(Court of Appeal, Arden, Black, Briggs LJJ, 9 July 2014)
Care proceedings – Appeal – Serious non-accidental injuries to one of sibling group – Findings made against two fathers and mother – Whether older children should have been placed with their father
The full judgment is available below
Interim care orders were made in respect of the 9-year old, 5-year old and 9-month old children after the youngest child sustained serious injuries including fractures to all of his limbs as well as chronic subdural effusion and acute subdural bleeding. The injuries were found to have been caused by the father of the youngest child but the mother was guilty of failing to protect. The mother had also been the victim of domestic violence but had failed to separate from the father. Final decisions were made about the two older children and the mother’s application for a further assessment was dismissed. Final care orders were made and despite findings having been made against the father of the older two children, they were placed in his care. The mother was ruled out as a carer for all of the children. The mother appealed.
The judge had not been wrong to rule out giving the mother the chance of a further assessment. The previous findings made against her represented a considerable obstacle in her way and having heard her evidence he found it even more unsatisfactory than previously. Any points in her favour were outweighed by her failure to make any progress. The absence of any explanation for the youngest child’s injuries meant that the nature of any future risk could not be known and it was impossible to say whether underlying problems had been addressed by the mother.
The judge had ample opportunity to evaluate the mother during the hearing and the later determine whether there had been any change. The judge was not wrong to categorise a placement of the children with the mother as carrying significant risk and to therefore be pessimistic about the chances of a further assessment supporting such a placement. He was entitled to conclude that such an assessment was not necessary.
The judge recognised that the father’s shortcomings had to be weighed against the possibility of adoption and when doing so he found that the flaws in the plan to place the children with the father were manageable. He further found that the incidents about which findings were made against him had taken place some years previously when he and the mother were young and immature.
The judge’s thinking as to the respective claims of the mother and father was clear from the judgments and would not be interfered with. The appeal was dismissed.
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports
. A detailed summary and analysis of the case will appear in Family Law
Case No: B4/2013/3176
Neutral Citation Number:  EWCA Civ 936
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HIS HONOUR JUDGE JENKINS DP12C00122
Royal Courts of Justice
LADY JUSTICE ARDEN
LADY JUSTICE BLACK
LORD JUSTICE BRIGGS
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Between : J-A (Children)
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Ms Ceri White (instructed by Goodman Ray Solicitors) for the Appellant
Mr John Hayes QC (instructed by City of Bradford Metropolitan District Council) for the 1st Respondent
Ms Clare Garnham (instructed by Atkinson Firth) for the 2nd Respondent
Mrs Joanne Astbury(instructed by Ramsdens Solicitors) for the Childrens Guardian
Hearing dates : 20th June 2014
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Lady Justice Black
This is an appeal against orders made by HHJ Jenkins on 16 October 2013 in relation to two children, an 8 year old boy who I will call MA and a 5 year old girl who I will call AA. The appellant is their mother (M). The appeal is opposed by the children's father (F), their guardian and the local authority (LA).
The proceedings before Judge Jenkins were care proceedings which began in June 2012 following the discovery that the children's half-sibling, I (then aged 9 months) had sustained serious injuries. Interim care orders were made in relation to all three children and remained in place until the judge made final decisions as to what the arrangements for their future should be. I's future was not resolved until January 2014. The decision that Judge Jenkins then took about him is not the subject of the present appeal. However, the judge felt able to make final decisions about the other two children in October 2013 when he refused M's application for an assessment by an independent social worker, instead making care orders in relation to them with a care plan that they should go to live with F who would be supported by his parents. Since the beginning of December 2013, the children have been living full time with F pursuant to this plan. They see M six times a year.
It is important to recognise that M was not putting herself forward as an immediate carer for the children in October 2013. As the judge recorded her position in his judgment of 16 October 2013, she acknowledged that she was not ready immediately to take on the children and needed guidance for the future, and she did not present any satisfactory evidence as to the practical arrangements she proposed for her care of them. She asked that the decision as to their future should be postponed whilst an independent social work assessment was carried out and she intended to seek guidance from the independent social worker.
