R (A Child) [2005] EWCA Civ 1792

Case No B4/2005/1419[2005] EWCA Civ 1792
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HHJ NORRIE)
Venue Royal Courts of JusticeDate Tuesday, 20th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE SCOTT BAKER
IN THE MATTER OF R (A CHILD)
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MR IAN PEDDIE QC (instructed by Messrs Anthony Morris Solicitors, 8 Ifield Road, Crawley, West Sussex RH11 7YY) appeared on behalf of the Applicant
MS CAROLINE BUDDEN (instructed by West Sussex County Council, County Hall, Chichester, West Sussex PO19 1RQ) appeared on behalf of the Respondent
MR BRUCE COLEMAN (instructed by 1 Garden Court, Temple, London EC4Y 9BJ) appeared on behalf of the child.
J U D G M E N T

LORD JUSTICE THORPE:

[1]The parties to this appeal are the local authority; the parents, who are separately represented; and the only relevant child, K, who is of course party to the proceedings and represented by her guardian. K is 7 years of age and the involvement of the local authority followed the shocking revelation of K's older sister, M, that she had been grossly abused sexually by her father. That revelation came in October 2001 and led to the issue of care proceedings on 27th February 2002. The issue of the proceedings was essentially to ensure that the father would remove himself from the family and would remain separately housed.[2]The local authority have managed the protection of K since the emergence of the risk in a most professional way. They have managed an extremely difficult case with sensitivity and judgment. They have managed all this with the collaboration of the parents and the evolving negotiation of a management programme that puts the protection of K as first priority. Clearly there has been a great deal of professional expertise given to investigating the father's capacity to respond to treatment and arrangements have been made for a treatment programme which has progressed satisfactorily and which explains the duration of the care proceedings from their initiation in February 2002 to their determination in June 2005.[3]The final hearing was the product of a directions order made on 2nd September 2004 when five days were allotted to the final hearing. The duration of the final hearing was agreed at the Bar and, with the advantage of hindsight, appears a considerable overestimate, given that there was no dispute as to the ground plan. The issue that propelled the final hearing was whether the local authority should take a Care Order. There was no dispute that the threshold had been established. There was no dispute or no measurable dispute as to future management. The four experts in the case, Mr Zeitlin, Mr Smith, Mr Willis and Dr Pedlow, were all in agreement. The only issue was the appropriate form of order.[4]I am unable to understand why it was thought necessary for all four experts to give oral evidence when they were in substantial agreement and I do not know why there was not a meeting of experts that would have emphasised the possibility of introducing their contributions sufficiently by reference only to their written reports. In the event, the trial process was encumbered by particular difficulties in the County Court, which Ms Budden has explained to us, in the period after Easter. The case was allocated to HHJ Norrie when it had been intended for HHJ Lloyd's list. It was concluded in three and-a-half days but they were not consecutive days: three in April and one in May, but not full court days. The judge reserved at the end of the hearing on 10th May and requested written submissions. The judgment was anticipated on 26th May but the judge required further assistance from the advocates by way of oral submissions and they were not there to assist. Accordingly, she adjourned again. The court reconvened on 22nd June. She heard oral submissions from the advocates and then delivered a long judgment, which was not concluded until 5.40 in the afternoon.[5]The choice that she made was for the Care Order rather than the Supervision Order and that was made in the face of opposition from all parties, accept, of course, the applicant local authority. It was not surprising then that the mother sought permission to appeal. The application came before Wall LJ on 9th November, when he described the appellant's notice as making a powerful case. He directed an oral hearing on notice with permission to follow but indicated that he had only done that to ensure a swift listing. The notice referred to by Wall LJ was settled by Mr Ian Peddie QC and in the interim Mr Bruce Coleman, for the guardian, has filed a skeleton supporting the appeal and Ms Budden a skeleton resisting the appeal. The father has not been separately represented, very sensibly. He simply adopts the mother's case.[6]The powerful criticisms of the judge advanced by Mr Peddie were responded to by Ms Budden, who sought in her skeleton to justify the conclusion and to uphold the judge's reasoning. However the deficiencies in the judgment were as apparent to us as they had been to Wall LJ and we have effectively heard only from Ms Budden, seeking to resist the appeal. She has argued her case formidably and with very great skill. She has made some persuasive points which, had they appeared in the judgment, might have enabled her to uphold the order below. The problem for Ms Budden is that none of those points are to be discovered in the judgment itself. The judge's definition of the essential issue is in paragraph 75 of her judgment, when she said:
"The issue, and it sounds very simple, is that given that all agree that a risk remains, though qualified and quantified as a low risk at the moment, will a supervision order be sufficient to give good enough protection to this child's welfare, or can her welfare interests only be protected by the local authority sharing parental responsibility with the parents through a Care Order."
She answered that at the outset of paragraph 80 when she said:
"It is an extremely difficult case. There are huge concerns and it is my finding that certainly for some time yet the local authority need to share parental responsibility with the parents so that they can work to continue to minimise the risk to [K]."
[7]Mr Peddie has made the point that that rationalisation contrasts with the anxieties that the judge had expressed on 26th May, when she explained to those present why she needed further oral submissions from the parties. There she had identified her concerns as all falling within the sphere of contact and the management of contact in the future.[8]The reason why the judge's conclusion cannot stand is easy to explain on one short but fatal ground. The judge had recognised, in paragraph 66, that all the experts and the guardian were of the other point of view. She said:
"Dr Pedlow, Mr Zeitlin, Graham Willis and the Guardian voiced the opinion that a care order was unlikely to offer any greater practical protection of [K], that it was important to [K's] safety and the continuing reduction of risk that the mother be empowered and that confidence be expressed in her and the making of a care order might well detract from that."
That consideration was powerful and it came from a powerful body of expertise. How did

