El v Royal Borough of Kensington and Chelsea [2006] EWCA Civ 163

[2006] EWCA Civ 163Case No B4/2005/1884
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE MUNBY
FAMILY DIVISION OF THE HIGH COURT OF JUSTICE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/03/2006
Before
LORD JUSTICE WALL
Between
ELAppellantROYAL BOROUGH OF KENSINGTON AND CHELSEARespondentJ (A Child)
EL - via telephone conferenceHearing Hearing dates : 8th February 2006
Judgment
[1]EL is the mother of J, who was born on 26 November 1992, and is now 13. She seeks permission to appeal against an order made by Munby J sitting in the Family Division of the High Court of Justice on 24 June 2005. The judge dismissed her application for permission to appeal against a care order relating to J made by District Judge Moorhouse on 26 February 2002. He also dismissed her application for a residence order and for a contact order in relation to J. He directed that EL’s contact with J was to remain in the discretion of the Royal Borough of Kensington and Chelsea (the local authority designated in the care order). The judge also made an order against EL under section 91(14) of the Children Act 1989 (CA 1989) that she was not to make any further application in respect of J under CA 1989 until 26 November 2010 without the leave of a High Court Judge of the Family Division. He reserved any such application to himself, if available. Given J’s date of birth, and the fact that he will be 18 on 26 November 2010, the effect of the judge’s order is to prevent EL from making any further application to the court under CA 1989 relating to J without its permission.[2]The judge made a number of other orders on 24 June 2005 which are not relevant to EL’s application for permission to appeal, and which I need not recite. Their effect was to leave J in the care of the local authority. Under its care plan, J was living with his father, RJ. RJ was given permission by the judge to withdraw two applications which he had made;(1) for the discharge of the care order; and(2) for a residence order.[3]The order recites that it was made after hearing counsel for the local authority, counsel for the father, the solicitor acting for J, and EL “in person by way of a continuous conference telephone link”. EL suffers from agoraphobia, and apart from a capacity to undertake limited shopping locally, is effectively housebound. Accordingly, when I heard her application on 8 February 2006, it was by way of telephone link. In these circumstances, after EL had addressed me, I decided to put my decision into writing, so that she could have the opportunity of reading it, rather than listening to it over the telephone. The period over which I have reserved judgment has also given me the opportunity to reread the papers, to study the judgments of District Judge Moorhouse and Munby J and to consider my note of EL’s arguments.

The background

[4]I start with the judgment of District Judge Moorhouse given on 26 February 2002. At that point, of course, J was 9. I note in passing that EL was represented before the District Judge by leading and junior counsel. Her leading counsel was Mr. Gordon Murdoch QC (now His Honour Judge Murdoch QC) a well known, and highly respected family specialist.[5]The hearing before the District Judge occupied 15 working days between 1 and 26 February 2002. As she described it on page 47 of her 65 page judgment: - “In total the court heard the evidence of 20 witnesses including EL and the father RJ. There were reports and unchallenged statements from 8 other witnesses and four volumes of papers read and heard by the court…”[6]J is autistic, and at the date of the hearing, was in foster care. The local authority’s care plan, set out by the District Judge on pages 47 and 48 of her judgment, sought a care order in relation to J with parallel planning. In other words, he was to remain in foster care, but there was to be an attempt to rehabilitate J into his father’s care over a period of a year. EL, on the other hand, sought the return of J to her care.[7]The District Judge made a care order. She found that at the date the local authority instituted proceedings, the threshold criteria under section 31(2) of CA 1989 were established. She found no evidence enabling her to be satisfied that EL could care for J. For her to be able to do so, she would need to change. The District Judge found no evidence enabling her to be satisfied that EL could change sufficiently to allow J to return to her, and for those changes to be implemented in order to prevent a repetition of the circumstances in which J was received into care. She was equally not satisfied that RJ was in a position to take on his care immediately. The only order she could make, accordingly, was a care order.[8]I pause at this point to explain the difficulties which EL faces in seeking to overturn the District Judge’s order. For present purposes, I put out of my mind the fact that the application for permission to appeal District Judge Moorhouse’s order is very substantially out of time. I put out of my mind the fact that a substantial element of EL’s application before me is a second appeal, the significance of which I will explain later. The essential difficulty is that the District Judge heard the case over 15 days: she formed impressions of the various witnesses, and made findings of fact. She carefully applied the law as she found it to be to the facts before her, and reached a conclusion which, on its face, was plainly open to her to make.[9]Litigants who apply to the Court of Appeal are frequently under the misapprehension that this court has wide-ranging powers which in fact it does not have. The Court of Appeal is a reviewing court, not a court of trial. It looks at what the judge in the court below did, and asks itself: was the decision which the judge made open to her or him? Was the hearing fair? Were the findings of fact ones which the judge could properly make on the evidence she or he heard? Has she or he made any error of law? If the answer to the first three questions is “yes”, and the answer to the fourth is “no”, then there is no way that this court can intervene. The possibility that, had I been hearing the case at first instance, I might have reached a different conclusion is irrelevant, as is the fact that the prospective appellant does not agree with the judge’s decision. The essential question I have to ask is: has Munby J, when himself reviewing the exercise of the District Judge’s discretion, committed any error of law? This, of course, involves me considering whether the District Judge exercised her discretion inappropriately or incorrectly.