and not to attend the hearing and make representations, it was not necessary or appropriate to order that it be formally joined as an intervener. However, there was no objection to us taking the contents of the document into account in our consideration of the appeal and we did so.

The nature and outcome of the appeal

4. The appeal is from orders made by His Honour Judge Perry on 12 February 2016. The judge granted care orders in respect of all four children and placement orders in respect of the youngest two. The care plan was for each child to be placed separately from his or her siblings i.e. in four different families. A and B were to be placed in long term foster care in this country and C and D were to be adopted.
5. At the conclusion of the appeal hearing, we told the parties of our decision that the appeal would be allowed and the case remitted for a rehearing before a different judge, with the first stage in that process being an urgent directions hearing before the Family Division liaison judge for the relevant circuit. This judgment sets out my reasons for determining that that was the appropriate course.

Some history of the family and the proceedings

6. The eldest child, A, was born in the Czech Republic. The mother, A's father and A, moved to this country in 2009. The remaining three children were all born here. It is understood that A's father left the country following the breakdown of the relationship between him and the mother. She stayed on here, with the children, having formed a new relationship with D's father.
7. The children were brought to the attention of the local authority in 2011 because of concerns about the care they were receiving. It is unnecessary to go into the details of those concerns here. In early March 2014, a core assessment was carried out which recorded serious concerns about the mother's health and her refusal to take up health care and other therapeutic assistance for herself and the children. In June 2014, an emergency protection order was obtained and care proceedings were commenced, provoked by an incident concerning A, who attended school with a black eye and said that the father had hit her. All four children have been in foster care (placed together) since then.
8. The care proceedings were much delayed. I am grateful to the parties for providing an agreed chronology which sets out what happened from the commencement of the proceedings in June 2014 to date. Such documents are of immense assistance in appeals and I would like to see the provision of an agreed chronology become standard practice.
9. By the summer of 2015, the evidence was still not in a state to enable a final hearing to take place. In order to make at least some progress, in August 2015 the judge held a fact finding hearing in order to determine what had happened to A in June 2014. At the conclusion of that hearing, he was critical of the conduct of the local authority, saying:

"213. The local authority do not come out of this hearing well. The issue of threshold appears never to have been re-visited since the proceedings began. Case Recordings were inaccessible due to some computer problem with no apparent urgency to assist the court by resolving the problem. Contact recordings requested by the parents' representatives were never disclosed. Assessments which should have been completed to allow the final hearing to proceed were not sufficiently comprehensive to allow for that.

214. The parents have perhaps not assisted by repeated Article 15 BIIA applications and the father being without a solicitor for a period, but it is not for them to make the running.

215. Meanwhile this unacceptable delay is impacting on the welfare of the children who remain without permanence."

10. Returning to the question of delay again in his final judgment, in February 2016, the judge said:

"16. There have been delays arising from a number of factors including a change of solicitors by the mother, a need to use interpreters as neither the mother nor the father speak English as a first language, the engagement of an independent social worker (Sue Bach) familiar with eastern European culture and the need to carry out assessments of family members in the Czech Republic and Slovakia."

11. It can be seen from his February 2016 judgment that by then the judge was rightly much exercised by the delay, which was by then in excess of 80 weeks. It was a factor that entered into his determination of what course should now be taken for the children.

The findings of fact made in August 2015

12. At the conclusion of the August 2015 hearing, the judge found that the father had struck A's face with his hand deliberately in June 2014, injuring the area around her eye. The judge was unable to say when precisely this occurred or what the precise mechanism of the blow was but he said that he believed that it was most likely to be the result of an isolated loss of temper and not part of a pattern of ill-treatment. As for the mother, he said that he did not find it established that she had failed to protect A or that she could "be said to have reacted to events in a way in which it would not be reasonable to expect a parent to react."

The decision made in February 2016: threshold

13. The judge found the threshold criteria satisfied on the basis of the injury to A and also other elements of the care of the children, including the parents' inability to prioritise the needs of the children in relation to health care and related issues, and the mother's inability to care for the children alone because of her health problems at the relevant time. It was not argued on appeal that the threshold was not satisfied. Certain adjustments will have to be made to the detail of the judge's threshold findings in the light of the appeal being allowed, and these have been the subject of separate communication between the court and the parties following the appeal hearing. However, it is not necessary to go into the threshold further here. The focus is upon the judge's determination of the welfare issues.

