England and Wales Family Court Decisions (other Judges)

 

The judgment is confidential to the parties and their legal advisors.  It is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

 

In the Family Court sitting at Coventry		Case No. CV14C00713
Before Recorder Sanghera Heard 15 August 2014, Judgment handed down 28 August 2014
	Re C-G (Children – Appeal)

 

 

 

 

Appearances

 

Mr Hadley       Solicitor for the local authority 

Miss Vickers    Counsel for the 1st Respondent mother

Miss Binnion   Counsel for the child through his Guardian

 

 

Judgment

1.            This is an appeal against a decision of the lay justices sitting in the Family Court at Nuneaton Magistrates Court on 14 June 2014.  That was a matter listed for a final hearing in respect of the local authority’s application for care and placement orders in respect of 5 children.  I heard brief submissions and skeleton arguments have been filed together with a bundle of authorities.  At the conclusion of the hearing on 15 August, I reserved judgement because the appeal requires me to determine an important question of law in the light of recent pronouncements in the higher courts.

The background facts

2.            The local authority applicant in this case is W.  The respondent mother is LT.  The three older children who are the subject of the public law proceedings are aged eight seven and five.  Their father has played no part in these proceedings.  The two youngest children are aged almost four and two years respectively.  The father of the two youngest children, AC, is the second respondent. 

3.            The lay justices made final orders in respect of the two youngest children but adjourned the hearing in respect of the three eldest children until 9 September 2014 pending further information.

4.            When doing so the lay magistrates made a finding that neither parent jointly or separately is able to provide good enough care for any or all of these five children.  That ruling had the effect of ruling out the parents from caring for the three eldest children and was in effect, as far as that issue is concerned, a final order.  The mother brings this appeal against that order.

5.            The lay justices heard the case over three days.  The matters in the local authority’s threshold document, and which the lay justices found proved were that the parents had consistently failed to meet the health needs of the children and had not been able to consistently implement appropriate boundaries and routines.  They found ample evidence of unhygienic untidy and dirty home conditions.  Extensive support had been provided to the parents by a number of agencies but satisfactory change had not been sustained.  The lay justices further found that the children had witnessed domestic abuse.  The older children had given detailed accounts and the parents themselves accepted that the younger children were in the house when arguments occurred.  All five children had some development delay and the parents had not co-operated with the various agencies.  They accepted that they had also missed appointments for a variety of reasons.

6.            The lay justices therefore found that the threshold criteria were satisfied and accepted that the neglect was a matter of omission rather than commission.  They then said that the cumulative effect of the documented incidents over a period of eight years led them to conclude that the parents did not have the capacity to change.  The fact that the threshold criteria have been satisfied does not necessarily lead to the making of an order.  The court has to then decide whether an order should be made at all and, if so, what kind of order.  In doing so, the paramount consideration is the welfare of the children, throughout their lives in the case of adoption.

7.            They then proceeded to consider the welfare checklist in respect of the children and proceeded to make final orders in respect of the two youngest children.  The final decision in respect of the eldest 3 children was adjourned.  That was in line with the Guardian’s view that further work was necessary to ascertain whether the placement of one of the children could be with his aunt and if not whether the current foster carers were able to care for him long term.  In the light of the positive relationship between the other two children the Guardian felt that they should not be separated and there needed to be consideration given to the viability of their remaining together.

8.            There was agreement that there should be an updated sibling attachment assessment as well as further investigations as to the placement of the other child.  This further work was due to be completed in time for the final hearing listed in September.

9.            The lay justices acknowledged that the parents had both attended the Triple P parenting course and had undergone sessions with ROSA (a sexual abuse counselling service).  However they concluded that the children could not wait for further improvement as decisions needed to be made sooner rather than later.

10.        There is a note of the lay justice’s reasons for their decision.  They set out the statutory provisions they considered and then set out the common ground between the parties as well as the findings that they made upon the threshold criteria.  In the course of those findings they set out that further work is needed to be carried out with maternal aunt and her partner.  It also set out that the parents will be not capable of meeting the children's needs and that they would not be able to make the necessary changes within the children's timescales.  They did not believe that any further assessments were necessary.

