(Court of Appeal,
Maurice Kay, McFarlane, Kitchin LJJ, 4 June 2014)
Care proceedings –
Appeal – Placement order – Analysis of plan for adoption
The full judgment is available below
The now 18 month-old
child was born while the parents were awaiting sentencing for violent offences.
The local authority had concerns about the parents’ ability to care for the
child as the mother’s three older children had all been removed from her care
and the father had other convictions for violent offences.
The child was placed
in the parents’ care following birth at a residential assessment unit. Reports
of the assessment were largely positive. However, the parents then pleaded
guilty to the violent offences and the mother received a 5-year prison sentence
for wounding with intent and the father received a 2-year sentence for assault
occasioning actual bodily harm.
At a final care
hearing the judge weighed the options of the child being placed with the mother
at a prison unit or with short term foster carers until the father’s release or
being placed for adoption. The judge made a final care order and authorised the
child’s placement for adoption. The parents appealed.
Permission to appeal
was granted on the basis of concerns that the judge failed to engage in the
exercise of weighing up the options for the child.
The appeal was allowed
and the placement order was set aside. The case was remitted for rehearing
before a different judge. The judge had failed to grapple with and engage in a
proper analysis of the issues and he failed to have regard to the statutory
structure. He failed to make any reference to the fact he was making a lifetime
decision for the child.
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
Neutral Citation Number:  EWCA Civ 929
Case No: B4/2013/2974 and B4/2014/1735
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE DODDS)
Royal Courts of Justice
London, WC2A 2LL
Wednesday, 4 June 2014
B E F O R E:
LORD JUSTICE MAURICE KAY
LORD JUSTICE MCFARLANE
LORD JUSTICE KITCHIN
T (A CHILD)
(DAR Transcript of
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Miss R Banks and Miss R Howe (instructed by Barrow and Cook) appeared for the Appellant)
Mr M Senior (instructed by St Helen's Council and Berkson Globe Partnership) appeared on behalf of the Respondent
Miss A Fox (instructed by CMA Solicitors) appeared on behalf of the child's Guardian
J U D G M E N T
LORD JUSTICE McFARLANE: This is an appeal brought initially by the mother, but now by the mother and the father, of a young child, a boy, his initial is M, and he was born on 19 January 2013 and so, even now, is only some 18 months of age. The appeal is against orders made by His Honour Judge Dodds, sitting at the Liverpool County Court on 25 July 2013, some 10 or 11 months ago. At the conclusion of what was a short hearing, at which the judge heard short evidence from a social worker, the two parents, and the children's guardian, he made a care order with respect to M, and made an order authorising the local authority to place M for adoption. In doing so, the judge dispensed with the consent of each of the two parents. It is against that outcome that the mother, and now the father, appeal.
The mother issued her application for permission to appeal in October 2013, but the case only comes on for hearing now. There are matters of concern, obvious concern, at the passage of time. The court was only seen on paper by a judge of this court, it happened to me, on 2 May 2014, and I granted permission to appeal on that day on the basis of concern that the judge had failed to engage in analysing the essential question in the case, which was whether the facts relating to the potential of the two parents, either one or the other or both of them, to care for him, had not been sufficiently weighed up against the serious level of intervention which is obviously represented by adoption.
The mother, as a litigant in person, of course had not couched matters in that way. She simply and powerfully wrote down what in effect was a hand written plea to be allowed to have a further chance to show that it was in her child's interest for her to care for him. Having granted permission to appeal the matter fortunately has been able to be heard promptly and the court is grateful to all parties for bringing matters together in that time.
The father only issued his application to appeal at the end of last week. We have listed his permission application this morning and realistically Mr Mark Senior, for the local authority, has not contested the permission application by the father, and earlier in this hearing we granted him permission to appeal.
The facts of the case can be very shortly stated. They are stark. The parents had commenced a relationship in the dying days of 2011, and went out on New Year's Eve at the end of that year. During the course of what took place that evening, both of them became involved in a very violent altercation. That, in turn, led to each of them pleading guilty some 15 or 16 months later to serious offences of violence, in the mother's case, a particularly serious offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act. The father pleaded guilty to a lesser offence of assault occasioning actual bodily harm. They both received prison sentences on 7 May 2013; the mother a period of 5 years' imprisonment, and the father a period of 2 years' imprisonment.