It is also important to recognise that the judgment of 16 October 2013 was part of a sequence of judgments given by Judge Jenkins in this case, beginning with a crucial judgment handed down on 3 May 2013. The hearing leading up to that judgment examined the circumstances in which I had come to be injured. It was intended that it would be a final hearing resolving all of the issues in relation to the children and evidence as to their welfare was heard. This led the judge to rule M out as a carer for any of her children (§89) although he very properly revisited this conclusion at the October 2013 hearing as we shall see. He also ruled out the possibility of a placement of the children with any of the rest of M's family. LA were proposing that F's two children should be placed with him but there were question marks about the suitability of this so the judge adjourned the decision about it for further assessment. Equally, he adjourned I's case so that the possibility of him being cared for by his paternal family could be assessed.M's own grounds of appeal
When M appeared in front of Lord Justice Patten on 3 April 2014 seeking permission to appeal against Judge Jenkins' orders of 16 October 2013 in relation to MA and AA, she was representing herself. Her grounds of appeal frankly said that the purpose of her proposed appeal was to "get the appeal court involved in re-examining the factual investigation undertaken by" Judge Jenkins. She argued that the judge should have authorised an independent social work assessment of her and that he failed to give reasons for refusing to do this. She argued that no weight was given to the children's wish to be with her and to the fact that she is the only person who could keep all three children together and who knows fully about I's complex health needs. She contrasted F's position in that he had, she said, little or no relationship with the children and there were concerns about his commitment to them and his ability to meet AA's emotional needs. She invited attention to the judge's finding that she had not caused I's injuries and argued that as she had divorced I's father who had been found to have caused them, the children were no longer at risk of harm from her and she should have the opportunity to resume their care. She appeared to wish to challenge the conclusions of the judge as to what happened to I, including whether his injuries were non-accidental, and as to her own failure to tell what she knew of the circumstances of I's injuries.The hearing before Patten LJ
Giving permission for the appeal to be brought, Patten LJ did not limit the grounds which could be advanced before the full court. However, it is plain from his judgment what it was that he considered should be explored. He was concerned about the paradox of the children being entrusted to the care of the person (F) who, as I shall explain in due course, had subjected M to violence whereas M, the victim of the violence, lost all but limited contact with them. He thought it arguable that the judge did not give sufficient weight to that and other considerations in arriving at his decision or explain sufficiently why this was "the proportionate outcome".M's grounds of appeal now
Since the hearing before Patten LJ, M has acquired representation by solicitors and counsel. She has been represented in the past but these are new solicitors and there was a problem with her public funding which meant that they, and counsel, were instructed very late. That caused us to put back the hearing by a day in order to provide M's counsel, Ms White, with more time to prepare and to discuss matters with her client. We are very grateful to her and to the other legal representatives for the efforts that they made, no doubt at considerable cost to their other arrangements, to ensure that the appeal could go ahead. I would also like to record my gratitude for the expert submissions made by all counsel which assisted us greatly.
The advent of M's counsel resulted in M's arguments being much more accurately focussed. No application was ever made for permission to appeal against the May 2013 judgment and it is too late for that to happen now. M cannot therefore succeed in her objective of persuading this court to examine the factual investigation carried out by Judge Jenkins in May 2013. The findings of fact and conclusions that the judge set out in his May 2013 judgment had to be the foundation for his subsequent decisions in the case, as they were.
The focus of counsel's submissions was on three areas (encapsulated in her three revised grounds of appeal) where she argued the judge had gone wrong, namely: (1) refusing to adjourn the decision in relation to MA and AA pending an assessment of M's ability to care for them in the light of the steps she had taken to improve her position (2) approving a placement of the children with F when that was not in their best interests and (3) prematurely handing the case over to LA under final care orders.The May 2013 judgment
At the heart of this case are I's serious injuries and M's response to them and to the domestic violence that preceded them.
The critical period in relation to I's injuries began with 3/4 June 2012 when there was a serious incident which ended with the police being called and M and I attending hospital. The judge found (§72) that M had been the victim of a severe assault at the hands of I's father that night. Of the children, at least I was present. The judge found that his father manhandled him and threw him onto the bed. However he was checked at hospital and no injuries were found.
