England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT EAST LONDON
RECORDER BEDINGFIELD
UO14C00046

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/08/2016

Lady Justice Black:

1. This appeal is against a care order made by Mr Recorder Bedingfield on 31 March 2016 in relation to E. E is two and a half years old, having been born at the beginning of January 2014. The appellant is her mother. Her father has not participated in the appeal proceedings. At the conclusion of the appeal hearing, in order that progress could be made speedily in resolving E's future, we announced our decision to allow the appeal, for reasons which would be given later and the purpose of this judgment is to set out my reasons. We remitted the case for rehearing by a High Court judge and it was fortunately possible for the first hearing in the Family Division to be arranged for two days after the appeal hearing and to take place prior to our reasons being available.
2. The appeal does not raise any points of principle or practice of general importance. It turns entirely on its own facts. We are grateful to counsel for their helpful and economical submissions which enabled us readily to see the issues and to determine them.

History of events

3. The proceedings in relation to E have had a more than usually chequered history. The detail is not necessary in order to explain why I reached the view that I did of the appeal and I will confine myself to the minimum. E's mother is a vulnerable young woman who was eighteen years old when E was born. She spent a considerable amount of time in the care system herself. She began committing crimes at a young age, including violent offences. She has also used drugs, particularly cannabis. She has a problem controlling her emotions and her temper and a tendency to respond to people angrily and inappropriately. She mistrusts professionals.
4. Following E's birth, the mother looked after E at a residential assessment centre but she found this very difficult and, by the end of January 2014, E was accommodated pursuant to section 20 of the Children Act 1989. An interim care order followed and there was further assessment. The mother began to work on her problems with an organisation which I will call KCA. There were signs of progress although there were problems too.
5. The local authority decided that the appropriate course for E was that she should be placed for adoption. The care and placement order proceedings were heard by a district judge who, in February 2015, made the orders sought. The mother appealed and her appeal was allowed in June 2015. As a result, the case was reheard by Mr Recorder Bedingfield in November 2015. Further assessment of the mother was carried out and it is at this stage that an independent social worker, Ms Coker-Thompson, came into the picture. Ms Coker-Thompson's assessment was positive and recommended a carefully planned rehabilitation of E to the mother's care with a package of support from the local authority. This was opposed by both the local authority and E's guardian.
6. In a long and very careful judgment given on 20 November 2015 ("the November judgment"), Mr Recorder Bedingfield reviewed the evidence and concluded that an attempt should be made to place E with the mother again. The evidence was that the mother could meet E's basic day to day needs and that a bond had developed between her and E. The question was whether the risks which there undoubtedly were could be managed, and the Recorder concluded that they could. He dismissed the local authority's placement order application and made an interim care order upon the basis that there should be a phased rehabilitation of E to the mother's care. He set out that the rehabilitation plan should take six to eight weeks and should be carried out under professional supervision and with support provided by the local authority. I will need to look at some of the details of what he envisaged more closely in due course but the shape was as follows. The rehabilitation process was to take 6 to 8 weeks. It was to begin with a meeting of professionals, attended by the local authority, the guardian and Ms Coker-Thompson, and held within 14 days of the Recorder's judgment, to agree upon the practicalities of the plan and to ensure that the mother was given the necessary support. Contact was to increase almost immediately to five times a week and to include the mother spending time unsupervised with E. It was contemplated that overnight stays would commence within two weeks. There was to be a directions hearing before the Recorder on 25 January 2016.
7. Things did not progress as envisaged and I will come shortly to the problems that arose. On 25 January 2016, the interim care order was replaced with an interim supervision order. E had begun to stay overnight with the mother on occasions from 15 January 2016 and by 15 February 2016, she was in the mother's full time care.
8. There was a further hearing on 18 February 2016. En route to court, the mother became involved in a verbal altercation with a member of Transport for London's staff at a station and was arrested. This was known to all parties at court. There was agreement that E should remain living with the mother but not as to the format of the order under which this should occur. The local authority invited the Recorder to make a child arrangements order in the mother's favour together with a supervision order, but the guardian sought the making of an interim care order. We were told that the Recorder declined to follow the guardian's recommendation, so it is puzzling to find in the papers two orders dated 18 February 2016 granting an interim care order. It seems that what happened was that the Recorder contacted the parties subsequently, on 22 February 2016, to say that he intended to grant an interim care order and invited the making of submissions by email, declining to hold an oral hearing to address the issue. We have a judgment from the Recorder, delivered on 23 February 2016, in which he explained how this came about and why he had concluded that an interim care order was in fact required.
9. The final hearing was listed for 14 March 2016 but was not effective due to illness and commenced instead on 29 March 2016 culminating, as I have said, in the care order of 31 March 2016 against which the mother appeals. The Recorder provided for contact to take place between the mother and E six times a year. E was removed from the mother's care at court and placed in foster care where she remains.