However, between the altercation on New Year's Eve 2011 and the sentencing exercise some 15 or 16 months later, M had been conceived and had been born, as I have indicated, in January 2013. The local authority had been monitoring the fact that M was expected, knew of the past of the parents, in particular the past the mother, whose three elder children had been made the subject of care orders in December 2008. And there were genuine concerns about her ability as a parent to deliver safe and good enough care for her new baby. At the same time, the father had a substantial record of previous criminal convictions. And there was genuine concern about the viability of this couple as parents, whether or not they were convicted in relation to the violence that took place on New Year's Eve 2011/12. The parents were protesting their innocence at that time.
For whatever reason, the local authority was persuaded, and indeed district judges at the county court were equally persuaded, that it was proportionate and necessary for M to be placed in his parents' care following his birth under an extended residential assessment at a unit called Abbeyfields. That assessment process ran for the four or five months up to the date of sentencing. The reports from the assessment are very largely positive and, against a background of such assessment reports giving proper and full scrutiny to parental care, it is notable that these two parents were able to demonstrate consistently over a time, and, in the father's case progressively over the time, satisfactory care of young M.
It follows that the local authority to a degree, the parents to a very high degree, and plainly young M who had become no doubt bonded and attached to the parents, were astonished by the turn of events when the parents had pleaded guilty to the offences with which they were charged and then received the sentences that I have described.
But for the judge hearing the case about M's future some three months later on 25 July, that was the way the factual context had by then been established. The essential question for the judge was to look at M's future and the potential for him to be cared for by his parents in due course. No other member of the extended family was being put forward as a viable alternative carer. The choice was stark: it was between placement in the parents' care either, and this was at least intellectually a possibility, placement with the mother in a unit at the prison, or M continuing in short term foster care until the first of the parents was released. The father's earliest release date was said to be December 2013; the mother's earliest release date being as far away as November 2015. The judge favoured the final option, the alternative, which was adoption.
No party submits in the course of this appeal that that outcome was unavailable to the judge on the evidence. The appeal focuses upon the process that the judge did or did not apply in analysing the evidence and coming to a conclusion. The judgment is short. It was an extempore judgment given in the course of a no doubt very busy court list after a relatively short oral hearing.
Having summarised the factors in the case to some greater degree than I have done so far in this judgment, in the first 8 paragraphs of his transcribed judgment the judge concludes that, despite the progress recorded at Abbeyfield (which he has criticised as a process that was undertaken in the first place given the potential for the parents to receive lengthy prison sentences) he concludes that placement with the parents is not a viable option. And the entirety of his reasoning is set out in paragraph 10 of the judgment:
"There are no other family members who are ready, willing or able to look after M, and, in the enforced absence of the parents, there is simply no realistic alternative to the local authority's plan, supported as it is, I should say, by the children's guardian. I am afraid that the parents' case is unrealistic and it is uncertain. It inevitably involves delay and M would have to be kept waiting on the possibility that a combination of circumstances might somehow come about whereby at the age of approaching three he could be brought up at home by his parents. I am satisfied that the local authority's intervention was necessary, was unavoidable, because there simply was no alternative and its plan for M is in the circumstances proportionate. The threshold is manifestly crossed. A care order is the only order that will safeguard and promote M's well being, and approving of the care plan as one of adoption I dispense with the consent of the mother and the father on the basis that M's welfare requires me so to do, and that will enable a search to begin for an adoptive placement. So I make orders as asked and those are my reasons for doing so."
At no stage in paragraph 10 does the judge make any explicit reference to the statutory requirements of the Adoption and Children Act 2002, namely, in particular, the welfare requirement in section 1 to have regard to the child's welfare "throughout his life", to the welfare checklist in section 1(4) or to the test for dispensing with consent in section 52 which stipulates that the child's welfare is to be the determiner of that test and that consent should be dispensed with only if the child's welfare "requires" adoption. Nor does the judge refer to any of the then extant case law, in particular the decision of this court in Re P (Placement Orders: Parental Consent)  EWCA Civ 535 where Lord Justice Wall explained what "required" meant in section 52.
The judge earlier does refer at paragraph 4 of his judgment to one statutory provision but it is under the Children Act 1989 and it is simply to refer to the need of the court to avoid delay which is enshrined in section 1(2).
When I read the judge's judgment, I granted permission to appeal because I was sufficiently concerned that the judge had failed to engage in the necessary exercise of weighing up the plan for M and what lay ahead for him if he did not go towards adoption, namely moving forward at some stage, in the imprecise future, to care by his father or his mother against the pros and cons of adoption.