The culmination of the critical period was when, on 19 June 2012, M took I to hospital where he was found to have multiple fractures involving all four limbs as well chronic subdural effusion and acute subdural bleeding. The judge found these injuries to be non-accidental. He found that I had been assaulted and injured on at least two occasions. There were only two people who may have inflicted the injuries, M and I's father. The judge concluded that they had been caused by I's father. However, he found that M failed to protect I in a way which he described as "highly culpable".
The judge had quite a lot of material upon which to base this conclusion about M. Core findings were that M had continued her relationship with I's father despite serious domestic violence and even in the aftermath of the incident on 3/4 June 2012, and that she knew what had happened to I and who had injured him. The judge found that she had not been honest about the continuation of the relationship or about what she knew about the injuries.
M and I's father had begun to cohabit by February 2010. During the next two years, the police were repeatedly called out by M who complained about drink-related violence on the part of I's father. The judge found she had exaggerated some of her allegations about the period but that there had been "a pattern of violence" (§33), on occasion sufficiently serious to warrant M being taken to hospital (11 January 2012 §48). The children were living in the house during this "considerable history of violence" (§54). The judge recorded that "[i]n several of the incidents M was driven from the house with her children asleep" (§55). The older ones were plainly affected by what was going on in the household, some of which they saw. They spoke to the guardian about I's father hitting their mother a lot upstairs and MA described I's father shouting at M and pushing her and AA out of the house, and said that he "fights with mummy and ….always say, 'Shut up I'" (§56).
It is of note that, just as occurred in and around June 2012, M and I's father both declared their relationship at an end at times during this period when it was not. For example, the judge noted that they had said at the case conference in December 2011 that it was over when the evidence established otherwise. A further example is what happened in April 2012 when the health visitor called at M's house and heard footsteps upstairs. The judge found F was present although M had told the health visitor there was nobody there and offered other misleading accounts, including during the hearing (§52).
As to the period when I was injured, unimpressed by denials from M and I's father, the judge found (§72) that they were living together on 4 June 2012 and that they remained together despite what happened that night (§77). This contrasted with what M was conveying to the authorities during this critical fortnight in June. A notable example of her deceit occurred on 15 June when the social worker visited the house and encountered a situation similar to that encountered by the health visitor in April 2012. M refused to allow the social worker to see I who she said was upstairs. The judge found that I's father was in the house at the time but, when the social worker heard a noise and asked M whether there was anyone else there, she denied there was (§73). Another notable piece of evidence from this period came from the paternal grandfather who described both M and I's father bringing I to their house on 17 June 2012. Yet on 18 June 2012, M told the health visitor that she had been to court to stop I's father coming to the house and that cameras had been put up there.
The judge found that the relationship still went on after I's injuries came to light although M denied it. There was evidence that she and I's father were still living together by 27/28 June 2012 (§87). In her police interview in early July 2012, M sought to exculpate I's father (§84). There was evidence of continuing association between them even shortly before the hearing which culminated in the May 2013 judgment (which took place in February/March 2013). Summing up the position at that time, the judge observed (§88) that:
"The history of the relationship between [M and I's father] is one of parting and living together of separating and reconciliation. Also [there] is considerable evidence of continuing mutual attraction at various stages. I am satisfied that their emotional relationship at least is not at an end." (sic)
So, on the judge's findings, this was a mother who had remained in a relationship with I's father despite his repeated violence, resulting in her two older children suffering emotional harm and I being seriously injured, and who had not separated from him even after that. She had lied about the continuing relationship, including during the early 2013 hearing. She had kept back what she knew of the circumstances of I's injuries. On the judge's findings, the child was in her care throughout the relevant period and she knew what had happened to him and who had injured him (§76) but she had not been forthcoming about that and had "told the court a series of lies" (§81). The result was that there was "no satisfactory evidence about the whereabouts of I or anything that happened to him [and] ….no clear explanation as to why he was not taken to hospital until 19 June" (§74).
The judge said (§75) that M "sets great store on having taken the child to hospital but the fact is she should have taken the child before". Material to this finding is a piece of evidence that came from the paternal grandfather about I's condition on 17 June 2012. He and his wife thought I looked uncomfortable when they saw him that day and his evidence was that I's father told them to be careful with his arm as M had told him (I's father) that it had dislocated itself and this had happened before. In this context, it is notable that when the health visitor spoke to M next day, 18 June, M said the children were well, although, of course, she took I to hospital next day.