11.        Miss Vickers on behalf of the mother submitted that the lay justices were wrong for a number of reasons set out in her grounds of appeal.

The Law

12.        When considering an appeal the court has all the powers of the lower court.  This means, in the circumstances of this case, that it can affirm, set-aside or vary any order or judgement, refer any application or issue for determination by the lower court or order a new hearing.  However this appeal is a review and an appellate court must always bear in mind the advantage that the trial judges had of seeing and hearing witnesses and that there is a discretion vested in the trial court.  The appellate court should resist the temptation to substitute its own discretion.  The test on appeal is whether the decision of the court below was wrong.

13.        However, as the trial court’s decision includes an obligation to ensure that it is compatible with Article 8, the appellate court must focus not just on the lower court’s exercise of discretion but on compliance or otherwise with that obligation.  The appeal court should scrutinise the analysis applied by the court below to review whether the process adopted was compatible with Article 8 rights that were engaged.

14.        As I have said, the effect of the justices ruling was to exclude the parents as carers for the three children in advance of their final decision as to the disposal of this case.  In the case of North Yorkshire County Council v B [2008] 1 FLR 1645, Black J (as she then was) held:
“If the evidence is available, I see nothing wrong in the court determining in advance of the local authority presenting its final care plan and the court considering ‘disposal’ that a particular individual is not going to be in a position to care for a child safely in the sort of timescale that the child needs.”

15.        She went on to say
“It seems to me that the question is not, therefore, whether it is a lawful or a permissible exercise of discretion to deal with things in this way, but whether the evidence is available to take that decision at this stage, what the impact of the period between now and the reconsideration of the matter in September might be on the picture, and whether a definite course is established with regard to a particular parent at this stage.”

16.        Since this decision, there have been a number of further relevant authorities.

17.        In the case of Re-B-S (Children) [2013] EWCA Civ 1146, the court considered a number of previous authorities and confirmed previous guidance on judicial decision-making.  The court quoted with approval the decision from McFarlane LJ’s judgment in Re G (A Child) [2013] EWCA Civ 965 when in paragraphs 49-50, he said:-
“ In most childcare cases the choice will fall to be made between two or more options.  The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
 The linear approach ….. is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of these options best meets the duty to afford paramount consideration to the child's welfare.”

18.        The court emphasised the words "global, holistic evaluation".  It stressed that this point is crucial and that the judicial task was to evaluate all options and carry out a balancing exercise in which the internal positives and negatives are analysed and each option is then compared, side-by-side against the competing options.

19.        The court expressed its concern about inadequately reasoned judgments.  Speaking about adoption in particular but of no less relevance in other decisions, the court set out two essentials.  The first is for proper evidence from the local authority and the Guardian addressing all of the options.  The second is for adequately reasoned judgments.

20.        In the case of Re B, Lord Neuberger emphasised three important points.
(i)            Firstly the child's interests in an adoption case are paramount but the court must never lose sight of the fact that those interests include being brought up by his natural parents or at least one of them unless the overriding interests of the child’s welfare make that not possible.
(ii)           Secondly the court must consider all options before coming to a conclusion and it is necessary to explore and attempt alternative solutions.
(iii)          Thirdly the courts assessment of the parent’s ability to care for their children must take into account any assistance and support which a local authority can offer.  So before an adoption order should be made the court must be satisfied that there is no practical way that the requisite assistance and support can be provided to the parents.

21.        In all of these cases is the clear point that public law orders lie at the extremes of the court’s powers, that the court should make the least interventionist order and adoption is so draconian that it should only be made when nothing else will do.

