(Court of Appeal, Moore-Bick, Laws, King,
LJJ, 2 December 2014)
Public law children – Care and placement
orders – Appeal – Whether the judge had erred
The mother’s appeal from care and placement
orders in respect of her two young children was dismissed on the basis that it
could not be demonstrated that the judge had been wrong in reaching the
conclusions he did.
Case No: B4/2014/2129
Neutral Citation Number:  EWCA Civ 1549
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Watford County Court
His Honour Judge Waller
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :Lady Justice King: 
LORD JUSTICE MOORE-BICK
LORD JUSTICE LAWS
LADY JUSTICE KING
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Michele O’Leary (instructed by Enfield Family Law Ltd) for the Appellant
Miss Kate Tompkins (instructed by Legal Services, Hertfordshire County Council) for the Respondent
Hearing date : 18TH November 2014
- - - - - - - - - - - - - - - - - - - - -
This is an appeal from an order of His Honour Judge Waller made on the 21st February 2014 whereby he made care and placement orders in respect of two children: J, born 14 May 2012 (30 months) and O, born 7 June 2013 (17 months). 
On the 23rd June 2013, Hertfordshire County Council issued proceedings under s31 of The Children Act 1989 in respect of the six children of MT, (the mother) of whom J and O are the youngest. MP is the father of the eldest four children (MP), who range in age between 2 and 8 years. The father of J and O is BT (the father). 
On the 21st February, at the conclusion of a five day final hearing, the Judge made care and placement orders in respect of O and J, dispensing with the consent of the parents to the placement order.
A residence order supported by a twelve month supervision order in favour of MP was made in respect of the four eldest children. 
The mother was represented by Counsel at the trial but thereafter, unrepresented, applied for permission to appeal by way of a notice of appeal dated 1 July 2014. The notice sets out four grounds of appeal against the care and placements orders made in respect of J and O. Permission to appeal was granted by Lady Justice Gloster on the 9th October 2014. The mother’s skeleton argument is found in a lengthy statement filed by her, dated the 16th July 2014.
Counsel, Ms Michele O’Leary, having been lately instructed to represent the mother in this appeal, seeks only to advance one of the original grounds; namely that the judge did not adequately assess the evidence in relation to the mother’s ability, with appropriate support, to provide a home for the two youngest children. In failing to do so, it is said, the judge failed to follow the guidance in Re BS (Children)  EWCA Civ 1146
The mother, who comes from a difficult background, was 14 when she met MP and became pregnant with her eldest child. By the time she was 22 she had had 6 children. There were concerns about the children’s care from as early as March 2008. The Judge found that a social service chronology extending to over seventy pages, dealing with the events over a period of five years, was a fair reflection of what was happening within the family. 
From 2011 onwards but particularly through 2012 and 2013 the catalogue of concerns accelerated; by this time the relationship with MP had come to an end and the mother was living with, and subsequently married to, the father. A catalogue of domestic violence, neglect, injuries, and possible sexual abuse in relation to the oldest child by the mother’s brother, is set out in considerable detail in the early part of the judge’s judgment. 
In April 2013, when he was 11 months old, bruising was seen to the lower part of J’s body. He was examined by a paediatrician. The bruising, to his leg, outer thigh and his inner and outer buttock, had not been reported, and was not related to any explanation given by either of the parents. The paediatrician was concerned that the bruising was non accidental and that the mother had been trying to keep the social worker away from J. The paediatrician recommended that there be consideration to a legal planning meeting being arranged,
The mother’s case was and remained at trial, that the bruising may have been caused as a result of the father being rough when changing J’s nappy. The judge was extremely sceptical about the explanation offered; he made findings that neither parent had expressed any real concern in the course of their evidence about the fact that J had been bruised in this manner and that, at the very least, the parents were greatly minimising the seriousness of the bruising to J. 
Care proceedings were issued on the 25th June 2013. Meanwhile further concerns arose when the eldest child alleged that he had been kicked and punched by the father. Extensive bruising was found to his body and once again the judge found the explanation, this time of ‘play fighting’, wholly unsatisfactory, and again found that the mother and father demonstrated no appreciation of the impact of what had happened upon their child. 
By this time the father was regarded not only as a significant danger to the children, but the mother had also been seen with bruising to her face. The mother reluctantly entered into a written agreement that she would not allow unsupervised contact between the father and the children, and would not allow him in the home. Within a matter of days she asked for that to be varied and, contrary to the agreement, allowed the father to be unsupervised with the children and allowed him back into the house. Almost immediately new bruising to J was reported.