the judge deal with it? She purported to do so in paragraph 74, where she said:

"I accept that I am not in a position to reject the unanimous views of the experts as to their assessment of the parents and I do not do that."
She then continued to record the position of the experts and then, explaining herself, said:
"The experts are experts on matters of psychological and psychiatric assessment and indeed on risk assessment. They are not experts on the issue of the different legal implications of one type of order as against another and the advantages and disadvantages of those types of orders, and I exclude the Guardian from this because clearly she has (a) her considerable experience, but (b) also advice from her lawyer."
[9]The judge was therefore explaining the basis of her rejection of the recommendation of Mr Zeitlin, Mr Smith, Mr Willis and Dr Pedlow. But she distinguished the guardians position when she said "I exclude the guardian because the guardian has great experience of legal proceedings and has legal advice". So, having noticed the vital distinction, she had only explained the basis for her rejection of the mental health experts. She had to go on to explain the basis of her rejection of the guardian for whose opinion the rationalisation would not run and there is simply not a word in the judgment to explain why she rejected the guardian, whose opinion she had implicitly recognised required independent explanation for rejection. So on that simple ground the judgment is fatally flawed.[10]I do not myself, I add, accept the validity of the basis of her rejection of the expert opinion. True, the experts were not perhaps aware of the niceties of the legal consequences of a Supervision Order as against a Care Order but what they were doing was explaining to the judge that the making of a Care Order might have a detrimental effect on the mother's self confidence, self esteem and emotional well-being. That is self evidently an area of their expertise and their recommendation to that effect could not be finessed by saying that they are not lawyers and they do not understand legal terminology. It is a very bold thing for a judge, on a fine issue as to which label to apply, to go against the tide of all the experts in agreement as well as the guardian for the child. The obligation on a judge to explain and justify such a departure is a heavy one. I have sympathy for the judge in that she obviously struggled with this case. She obviously found it a great burden. The fact that they she had to seek further assistance on 26th May, I understand in this way. A great deal of the judgment is concerned with the historic past, rather than the relevant present which had to be analysed in the light of the father's response to the treatment programme. I can well understand that the judge was shocked by the depravity of the abuse of the elder child, I can well understand her natural concerns, but none of that is sufficient to protect this judgment against the attack that Mr Peddie has advanced, an attack which is fully supported by Mr Coleman. I would simply allow the appeal and substitute a Supervision Order for the Care Order.

LORD JUSTICE SCOTT BAKER: I agree.

Order

Application to appeal allowed. A Supervision Order is to be substituted for the Care Order. The respondent is to pay the appellant's costs in the sum of £6,717.18.