The decision made in February 2016: welfare

14. We have the benefit of a very clear and easy to read judgment from Judge Perry. From it, it can be seen that he concluded that the parents could not keep the children safe and secure. At the core of this determination seems to have been his findings that a) by the time of the February 2016 hearing, the father was denying responsibility for the injury to A and the mother did not accept that he was responsible either and b) the parents had not genuinely separated.
15. The judge also decided that the children's maternal grandmother (hereafter "the grandmother"), who would like to look after the children if the mother cannot do so, was unsuitable.
16. The children had been the subject of a sibling assessment and, in the light of that and other material, the judge concluded that their behaviour was such that no carer could cope with them as a sibling group. He rejected the possibility that the grandmother could care for any of them individually and accepted the local authority case that they should all be placed individually in this country in foster care (the older two) or with adoptive parents (the younger two).

The decision in relation to the grandmother, including a consideration of the assessment material available to the judge

17. My conclusion that the appeal must be allowed has been significantly influenced by the position in relation to the grandmother. To explain why, I need to go into that in some more detail.
18. The grandmother lives in Slovakia. The Slovak authorities had provided two reports about her, dating from March 2015 and November 2015, both of which concluded that she could provide proper care for all of her grandchildren, having ample appropriate accommodation, an enduring relationship with her partner, and family living nearby. The local authority had carried out a viability assessment, dated June 2015, which concluded that it was not appropriate to proceed further with the possibility of the grandmother caring for the children. I will need to look at these assessments in more detail in due course. What matters for the moment is that following the November 2015 Slovak assessment, there remained loose ends, some of which the local authority had intended to pursue with the Slovaks but for various reasons did not.
19. The representatives for the mother and the father urged Judge Perry to delay making final decisions because there were outstanding issues about the grandmother's ability to care for the children. Whilst recognising that there were some outstanding queries for the Slovak authorities, he declined to do so. A number of factors seem to have been influential in his thinking about this. Of fundamental importance, I think, was his acceptance of the evidence that it was impossible to care for the children as a group; he was of the view that whatever answers the Slovak authorities gave, this problem would remain. He considered whether the grandmother might be able to care for D alone but rejected the possibility. He thought that even with D alone, there would still be various issues, including (paragraph 198) "managing the temper tantrums of a three year old, whether the care would be long term or temporary, and whether the grandmother acknowledges the risk posed by the father". He said (paragraph 247(3)) that "her ability to provide long term a safe and secure environment has never been satisfactorily established and is now compromised by the mother moving in with her when on my findings the mother still maintains a relationship with the father". He was also influenced, in rejecting a placement of D with the grandmother, by the anticipation that that would mean that D would lose whatever relationship she would otherwise be able to maintain with her siblings following their individual placements in the UK (paragraph 196).
20. Delay was also undoubtedly a central consideration in the judge's refusal to permit further enquiries to be made about the grandmother as a carer for all or any of the children. He anticipated that a further significant delay would result if further enquiries were made of the Slovak authorities and he took the view that delay in deciding on the children's futures would prejudice their welfare and, in relation to the younger two, would reduce their chances of a successful adoptive placement.
21. It is necessary to look in more detail at the material available to the judge in relation to the grandmother. The assessment of her ability to care for the children had not proceeded smoothly. Indeed, it was the lack of a sufficient assessment of her that was largely responsible for the inability of the judge to resolve matters in August 2015.
22. The local authority's viability assessment of the grandmother had been carried out over a Skype audio link with the grandmother participating from Slovakia. It is doubtful that this course would, in fact, have been permitted by the Slovak authorities but they were not asked in advance as, in my view, they should have been.
23. A significant influence in the negative conclusion of the assessment was the children's relationship with each other. The assessor thought that the grandmother would be unable to provide the high quality and energetic parenting which the children would require. The situation would be exacerbated, it was said, by the grandmother and her partner "having a lack of insight into the complex behaviours the children have presented with and a lack of understanding of the strategies that would need to be implemented to help with these behaviours".
24. There were three further reasons given in the viability assessment for turning the grandmother down. The first was that "it could … be argued that the children do not have a robust enough relationship" with her given that they had not visited her home for several years (in the case of the older two) or ever (the younger two) and she had not had direct contact with them for over a year nor, apart from voice calls on Skype, any other form of contact.
25. The second further reason was that the grandmother works two hours a day so the children would require alternative care during those periods, and the assessor had anxieties as to whether the relatives who might assist with this could offer what was required.
26. The third further reason is worth quoting in full:

"[The grandmother] is unaware of the risk that the children have been exposed to. Although she advised she would prevent [the mother] from seeing her children, this demonstrates a lack of awareness and possible minimisation of the adverse pre-care experiences. This may culminate in future contact plans stipulated by the local authority between [the mother], the children and their parents not being adhered to."

27. It is not surprising that the guardian was critical of this viability assessment and applied in July 2015 for there to be a further assessment of the grandmother by the independent social worker, Ms Bach. I will not go into its deficiencies in depth; the following points will demonstrate the problem.

i) The children's behavioural problems

It is not clear that the sibling assessment was ever provided to the Slovak authorities or to the grandmother or that the nature of the issues with the children's behaviour was conveyed to the grandmother in any other way. It would be very hard to reach any conclusion as to her understanding of the problems and her ability to cope with the children unless she was first given the relevant information.

ii) The grandmother's contact/relationship with the children

The comments made by the assessor about the grandmother's contact with the children and her relationship with them were not put in their proper context. The children had been in local authority care for the entirety of the year preceding the viability assessment. In March 2015, the grandmother had requested Skype contact but this had been refused by the local authority.

iii) Care during the grandmother's working hours

The question of who would care for the children during the grandmother's limited working hours was, I would have thought, the sort of practical issue that could have been explored further through the Slovak authorities rather than adverse assumptions simply being made, as they were.

iv) Risk

The criticism of the grandmother for being unaware of the risk to which the children had been exposed and of her "possible minimisation" of their "adverse pre-care experiences" rested on very shaky foundations. At the time of the viability assessment, there had not yet been any fact finding hearing to establish what actually happened to A and what risk there was, therefore, to the children. Furthermore, if it was necessary at the stage of the viability assessment for the grandmother to have a proper understanding of the children's "adverse pre-care experiences", it was surely the responsibility of the local authority to provide that information to her, as well as a clear exposition of whatever risk there was perceived to be.

28. As the Slovak authorities were unwilling to allow Ms Bach to assess the grandmother further, as the guardian had sought, the second Slovak assessment was conducted instead. This was bound to be of great importance in the case, in view of the problems with the local authority's own assessment. It took place in the presence of a psychologist and was wide ranging and positive for the grandmother. It included the following statement, which I would take as an offer to provide further information if required:

"Should a more detailed assessment of personality and emotional characteristics of the grandmother be needed, this would only be possible, in the context of the Slovak legal culture, by means of obtaining expert evidence from the area of adult clinical psychology."

29. In the report, the Slovak authorities posed the following important question for the English local authority:

"The grandmother further stated that, as regards the threat or possible risk that [the father] could present for minor children, she has not been aware of any such threat. Could the UK authorities state precisely (specify) what kind of risk (and/or harm) they have in mind?"

30. It appears, that no reply was made to this query about risk and/or harm. That is regrettable. Even if the local authority thought that the risk was evident from the fact finding judgment, they should have replied specifically to the question posed about it.
31. No further information/assessment was sought from the Slovak authorities either. In January 2016, the local authority did propose that two further questions be put to them but, when those questions were not agreed by the mother's solicitor, the matter was not pursued either with the Slovaks or by seeking directions from the English court. Judge Perry seems to have been critical of the mother's solicitor for objecting unreasonably to the questions which he considered were "perfectly properly drafted". I do not share that view. The second question proposed by the local authority was:

"How much does the maternal grandmother understand and acknowledge the risk posed to the children by the father and how would she protect them from any further risk of harm?"