[10]Although I am putting it out of my mind for the time being, I cannot in the final analysis ignore the additional difficulty which EL faces, which is, of course, is that the order made by District Judge Moorhouse was made almost four years ago. The time for making an application for permission to appeal such an order is 14 days. There has to be some compelling reason for a grant of permission to appeal some four years later.[11]In so far as EL’s application was for permission to appeal against the District Judge’s order is concerned, Munby J was in a similar position to this court. He had to review her decision, and to decide whether she had made any of the errors identified in paragraph 9 of this judgment. However, he also had to decide whether or not the care order should in any event be discharged and replaced by a residence order. In the further alternative, he had to decide the question of EL’s contact with J. Those matters, as he rightly directed himself, involved the exercise of a first instance jurisdiction in which his powers were not limited to a review of the District Judge’s decision.[12]The case before him lasted for four days. He was by no means unsympathetic to EL. He pointed not only to her devotion to J, but to the fact that on two separate occasions she had been vindicated in relation to his special educational needs by decisions of SENDIST. However, his assessment of EL was stark and simple. The longer the hearing went on, he said, the clearer it became. It was that: - “…. on fundamental matters relating to J, whether they be matters to do with his autism, medical matters, educational matters or other matters, EL is unable to accept as even genuine, let alone reasonable, the views and opinions of anybody who is not prepared to agree, without qualification, to her own views and opinions. EL in the course of the hearing before me almost indiscriminately condemned the Guardian, Mr. McGavin, her own solicitors and counsel (in relation to the hearing before District Judge Black in April 2004) and District Judge Moorhouse herself as being variously – and included in the words which she used were words such as – liars, fabricators and blackmailers. She said, for example, that she had been blackmailed by her lawyers into adopting the stance which she did before District Judge Black. She accused District Judge Moorhouse not merely of having got wrong virtually every matter in her judgment with which she, EL, disagreed, but at one point she went so far as to accuse the District Judge of having fabricated matters. ”[13]The judge went on to point out, fairly, that the fact that a litigant in person uses extravagant language is neither unusual nor, necessarily, significant. However, in EL’s case the problem went deeper. Because her fundamental belief was that the care order should never have been made, she was “quite unable to accept the views, even the factual evidence, of anybody who takes a different view” - including the judge. Munby J therefore took the view that EL’s application for permission to appeal failed for straightforward reasons which he enunciated in paragraph 40 of his judgment:
“The simple fact, in my judgment, is that EL has not even begun to make out a case for having permission to appeal out of time. The fact is that three years have gone by. The fact is that at the time of the original hearing, having been represented by both leading and junior counsel and solicitors, there was no appeal. The fact also is that as recently as April last year (2004) EL, through her counsel, disavowed in the face of the court any intention of appealing. Quite apart from all that, and save for the bare assertion that the original decision was wrong, EL has failed to lay before the court even the beginnings of the kind of material which would have to be produced in order to persuade the court that there was any even arguable basis for giving permission to appeal so very, very long out of time.”
[14]On the material available to me, I have to agree with that analysis. The mere assertion that you are right and everybody else is wrong achieves nothing. Bare assertions are not evidence, and prove nothing. However, the judge did not decide the matter only on the basis explained in paragraph 40 of his judgment. He went out of his way to consider the merits, and since part of EL’s argument before me appears to rest on alleged breaches of her rights under ECHR Article 6, it is, I think, worthwhile pointing out that the judge permitted the expansion of the case from its estimated two days into four because, as he said, he was “very anxious that EL should have as much time as was necessary to say everything she wanted to say”.[15]The judge was clearly of the view that District Judge Moorhouse’s judgment was “very careful, and very carefully thought out”. It has analysed the issues “very carefully”. She had set out her thinking in very considerable detail. Her directions to herself on the law and her overall approach to the evidence was, in Munby J’s view “immaculate”. There was no basis for any complaint that the District Judge had misunderstood the evidence. She had been entitled to make the findings of fact which she had made. She was, in particular, entitled to reject the evidence of Miss Blakemore-Brown for the reasons she had given. Far from being a case in which it could be demonstrated that the District Judge had been plainly wrong, Munby J was of the opinion that she had almost certainly been plainly right.[16]As to the application to discharge the care order, Munby J’s judgment was that the District Judge’s assessment in February 2002 had been correct. She had given “unassailable reasons” for concluding that EL was not then able satisfactorily to care for J, despite all the very many good things in her character and approach.

