England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
[2018] EWHC 1546 (Fam)

		No. ZC276/17 & ZC277/17 Royal Courts of Justice
		29th January 2018

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MR JUSTICE HOLMAN:

1. The discrete application before me today is an application made by the two parents of P-J for leave to apply to revoke the placement order which was made in relation to her in 2016. Today has been a long day. As I begin these words, it is almost 5pm and I propose therefore to give my reasons for my decision (which I have already announced) concisely.
2. There is a very long history indeed to this application. The parents of P-J, who is their only joint child, both have several other children. The mother has three; the father has five. There have been very protracted proceedings concerning all or most of these children in the East London County Court where they were heard throughout by HHJ Atkinson. She has given, during the course of those proceedings, several extremely detailed and thorough judgments which I have read and which anyone with a proper interest in this matter can read. They are, indeed, hard to summarise, although for the purposes of the hearing today there is a very concise summary in paragraph 14 of the position statement for today dated 26 January 2018 by Miss Victoria Roberts, counsel on behalf of the local authority.
3. It is patent that there was a very wide range of concerns indeed about this couple and their functioning, both separately and together as parents. In relation to the father, there is a finding that on two occasions he raped his previous partner. In relation to the mother, there is no doubt that there is a long and admitted history of dependence upon alcohol which, on numerous occasions, has led to her being, frankly, drunk. In relation to the relationship between them, there are findings that there was much strife and aggression between them; that, probably as a result of factors I have already mentioned, the children, when living with them, were neglected; and that the parents steadfastly chose to put their relationship with each other above the needs of their respective children. All these findings, and more, have been made by HHJ Atkinson. Permission to appeal to the Court of Appeal was refused and, in any orderly legal system, I necessarily have to proceed from the starting point of those findings. The result has been that none of the children are now living with either of these two parents.
4. The present application concerns their one joint child who was born in July 2016, so she is now 18 months old and she is much the youngest of any of the children. It was clearly contemplated that this particular child (unlike some of the elder ones) should be adopted. As a result, a placement order was made in relation to her. As a matter of chronological fact, she was placed with a couple on 20 February 2017, now almost a year ago, with whom she has seamlessly lived since then. For the purposes of the present application and hearing, there is a report by a CAFCAS guardian, Mr Matthew Jeary, dated 25 January 2018. He reports that P-J is in a supportive current foster placement, where all her needs are currently being met.
5. The parents, frankly, have never, ever accepted any of the significant findings or decisions of HHJ Atkinson and, indeed, embarked upon a prolonged "campaign" in social media and other places. Further, I have been told that, as is their right, they have made some complaint against HHJ Atkinson which is apparently currently the subject of investigation. As they have never accepted the findings or decisions, it is perhaps unsurprising that the parents have persisted, and are persisting, in trying to reverse some, at any rate, of the decisions which have been taken. Because of the conflict or tension which has now inevitably passed into any relationship between these parents and HHJ Atkinson, all these proceedings have now been transferred to the High Court where they are allocated to me, at least for case management.
6. Currently there are two live applications before this court. One relates to an elder child of the mother called L. L is currently aged five and lives with another man who is not the father of L but is the father of L's half-brother. L's own genetic father has applied, as he was entitled to do, for L to live with him. Within those proceedings HHJ Atkinson granted leave to the mother to make a cross-application that L should live with her. Those applications are currently listed for hearing by me for seven days starting on Monday, 25 June 2018. Meantime, the parents have also issued their application for permission to apply to revoke the placement order. That application falls to be considered under section 24 of the Adoption and Children Act 2002. Section 24(3) provides that:

"The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made."