In these circumstances, it is no surprise that the judge reached the following conclusions at §89:
"So far as the mother is concerned I have made serious findings against her. She has failed in her duty to her children and has placed her relationship with I's father before those matters. It is difficult to feel any confidence that she could put these matters behind her in any acceptable timescale.
[the children] have been exposed to domestic violence by her reconciling with I's father and she has not been in a position to offer any evidence to suggest that that situation could change." "The mother has not kept her children safe and there is in fact no convincing evidence that she could do so in the future."
He therefore decided that M must be ruled out as a carer for any of her children.
His approach at this stage to F as a possible carer for the older two children was cautious. He isolated three main anxieties about that course. 
First, he had serious finding against F in relation to events during his relationship with M in 2005/6. M and F were married in 2005 when M was 16 and he was 17 or 18. The judge found that in May 2006 F raped M (§27) and was violent to her, punching her in the stomach whilst she was pregnant. F accepted that he had punched the wall in anger and broken his arm. He did not accept that he had assaulted M but the judge found his evidence and that of his sister not credible. M reconciled with F after these events and did not separate from him until they had had another child together (§96).
The judge's view was that such findings were "serious" (§31) and dictated "serious consideration …as to the suitability of F and his family to care for the two older children" (§6) However, he observed that the events occurred "at a time when the parties were very young and may be taken, subject to further assessment, to have matured" (sic §31). He noted (§96) that although F had not seen the children for some considerable time, he had established a rapport with them and contact was surprisingly positive. He concluded that the findings "should not preclude the father from being considered as a carer or more particularly being considered as a carer within an extended family setting" although "his evidence given during the case was not encouraging" (§97).
The judge's second anxiety arose from what he considered to be F's "uncomprehending or insensitive approach to taking on two children who have never really lived with him" and in particular how he had proposed to do this with the assistance of a girlfriend with her own children who was not known to his family and who turned out, on enquiry, to have no idea she was being put forward as a carer and was not willing to do this.
The judge's third anxiety was in relation to the "feud and conflict" between M's and F's families which might get in the way of contact for M with the children (§98).October 2013 judgment
By the time of the October hearing, F and the paternal grandparents had been assessed by the NSPCC and the "broad thrust of the reports" was accepted by LA and the guardian to be favourable to F. Both LA and the guardian were now recommending a placement with him, living in his family home with his parents and with the support of his extended family, on the basis that there would be a care order and further work would be undertaken with him.
The judge reminded himself (§13) of the anxieties about F that he had set out in his May judgment but also of his view that the adverse findings he had made against F did not of themselves preclude F from being a carer for the children and "needed to be balanced against the benefit to the children of being placed with him".
He went on to say that "[t]he question then is the question of the father's abilities as a parent in general terms" (§15). He accepted that F had:
"done much to deal with these matters during the course of these intervening months and he has done very well on a nurturing course from which he has gained great benefit and his efforts have been described as 'superb' and as somebody who has got a great deal out of the course" (sic)
F was considered to have a somewhat simplistic view of the emotional difficulties that AA was experiencing but was concerned and willing to work with professionals to address her behaviour. There was clear evidence of empathy with the children even though F had only recently been reintroduced to them, and he took the lead in family contact in addressing their needs.
The judge returned to the question of domestic violence in more depth in §16. He considered the fact that F had made only a limited acknowledgement of the findings of fact that the court had made and that he had not as a result been able to engage in a work project that was proposed. However he accepted that F was likely to engage in other work and this would be a requirement of the care plan.
It was submitted to the judge on M's behalf that LA's care planning was not complete and that the court was not in a position to make a final care order but the judge observed, rightly, that it is "not the function of the court to monitor ongoing work relating to the operation of a properly organised care plan" and that both he and the guardian considered that the moment had been reached when the court had to hand over to LA to perform its statutory obligation under the care order. Acknowledging that F was still an inexperienced parent and that the children's time with his extended family had been limited, the judge nonetheless thought it appropriate to approve the care plan and make the care order. He was undoubtedly influenced by the fact that to do otherwise would be to import delay for two children who were demonstrating anxieties and disturbed behaviour whilst they waited for the court's decision (§§4, 5 and 17/18).
