England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		3rd April 2014

MR JUSTICE HOLMAN:

1. I have heard this application throughout and now give this judgment in public. It is an application for permission to appeal from the decision and order of District Judge Bowman made on the 7^th January 2014. It is relevant to record that she made the final judgment, decision and order after a fact finding hearing of five days during June and July 2013 and a further outcome hearing of no less than nine days in November and December 2013; so her final decisions in this case were the culmination of no less than 14 days of hearing about this family and from the parties and other relevant witnesses. It follows that District Judge Bowman, who is a judge of considerable seniority and experience, was particularly well placed to reach the decisions that she did, after having heard from, and observed the interaction between, members of this family over so sustained a period.
2. The proceedings concern two children, a girl, now aged about four-and-a-half, and a boy, now aged about three-and-a-quarter. They are the full brother and sister of each other and are the children of parents who are married to each other and lived together for some years before they actually married. The proceedings were brought by the relevant local authority seeking initially care orders and, by the time of the outcome hearing, placement orders in relation to the two children. It is important that I stress that at this application for permission to appeal today I have only been supplied with and read precisely three documents. The first is the official transcript of the very long judgment given by District Judge Bowman on the 7^th January 2014. The second is a copy of the formal orders made by District Judge Bowman on the 7^th January 2014. The third is a document prepared for the purposes of today's hearing by Mrs Julie and Mr Timothy Haines, who are respectively assisting the maternal grandmother and the father of the two children as McKenzie friends. A copy of their skeleton argument has now been signed and dated by Mr and Mrs Haines today and placed on the file of the court. I stress, therefore, that neither I nor indeed, as I understand it, Mr or Mrs Haines, have been able to see any of the no doubt voluminous documents in this case. Those documents will include a body of medical evidence, a considerable number of statements, and a number of reports from doctors, an independent social worker, the children's guardian and others. The documents will no doubt also include care plans in relation to the children. The documents must also include what District Judge Bowman described as her "headline decision" dated the 13^th July 2013 in which she found and recorded the relevant threshold facts.
3. As will later emerge, I am indeed adjourning part of this application and requiring the relevant local authority and the children's guardian to attend to clarify certain matters. I readily acknowledge that those matters may (I stress, may) already be clear from documents such as the care plans, but, as I have said, the documents are not available to me here today.
4. I have already mentioned the involvement of Mrs and Mr Haines as McKenzie friends for the grandmother and father respectively. Before moving on to the facts of this case and the arguments, I would wish to pay a sincere tribute to, and express my gratitude to, each of them for their approach to this case and the great assistance which they have generously given to the grandmother and the father. The main advocate this afternoon has been Mrs Julie Haines. She addressed me with the utmost clarity and restraint and wisdom, and I am very grateful to her for that.
5. As I understand it from the judgment of the 7^th January 2014, these children were living together with both their parents who were, and still are, themselves living together. In October 2012 the daughter, then aged three-and-a-quarter, said certain things at the children's nursery which led to the children being examined first at the nursery and later at a nearby hospital. The hospital observed and recorded a number of scratches and other minor injuries on them, and the daughter gave what was described as "a vivid account" of how they had happened and blamed her mother. In the upshot, after the five-day hearing during June and July 2013, the judge concluded that the perpetrator of all the injuries was the mother. She concluded that the daughter had sustained nine minor injuries to her body, and the son had sustained five minor injuries to his body, all of which were caused non-accidentally. In other words, no less than 14 minor injuries, essentially scratches, had been deliberately caused to these two children by their mother. Additionally, and seemingly of even greater concern, the mother had caused two non-accidental -that is, deliberate - boot mark injuries to the shoulders of her daughter.
6. The district judge herself very clearly acknowledged and recognised, as had the children's guardian, that the injuries themselves were not of a serious kind nor requiring any medical treatment. She said, at paragraph 122 of her outcome judgment of the 7^th January 2014:

"The injuries … were not very serious. They were relatively minor."

As proposed ground 6 of the proposed appeal (namely at paragraph 41 of their skeleton argument for today) Mr and Mrs Haines have argued that:

"This placement order is made as a result of injuries to [the girl] which were very much on the lower end of the scale, to the extent that they did not even require any medical treatment, and it is submitted that a placement order is a disproportionate response to such injuries."