The local authority sought interim care orders for the removal of the children. J and O were placed with foster carers, O was five weeks old. The children have been in foster care ever since with regular contact with the mother.
The parents say that they separated in July 2013, although the judge recorded a number of occasions when they were seen together. 
The four eldest children moved to live with MP. The local authority embarked on a number of assessments including a FAST community parenting assessment of the mother. The FAST report was filed on the 22nd October 2013. 
The judge referred to the report as making “dispiriting reading” and noted that it “raises major concerns about the mother’s ability to manage the care of the children”. Concerns centred on the mother’s lack of even the most basic of parenting skills which would require extensive work before she could offer any children a safe, secure and stable home life. Most importantly, the assessment highlighted the mother’s lack of understanding, acceptance or responsibility for what the children had suffered whilst in her care.
The mother disputed the conclusions of that assessment at trial although the authors of the report were not required to give oral evidence. The judge accepted the conclusions reached in the report commenting that they “are entirely born out by all the other evidence which I have heard.”
The judge heard oral evidence from the social worker Tracey Newberry. Ms Newberry prepared a report, she set out recent events, analysed the evidence available, including the FAST assessment and her own extensive knowledge of the mother, prior to conducting a model Re B-S balancing exercise. She concluded that adoption was in the best interests of J and O and confirmed that adoption was the local authority care plan in respect of those two children.
The judge analysed the mother’s oral evidence and his impression of her at some length. There were two facets which gave him particular concern:
i) That the mother was not being frank about what happened in relation to any of the children in the various events which occurred either in relation to the children themselves, or in relation to physical violence which he was satisfied had occurred in the relationship with the father. He believed she had minimised both the violence which had occurred and the impact of the events in the care of the children.
ii) That the mother had no understanding of the impact of the past events on the children or any acceptance that there had been any failing in her care of her children or any of them in the past. It was, he said, “clear from her evidence that she is simply unable to accept that the failures in the children’s care are her responsibility”.
The judge, whilst noting progress the mother had made in relation to various programmes she had attended, concluded that “it is clear that she really sees no need for change in the way in which she manages the children and that managing two will be possible, whereas managing six in the past was not”.
The judge found that the future welfare of the children could not be safeguarded by them living with their mother and other alternatives would have to be considered. He concluded:
“(271) There remain major concerns about her parenting skills. If the children are placed with her in my judgment they remain at grave risk of neglect. The fact that there may only be two children rather than six might effect her ability to give her attention to the children but the fact that she does not recognise the neglectful care of the children in the past and does not accept the reports of that have been made of that neglect and has rejected in many respects support which has been offered suggest that she is no better equipped now than she was in the past to meet the children’s needs.
Ms O’Leary realistically focused only on:
i) Had the court failed adequately to assess whether or not this mother, with support and assistance from the local authority, would be able to care for two, as opposed to six children.
ii) Had the judge failed to follow the guidance in Re B-S(Children)  EWCA Civ 1146 by failing adequately to set out his reasons for concluding that adoption was in the best interests of both J and O.
In oral submissions Ms O’Leary submitted that it “may have been the case” that this one element had not been sufficiently explored by the judge. She suggested that the option of the mother caring for her two youngest children with support by the local authority was neither adequately assessed by FAST, nor subsequently analysed by the judge prior to his is concluding that rehabilitation of J & O was not a realistic option and that the children should be placed for adoption. That being so, Ms O’Leary said, the court could not be satisfied, in the words of Lady Hale in Re B , that “Nothing else will do” but adoption. It followed therefore, said Ms O’Leary, that in line with the leading authorities on adoption and placement orders; (Re B (A Child) FC)  EWCA Civ 1475 and Re B-S (Children)  EWCA Civ 1146), the judge’s judgment was flawed and the appeal should be allowed.
Eighteen months after the judgments in Re B (A Child) FC and Re B-S (Children) a number of judgments have been given in this court emphasising what Ms O’Leary called the “common sense application” of those two cases. In particular judgments have been handed down in two, so called, “Re B-S” cases in the last few weeks: Re M-H  EWCA Civ 1396 and Re M (A Child):Long-term Foster Care)  EWCA 1406.