To that proposal, the solicitor for the mother responded that the grandmother could not answer this question because the local authority had "not set out what they say the risks are or what their expectations are of any carer". I would certainly not class this observation from the mother's solicitor as irrelevant or unreasonable, especially in the light of the question that the Slovak authorities themselves had posed about the nature of the risk.

32. Following the response from the solicitor for the mother, things seem to have stalled. In submissions before us, the local authority appeared to be seeking to place the blame for the failure to pursue matters with the Slovak authorities upon the mother's representatives on the basis that they had not raised the matter with the judge in the run up to the final hearing. However, this could hardly be sustained in the light of the fact that the mother's counsel's position statement for the issues resolution hearing on 28 January 2016 referred expressly, under the heading "Missing information", to the local authority's proposed further questions, commenting that it is unknown if they were ever sent out. Furthermore, I cannot help but observe that the mother had been consistently putting forward the grandmother as a possible alternative carer for the children for a long time and, if the local authority wished to make out their case for care and placement orders, it would ultimately fall to them to assemble the evidence to establish that she could not cater for their needs.

The appellant's arguments in relation to the grandmother

33. To a large extent, the arguments on appeal revolved around the position of the grandmother. Mr Scott-Manderson QC, who appeared with Ms Kang for the mother on appeal, laid particular emphasis on the fact that the Slovak authorities were asked to assess whether she could provide "good enough parenting", whereas in fact the local authority and the court were looking for an ability to provide "high grade" parenting because of the children's challenging behaviour. This was unfair, in his submission, because the grandmother's ability to provide for the needs of these particular children was therefore never assessed.
34. For my part, I would not focus so closely upon the precise words used by the local authority in their request to the Slovak authorities. There were a number of significant gaps in the material provided to the Slovak assessors for the purposes of their assessment and, in my view, these gaps left them unable to provide the sort of information about the grandmother that the English authorities required. Certainly one aspect of this is that they would have been unable, without specific instructions from the local authority as to their anxieties about the children's behaviour and/or a copy of the sibling assessment, to provide constructive advice as to the grandmother's ability to manage all or any of the children. However, there was also the lack of any response to their question about risk, which deprived the grandmother of the opportunity to consider and deal constructively with that aspect of the case and the Slovak authorities of the material they needed to assess her ability to protect the children. In the light of this, it is hard to reach a reliable conclusion that she would be unable to do so. Furthermore, there is no evidence that there was any request for an investigation of what the plans were for care of the children during the grandmother's working hours and whether they were adequate. And, if the local authority thought the Slovak assessment inadequate as it stood, why did they not pursue their further questions of the Slovaks or take up the offer of a more detailed assessment of the grandmother?
35. The net result, in my view, was that the assessment of the grandmother remained incomplete and the position had not been reached where it was possible to say that she was unable to care for any of the children. It was unfair to proceed upon the basis that further enquiries would cause a further significant delay when there had simply been no attempt to obtain further information following the November assessment. Email contact through the central authorities could have been pursued. If that did not produce the required answers, other routes to obtaining the information could have been explored. Had this been a purely domestic case, and written communication had failed, I suspect that someone would have picked up the telephone and contacted the assessors in an attempt to make progress. There is no reason why the possibility of doing similarly with the Slovak assessors should not have been explored, advice first having been taken from the English central authority as to whether this would be appropriate/feasible. Of course, any exchange would have to be properly documented, as it would be in a domestic case.
36. Furthermore, delay in looking further into the option of the grandmother is not the only delay that is of relevance in considering what is in these children's interests. C is already five years old and is being investigated at present to see whether she may be suffering from autism. The guardian's counsel confirmed to us, on instructions, that she will not be an easy child to place for adoption. It can be anticipated, therefore, that there might be quite a delay in finding adopters for her, if that is indeed possible. At the issues resolution hearing in January 2016, the mother's counsel requested that the local authority produce evidence at the final hearing to deal with family finding. The judge took the view that this was not necessary as the social worker would be able to provide the information in oral evidence. In the event, however, it appears that she was unable to provide the sort of detail about placement that would have helped the judge to weigh the delay that he anticipated there would be in pursuing the option of the grandmother against the delay that there might be in pursuing the local authority's plan for the children. Information about other aspects of adoptive placements for older children would also have been of potential assistance, notably the statistics for the breakdown of such placements. With information of this kind, the judge could have conducted a proper balance of the various factors affecting the decision whether or not to adjourn for further enquiries. Delay was but one of these factors, others including the benefit of a placement within one's own family and the continuation of the links with the children's culture that that would bring if it were to prove possible.