That is a point which Mrs Julie Haines further developed and submitted this afternoon. It does not, in my view, afford the slightest ground of appeal. First, as I have observed, the district judge herself was well aware that the injuries in question were not very serious and were relatively minor. Second, it is not actually correct to limit the injuries only to those to the daughter, for, as I have said, it clearly emerges from paragraph 9(1) of the outcome judgment that there were also five minor injuries to the son. So the picture here is of deliberate infliction of injury, albeit minor, to both children. Third, although overall the injuries may be described as "minor" they do include non-accidental, that is, deliberate, boot mark injuries to a girl who was at the material time aged about three. All this is evidence of a deliberately abusive attitude by a mother to both her young and vulnerable children.

7. The sad and worrying part about this case is that, between her decision and judgment in mid July 2013 and the outcome hearing which began in late November 2013, the district judge had deliberately afforded a significant period of time within which there could, amongst other matters, be an assessment of the mother by an expert in order to try to find out why she had injured her two children in the ways described. Unfortunately, the mother did not cooperate with, or properly participate in, that assessment and therefore it is not possible to know whether she injured the children as a result of manageable stress or some other force of circumstances which could be recognised and managed in the future, or whether she did so out of, frankly, callousness or brutality. Unfortunately, the reaction of the mother to these proceedings and to the fact finding decision of the district judge in July has effectively been one of almost total denial. Instead of acknowledging and facing up to what she had done and seeking help about it, the mother adopted what the district judge was later to describe as a "conspiracy theory". She has said and continued to say that the allegations had been fabricated; hospital documents, including photographs of the injuries, faked or forged; and she has said even that the examining doctor at the hospital is a non-existent person.
8. As well as suffering the injuries, the children began, after they were placed with foster families, to act and say things of a very sexualised kind. It appears, for instance, that shortly after they were placed with the foster family the boy, then only aged about two, was seen lying on top of his sister "in a manner akin to adults having sex". Both children used highly sexualised and inappropriate language. The girl was observed to prod her private parts with a pencil, to call another girl "sexy", to tell her brother to put his hands between her legs, to rub her private parts with a toy, to make licking motions with her tongue, and to rub herself against her brother, pushing her pelvis forward in a sexual manner. The boy was observed climbing upon his sister and simulating sexual activity. It was stressed, and I stress, that there was no allegation that either of the parents had themselves directly sexually abused either of their children. Rather, the allegation was that the parents had been so careless and neglectful in their own personal sexual activities that their children had observed their sexual activities and were very inappropriately emulating or copying them. That, too, was completely denied, and apparently continues to be denied, in particular by the mother. At paragraph 26 of her judgment of the 7^th January 2014 the district judge said:

"The parents adamantly deny that any sexualised behaviour has been observed or learned by the children at their home … Their case is that the foster carer is lying about what [the girl] has said or done and has made up the allegations and made up the log [viz: a kind of diary] as part of the conspiracy against the family perpetrated by the local authority and others to remove the children …"

So not only was there total denial and a conspiracy theory about the physical marks upon both children, but there were also the very worrying reports from the foster family of the sexualised behaviour of the children.

9. At the outcome hearing in November and December it was not, indeed, argued on behalf of the mother that at that stage the children might sensibly live with her. As a result, the district judge identified in paragraph 1 of her judgment that there were three essential options: first, to make care and placement orders enabling the local authority to place the children for adoption; second, to make orders placing the children in the care of their maternal grandmother; or, third, to direct a further assessment of the father as to the possibility of the children living with him but separate from the mother. In relation to the mother herself, the district judge said, at paragraph 124 of her judgment:

"… This mother has been wholly unable, or unwilling, to make any kind of an admission to give any insight into where she might need help so that work can be done with her. It is almost as if psychologically she cannot bear to acknowledge any kind of weakness in the armoury of her view of herself as the good, caring parent. … Instead, she has … embarked on a strategy and a course of conduct which denies any responsibility for anything and blames everyone else except the family adults for the situation in which the family now find themselves."