The judge asked himself the simple question:

“Has anything happened subsequently to justify a different view today?”
He answered that question “No”. In paragraph 49 of his judgment the judge said: - “The simple, if sad, fact of the matter, I am satisfied, is that EL is in reality in no better position today to care for J than she was in February 2002. It is, in my judgment, unthinkable, in the light of the full history of this matter, in the light of the history of events immediately preceding the commencement of the statutory process of protection in June 2001, in the light of the history set out in her judgment and indeed in the light of events since then, that J can be returned either now or within the foreseeable future to the care of his mother.”[17]The judge then identified two, what he described as “compelling”, reasons why the care order should remain in place. In summary, these were:(1) EL and RJ were “quite unable to work together in any useful or meaningful way in relation to anything to do with J”; and(2) there were substantial anxieties about the father’s violence and concerns that he may still be taking crack cocaine. He had withdrawn from a psychiatric assessment. He had refused to take a hair test. The local authority’s dilemma was clear, and summarised by the judge in paragraph 54 of his judgment: - “…. EL, for reasons which will by now be apparent, is simply not an available carer for J. There is nobody else in the wider family who can fulfil that role. In consequence, the dilemma for the local authority is as simple and stark as this: either J stays with the father, over whom hangs this particular question mark, or J is put into long term foster care. ”[18]In these circumstances, the local authority plainly needed to retain parental responsibility for J. As to EL’s contact with J, the judge saw no reason for differing from the conclusion reached by District Judge Black in April 2004. Critical to this decision was the fact that EL had not undertaken the therapy or counselling which the local authority regarded as essential for contact to be increased, although the judge pointed out, as a hopeful sign emerging during the course of the hearing, that EL had recently made arrangements for therapy with a practitioner whose identity she was prepared to disclose to the local authority. The judge expressed the hope that with the help of a therapist, EL “may begin to be able to reconcile herself to the future realities”. If that happened, there was in principle no reason why, when the time was right, contact should not move forward and be extended to overnight staying contact.[19]The final matter which the judge addressed was the local authority’s application for an order under section 91(14) of the Children Act 1989. The judge reminded himself that this was a drastic order, particularly against a litigant in person who did not have a track record of making inappropriate applications, and who disavowed any intention of making a further application.[20]The judge concluded that this was a case in which it was necessary to make such an order; and one, moreover, which was expressed to extend until J’s 18th birthday. The judge gave his reasons in paragraph 65 of his judgment: - “….. The fact is that EL knows what has to be done if she is to move forward. The fact is, as District Judge Black spelt out very clearly in April 2004 and in terms with which I agree, that mother cannot realistically hope to make a successful application unless she can demonstrate that she can move forward. It seems to me that it is very much in the interests of everybody, and not least in the interests of EL herself, that any future litigation should be subject to the regulation of the court. It may well be that EL is not herself responsible for the whole of this history, but it is an unfortunate fact that the private law proceedings went on from 1993 until 1999 and that there has been litigation in the public law sphere since June 2001. Everyone, it seems to me, needs a break from the litigation. It will assist EL because if she is made to go through the permission filter imposed by a section 91(14) order she will have the advantage of an early indication from a judge as to whether she does or does not have a realistic basis for making an application to the court. If she does, then no doubt permission will be granted and she will be able to make her application. If she does not, then permission will not be granted and that, I cannot help thinking, is something as much in her interests as in the interests of everybody else.”[21]In paragraphs 67 to 69 the judge gave his reasons for making an order designed to last throughout J’s minority. These were largely based on his disability, but the judge also took into consideration that fact that EL had told him more than once during the course of the hearing that she would never change her mind and would stop at nothing to try and achieve her objective, namely the setting aside of the care order and J returning to her care. The judge was concerned that if he made a time-limited order, that would encourage EL to make an application as soon as the time limited expired.