The Recorder's reasoning

10. The Recorder's decision represented a reversal of the plan upon which he had determined in November 2015. Important in that decision were four events during the intervening period.
11. The first in time of these events involved the father. In the November 2015 judgment, the Recorder had identified the risk posed by the father. The father has numerous criminal convictions and a problem with drugs and he has been violent towards the mother. However, in November 2015, the Recorder had concluded that the mother's understanding of the risk posed by the father had developed and that, as Ms Coker-Thompson advised, the risk was manageable. The mother and the father were not living together and the Recorder did not find that there was an ongoing "relationship" between them although they saw each other from time to time.
12. On 27 December 2015, the mother asked the father to come to her flat and, as the Recorder found, there was a "serious incident" between them in the course of which, it seems, a television was broken and which led to the mother calling the concierge who called the police. The mother said that at the time of the incident she was terribly upset about the delay in E being placed with her, that she was depressed and needed money, and had no one to turn to, so asked the father to visit. The Recorder concluded from the evidence before him in November that there was an emotional relationship between the mother and the father, and that the mother had not, in fact, reached an understanding that the father poses a significant risk of harm to her and to the child.
13. The next incident occurred on 18 January 2016 at a contact review. This was attended by the mother's "Leaving Care Support Worker". The Recorder had been extremely critical of this worker in his November judgment and Ms Coker-Thompson was very critical of the local authority for having invited her to attend the review. The details of what happened at the review are not readily apparent from the papers except that it seems that the mother walked out. Although he accepted Ms Coker-Thompson's criticism of the local authority for having the worker attend, the Recorder concluded that the mother had overreacted.
14. The altercation with the Transport for London employee on the way to court on 18 February 2016 was the next event. The Recorder assumed in the mother's favour that the employee "had said something that he or she should not have said" and proceeded on the basis that sharp words were exchanged, the mother having lost her ability to regulate her emotions. Paragraph 27 of the Recorder's March 2016 judgment suggests that, at that point in the judgment, he thought that E was present during this incident, albeit with a family support worker there as well; that was not so and the Recorder corrected the error at the invitation of counsel after the conclusion of his judgment. E has not been present during any of the incidents that have occurred.
15. The final event upon which the local authority and the Recorder placed reliance occurred on 21 March 2016 at a child protection case conference. Again, the precise details of the mother's behaviour are not readily available. It seems that it was at this meeting that the local authority announced that it had decided that it would be seeking adoption for E and that the criticism of the mother may be that she left before the end. The Recorder accepted that it "must have been very, very difficult for the mother to sit through a meeting where she is told by the local authority that they will seek to remove the child from her care", but nonetheless saw this as material to his determination.
16. The continuing involvement of the father in the mother's life seems to have been one of the things that influenced the Recorder's decision the most. He formed the view that there would be further incidents and that if E were to be in the mother's care, she would ultimately have to be removed for this reason. He did not think the risk could be managed, as the mother would have difficulties working with professionals because she could not be relied upon to be honest with them and she would continue to have altercations with them. Indeed, he concluded that she was likely to continue to have altercations with others too, as in his view she had shown repeatedly that she is unable to manage and regulate her emotions. He recognised the positive features of the mother's care: her love for E, her ability to connect emotionally with her, and her intelligence and ability to provide practical care and support for her. He took into account that E would be damaged by being removed from the mother's care, but he concluded that there was an unmanageable risk of harm which made it not in E's best interests to remain in the mother's care and made it proportionate to remove her.
17. In paragraph 57 of his judgment, the Recorder dealt with the possibility of adoption. As this paragraph and the following one are important in the appeal, I will quote them in full.