The district judge then referred again to how the mother had "invented, or latched onto" the conspiracy theory. She concluded, at paragraph 126:

"I find that the mother is quite simply deluded. There is no rational or fact based explanation for her views, there is no other explanation for them, other than delusions. She is thus an inadequate parent, even a dangerous parent to have care of these two small children as things stand."

10. Frankly, in the face of those findings by this judge, who had heard so much evidence and observed this mother over so sustained a period of time (and there are copious other references in her judgment to the behaviour of the mother in the court room) there is not the slightest possibility of this mother successfully appealing any part of the decision and order insofar as it relates to her. She has not in fact attended today in support of her proposed appeal.
11. The grandmother attended every day of both stages of this case, so she was personally present on all of the 14 days in front of District Judge Bowman and is personally present again today. I would like to pay a tribute to her as somebody who has obviously, and appropriately wished to give, and has given, the utmost support both to her daughter and to her grandchildren. She has not been represented at any stage of these proceedings. She told me that she did apply for legal aid but was found not to be financially eligible because she owns outright, without any mortgage, a house worth about £400,000. She did, however, expend £1,000 of her own money on obtaining a report from a so-called independent social worker, Miss Emma Campbell, to which I will later refer. Today Mrs Haines, speaking on behalf of the grandmother, has stressed the difficult position that the grandmother was in throughout these hearings. She had no representation, she did not even have the help or advice of a McKenzie friend. Mrs Haines has very frankly said that if she had been assisting the grandmother during the course of those hearings she would have strongly advised the grandmother against saying some of the things which she did say to the district judge, and generally advised her to adopt a much more detached position in relation to her daughter. I do completely understand how unsupported the grandmother must have been, but I do not make the rules in relation to legal aid. The rules are as they are. She is not alone in having to represent herself in a situation of that kind. It is said by Mrs Haines that the grandmother was, in effect, "a rabbit in the headlamps" and at such a disadvantage that she did not give a good account of herself. Mrs Haines suggests, therefore, that the judge could, and should, have helped the grandmother "a little more than she did". Of course neither Mrs Haines nor I have a verbatim transcript of the hearing, so we are not in fact in a position to make any judgment one way or another as to the extent to which the district judge may or may not have given help to the grandmother. But what in a sense does follow is that the district judge had a particularly good opportunity to observe and make judgments about the grandmother, for not only did the district judge hear evidence from the grandmother, but she was able to observe her in court throughout and her interaction with her daughter and, to some extent, with her son-in-law.
12. The difficulty with the grandmother's position and proposal that the children might live with her emerges very clearly from paragraphs 105, 129 and 139 to 141 of the judgment of the district judge. She said at paragraph 129:

"Into her delusions, the mother has drawn the father and the grandmother. They both stand behind her now 100 per cent, the grandmother in particular. The grandmother, when asked difficult questions, she would simply retreat into silence in evidence, saying, 'I cannot answer. I do not know. I won't answer. I cannot remember if there was anything I disagreed with in the mother's evidence.'"

The grandmother has said today that she does not recall making those answers during the course of her evidence, but since the district judge carefully placed them within inverted commas within her judgment I must assume that in fact they were said and are at least reasonably accurately recorded. At paragraph 139 the district judge said:

"I have no doubt that the grandmother loves her family, but I have no confidence that she would be able to maintain independence from the mother if the children were placed with her. Firstly, this is quite the opposite of what she said in answer to a question on day 6 of the trial, being 4^th December, when she was asked why the children should live with her. It was put to her that the plan was 'If you looked after the children, it would be until the mother was cleared, wouldn't it?' The grandmother said, 'We planned that if I take the children, [the mother] would live with me. She has a permanent place, but she could leave it. That would continue until I die. Then they can have my home. That's the plan. We are going to appeal. We will do it straight after this trial.'"