The attack on the judgment

[22]In her appellant’s notice, EL relies on alleged violations of her ECHR rights, notably under Articles 3, 6, 8, 10 and 14. In section 8 of her notice, she says: - “The judge erred in law and was plainly wrong by upholding the previous orders made from 2002 to date. Despite having senior counsel at original hearing I was still not present. I believe that violates my right to a fair trial. The judge refused to acknowledge the legal points. I put to him and at least 58 points of law that were erroneous in the original care order / judgment of DJ Moorhouse. My rights were violated by agreeing I must have therapy before I can have my son overnight when the courts have praised my parenting but criticised me for not agreeing with social workers. This is degrading. I believe the judge erred in law by accepting hearsay evidence over factual evidence. I believe the judge was plainly wrong to state “no tangible evidence is needed to prove significant harm” when pushed the judge agreed my son J “must have suffered distress at some point” being the core of this case. The judge was plainly wrong not to find the local authority culpable having followed no proper protocols, i.e. never having had J on the “At Risk” register. The judge was plainly wrong to discuss with social worker finding (sic) (Judge biased). Plainly wrong to dismiss Lisa Blakemore-Brown’s report and to disregard points of law over hearsay.”[23]The relief which EL seeks is: “a new trial to be ordered in front of three appeal judges and or to be referred to the House of Lords and or given permission to apply to the House of Lords”.[24]In my judgment, with one exception to which I shall come, there is nothing in Part 8 of EL’s Appellant’s Notice which raises an arguable ground of appeal. In relation to ECHR, Article 3 reads:
“No one shall be subject to torture or to inhuman or degrading treatment or punishment”
. Article 3 is simply not engaged on the facts of this case. The issues described by EL as “degrading” in Part 8 of her Notice are not “inhuman or degrading treatment” within Article 3.[25]Article 6 is engaged, but, with the possible exception of the order under CA 1989, section 91(14) not infringed. EL had a lengthy hearing before the District Judge, in which she was represented by experienced leading counsel. The District Judge listened to all the evidence. Before Munby J, EL was not represented, but self-evidently had an abundant opportunity to state her case. The fact that she could not physically attend the hearing does not mean that Article 6 was breached. As in the hearing before me, she was able to participate throughout by telephone link. Equally, The fact that she disagrees with Munby J’s decision does not mean that there was a breach of Article 6.[26]Article 8 is likewise engaged. Every removal of a child into care involves a breach of both the child’s and the parents’ right to respect for their family life. But here, both before the District Judge and before Munby J, Art 8(2) is manifestly in play. The local authority’s interference with EL’s right to respect for her family life is in accordance with the law (section 31 of the Children Act 1989) and was necessary for the protection of J’s health and the rights of both J and his father. Because every member of a family whose child is taken into care (including, of course, the child him or herself) has a right to respect for their family life, every decision by a court in care case involves the court balancing the rights of all those involved and reaching a conclusion which is in the best interests of the child concerned. Thus the breach of EL’s rights under the first limb of Article 8 is only one part of the picture. There can be a breach of those rights without Article 8 as a whole being infringed. That is plainly the case here.[27]Article 10 (freedom of expression) is manifestly not engaged, nor is Article 14 (prohibition of discrimination). There is, accordingly, nothing in any of EL’s arguments under ECHR.[28]In the course of her argument, EL referred me in particular to the case of Langley v Liverpool City Council [2005] EWCA Civ 1173, recently reported at [2006] 1 FLR 342. In that case, the parents of four children brought proceedings against a local authority and the police. The former had obtained an Emergency Protection Order (EPO) under CA 1989 section 44. However, in relation to one of the children, the police removed him from home in the purported exercise of their powers under CA 1989, section 46 (Removal and accommodation of children by police in cases of emergency). The judge held that such a removal was unlawful, as once an EPO had been made, the powers of the police were limited to attending in order to assist with a warrant under CA 1989 section 48(9).[29]The judge also held that the local authority had acted in breach of the family’s rights under ECHR Article 8, because it should have obtained a prohibited steps order under CA 1989 section 8 (designed to prevent the father, who was registered blind from driving the children in his car) rather than the more drastic EPO. However, he regarded the police’s response as proportionate in the circumstances and he did not, accordingly, consider them liable to the family under Article 8.[30]The family appeared against the ruling that the police had not breached their ECHR Article 8 rights: the local authority appealed against the finding that taking out an EPO was a breach of the family’s rights under ECHR Article 8.