Certain observations of Macur LJ in Re M-H and Black LJ in Re M are worthy of consideration in the context of this case where it is submitted that the judgment is not Re B-S compliant, yet Ms O’ Leary concedes, without hesitation, that :
i) HHJ Waller is a well known and experienced family judge who gave a long, carefully considered and thorough judgment having seen and heard the parties give evidence.
ii) The Social work report was ‘exemplary’ including the way in which it dealt with the question of future placement alternatives for the children in a balance sheet form. The social worker gave evidence and the judge undoubtedly had in mind the totality of her evidence.
iii) The authors of the FAST assessment report were not required by the mother to give evidence. It was conceded on behalf of the mother that the authors of that assessment would have been the people through whom to challenge the assessment generally, or to put a case that the mother could cope with two children if not with six.
iv) The judge had not been asked to consider the return of the two youngest children; the mother’s case had been unclear, but at trial she had been seeking the return of at least three of the children (including J and O).
v) The judge not only expressed his understanding that adoption is an order of “last resort”  but expressed on a human level, that “it is with great reluctance and after careful consideration” , that he reached the decision to grant the care and placement orders.
In Re M-H Lady Justice Macur said:
 The ‘correct test’ that must be applied in any case in which a court is asked to dispense with a parent’s consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children)  EWCA Civ 1146 which drew upon the judgments of the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33 and rehearsed previous jurisprudence on the point. The “message” is clearly laid out in paragraph 22 of Re B-S and needs no repetition here.
 However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words “nothing else will do” to the exclusion of any “overriding” welfare considerations in the particular child’s case.
 It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of “nothing else will do” automatically bites. 
In the same vein Black LJ in Re M said:
 What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:
It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests.” (my emphasis)
I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child’s interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them”. 
In the present case the issue of what support the mother could or should receive to enable her to be a good enough parent to J & O did not, against the backdrop of the judge’s findings, arise as a realistic possibility. The question did not arise because of the fundamental findings made by the judge that notwithstanding the programmes that the mother had attended and her undoubted love for her children, she did not accept on any level that there had been any defects in her parenting or that there was any need for change in the care she gave her children, whether it be to one, three or six children. The judge found that the mother had “no understanding of past events and no desire to change, no understanding of why she is to change, no understanding of the impact on the children of the past failures in care” . It was this fundamental obstacle which led to the judge’s conclusion that the children could not safely be returned to live with their mother.
If confirmation of those findings was needed, I note that in the hand written statement/skeleton argument the mother prepared for this appeal dated 16 July 2014, she says:
“My children were in no danger from my husband Mr T, (the father), they still talk about him in contact and have passed by him and given him a hug if he was such an evil person that social services made him out to be towards my children they certainly wouldn’t want anything to do with him.”
That statement is wholly at odds with the findings of the court in relation to the danger the father posed to the children and completely consistent with the judge’s finding that the mother “had no appreciation of the risks which BT (the father), was posing to the children.”
Ms O’Leary accepted in oral submissions that there is in reality no proper basis for going behind the judge’s findings in this regard and accepts that against the backdrop of those findings, she is placed in considerable difficulty in asserting that rehabilitation with whatever level of support was a realistic option open to the court in the interests of the children.
It follows that there is no basis for an appeal from the judge’s conclusion that if the children were rehabilitated to the care of their mother “both children would be placed at very significant risk of harm”  and that, as a consequence, the mother would not be “in a position to provide care for the children in the foreseeable future or indeed in the longer term” .
The judge recognising that the care plan of the local authority was one of adoption thereafter asked himself the right question namely whether “the permanent separation from the natural family and relatives and the severance of legal ties, is necessary or whether there is any other realistic option” .
Whilst not corralled in one section of the judge’s judgment, the positives and negatives of both rehabilitation and of adoption are threaded through the judgment; they are no less a part of the Re BS exercise for that. The judge as he was entitled to do, answered the question he had posed and decided, on the facts and in the light of his careful welfare analysis, that the children’s future welfare could not be safeguarded with the mother and therefore other alternatives had to be considered. 
In this case it was accepted that given the ages of the children and the absence of any family members to care for them, adoption was the only realistic alternative to rehabilitation. Where the judge had only two options available to him his decision making process is not rendered “linear” simply by virtue of his conclusion that rehabilitation is not in the best interests of the children, so leaving adoption as the only realistic option for the children concerned. The “holistic” consideration to be applied in applications for adoption had been implicitly, if not explicitly, conducted through the careful weighing up of the benefits for and against rehabilitation and for and against adoption which are found within the body of the judgment.Conclusion
In my judgment there is no basis upon which it can be said that he judge was wrong in reaching the conclusion he did. The judge’s judgment was fully reasoned and he conscientiously considered all realistic options in the light of the evidence before him. Having rightly found that rehabilitation was not a realistic option for the children, the judge, before concluding that adoption was in the best interests of the children, carefully weighed the disadvantages as well as the advantages of the severance of the legal tie between mother and child.
The appeal must accordingly be dismissed.
Lord Justice Laws:
I agree. Lord Justice Moore-Bick:
I also agree.