Again, the grandmother today has somewhat questioned or disputed whether she gave that answer which is attributed to her, but I must presume that she did. Frankly, it rather gives the game away that there is a "plan" between her and her daughter to the effect that even if nominally the children were to live with her, the grandmother, her daughter would move in and be closely involved. It was in particular in relation to that that Mrs Haines said that if she had been assisting the grandmother at the time of that hearing she would have advised and cautioned her against saying anything to suggest any such future involvement between herself and her daughter, the mother; but that does not in any way meet the fact that that is what the grandmother said to the district judge. The district judge gave some further reasons in paragraph 140 of her judgment, the thrust of which is that the grandmother loves her family and wants them to be together and "she sees no reason to keep the mother away". That is really, however, an extension of what the judge had already previously said. So the judge concluded, in relation to the grandmother, at paragraph 141:

"In all the circumstances, I am not persuaded that placing the children with [the grandmother] is the right course. In fact, I conclude that it would be the wrong course. I reject it."

13. Between the two hearings the grandmother herself had, as I have already mentioned, expended no less than £1,000 on obtaining a report from a so-called independent social worker, Miss Emma Campbell. She had identified the name and the contact details of Miss Campbell from some website. What the grandmother was seeking was some independent assessment of her and her parenting capabilities, and her ability to keep the children safe from their mother if they were to live with her. Unfortunately, it appears that the resulting report was a perfunctory and inadequate one. The district judge was to say, between paragraphs 130 and 138 of her judgment, that the report and involvement of Miss Campbell was "meagre", lacking any appropriate analysis or exploration of themes, and at any rate in part naïve. I am of course very sympathetic to the grandmother, who did her best to obtain some appropriate independent evidence of good quality and expended good money in seeking it. It was not her fault, of course, that the resulting report was to be described in those terms by the district judge. I stress that I have not personally seen the report of Miss Emma Campbell. I can only go on what the district judge said in the part of her judgment to which I have referred and from which I have briefly quoted.
14. The thrust of proposed grounds 1 and 2 of appeal (now in paragraphs 36 and 37 of the skeleton argument of Mr and Mrs Haines) is really to the effect that there was inadequate assessment of the parenting capabilities of the grandmother and of her capacity to keep the children safe from the mother. The way it is put in that document is as follows:

"Firstly, grandmother's case rests on the lack of investigation by the court into her capabilities to care for the children and (if necessary) resist the will of her daughter when subject to an order of the court. Following on from this, the issue of proportionality arises when balancing the finality of adoption against the return of a child to a family member. Secondly, the court's approach when looking at grandmother as a carer is not in accordance with [certain authorities] … The judge concluded that Miss Campbell's report fell far short of the mark, thus the court should have looked further into grandmother's claim knowing how high the stakes were for all concerned. Some positives came from Miss Campbell's report and should have given the court hope of finding further strengths."

As elaborated by Mrs Haines this afternoon, the thrust of the complaint is that the court of course knew that the grandmother was unrepresented. The suggestion really is that at the close of the fact finding hearing in July the district judge should not have merely left it for the grandmother to go off if she wished and obtain her own report from some independent social worker. Rather, the district judge should have given directions for a joint report to be obtained, probably funded at least in part by the public funding certificates of the mother and the children's guardian, and perhaps also by the local authority, from an identified expert of undoubted expertise and repute.

15. The difficulty with that submission is that it is really now too late. I do not know what discussions, if any, may have taken place at the conclusion of the fact finding hearing. I have, however, been told this afternoon by the grandmother herself that she does not recall that there was any suggestion by any of the advocates on behalf of the represented parties (including the mother and the father) at the conclusion of the fact finding hearing that there should be any such joint report. It is certainly not suggested that there was an application for such a report and that the judge wrongly or mistakenly refused to order or permit one. Frankly, some eight or nine months later it is just too late to say that it might have been better if things had been done differently in the aftermath of the July hearing. Further, Mrs Haines says that now that it is known, and was indeed held by the district judge, that the report of Miss Campbell was so meagre, perfunctory, naïve and generally unhelpful, the district judge should at that point have further adjourned and given a direction for some further report. Again, a difficulty about that emerges from one of the recitals to the formal order itself that was made on the 7^th January 2014. Under a heading "Hearing Progress", the order states:

"The parties confirming that the assessments and experts identified and instructed are all those necessary to conclude this matter."