7. The effect of the provisions and scheme of section 24 is clear and has been the subject of clarification by the Court of Appeal, in particular in the case of M v Warwickshire County Council [2007] EWCA Civ 1084 now reported at [2008] 1FLR 1093. There is a two-stage approach. The court must first consider whether there has been a relevant and sufficient change in circumstances. If the court does consider that, then it must go on, as part of its overall exercise of discretion, to decide whether or not actually to grant leave to apply. In exercising that discretion, it must have regard to the circumstances generally, but in particular to the prospects of success of a substantive application to revoke the placement order. Woven into that consideration is almost inevitably consideration of the welfare of the child concerned, although M v Warwickshire County Council makes quite plain that the welfare of the child is not the paramount consideration on such an application.
8. In M v Warwickshire County Council at paragraph 26 Wilson LJ, with whom the other members of the court agreed, suggested that in most cases the test for consideration of the prospects of success should be whether the proposed substantive application would have "a real prospect of success". I stress, however, that that is not itself a test prescribed either by the statute or by any rules. It is, however, the test I propose to adopt and apply in the present case.
9. I very expressly eschew any paraphrase of what is meant in situations such as this by "a real prospect of success". But it does not require the court to consider that the proposed application will probably succeed or is likely to succeed and, put mathematically, something less than a 50/50 prospect of success will suffice. On the other hand, a real prospect of success requires greater prospects than merely fanciful or very low prospects of success. Within the spectrum between those two ends, it is a matter for the assessment and judgment of the court in any individual case whether the prospects of success are sufficient.
10. I therefore first consider the question of change. Both these parents very strongly say that since the decisions and orders of HHJ Atkinson they have determinedly made changes in their lifestyle, their attitudes and their relationship with each other. Most particularly in relation to the mother, she claims now, with assistance, to have ceased drinking alcohol altogether. One has to view that claim with a dose of scepticism because she first advanced it in about September. By her own admission she drank as recently as mid-October, and police material from as relatively recently as last summer indicates that certainly on at least two occasions then she was observed by police to be intoxicated. But it is the mother's claim that at any rate since the middle of October she has remained abstinent from drink and it is her intention to remain so. Already within the proceedings in relation to the child L, due to be heard on 25 June, I have given some directions for testing upon the mother to verify whether indeed she is remaining abstinent from alcohol. For the purposes of this hearing today, at which I have not heard any oral evidence, I must accept the mother's contention in this regard in the absence of any evidence to the contrary. More generally, both parents say that they have undertaken a variety of courses, which they describe in their statements, designed to address a number of the earlier issues of concern.
11. The new guardian, Mr Jeary, has visited their home and certainly says that the home conditions are good; it is hygienic, homely and well-kept. It is said that that was already the situation when Judge Atkinson was most recently dealing with this case in late 2016, but there was no doubt that at earlier stages the state of hygiene in the homes of one or other or both of these parents has been a topic of concern. Whether or not there has in fact been sufficient and enduring change is a matter that will fall to be considered in the end at the substantive hearing, but for the purposes of considering leave today, I am satisfied in the sense that section 24 requires that these parents claim, and are currently demonstrating, sufficient relevant change.
12. I turn to the question of discretion. This is more difficult. I wish to make crystal clear that I cannot, and do not, today forecast that a substantive application to revoke the placement order is "likely" to succeed or probably will succeed, but that is not the test as I have explained. There are two areas of particular concern to me today. The first is that I am afraid very recent material tends to suggest that, in truth, there is no real acceptance, at any rate by the father, of any of the significant findings that were made by HHJ Atkinson. This is referred to in paragraph 49 of the statement for this hearing by the social worker, Mrs Yvonne Anaro-Wood, now at B1, p.C100 at paragraph 49. That refers to comments made by the father at a meeting on 7 December 2017 with the team manager for his elder children. We established this morning that that passage in the statement of Mrs Anaro-Wood was primarily based on her reading the minute or report of that meeting on 7 December 2017. She herself was not present at the meeting. During the course of this afternoon, that report has been obtained and, at the very end of it, on internal page 2 going over into page 3, it says as follows:

"Toward the end of our meeting, [the father] told us that they had been in court the previous day regarding case against HHJ Atkinson, who was the sitting judge in the cases of their children."