In arriving at the decision to approve a care plan for placement with F, the judge had reconsidered M's position (§8). M had again given evidence to the court. The judge recalled that her evidence at the first hearing "was a mass of contradictions and unreliability both as to the incidents between 4 June and 19 June and generally, and also her evidence was unsatisfactory as to her lifestyle" (§3) and, as I shall explain, he did not seem to consider that matters had improved significantly in this respect.
He recognised the points that could be made in her favour. She acknowledged that she had failed the children, she had undertaken a number of courses and "embraced her religion", and the judge thought her presentation was different in many respects particularly in the initial stages of her evidence. He said that one of the strengths of her application upon which LA might be able to build was that she was the primary basic carer of the children and there was "bonding" between them and they wished to return to her care. The judge also recognised as a point in her favour that the plan to place the children in the care of a father against whom serious findings had been made was "somewhat of a paradox". He expressly reminded himself to bear in mind that the context of his findings about M's highly culpable failure to protect the children was that she had suffered significant domestic violence from I's father and he recognised that from the age of 16 when she was married to F she had been a "victim".
I take from §11 of the judgment that what the judge saw as a crucial issue in relation to M was whether she had yet told the truth about what happened to I. It is plain that he took the view that this went to the heart of her capacity to care for the children. He said that he found her new evidence "if anything …. even more unsatisfactory". He remained unsatisfied by the explanations she had given and an examination of the transcript of her cross-examination, which is available to us, clearly shows why he found (§8) that she did not acknowledge all of the court's findings and (§11) that "her contradictions became ever more emphasised". He said (§12) that there was, as her recent evidence showed, "no indication that she would cooperate or be frank with the court about the circumstances" and he did not consider that it was right in the circumstances to delay for an assessment of her if the children could plausibly be placed with the paternal family, as he went on in due course to find that they could, as I have explained.Discussion
With that background, I turn to look at Ms White's submissions in a little more detail. She helpfully summarised her case in her skeleton argument, arguing that underlying the three grounds of appeal there were the following shortcomings in the judge's approach:
i)Failure to conduct a holistic analysis of the possible placements and to weigh their respective advantages and disadvantages for the children, instead going too readily for the family placement which he concluded was currently available;
ii)Failure to analyse the impact on the children of living with a father who had perpetrated very serious domestic violence on their mother, who had not completed work on that violence, and in respect of whom work generally remained outstanding;
iii)Failure to give M the opportunity to demonstrate how she had changed, in particular in respect of her vulnerability to domestic violence, placing too much emphasis instead on her lack of candour about I's injuries without analysing how that would affect her care of the older children and what risk, if any, there was to them in her care;
iv)Failure to consider the draconian implications of reducing the children's close relationship with their mother to short visits 6 times a year.
I will consider these matters and the other arguments that were raised during the hearing by focussing in turn on each of the three grounds of appeal although inevitably there will be a blurring of the boundaries between them.
First, I need to consider whether the judge was wrong to rule out M without giving her the chance of a further assessment.
In my view, he was not. He very properly looked again at her position as it was at the October 2013 hearing, not relying solely on what he had concluded in his May 2013 judgment. But the findings he made against M in the May judgment were rightly the starting point for his approach in October and they represented a considerable obstacle in her way. The May judgment established that M had not kept her children safe and that her failure had had grave consequences for I who had been physically injured and for the two older children who had suffered emotionally and who were enduring a protracted period of uncertainty in foster care as a result of what had happened. It is no wonder in these circumstances, and in the light of the series of lies that M had told about vital matters over a prolonged period of time including during the hearing that preceded the May judgment, that the judge concluded that as things stood in May there was no convincing evidence that she could keep her children safe in future, nor any evidence to suggest that she could remedy things in a timescale that would enable her to care for the children without undue delay.
What the judge was rightly looking for during the October hearing, therefore, was evidence of change in what he was entitled to regard as the crucial issue of her veracity about what had happened to I. Having heard her oral evidence, he found it if anything even more unsatisfactory. She was no more forthcoming than she had been at the earlier hearing and, as I have said, he found that there was "no indication that she would cooperate or be frank with the court about the circumstances" (§12). He did not disregard the points that could be made in her favour but they were outweighed by her failure to make any progress at all in this critical area.