If that was confirmed by the parties, including represented parties, at the end of that hearing and following the judgment but before the making of the order on the 7^th January 2014, it is difficult for Mrs Haines now, almost three months later, to say that actually there should have been a yet further assessment of the grandmother.

16. It is extremely important in cases concerning children to bear in mind the damaging effect of prolongation and delay. By the time of the hearing in front of District Judge Bowman the case had already apparently lasted some 57 weeks, that is, over a year. If now I were to grant permission to appeal with a view to consideration being given on appeal to whether or not there should now be some further independent assessment of the grandmother, that would inevitably add further total delay of at least six months. There would be some delay between today and the hearing of any appeal. If the court upon the hearing of the appeal decided that there should be some further instruction of an independent expert, at least three months would have to be allowed for the process of identifying that expert, that expert scheduling the work into his or her timetable, and producing the resulting report. There would then of course have to be some further period of delay and reflection before some yet further hearing, presumably in front of District Judge Bowman who is so immersed in this case. So in the process, frankly, the better part of a further six months would elapse.
17. I am sorry to say that although I am sympathetic to the general position of the grandmother in this case, who has sought and continues to seek to do the very best for her daughter and her grandchildren, I am quite unable to grant permission to appeal on either of those first or second grounds.
18. I turn next to the position of the father. His difficulty is that he, like the grandmother, has become implicated in the "conspiracy". I refer again to paragraph 129:

"Into her delusions, the mother has drawn the father and the grandmother. They both stand behind her now 100 percent …"

The father continues to live with the mother. I asked him today whether he was still living with her, and he made a comment to the effect that nobody had told him when he should separate from her. I cannot frankly accept that. He has been advised throughout. He must have known perfectly well at the conclusion of the fact finding hearing in July that the serious findings had been made against the mother and, indeed, the finding also against him that he, as well as her, had carelessly permitted the children inappropriately to observe their sexual activity. He must have known perfectly well that there would be no question of his parenting the children separately from the mother unless he made a clear, lasting separation from her and demonstrated that. The district judge said at paragraphs 142 and 143 of her judgment:

"As for the father, [his counsel] has done his absolute level best to persuade me that there is a glimmer of true acceptance in the father's position about the mother and the conspiracy theory to merit the further risk assessment which he contends for. But, I reject his submission. As [counsel] for the local authority has said, the whole focus of the case for the mother and the grandmother, and the father, has been a determination to overturn the fact finding and criminal court decisions. The father is complicit in this. He says he will separate from the mother, but he has taken no step to achieve this end and find himself alternative accommodation.

The parents' attitude in court, talking together, the mother picking fluff from his jacket, coming and going to the hearings together, demonstrate how close they in fact are. The mother has made those appointments with [the social worker] but were not kept. He has procrastinated about meeting [a doctor who was instructed]. He is avoiding discussions. He has flip-flopped on the surface."

I am afraid to say that those are findings that were clearly open to the district judge who, as I have now said several times, was in a particularly good position to assess the interaction between the two parents and their relationship throughout the whole of the hearing.

19. So, insofar as the father seeks permission to appeal on the basis that the children could now live with him separately from the mother, that, in my view, does not have the slightest prospect of success and so I refuse it.
20. I come now to grounds 3, 4 and 5 which are referred to in paragraphs 38, 39 and 40 of the skeleton argument of Mr and Mrs Haines. They read as follows:

"38. Thirdly, [the local authority's] plan for placing the children either together or separately was not explored.

39. Fourthly, the children's needs were not fully explored as the court did not look at post-adoption sibling contact between the children if they were to be placed separately [I read that paragraph as expanded by Mrs. Haines during her oral submissions this afternoon].

40. Fifthly, it is now unlikely that [the daughter] would be successfully adopted by a new family, bearing in mind her age, and the issues arising from the allegation of explicit sexual language."