"57. Another possibility is the child being placed for adoption. I do not have before me a placement application. I do not seek to give an indication with regard to whether it is likely that the best interests of the child would require the dispensation of the consent of the mother and the father to adoption because that is a decision that would have to be made by the judge who hears this matter whenever that application is made. Therefore, the other option I have before me is the child being placed in the care of the local authority in long-term fostering. Now, of course, that is not the plan that is sought by either the local authority or the guardian. I have listened carefully to …the evidence with regard to the likelihood of the child being damaged if in long-term foster care and I accept that there are several difficulties with placing a 2-year old child in long-term foster care.

58. The first of those difficulties is that I cannot assume that the previous foster carers will be available for this child in either the short-term or the long-term. Things happen with foster carers. It is impossible for a judge to conclude that it is more likely than not that this particular foster carer will be available or that particular foster carer will be available next week, much less through to the child's 18^th birthday. So I accept that it is likely that, if the child is placed in long-term foster care, there will be a change in carers and I accept that causes a child harm. However, it is my view that this child has an ongoing relationship with the mother that should be preserved and it is my view that the child should have continuing contact with the mother. That means that the contact would have to be assessed and reviewed by the local authority because if the contact is seen not to be in the child's best interests then the contact would have to be stopped. The primary consideration with regard to continuing contact will be the mother's ability to support the child in whatever placement the child is in, and that is a very difficult proposition for any mother to undertake. Nevertheless, it is my view, based on the evidence that I have before me, that it is right that the mother continues to see the child."

18. A few paragraphs further on, the Recorder added, with regard to contact, that it was his view that "if the contact goes well, it is in the child's best interests for there to be more contact".
19. Counsel for the mother immediately made an application to the Recorder for permission to appeal. In the context of addressing that application, the Recorder expanded upon his earlier reasoning generally and also returned to the question of adoption. It had been contended that he had failed to apply the correct legal tests. He said that he accepted the submission by counsel that although he was not making an adoption order, he needed "to apply the test of permanent removal in a situation where the child will not be placed in the care of any member of the child's birth family" and indicated that he had taken into account the harm that would flow to E from losing the long term care of the mother and other family members.
20. The Recorder also gave some further explanation of what he had been thinking in November, saying that he had in part been seeking, by formulating the rehabilitation plan, to

"make certain that nothing else will do, to make certain that removal from the care of the mother is appropriate in a situation where in my view the mother has the ability to care safely for the child, yet is unable to do so because of her difficulties in managing her own behaviour, and her difficulties in recognising risks that abusive partners pose to her and to her child."

21. In addition, he gave more explanation for the contact order that he had made. He said that he had sought in his judgment to set out why he considered "this child should continue to have a relationship with her mother" and that he had set the contact at a level that would not jeopardise the child's placement but would maintain the relationship. He identified two purposes behind the contact (paragraph 80). The first was "to maintain the relationship with the mother, to minimise the impact on the child of her loss of that relationship and the loss of contact she should have with her birth mother and birth family". The second he explained as follows:

"if this child remains in long-term foster care and the relationship between the mother and child is maintained, there is always the possibility that the mother would demonstrate an increase in her insight and understanding and an improvement in her ability to provide safe care for the child."

It is clear from paragraph 79 that what he had in mind in saying this was that it may then be appropriate for E to return to the mother's care.