Ms White argued that the judge failed to identify any risk that would flow from M's lack of frankness. She pointed to the work that M had done, on her own initiative, to address her vulnerability to becoming involved with men who would be violent to her, and argued that the judge should have permitted an assessment of M to see how successful this work had been in eliminating the risk of her forming unsatisfactory relationships. Her argument was that M had not caused injury to I herself and if she was now able to avoid getting into relationships with men who might harm her children, there would be no risk to the children in living with her.
On the surface, this is a persuasive argument. However, there are insuperable difficulties with it in my view.
The first is that, in the absence of any explanation as to what happened to I, the nature of any future risk cannot reliably be known. This is not like the situation in relation to F where there was a witness (M) to the 2 violent events whose evidence was accepted, enabling the court to gauge the nature and extent of the potential risk that flowed from F's conduct on those occasions. No one knows the circumstances that led up to I being seriously injured, how precisely he was injured and on how many occasions. It is not possible to know, therefore, whether the underlying problems have been addressed by the work M has done. There are situations in which a court is prepared to place a child back in the care of a parent who has not been forthcoming about what occurred but this is a difficult path and there are equally situations in which it is not appropriate. M's continuing silence was bound to be a weighty factor in the judge's decision as was the question of her ability to cooperate with social services which had not been demonstrated by the history and about which I say a little more below.
Secondly, any judge would be likely to be sceptical about the impact of domestic violence work where a parent remains as far from acknowledging the true extent of domestic violence that occurred in the past as M is, not to mention her failure to acknowledge what happened to I. She revealed her current position in the documentation she prepared for this appeal before she had the benefit of representation and it amply confirms the judge's impression of her evidence at the October 2013 hearing. Her skeleton argument of November 2013 showed a complete failure to accept the judge's May 2013 findings. For instance, M asserted in it that there was never domestic violence between her and I's father when the children were at home and that she left him on 4 June 2012. She also advanced a version of the history of the critical fortnight in June 2012 which bore no resemblance to the other evidence and the judge's findings, it seemed with the object of establishing that I's injuries were caused in the 3/4 June incident and that it was only her persistence that ultimately brought them to medical attention. Her account was that I failed to move his arm normally/was in great pain when moving it after that incident, that she pointed the problem out to the health visitor and was reassured he was fine, but she "decided to take I back to …A & E and demand for an X ray as I felt there was something wrong with him" (sic). She sought also to revive the idea that I's injuries may have had an organic cause which had been missed because of incomplete investigations.
Thirdly, becoming involved in situations of domestic violence was not the only issue arising in relation to M. The judge referred to her "lifestyle, her lack of stability, longstanding history of lying and failing to cooperate with professionals" (§11). Ms White criticised this as going beyond the findings made in the May 2013 judgment but it seems to me that it was intended as a summary of the various matters contained in the judge's narrative there and was unimpeachable. The reference to a longstanding history of lying and failing to cooperate is amply justified by the judge's account of events from the start of M's relationship with I's father. Similarly, the reference to M's lifestyle and lack of stability has foundations in that period of her history but may also be a reference to her troubled relationship with her family to which the judge referred at §10 under the heading "Relevant Matters of Background".
In the circumstances of this case, it would be inevitable that any placement of the children with M would be in the context of a care order with continuing social work involvement. Honesty and cooperation in her dealings with social workers and other agencies would therefore be vital in ensuring that the children did not suffer harm and there was nothing before the judge to suggest that there had been any material improvement in this respect since the children were removed from home.
This case amply demonstrates the benefits of judicial continuity. The judge had the opportunity to evaluate M during the early 2013 hearing which went on for many days and then to observe her giving evidence in October 2013. He was in the best possible position to determine whether there had been any material change and whether she could now care for the children safely. He had to evaluate this in the light of all of the evidence and that is what he did. He took account of the progress she had made as we can see from his reference to what steps she had taken, albeit that Ms White would have looked for more detail on these topics in the judgment. He properly recognised the strengths in M's claim to look after the children, notably that she had been their primary carer, that they had a bond with her and that they wanted to be with her. He also took into account the flaws in the other option, namely placement with F, to which I will return below. But he gave considerable weight, as he was entitled to do, to what he considered to be the "crucial issue" and also to the need if possible to bring an end to the delay that was proving harmful to the children. M was not in a position to look after the children immediately but the advice of the professionals was that F could do so.
