Neutral Citation Number:  EWCA Civ 1133
Case No: B4/2014/1933, 2017 and 2050
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT WATFORD
Parker J (WD13C02440)
HHJ Waller (WD12C01024)
Royal Courts of Justice
LORD JUSTICE RYDER
- - - - - - - - - - - - - - - - - - - - -
In the Matter of B (A Child) and P (A Child)
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
The mother and the father appeared in person
Hearing date: 30 July 2014
- - - - - - - - - - - - - - - - - - - - -
Lord Justice Ryder
In the early evening of Wednesday 30 July 2014 I heard three linked permission to appeal applications brought by a mother and father of two children. The hearing was urgent and late in the day after what had been a very heavy and full day in court on other appeals. Judgment could not be given ex tempore in the usual way because time needed to be taken to give consideration to the serious issues raised by the parents and their McKenzie friends and that required reference to the documents in the proceedings, the majority of which are not before this court.
The applications relate to a child who I shall call J who is aged two and who was made the subject of care and placement orders by DJ Mellanby on 13 November 2013 and a new baby, as yet un-named, who was made the subject of care and placement orders by Parker J on 23 May 2014. The applications are a first appeal against the orders made by Parker J and a second appeal against the dismissal of the appeals made from DJ Mellanby to HHJ Waller on 1 April 2014.
The permission applications have been pursued by the parents as litigants in person with the assistance of Mrs and Mr Haines, McKenzie friends. Neither they nor this court have access to the court bundles from the hearings appealed from. That in itself causes me to have to adjourn this application for further consideration. Given an inability to answer some serious questions raised about the evidence and, if appropriate, legal policy relating to what I apprehend to be the evidence, I have with considerable hesitation decided to adjourn the application for permission to a full court with the appeal to follow on if the permission application is successful.
I have come to that conclusion because the alternative is to leave draconian orders in place without the ability of this court to scrutinise the same. I do not criticise anyone at this stage, but that step could have been avoided if the papers which must exist somewhere had been given to the parents to help them pursue their appeals. All I am told is that the local authority have declined to give the parents a copy of the bundles and their former lawyers have sent the other copies of the bundles to costs draughtsmen for the purpose of the drawing of the legal aid bills with the consequence that the parents and this court are working with wholly inadequate material. Had I known of this problem in sufficient time before the case came on, this court would have made directions for disclosure.
Given the problem I have identified, I must balance it with the inevitable effect of any adjournment, namely a delay on the potential placement of the children in accordance with the orders that have been made. I shall assume in the absence of any information on the point that delay is prejudicial but I shall require the local authority to give sufficient detail about the children’s timetables and placement plans so as to enable this court to list an expedited hearing. Given the conclusion to which I have come, I shall grant a stay on the placement of the children until the hearing or any application to this court which I stress must be on notice and made with the benefit of evidence.
The following issues are raised on behalf of the parents:
i)It is at least arguable that there was no evidence upon which findings of fact could have been made or were made so as to be able to construct a threshold based on likelihood of harm and a welfare analysis based on risk of harm;
ii)The threshold and welfare analysis was based on material that did not relate to a direct or sufficiently proximate risk to the child;
iii)Even if the threshold was properly constructed, the orders made were wholly disproportionate to the risk;
iv)The court did not dispense with the consent of the father and should have done so before making placement orders;
v)A placement order was not in fact made;
vi)The case was based on the evidence of a psychologist who was not independent but unknown to the parents was retained by the local authority.
I can remove issues (iv) and (v) from consideration straight away. By section 52(6) of the Adoption and Children Act 2002 the parent whose consent is to be dispensed with is the parent with parental responsibility unless a particular exception applies. That exception is not relevant to the facts of this case. Accordingly, the birth father of the children, who does not have parental responsibility for them (but who could have been granted that by agreement with the mother, let alone an application for an order) does not fall to have his consent dispensed with. Parker J accordingly applied the law as set down by Parliament. The lack of a placement order in proper form may be the consequence of this court not having all the documents, because it is cross referred to in other orders made on the same day or it may be an administrative error. If it is the latter, given its importance, that would be unacceptable, but the matter can be investigated or rectified before the adjourned hearing comes on.