In making those general observations, I am acutely aware of two things. First of all, that HHJ Dodds is a highly experienced family law expert who has now been a family law judge for a number of years. And it is a given in my mind that he is well aware of the statuary context and the case law that I have described. Secondly, judgment was given in this case on 25 July 2013. That was after the Supreme Court had handed down its judgment in June 2013 in the case of Re B (A Child)  UKSC 33, but before any of the subsequent judgments issued by the Court of Appeal at the end July were published, and plainly before the Court of Appeal gave judgment in the umbrella decision, if I can call it that, of Re B S (Children)  EWCA Civ 1146 on 17 September 2013. It is therefore necessary for this court to be extremely careful in evaluating Judge Dodd's judgment against what is now clearly stated to be the required standards described by the Court of Appeal in the Re B S decision. And, if what I have just said was not in itself an obvious observation, we have a further decision of the court in the case Re W (A Child); Re H (Children)  EWCA Civ 1177 in which, in a slightly different statutory context but in plain terms, the court said this at paragraph 16:
"Plainly, in the case of judgments given before the decision in Re B S the Court of Appeal must have regard to and make appropriate allowance for the fact. The focus must be on substance rather than form. Does the judge's approach as it appears from the judgment engage with the essence? Can it be said on a fair reading of the judgment taken as a whole a fair and sensible reading, not a pedantic or nit picking reading that the judge has directed his mind to and has provided answers to the key questions?"
I say slightly different context in that Re W and Re H were both concerned with applications before the court for leave to revoke a placement order, and a precise statutory test has to be applied. But, to my mind, the approach described in paragraph 16 is of general application, and what is required here is for us, in looking backwards in the judgment given by Judge Dodds in earlier times, namely July 2013, to look at the judgment as a whole to give it a fair and sensible reading, which is not a pedantic or a nit picking reading, and to determine whether the judge has directed his mind to and has provided answers to the key questions. Reference to "the key questions" taken from paragraph 16 refers back to the essentials, as he records them to be, in the judgment of the President in Re B S, and nothing I say in this judgment is intended to add to or detract from what is said by the President and indeed the full court in Re B S in describing matters. At paragraph 41, in particular, the President says this:
"41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ's criticism of the judge in Re S, K v The London Borough of Brent  EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child)  EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):
'the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.'
She added (para 124): 'there is little acknowledgement in the judge's judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.'
42. The judge must grapple with the factors at play in the particular case and, to use Black LJ's phrase (para 126), give 'proper focussed attention to the specifics'.
And so the exercise that I have undertaken in looking at HHJ Dodd's judgment is to see whether he has applied proper, focused attention on the specifics (to apply the phrase in paragraph 42 quoted from the earlier judgment of Black LJ). I am afraid, despite understanding the clear submissions made by Mr Senior on behalf of the local authority, I conclude that the judge failed on this occasion to grapple with and engage upon a proper analysis of the issues here. He did not help himself by failing to have regard to the statutory structure. In particular, he failed, it seems to me, to make any reference at all, either by implication obliquely and certainly not expressly, to the fact that he was making a lifetime decision for young M.
The judge dwells upon, rightly, the choppy water that would be encountered by M over the coming months and probably year or so were he to have to wait for his parents to complete their prison sentences and be assessed and be seen to be able to provide full, stable, secure care for him in the community. All of those negatives were rightly in the judge's mind. He also had the positives of the potential for the parents to care. He also, as Ms Anna Fox, counsel for the guardian before us has indicated, had in mind the "elephant in the room" as she referred to it. That is a reference to the fact that the case was not actually about the potential for the parents to deliver day to day to care to their baby; it was about whether they could by relied upon to live quietly, soberly, safely, boringly, in the community with him and not engage in volatile, unpredictable, highly violent, behaviour in the future and lay themselves open not only to injury but also to the potential of being taken out of the community and once more returned to prison. And the judge was aware of that aspect of the case.
But nowhere at all in the judgment does the judge look at adoption as an option for the child. Plainly at this age, M would have been said to be readily adoptable, and we are told that after the hearing the local authority were able to identify a match for him and the case was ready to go to an adoption panel meeting to approve that match in January 2014. But the big issue in the case was whether life with the parents was going to be so detrimental, so harmful, that it was necessary to remove him from all of that; remove him from any ongoing relationship with his parents and with his kith and kin. At no stage, it seems to me, does the judge indicate in what he says that he has grappled with that. He does use the phrase that he is satisfied that the local authority's intervention was "necessary, was unavoidable, ... and that there was no alternative". And he indicates that the plan was "proportionate". But those are labels and are only going to indicate that the judge actually has grappled with the factual circumstances that underlie them if he has demonstrated, at least shortly in these pre Re B S days, that he has in fact undertaken that exercise.