In my view, the judge was not wrong to continue to regard a placement with M as carrying significant risks for the children and to be so pessimistic about the chances of an independent social work assessment producing any evidence that would support such a placement that he did not feel matters should be delayed for one to be carried out. Putting it another way, in terms of Part 25 Family Procedure Rules 2010, he was entitled to conclude that such an assessment was not necessary to assist him to resolve the proceedings and to reach his own decision that M should not be considered further as a carer for the children. I am not therefore persuaded by the first ground of appeal.
I turn now to look at whether the judge was wrong to approve a placement with F. A prominent feature in Ms White's submissions about this was the paradox identified by both Judge Jenkins and Patten LJ. As the argument developed, it became apparent that there were at least two variants of the paradox. The first was that the placement of the children with F would be a placement with the perpetrator of domestic violence at the expense of the victim of it. The second was that it involved placing the children with someone who had refused to accept the findings of domestic violence against him when someone whose responsibility was limited to a failure to protect was ruled out because she had not accepted findings. Allied to the paradox argument was the argument that the judge failed to take account of the emotional difficulties of the children being in the care of a father who had been found to be seriously violent to their mother or at least failed to set out in his judgment how he approached this aspect of the case.
I entirely accept that the paradox did require some consideration. I do not think however that it can be argued that no reasonable judge could have entrusted children to someone who had behaved as F did in 2006, particularly as LA and the guardian endorsed such a step whereas, in contrast, they did not endorse a placement with M. This ground of appeal must therefore turn on whether the judge gave sufficient weight to the paradox in reaching his conclusions.
In so far as the paradox arises from the differential treatment of M's and F's respective failures to admit what had been found against them, I have no difficulty in accepting that differential treatment was justified on the basis of the difference in their circumstances. What M failed to admit was recent and her failure to speak of events led to the court remaining in the dark about what had happened to I and generally in respect of her relationship with I's father. F failed to admit known events which occurred some years ago when the parents were much younger.
As to the paradox upon which Patten LJ focussed, the judge himself identified this and took it into account but, as was appropriate, he treated it as one of the material factors in the equation rather than as sufficient on its own to prevent a placement with F.
The May 2013 judgment leaves one in no doubt that the judge recognised that the findings had serious implications for F's suitability as a carer for the children and that there were defects in his case. He identified those defects and they were not limited to F's actions towards M. He observed, however, that those actions occurred when the parties were "very young and may be taken, subject to further assessment, to have matured". Further assessment, and "extensive work", then took place and when the judge looked again at F's position in October, there was a more practical plan than there had been in the February/March hearing, this time for F to live with the children with the extended family, as well as some positive reports about aspects of F's ability to relate to and care for the children. The judgment would have been more complete if it had dealt expressly with possible difficulties, such as the children's feelings about being placed away from M with the man who was violent to her, and with the judge's assessment of the implications, for the ability of the extended family to assist F appropriately in the care of the children, of the finding that F's sister was also violent to M and the paternal grandmother was present during the incident. However, the choices for the judge were limited to M and F, given that he was avoiding the adoption route as the authorities required him to do if he could, and both choices were flawed as he recognised.
He had said in May 2013 that "the shortcomings of F may have to be balanced against placement outside the family" (§31) and when it came to doing this in October 2013, he decided that the flaws in the plan to place with F were manageable and allowed immediate progress for the children whereas the same could not be said in relation to M. He was able to form this view in reliance on the assessment work that had been done so far by the NSPCC, albeit not complete, and on the recommendation of LA and, perhaps particularly importantly, the guardian who had been cautious throughout about a placement with F but now supported it. He was able also to rely upon the continuing oversight and input of LA because they would be sharing parental responsibility with F under a care order.
The Court of Appeal must not approach a judgment from an experienced family judge, no doubt operating under the pressures and constraints that are now usual, expecting that it will articulate every last thing which has gone through the judge's mind. If we did so, judges would be constrained to produce judgments of huge length and the extempore judgment would be a thing of the past. Delay would be an inevitable consequence. The judge's thinking as to the respective claims of M and F is clear from his judgments and I would not interfere with his decision that it would be in the children's best interests to be placed with F with the protection of continuing local authority intervention under the care orders.