In relation to these particular proposed grounds I, and indeed Mr and Mrs Haines, are in some difficulty today for, as I have explained, we lack any of the underlying documents. On the suggestion that there was no exploration of the issue for placing the children "either together or separately" there is some lack of complete clarity in the judgment itself. The formal order makes placement orders in relation to both the children, but says nothing at all on the face of the order as to whether they are to be placed separately or together. It is right to say that in paragraph 111 of her judgment, whilst considering how easy or difficult it might be to place these two children, the district judge said, "They are also a sibling group", which seems to me to imply that the district judge was clearly contemplating placement of them together. Further, within paragraph 112 of her judgment she said:

"Adoption would offer the children an opportunity to grow up with a family who can provide stability and consistency; an adoptive family can also give the children a positive message about being chosen, wanted, and valued."

Those references to "a" family and "an" adoptive family may be read as referring to a single family for both children; but there is ambiguity in that particular passage, and it might also be referring to "a" or "an" adoptive family for each of them separately. Of course the care plans may indeed have made, and may make, crystal-clear that the local authority do not have the slightest thought or intention of ever separating these children, but as I do not have the plans I do not know. The proposed fourth ground of appeal of course only arises if there is any thought or prospect of the children being separated, but clearly if they were to be placed in separate adoptive families then a very serious issue would require to be considered with regard to arrangements for inter-sibling contact.

21. Because in the papers available to me there is that lack of clarity and certainty as to whether the children would definitely be placed for adoption together, I have concluded that I should not finally deal today with proposed grounds 3 and 4. Rather, I must require, as I will, the attendance of the local authority and the children's guardian before me so that they can deal with absolute clarity with exactly what is proposed with regard to whether there is the slightest plan or any prospect of separating the two children and, if so, what the inter-sibling contact arrangements would be.
22. With regard to the proposed ground 5, namely the difficulty of placing the daughter in particular for adoption, bearing in mind her age and the explicit sexual language and behaviour that the children have displayed, the district judge did clearly address "adoptability" in paragraph 111 of her judgment. She said:

"These children are born to white European parents. They are attractive. They are born to parents of normal intelligence and do not suffer any physical or learning disability as far as one can tell. They are also a sibling group. Apart from the fact that [the daughter] is at the top end of the 0 to 5 age group of children who are usually regarded as the easiest to place, family finding should be relatively straightforward. [The daughter] may, of course, need a bit of additional support during the period of transition. The statement of the family finder raises no problems and suggests that placement is achievable in a matter of months from today."

That was on the 7^th January 2014. We are now three months further on, namely the 3^rd April 2014. I have been told by the grandmother and the father that all contact was immediately terminated following that hearing so that the children have not seen either of their parents nor their grandmother since before the decision and judgment of the 7^th January 2014. That seems to have been extremely abrupt and not what the district judge herself appears to have contemplated, for she referred in paragraph 147 of her judgment to:

"The local authority plan is to determinate contact, at the latest, when an alternative family is identified. I agree. In the meantime, the contact will reduce."

But far from reducing, I understand today that it was instantly terminated without even any form of "farewell" meeting.

23. Be that as it may, I have also been told that so far as the grandmother and father are aware, three months down the line no prospective adoptive family has been identified at all. So Mrs Haines says that there is increasing "unlikelihood" that these children will be able successfully to be placed for adoption together and that that needs further consideration by the court. I agree that on that issue, too, this court needs to have clear, informed and up-to-date information from the local authority and the guardian.
24. So the upshot is that, insofar as this application for permission to appeal is based on grounds 1, 2 and 6 (namely paragraphs 36, 37 and 41 of the skeleton argument) I firmly refuse it today.
25. Insofar as it is based on grounds 3, 4 and 5 (namely paragraphs 38, 39 and 40 of the skeleton argument) I neither grant nor refuse permission today. Rather, I adjourn it for further consideration by myself on Tuesday, the 29^th April 2014 when both the local authority and the children's guardian must attend and be represented.
26. I wish, however, to stress to the grandmother and the father that they must not raise any kind of false hope. As I have said, existing documents not available to me today may in fact make absolutely clear that there is not the slightest thought, intention or prospect of separating these children, so there may be absolutely no substance in proposed grounds 3 and 4.
27. On the question of the likelihood or otherwise of suitable adopters being found, we will all have to await the 29^th April, but we may of course learn on or before that date that an entirely suitable family has been found. I simply do not know.