13. Pausing there, the previous day, namely 6 December 2017, the parents had indeed been in court at a hearing before I, myself, in this very courtroom, which concerned an application by the police for disclosure of transcripts of some part or parts (I cannot now remember precisely) of a hearing or hearings before Judge Atkinson, in relation to an investigation by the police into certain things said or done by the parents at that hearing. But, certainly, it was the case that on the day before 7 December there had been a hearing which, although not concerning a "case against" HHJ Atkinson, did concern the hearings which have taken place before HHJ Atkinson. The minute continues:

"He said they have a dossier on her, and they are going to sue her, and appeal to law court to have all her judgments on the cases she has ever sat on put aside as they would need to be checked as she has not done everything by law. He added that they know where she lives, that she is using a false name to work, she is alcoholic, and knows a lot about her. He said with all the information on her, when they finish with her, she would no longer be able to practise again or to be allowed to be a judge."

14. I have been told today by Mr Nicholas Elcombe, who appears on behalf of the father, that he does not admit that he said all those things that have been recorded there.
15. For the purposes of today (and I am only dealing with my decision today), I do proceed on the basis that on a balance of probability the father did make statements as, broadly (even if not precisely accurately) recorded there. I am afraid the overall tenor of all of that is that their campaign against Judge Atkinson goes on. All the blame in effect is being shifted onto her, and it tends to undermine a case that they have themselves made genuine changes in their attitudes or shown any acceptance of the reasons why none of their children are currently living with them.
16. The other aspect that has concerned me very much today arises out of paragraph 6 of a document headed "Statement of the Father". This has never actually been signed by the father, but it is agreed that on or about 15 December 2017 it was sent in an unsigned form by his solicitors to the local authority and others, together with an email or message to the effect that it had been "approved" by the father. Paragraph 6 of that document reads,

"Thirdly, the mother and I have made a huge decision about our family composition in the future. We have made the difficult decision not to pursue the return of our respective older children. We took this decision because we recognise that the conflicts/altercations and disagreements between our respective older children and each of us (neither set of children got along with their parent's partner) created tension, chaos and instability within the family home, which cannot be good for the children. Therefore, the mother and I have agreed that the older children should remain in the care of the persons with whom they are currently placed. …"