22.        On the basis of the "global, holistic evaluation" stressed by the court in Re B-S, it appears that no option can be discounted unless one is able to compare it side-by-side against a competing option.  On this interpretation, it would appear that a North Yorkshire type ruling is only permissible where the court is able to consider all other options, alongside the question of the parent’s being ruled in or out.  The specific options need to be considered even though there may be certain details lacking.  What is required is a proper consideration of those competing options.  Where there is only general information available about a particular option, a decision that such an option is more preferable to rehabilitation to the parents, can only be made where the court is able to say that the situation with the parents is plainly such that anything else, whatever that may be, is better.  Such a decision, bearing in mind the draconian nature of it, can only be made upon cogent evidence and must be clearly expressed.

23.        I turn now to the Grounds of Appeal.

GROUND 1
The justices failed to undertake any welfare balancing exercise in respect of future placements. 

24.        The lay justices heard the evidence over a period of three days.  They made an assessment of the witnesses and evidence.  They do not, however, set out in a reasoned fashion why placement, of the nine year old with maternal aunt who required work, was potentially preferable to placement back with the parents.  Indeed, until the updated sibling attachment report and this additional work with maternal aunt was carried out, the local authority were not in a position to put before the lay justices their final care plan.  There was at that point, therefore, no alternative proposal that the lay justices could compare with the placement with the parents. 

25.        However, the local authority and the Guardian submit that the lay justices were aware of the alternative placement options for the three older children although an actual option had not yet been identified.  They were aware of the range of options.  They had regard to the Care Planning Balance Sheet prepared by the local authority. 

26.        That sheet sets out three generic benefits of rehabilitation of the children to their parents.  These are applicable in every case.  There is no mention of any specific benefit that these particular parents could bring to these particular children.  Are there none?  Two of the children are identified as having expressed a wish to live with their mother.  Is this not a positive, evidencing attachment that merits being considered as a benefit?  In the absence of such particularity, it is difficult to avoid the view that whilst the deficits have been considered, there has been inadequate assessment by the local authority of any benefits.  The same can be said of the Court when it says that it has read and accepted the Balance Sheet.

27.        When dealing with the welfare checklist and the capability of the parents to meet the children’s needs, the lay justices set out that they did not find either parent to be credible, the mother in particular.  They set out the lack of change despite eight years of support and the lack of acknowledgement of failings in care.  The lay justices were able to form, at first hand, an opinion of the parents.  They had expert’s reports and evidence from the Children’s Guardian.  They were best placed to make the assessment. 

28.        However, their judgment does not express the balancing of the options and why it is considered that the situation about the parents is so much worse than any of the others that ruling them out at this stage is justified, rather than when the full information is available.  Without that clarity in the judgment, this Ground has weight.

GROUND 2 
The lay justices adopted a linear approach contrary to the case of Re G and there is no global holistic analysis as required in the case of Re B-S. 

29.        Any judgment is linear in the fact that it has a middle, beginning and an end.  It is the assessment that is required to be holistic and provided that that has been done, before the judgment is expressed, too much weight should not be attached to the expression of the decision.  However, the reasoning should nevertheless be plain.

30.        It is of course entirely open to a court to reach a conclusion upon the evidence that is before it that any one of such other options, in the light of the parents own deficits, was such that it was going to be better than placement with the parents.  That however requires not only cogent evidence but express findings.   

31.        There is mention of the fact that the “situation is very much unknown to him” when the lay justices deal with the one child’s potential move to maternal aunt and her partner.  This potential placement forms part of the outstanding information.

32.        In the light of all of the outstanding information, can it be said that the court had sufficient information to carry out a balancing exercise, side by side, of the competing options?  In the circumstances of this case, the answer is no.  The consideration of the parents, therefore, cannot have been part of a holistic evaluation. 

GROUND 3  
The lay justices were not furnished with and had not, therefore, considered the evidence in respect of the children's future. 

33.        It is clear that this is correct in that further evidence was said to be required.

GROUND 4   
There is no adequately reasoned judgment that deals with the competing options.  

34.        The decision does set out that the lay justices have considered and accepted the Care Planning Balance Sheet prepared by the local authority.  It is suggested that no further reference to that was necessary.  It is, however, difficult to arrive at the conclusion that the lay justices considered for themselves such a balancing exercise in respect of the competing options when they do not even expressly make reference to any aspect of it.  A formulaic recitation cannot be enough.  It requires re-evaluation in the light of the court’s own findings. The judgement does not expressly set out the balancing exercise or decision in respect of the competing options.