I am not satisfied that he has and I am of the view that, because of the words he uses, he failed to undertake the necessary balancing exercise on this occasion. The result therefore is in my view that the appeal has to succeed and that the order should be set aside.
The consequence of that is that the case will have to be remitted to be reheard and evaluated now in 2014 before another court at first instance. It is common ground amongst the parties that, if that is the outcome of this case, it is appropriate for the judge who now takes over this case to be a judge other than HHJ Dodds.
Before leaving this judgment I wish to say something, albeit briefly, about the appalling delay that has been visited upon this case between the notice of appeal being issued on 14 October 2013 and this hearing coming on before us on 4 June 2014. There are difficulties in the system as a whole in obtaining transcripts of judgments. It is, I suspect, obvious that for any appellant process to be effective, the judges of the Court of Appeal, and indeed if they are circuit judges hearing appeals from lower courts, can only function by having an accurate record of what was said in the judgment of the lower court. It is impossible even, in my view, to evaluate whether permission to appeal should be given without an accurate note, if not a full transcript, of what took place.
Delay is all too often encountered in cases across the board for the civil division of the Court of Appeal. In a case involving the welfare of children, particularly a baby such as M, who is facing either carrying on on the road towards adoption if the order is upheld or being the subject of a different course of action, any delay, even if it is measured as a matter of weeks or a month, is to be avoided.
In the current climate, where the entirety of a care case is now, as a matter of statute law, to be undertaken from beginning to end in 26 weeks, an appeal process which lasts 10 months, is plainly entirely contrary to the interests of the child let alone the other parties and the system.
I have enquired about what occurred or did not occur in the present case, and a problem seems to be that this mother is a litigant in person, and she is not to be criticised for this, was sent a form requiring her to apply for a transcript of the judgment to be provided at public expense. She, for whatever reason, either did not receive the form or did not return to promptly, or did not understand its significance. A chasing letter was sent to her in December 2013 and the transcript was only ordered by the Court of Appeal office on 22 January 2014 (3 months after the appeal was lodged).
The facts of this case are stark. They are outside the ordinary: the mother, a litigant in person, was serving a 5 year prison sentence. It is to my eyes obvious that she would require public funding to pay for the provision of a transcript. In any event, in the ordinary course of a case where a litigant in person is at liberty, the need to process that request has to be given the upmost priority. Where a local authority, as here is the case, have a pressing interest in the appeal process being resolved one way or the other promptly, there is an argument for the local authority being asked to consider paying for the transcript of the judgment. In this case, months and months went by before the court eventually received a transcript which runs to three pages. The local authority would have known that it was a very short judgment and the whole delay in this particular case might have been avoided by an early pragmatic step such as the one I have described. Thereafter, following the request for the transcript in January 2014, the transcript was not received until 1 April 2014 (a further delay therefore of 10 weeks). It seems that delay on the account I have been given, without having had any recourse to an account from the local county court, occurred because of difficulties in communicating with the local county court and obtaining their cooperation in obtaining the transcript. It is a sorry story but, more than that, it is totally unacceptable, and I am going to invite those responsible for the system here and, at local level, the designated family judges to do all that they can to ensure that transcripts of judgments in cases such as these are obtained with the utmost speed so that a view can be taken promptly on the merits of any potential appeal.
But with those remarks, as it were, on the side, in my view, the outcome of this appeal is that the appeal must be allowed and the placement order should be set aside. Nobody seeks to appeal the final care order in this case. The matter will have to be remitted to a circuit judge at Liverpool County Court other than HHJ Dodds. For my part, I would invite the parties, if my Lords agree that this is the outcome of the case, to spend some short time now at court this morning drawing up a tight timetable for the steps that now need to be taken before the case can come for a case management hearing before the new judge at the earliest opportunity, either in next week or very early in the following week.
LORD JUSTICE KITCHIN: I agree.
LORD JUSTICE MAURICE KAY: I also agree. I would like specifically to endorse my Lord's comments concerning the delays in obtaining the transcript and how that situation ought to be rectified in the future. Beyond that I have nothing to add, save to thank all counsel for their careful, helpful and sensible approaches to this difficult case. Thank you very much, and no doubt you will lodge the order and the directions to which my Lord has referred.