The grounds of appeal, arguments in response, and discussion

22. There are a considerable number of grounds of appeal but for present purposes I can concentrate upon the points which persuaded me that the appeal would have to be allowed. In short, they concern the Recorder's failure to put the four incidents upon which reliance was placed in proper context and to explain sufficiently why the circumstances justified a change in direction from that determined upon in November 2015, and his failure to recognise and address the fact that the care plan presented by the local authority was for adoption.
23. I turn first to the question of context. Ms Maclachlan, counsel for the mother both at first instance and on appeal, submitted that it was vitally important for the Recorder to have put the four incidents that occurred between November and March into context in order to be able to make a proper evaluation of their implications for the rehabilitation plan that he had devised in November. The rehabilitation process had not taken place in the way that he had carefully defined, she said; this was not through the mother's fault but it had materially influenced what had occurred.
24. It is clear that there is considerable dispute between the parties about the progress of the rehabilitation plan. What follow are examples of what the mother says went wrong; the local authority's perspective is quite different. The mother says, for instance, that:

i) Ms Coker-Thompson was not able to attend the professionals' meeting because, as the emails included in her report show, she was told on 25 November that the meeting was proposed for the following day when she had to be in court at a contested hearing. She was therefore constrained to contribute in writing and it is said that her recommendations were not followed.

ii) There was delay. Instead of the whole rehabilitation process taking six to eight weeks, contact in the mother's home did not start until January and it was mid February before E was with the mother full time.

iii) There were problems with the mother's benefits and the local authority did not assist her financially so that, for instance, she was unable to travel to appointments with her counsellor. The father's visit to the mother's accommodation on 27 December was in order to provide her with some money. I have been particularly careful not to reach my own conclusions about the factual disputes between the parties but, in this regard it is worth noting that the order of 25 January 2016 recorded that the court had found that the local authority's care plan was not in the best interests of the child because it "failed to address the mother's immediate emergency financial difficulties" and that the local authority had agreed to remedy this.

iv) Although E began progressively to stay overnight with the mother from 15 January 2016, family support workers did not start to attend the mother's home to provide practical support, and child care so that the mother could attend her counselling, until 18 February 2016.

v) Domestic violence work had been advised by Ms Coker-Thompson but did not materialise as planned.

25. In Ms Maclachlan's submission, the order that the Recorder made in March 2016 represented a complete reversal of the order he had made only 3 months earlier and justification was required for the change of direction and was absent from the March judgment. The starting point for the Recorder's consideration in March needed to be the findings that he had made in November, and Ms Maclachlan's submission was that it was important to recognise that in November, he had not proceeded upon the basis that the mother had put the entirety of her previous problems behind her. As Ms Maclachlan put it in oral argument, he did not treat the mother as the finished article but his view was that there was sufficient potential for E to be placed in her care. There are, indeed, a number of passages in the November judgment which show that this is a fair characterisation of the Recorder's approach. I will refer only to a selection of them.

i) At paragraph 69 of the November judgment, the Recorder recognised that the mother was not always able to avoid conflict and that she still had anger management problems, but considered that she had been shown to be "working towards gaining a better understanding of [her] problems and working to solve them" and had understood that out of control behaviour harms a child when he or she witnesses it.

ii) At paragraph 71, the Recorder stressed that the mother would need "professional support that she can count on" and at paragraph 117 acknowledged that she had a difficult relationship with the local authority which, he said, had sometimes "not been as supportive of the mother as it should have been". He agreed that Ms Coker-Thompson was likely to be correct when she said that the mother would be able to engage with professionals sufficiently to protect E but "[t]hat does not mean she will never do anything wrong; she will shout at a social worker, she may get angry inappropriately" (paragraphs 142 and 143).

iii) At paragraph 74, the Recorder acknowledged that the mother "still has some affection for [the father]" and at paragraph 102 that her understanding of the risk posed to her by him was limited. However, he accepted that she was likely to be able to access support and guidance with regard to the problem that the father posed (paragraph 87) and directed that the professionals meeting should identify appropriate resources for this purpose (paragraph 126).

iv) He acknowledged (paragraph 89) that she "needs help and support with regard to … practical care of the child and help and support with regard to her ongoing recovery from the difficulties she faced as a teenager".

v) He recorded her own evidence that she was smoking cannabis every day (paragraph 110).