On the substantive issues the problem is this. The baby’s case depends in large part on the same history that led to the conclusion in relation to the older child, J. J was thriving in his mother’s care and after his removal there was good quality contact with the parents (those facts can be deduced from the judgments that I have). There had been two assessments of the parents’ capability to care for J which were both reasonably positive, the latter assessment being a residential assessment after which the child went to live with the parents under an interim order. So what caused everything to fall apart?
The trigger for the ultimate end position was the father’s aggressive failure to co-operate with the local authority and Cafcass. That led to a police raid on the parents house (described by one of the judges as an unfortunate incident i.e. it was either not necessary or should not have occurred at all or in the way that it did). The raid found nothing amiss but had been prefaced by the father’s failure to permit anyone to discover whether the child was still being appropriately cared for. The father has obdurately put his own dignity and rights before his child’s to the extent that it has ultimately led to the removal of both of his children. One might well ask, and Mrs Haines does on his behalf, is an argument with the agencies of the state, even a violent argument, sufficient to cause one to lose one’s children?
The judges were not unaware of the argument. They addressed the opinions of the social workers and psychologists in their judgments. If those opinions are sustainable on the facts and there is a risk of significant emotional harm to the children, then their judgments would be unappealable having regard to either the first or second appeals tests.
So far as mother is concerned, she is said to have low intellectual functioning such that children in her care might be exposed to emotional and physical neglect if unsupported. I am told that was the opinion of the psychologist who has been involved throughout all proceedings relating to all of her children. I have to ask the question: was that opinion based solely on objective testing or does it have regard to the fact that the mother clearly has a capability to care – she has been assessed as having that and her child has thrived in her care. Those are findings made by the judges. That conclusion needs to be scrutinised by this court particularly in the circumstance that it now transpires that the psychologist concerned who worked under a joint instruction and was described as independent, appears to have been working at all material times under a paid retainer for the local authority. That may not of course affect her professional judgment but it is at least a very unfortunate fact from the perspective of the parents who are deeply criticised for their lack of trust in the professionals.
So far as father is concerned, he is described as being an unquantified and unassessed risk. He is regarded as being dangerous and is suspected of having a psychiatric or psychological trait / personality disorder that is not amenable to change. That may be right. This court at least needs to scrutinise the evidence given its importance. He is the essential support for the mother, if the psychological opinion relating to her care capability stands. It is said that he is unable to work with professionals and he has assaulted a social worker and those are conclusions of fact that appear to be very secure – there is a conviction for the latter incident. But does that mean he is unable to support the mother and is he a risk to his child?
A conclusion that someone is ‘unquantified’ as a risk is meaningless. We are all unquantified in the absence of evidence and it is for the local authority to prove its case. He was certainly a risk to professionals but not according to the judges to the mother. Was he a risk to his child? The evidence relating to that is not yet known to this court save that which can be gleaned from the judgments. That suggests that he was condemned as being an emotional risk to his child because he had no insight into how his behaviour with professionals might affect his child. That is circular. If there is no need for professional input because he can provide the support for the mother then his reaction to professionals does not prevent him caring for a child or supporting the mother in that task.
In fairness there is another and potentially important factor. These children needed protection at least until it could be concluded that the prima facie risk identified in relation to their mother had been answered one way or the other. Father acted so as to thwart an assessment of himself and in doing that he is alleged to have exposed his children to the risk of emotional harm because his behaviour is indicative of a trait that would be dangerous to their emotional health. Whether that is sufficient to permit of the removal of children for adoption is a question on the facts of this case that the documents will no doubt illuminate but it may also raise a legal policy issue relating to proportionality that the court needs to address i.e. can even a violent failure to co-operate with an agency of the state be sufficient to give rise to the removal of one’s child?
Ancillary questions were raised before the court relating to the significance of a Hindu naming ceremony. Subject to further argument, I take the provisional view that no-one understood the cultural implications and traditions of that event and any criticism of father relating to it cannot be significant enough to be a factor in the removal and adoption of his children.
The permission application is adjourned to the full court with the appeal to follow on if permission is granted. A stay is granted on placement of both children until the hearing. The hearing is to be expedited and the listing will be determined by information about placement that the local authority must provide to this court and the parents. The hearing will be before three judges of this court one of whom may be a judge of the High Court and one of whom must be a judge with family experience. The time estimate is a day. The parents asked for permission to adduce additional evidence. That is an application that must be made formally and on notice.