In so saying, I have considered Ms White's argument that it was premature to deal with the matter finally at this juncture but have not found myself persuaded by it. It is sometimes obvious when the moment has come to make a final care order, ceding further court involvement and handing over to the local authority, but sometimes it requires a judicious mix of analysis and intuition. That was the case here. Although Ms White was right to say that the assessment of F and the work that needed to be done with him was not complete by the time of the hearing in October 2013, there was a detailed care plan (to be found in the various documents listed in the recitals to the October order) which involved monitoring and support for F and the children.
The judge had expert support from the guardian for his decision that the time had come when the matter could properly be handed over to LA. He observed that the matters that needed to be addressed in relation to F after the earlier hearing had been "addressed over the course of the months and in broad terms, and in my judgment, extensive work has been done" (§14). He was satisfied work would continue by LA with the children themselves and facilities would be made available (§15). He recognised that F had not done the necessary work in relation to domestic violence but accepted he was likely to address this (§16). I should say, in parenthesis, that we were told that in fact this had not happened and explanation was offered as to why. This new evidence does not, however, affect the analysis of whether the judge was or was not right to make final care orders on the material then available.
I would not interfere with the judge's decision to hand over to LA, given that he had carefully considered what problems/potential problems were still to be addressed and assessed the reliability of LA, as well as taking into account, as he had to, the impact of protracted delay on the children.
I have left out of consideration up to now the question of M's contact. As part of her attack upon the judge's decision to place the children with F rather than leaving open the possibility of a placement with M following further assessment, Ms White relied upon the judge's failure to consider the impact on the children of losing their close relationship with her, contact being reduced to 6 short periods a year. The judge did give weight to the fact that M had been the children's primary carer and he was well aware when making his decision in October 2013 of the limited contact she was now having as he had sanctioned the reduction of it in June 2013. He alluded to this in §16 of the October judgment, where he explained that "part of the balance of deciding that M's contact should be reduced involved moving forward to a placement of MA and AA with F and thus increasing the contact that he was to enjoy in order to develop the relationship". This is well-established reasoning where children are about to move to a new placement and I am not persuaded that this point assists Ms White to advance the appeal against the placement of the children with F.
I cannot comment on whether it may be appropriate for M to have more contact with the children in future but should she wish to pursue this, it should be by an application under section 34 Children Act 1989. In that context, the current circumstances of the children and all the factors included in the welfare checklist, such as their needs, wishes and feelings, can be taken into account in deciding what is best for them. This appeal, with its focus on matters as they were in October last year, is not an appropriate vehicle to deal with the issue.
In conclusion, therefore, I would dismiss the appeal against Judge Jenkins' orders. He had a delicate balance to strike, having before him only options which were flawed. On the one hand was M who had an established relationship with the children and to whom they wanted to return but who was not in a position to care for them immediately, who had findings against her of very serious recent failures as a parent which had endangered them at least emotionally and very possibly also physically and had resulted in grave injuries to their half-brother, and who had still not been forthcoming about her relationship with I's father or what had happened to cause I's injuries.
On the other hand was F who had not had a relationship with the children until very recently, who had put forward some thoroughly ill-conceived plans initially for how he might care for them, and who had had serious findings of violence made against him (albeit dating back to his adolescence some time ago) which he did not accept but who had made considerable progress in the period from May to October.
The opportunity that Judge Jenkins had to evaluate the parents and all the rest of the evidence extended over many days, and spanned some months. A great deal is conveyed in such a process which does not make itself evident to this court, from reading the papers and listening to submissions, however elegant. I would not lightly interfere with the decision he took in a difficult situation such as this one and particularly not where his judgments demonstrate that he recognised and had well in mind the relevant features of the case. He was impressed with the evidence that the children were showing signs of being affected by the protracted uncertainty and he was able to take an option, supported by both LA and the guardian, that would resolve that for them speedily. He cannot be criticised for allowing this factor to weigh heavily in his considerations and particularly not where he had been unable to find signs of change in M in relation to a crucial aspect of the case.Lord Justice Briggs
I agree.Lady Justice Arden
I also agree.