26. The Recorder described the case in his November judgment as "finely balanced". In such a case, I would observe that it is not at all impossible that in a matter of months, the balance may have tipped in the opposite direction. But a decision that it has done so will need to be founded upon well-established facts, properly understood in the context of all that has happened in that period, and it will require to be fully explained. Both the local authority and the guardian sought to defend the Recorder's March judgment as sufficient for these purposes.
27. Mr Pavlou, counsel for the local authority, argued that it was unnecessary for the Recorder to have made findings about the disputed circumstances of the rehabilitation programme. In his submission, there was a pattern to the mother's behaviour which had not changed throughout, the four latest incidents being merely a continuation. However, if that was so, in my view it merely underlines how important it was for the Recorder to explain why it was that in November he considered E should not be removed from the mother's care, whereas in March he considered that she should. Mr Pavlou was unable to take us to any passages in the Recorder's March judgment which sufficiently justified this. He suggested that the difference was that the incidents which occurred in the post-November period had greater significance because they demonstrated that the mother was unable to co-operate whilst E was in her care. However, I did not find myself readily persuaded by this, as none of the incidents occurred in E's presence, and it was only the Transport for London incident and the 21 March child protection conference which occurred after E came to live with her full-time on 15 February.
28. Ms Vindis, counsel for the guardian in this appeal, defending the absence of any findings about context in the Recorder's November judgment, submitted that, with the possible exception of the incident with the father in December, none of the incidents were actually driven by a lack of planning or financial or other support. She also pointed out, in an effort to identify material changes since November, that in the March hearing, the Recorder had heard from the father for the first time and she invited our attention as well to the Recorder's unfavourable impression of the mother in evidence in March.
29. Given that there is to be a retrial of the issues in this case, it is very important that nothing that I say should be taken as an indication of any view on my part as to the merits of the parties' respective cases as to the care of E. I have formed no view at all as to what the proper course is likely to be and that will be a matter entirely for the High Court judge who rehears the case at first instance. I have focused purely upon whether the Recorder's March judgment dealt adequately with the various issues that arose for determination.
30. Looking for the moment at the need for the post-November incidents to be put into proper context, I accept Ms Maclachlan's submission that the Recorder had to determine why the rehabilitation did not follow the programme he had directed and evaluate, in the light of this, whether such failures as there were on the part of the local authority had contributed materially to the mother's difficulties during the relevant period. This was particularly so, I think, in the light of the good reports that had been provided by the family support workers as to the mother's actual care of E, as opposed to her actions towards others. I also accept Ms Maclachlan's submission that the Recorder's consideration of the delay in the rehabilitation programme and the other problems attendant upon it was too cursory. In so far as the Recorder made any relevant findings on the subject (for example at paragraphs 21, 22 and 66 of the March judgment), they were in my view insufficient given the importance of this aspect of the case.
31. The problem that I have just described was, on its own, enough to persuade me that the appeal had to be allowed, particularly taken with the lack of any real explanation for why the sort of faults in the mother which were recognised as existing in November 2015 had assumed sufficient importance by March 2016 to justify the removal of E from her care with a view to adoption.
32. However, another aspect of the Recorder's approach was also troubling. Ms Maclachlan submitted that the local authority's final care plan was inchoate, and unclear as to whether the court was being asked to approve a plan for adoption, long term fostering, or placement with a family member, and that the Recorder was wrong to make a final care order in the circumstances.
33. The written plan was undoubtedly defective as Mr Pavlou rightly accepted on behalf of the local authority. It said that E was to be placed in a foster placement under a care order "whereby parallel planning can continue in order to ensure that E's long-term needs are able to be met." It said that this could include consideration of any extended family members as well as a possible subsequent application for a placement order. In fact, there was no question of care by extended family members and the local authority had already determined upon adoption as the right course.