GROUND 5

The potential of adoption for one of the children was an issue of last resort. 

35.        The magistrates did set out their awareness that adoption is a very draconian step and all other options need to be considered.  However one of the options that was before them was placement with family members as well as placement with a foster carer.  The prospects of the two children in respect of whom an updated sibling attachment was being carried out, being placed together was also being considered.  There was no evidence of that attachment nor of the prospects of finding appropriate adopters for both children if their separation was not advisable.  How did that measure up against the deficits identified in the parent’s capabilities? 

GROUND 6 

The justices did not weigh the proportionality of the decision. 

36.        In The case of Re B-S, guidance was given on the appellate court’s approach to this issue.  An appeal is not a full reappraisal of the issue of proportionality.  There is a generous ambit of disagreement and an appellate court should only intervene when the lower court's decision is seen to be outside that ambit and plainly wrong. 

37.        It is trite law that once the threshold criteria are satisfied, the court when considering whether an order is justified and if so what order, should start from the premise that children should be with parents unless their welfare makes this not possible.  If an order is necessary, the court should make the least interventionist order that is possible in the circumstances. 

38.        In the circumstances of this case, this Ground does not materially add to the Grounds of Appeal.  Whether the proportionality of the decision was adequately weighed will depend on the outcome of the balancing exercise that is a necessary part of any judgment when children’s welfare is so seriously engaged.

GROUND 7

The lay justices failed to properly consider within the welfare checklist evaluation the alternative to parental care. 

39.        The lay justices went through the welfare checklist in their reasons but did not deal with the changes made by the parents, why those were insufficient and what timescale for any further change was possible.  What was the length of this potential timescale? Why was this not in the children’s timescales?  There was to be an adjournment for further evidence from the local authority.  The parent’s timescale may have been rightly considered inappropriate but nowhere in the judgment is this addressed.

CONCLUSION

40.        The essence of this appeal comes down to this.  Was the lay justices’ decision to exclude the parents as carers for the three eldest children in advance of the adjourned final hearing wrong?  That was a decision that they were entitled to come to if they had before them all the necessary evidence upon which they could say that either one or other of the alternative options of adoption or long term foster care (whether with a family member or otherwise) was plainly better than rehabilitation with one or other parent.

41.        The court heard a lot of evidence.  In respect of the parent’s there is no suggestion that there would have been any more.  The judgment, however, does not express the balancing of the options and why it is considered that the situation about the parents is so much worse than any of the others that they are not even an option and that ruling them out at this stage is justified, rather than when the full information about the other options is available.  If this conclusion was, in fact, reached, it was not so expressed.  There is further no explanation of the effect of the adjournment on any timescale for parental change which is simply said to be outside the children’s timescale.  Furthermore, I have concluded that the judgment of the lay justices does not evidence a welfare balancing exercise and nor does it show a holistic evaluation.  The two essentials identified in Re B-S are missing, namely proper evidence addressing all of the options and an adequately reasoned judgment setting out why the range of alternative options are plainly better than placement with the parents. 

42.        For these reasons, I conclude that the lay justices were wrong to rule the parents out.  To the extent that it is pursued, the appeal is therefore allowed.  The case is remitted back to the lay justices where it is listed for final hearing.  As no further evidence from the parents is envisaged, they will be able to make such representations as are open to them on the then provided evidence to the effect that they remain, alongside the competing options,  for consideration as carers for their three eldest children.

43.        I see no reason for this hearing to be listed before a different bench.  The case is part heard and it would not be proportionate to, in effect, have a fresh hearing.  An impartial observer would not, in my assessment, have any concerns about the ability of the same justices to include the parents in the final deliberations.  I am confident that they will address all of the evidence including the obligations set out in this judgment.

 

 

 

 

 

Recorder Sanghera                                                                                                                         28 August 2014