37. The position of the youngest child, D, needs to be mentioned specifically. The judge seems to have considered that, although the demands on the grandmother would be less if she were to care for D alone, there would still be uncertainty about the long-term stability of the placement. There appear to be no special difficulties in relation to D; in the guardian's report for the placement proceedings, she is said to have the same basic needs as any child of a similar age and stage of development. In these circumstances, leaving aside the question of protection from risk (which, as I have set out already, I do not think has yet been properly explored with the grandmother), it is hard to see, from the judgment, what it was that led the judge to conclude that the grandmother would be unable to cope with the demands of caring for D on her own.
38. I am conscious that, in consequence of our decision, the welfare decisions in relation to these children will have to be taken again. I do not therefore propose to say more on the subject of grandmother, as I would not like the new judge to feel constrained in any way by my judgment. I should not be taken to be expressing a view about any of the welfare issues in this case. I have none of the advantages that come from hearing the evidence. My purpose is only to explain why in my view the judge's decision cannot stand. In short, this is because the option of care by the grandmother has not yet been fully explored and there is not a sufficient foundation for ruling her out as a potential carer for the children.
39. I have considered whether it necessarily follows from the decision to allow the appeal in relation to the possibility of placement with the grandmother that the judge's decisions in relation to the possibility of care by the parents, or one of them, must also be set aside. After careful consideration, because I did not view this as inescapable, I have concluded that that is what must happen. The passage of time between the judge's decision in February and the new welfare hearing will inevitably mean that there have been developments in the family's circumstances. The guardian's counsel sensibly conceded that it would be a disservice to the children if matters were set in stone as they were in January/February 2016 and I agree with that. I do not want to interfere with the new judge's decisions as to the ambit of the fresh hearing and offer the following merely as examples of issues which may need consideration.
40. One area is the issue of risk. The judge will have to reach his own evaluation of what risk there is to the children in order to consider the local authority's points about the ability of the grandmother to protect them, and this evaluation is bound to inform his decisions about the mother's ability to care for the children as well. It appears that it may have been taken for granted in the previous proceedings that the parents would need to separate in order to protect the children from such risk as the father poses, the mother having volunteered the assurance that this is what she would do. It will be for the judge to consider to what extent it is necessary to revisit this issue in the light of the parties' present positions about their relationship and in the light of his own evaluation of the nature and extent of the risk posed by the father. He will be able to take account of the up to date evidence about the parents' separation, which the mother asserts has now occurred, and about the children's behaviour, which it appears may have improved somewhat although it is still not problem-free. He will no doubt also have to take into account the mother's improved health and consider the role that her illness had in her approach at earlier stages in the proceedings.
41. These, therefore, are my reasons for concluding that the appeal should be allowed, the care and placement orders set aside, and the case remitted for a fresh welfare hearing. The parties have agreed upon which findings of fact from the original judgment will be carried forward into the new process and those findings have been set out on an agreed schedule.
42. Before leaving the case, I would add that what happened here in relation to the involvement of the Slovak authorities underlines how important it is, when seeking the assistance of foreign authorities, to:

i) Inform them clearly and comprehensively what questions they are requested to answer as part of their assessment;

ii) Provide them with all the information that they need in order to carry out the enquiry/assessment asked of them;

iii) Document carefully and comprehensively what material has been sent to them;

iv) Answer any queries posed by them in the course of their assessment;

v) Follow up assiduously any matters which require further exploration by them, or in respect of which they may be able to provide material information, such as details of local resources to assist in or supervise the care of the children;

vi) Consider creatively how progress might be made in the event that obstacles are encountered, bearing in mind that it may be possible to communicate directly with those who are responsible for carrying out the assessment in the foreign state, although it would be prudent first to consult our Central Authority for advice as to whether that would be acceptable to the foreign state in question.

Lord Justice Christopher Clarke:

43. I agree.

Lady Justice King:

44. I also agree.