34. The deficiency was not limited to the care plan. The most up to date local authority statement, dated 4 March 2016, was to the effect that a care order should be made and E removed from the mother's care, but there is nothing in it about adoption. The local authority's position statement for the March hearing said nothing about adoption either; Mr Pavlou explained that this was because there was no placement order application before the court.
35. But, the local authority argued, these flaws were not material because it was clear at the hearing that the plan was for adoption. I accept that that may well have been apparent, in the light of the Recorder's comment, in paragraph 57 of his judgment, that long term fostering was not the plan of the local authority or the guardian. This comment fits in also with what the guardian said in her report, namely "I support the local authority's application for a Care Order and a Placement Order, with a view to her being placed for adoption outside the family." It apparently also reflects the social worker's oral evidence.
36. However, no doubt hampered considerably by this obviously confused and unsatisfactory presentation of the case, and in the absence of any placement order application before him, in my view, the Recorder went off track in his analysis of the options that there were for E and in his weighing of the various factors that were relevant to his decision. I have quoted his paragraphs 57 and 58 in full above. They show, I think, how the Recorder failed to come to grips in his decision making with the fact that the care order that he was being asked to make was sought on the basis of a care plan for adoption. He spoke of the need to preserve E's ongoing relationship with the mother by continuing contact and later (for example, in paragraph 80 when dealing with the application for permission to appeal) relied upon it to minimise the loss to E of the day to day relationship with the mother. However, it would have been an unusual plan for adoption in the case of a 2 year old child had it included continuing contact six times a year. That is not something recommended by the local authority or the guardian. The care plan in fact provided merely for "gradually decreasing supervised contact" with no further detail. Furthermore, the Recorder also saw contact as a way of allowing for the possibility that the mother may develop in future to the point when she could provide safe care for her daughter. This also ran counter to the local authority plan for adoption.
37. Mr Pavlou submitted that, in paragraphs 57 and 58, the Recorder was simply settling the arrangements for E's relationship with the mother during the period she would have to spend in foster care awaiting adoption, not indicating that she would need her relationship with the mother to continue in the longer term. That might possibly be so, although the wording is far from clear and the idea does not tie in well with what the Recorder said in refusing permission to appeal in the passage to which I have just invited attention. The fundamental difficulty is, however, that before making a care order in favour of a local authority which was intent on adoption for the child, the Recorder failed to look beyond foster care and consider what the implications for E of adoption were and whether it was likely to be required. In Re R (a child) [2014] EWCA Civ 1625, at paragraph 20, in a care case in which the sole issue was whether the child should be returned to the mother or be placed for adoption, McFarlane LJ explained that it was necessary to analyse which outcome was to be chosen by giving the child's welfare throughout her life paramount consideration through the lens of the welfare checklist in section 1(4) of the Adoption and Children Act 2002. Although no placement application had yet been made in the present case, in order to deal properly with the options that were, in reality, being presented to him, in my view the Recorder needed to go through that same exercise and he failed to do so. For that reason also the appeal had, in my judgment, to be allowed.
38. In the circumstances, I need not go on to consider the arguments advanced about the Recorder's handling of the question of contact or any of the other points raised in the grounds of appeal and, given the need not to stray into territory that must be left to the new trial judge, I do not propose to do so. However, I do not want to leave the case without acknowledging that the Recorder was not assisted by the way in which it was presented to him. The local authority's documentation was not helpful. The social worker had recently changed. There was no placement application which, although understandable because of the shortness of time between the local authority's decision and the hearing, increased the danger that the hearing would fail to focus properly on the real issues. The guardian's analysis of the consequences for E of being adopted was inadequate as the Recorder accepted, commenting that there was an absence of evidence, from both the local authority and the guardian, about the harm that the child would suffer by being removed from the mother. All of these matters will have contributed to this careful Recorder not focussing upon and dealing with central issues.

Lord Justice Tomlinson:

39. I agree

Lord Justice Lindblom:

40. I also agree