17. On the face of it, the wording in that paragraph seems to indicate that a "huge" and "difficult" decision has been made not to pursue the return of any of their children other than the child in question, namely P-J. I asked about this paragraph relatively early on this morning because I knew, of course, that the mother already has a current application in the pipeline in relation to her elder child, L. I am prepared to accept, as Mr Elcombe has said on instructions, that that paragraph was ambiguously drafted. The reference to "our respective older children" was intended to apply only to the two teenage children of the father, namely J and F, and, indeed, the now adult child of the mother, namely E. In part I accept that because at paragraph 30 of his report Mr Jeary, the guardian, stated that at one of his meetings with the parents in their home, "[the father] was clear to me that the application to revoke the placement order was just one part of his overall plan to get P-J and all the other children bar the teenagers, F and J, returned to his and [the mother's] care." As the father was making that clear to the guardian at a meeting in early January, I quite accept that what he was trying to say in paragraph 6 of that approved but unsigned statement was to the same effect.
18. What therefore emerges, as has been clarified during the course of the hearing today, is that the father is seeking to achieve the return of his three other children, apart from J and F, namely L, C and D; and the mother seeks, if she can, the return not only of P-J but of L and also L's brother, B. In other words, the "plan" of these parents is to achieve that no less than six of the children of one or other or of both of them all end up living with them. It is a sad aspect of this case that one of those children, namely the father's son, L, has disabilities and is a particularly needy and challenging child.
19. I have to say that those aspirations of the parents, although very understandable in human terms as aspirations of the heart, indicate to my mind a considerable lack of realism about the position of their family and their various children and of their own capabilities. Frankly, if all the focus was on achieving the placement of P-J, who is far the youngest of these children and their only joint child, with them, that might be one thing. But, continued focus on no less than six children moving to live with them seems to me altogether very unrealistic. However, as Miss Maureen Obi-Ezekpazu has very strenuously submitted today, the factual situation at the moment is that none of these children are in fact living with the parents. In the case of the father's three elder children and the mother's son, B, there are in place long-term orders under section 91(14) of the Children Act 1989, and currently the prospect of any of those children moving to live with these parents is not even on the agenda. It is the case that there is the live current application in relation to the mother's daughter, L. As it happens, a listing has been obtained for the case in relation to P-J one week earlier than the week in which I am hearing the various applications in relation to L. That does mean that, when considering the case in relation to P-J, the judge, who will not be me, will be dealing with it at that stage on the basis that there is no other child living with the parents.
20. These two aspects of the case have caused me very great concern today. It seems to me that all the indications are that even very recently, namely at that meeting on 7 December 2017, the attitude, at any rate of the father, remains one of campaigning against the judge and others rather than one showing any insight into his own parenting deficiencies and the need to change. Further, it seems to me that their plan that all six of the children I have mentioned should live with them frankly lacks realism.
21. So, I have hesitated long and hard before reaching the decision which I have this afternoon; but, stressing, as I do, that the test is whether or not there is a real prospect of success and not whether or not the application is actually likely to succeed, I have just decided that I should grant leave. It seems to me that there has been some change here. Whether it is sufficient and sustainable remains to be considered. I cannot consider that today on the basis purely of documents and, indeed, as is now accepted, it will be necessary and appropriate to obtain an expert psychological assessment of each of these parents and of their functioning as a couple, and necessary also to have an investigation and assessment by an independent social worker. But it seems to me that the parents have raised a sufficient case of change that requires to be more fully investigated by a court.
22. P-J herself is still only aged 18 months. She has not been damaged by her life experiences to date and is living in a settled way and receiving good parenting. Those, of course, may be powerful reasons why she should not now be moved, but they are also reasons why she may still be capable of being moved without suffering significant emotional or psychological damage. A child of 18 months, who is well-placed and well-bonded, is capable of moving and, indeed, such children quite frequently are moved by local authorities and others. I am deeply conscious that in the background of this application are the couple with whom P-J has been placed. They are no doubt even now anxiously at the end of a telephone waiting to hear what has happened today. I am deeply conscious that my decision will serve only to prolong the agony for them. That, I regret, and for that I apologise; but for the reasons I have given, I am satisfied that this application to revoke the placement order should now be permitted to move onto the next stage of a full and substantive hearing.
23. The court itself has identified the whole of the week beginning on Monday 18 June 2018 as an available court week with a full time High Court judge available to hear this case. I personally would not be able to hear it on those five days for, as it happens, I am still away on a long-booked holiday on Monday 18 June. But, in any event, although I will continue to case manage until further order all the applications that may subsist in relation to this family, I am not persuaded that all the substantive hearings should necessarily be heard by one judge. Judicial continuity is, of course, very important, but it can carry with it a concern that once a judge in relation to one child or one aspect of a case has reached a decided position, parents or others may feel that that judge may then move onto some other child or some other aspect of the case with a closed or partially closed mind. There is some inter-relation in this case between the current application in relation to P-J and the current application in relation to the mother's child L. There is, of course, an overlapping factual matrix and also, as I have already indicated, it may be relevant to decision-making in relation to P-J to know whether or not L is living in the home and, indeed, vice versa. So, the overlap is obvious. Nevertheless, these are separate children, having separate fathers, and it seems to me that it is actually advantageous that a separate judge should consider the discrete and separate issue whether or not the placement order in relation to P-J should be revoked. So, for a combination of my own unavailability on the Monday of that week, and also those reasons, I intend to direct that this application to revoke the placement order in relation to P-J will be heard by another judge, not myself.
24. It was already late this afternoon when I indicated to the parties present my decision. It is now 5.35. We have had a discussion about the broad thrust of consequential directions. Now, with the agreement of all counsel, I propose to leave it to them to work out, agree and draft in appropriate legal form a set of directions to give effect to this decision, including directions for instructing a suitable psychologist and an independent social worker.
25. Is there anything else which now arises? I just want to mention in relation to the psychologist, we are talking really about the psychology of these two people as adults. They do not have a child with them at the moment, so we are not talking about a child and adolescent psychologist; we are talking about an adult psychologist. It is really the psychology of them.
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