[31]This court held that both the police and the local authority were liable to the family, but allowed the local authority’s appeal against the finding that the EPO had breached the family’s rights under ECHR Article 8. It held that the police could exercise their powers under CA 1989 section 48 when an EPO was in force, but that on the facts of the particular case there had been no compelling reason to remove the child in question, and the removal was, accordingly, unlawful. The decision to take the EPO had not been unlawful and had thus not breached the family’s ECHR Article 8 rights, but the local authority had assisted in the unlawful removal of the child, and was, accordingly, liable to the parents and the child for that unlawful removal. Thorpe LJ described the judge’s conclusion that the local authority should have applied under section 8 for a PSO rather than under section 46 for an EPO as “astonishing”.[32]I do not think that this decision assists EL. The circumstances in which the police removed J from his mother’s flat on 10 June 2001 are clearly set out by the District Judge on pages 2 and 52-53 of her judgment. On that evidence, which I do not believe to have been substantially in dispute, the police were manifestly entitled to act under CA 1989 section 46. The local authority took care proceedings the following day. Nothing done on 10 June 2001 can be properly described as unlawful, and insofar as J’s removal constituted a breach of ECHR Article 8(1), it was plainly justified under ECHR Article 8(2). It does not, accordingly, seem to me that Langley v Liverpool City Council has any application to EL’s case[33]This is the only point in the case which troubles me. Although the terms of CA 1989, section 91(14) are well known, I propose, nonetheless, to set them out: - On disposing of any application for an order under this Act, the court may …… order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without the leave of the court.”[34]This sub-section has attracted a very substantial jurisprudence, largely now collected in the decision of this court in Re P (a child) (residence[35]This is a highly unusual case, and I cannot, I think say that in principle it was not open to Munby J to make an order under section 91(14) There is a long history of litigation, and the judge cannot be criticised for saying that everyone in the case needed a break from it. The local authority shared and would need to continue to share parental responsibility with J’s parents. J’s contact with his mother was in the discretion of the local authority, and the guidelines for its possible increase were in place. The onus was on EL to undertake necessary therapy. Further applications to the court were unlikely to serve any useful purpose. A section 91(14) order was, accordingly, appropriate for the reasons the judge gives.[36]What troubles me about it is the fact that the judge has made an order with the express condition that it was to last throughout J’s minority, notwithstanding the fact that because of J’s disability, his 18th birthday is unlikely to have the significance it would have for most children. Whilst it is plain that an order under CA 1989 can be made without limitation of time, I do not recall a case in which the court has, in effect, said that there should never be a further application to the court in relation to a child without the court’s permission.[37]Whilst the implementation of the care plan is plainly a matter for the local authority, and not to be overseen by the court, there are plainly legitimate concerns in relation to J’s placement with his father, and it is by no means out of the question that the local authority may, in the future, have to remove J from his father’s care. EL retains parental responsibility for J, and given the limitations on a parent’s power to challenge any change by a local authority in its care plan, I am left with a sense of unease at an order which effectively prevents EL making any application to the court without permission throughout J’s minority.[38]I accept, of course, that EL’s exercise of parental responsibility is subject to the local authority’s power to determine the extent to which she meets it – see Children Act 1989, section 33(3). I appreciate, equally, that section 91(14) does not place an absolute prohibition on applications: it provides a filter which, as the judge indicated, will allow through an application which has a realistic basis. I understand also that it may be argued that a section 91(14) order which is expressed to last throughout a child’s minority is no different from a section 91(14) order expressed to be without limitation of time. I remain, nonetheless, concerned.[39]I have, accordingly, decided that I would like further argument in this case on the exercise of the court’s jurisdiction to make orders under CA 1989, section 91(14) which are subject to conditions such as that imposed in the instant case, where the order is expressed to last throughout the minority of the child concerned. I stress that I am not giving permission to appeal at this stage: I am simply adjourning that part of the application for further argument. The balance of EL’s application will be dismissed.[40]In order to assist the court in addressing this issue, I propose to invite CAFCASS Legal to appoint an advocate to the court to advise the court on the proper limits of section 91(14). I propose, if possible to identify at least one other case in which the same or a similar point has arisen, so that the court can, if possible, give guidance to the judiciary on the extent to which it is permissible to impose conditions on CA 1989 section 91(14) orders.[41]My order will therefore be: - 1. Save as provided in paragraph 2 of this order, EL’s application for permission to appeal against Munby J’s order of 24 June 2005 is dismissed. 2. El’s application for permission to appeal against the time limit imposed in relation to the order under section 91(14) of the Children Act 1989 contained in paragraph 6 of Munby J’s order of 24 June 2005 is adjourned to be heard on a date to be fixed by a two judge court without notice to any of the other parties. 3. CAFCASS Legal is hereby invited to appoint an advocate to the court to attend the hearing identified in paragraph 2 of this order and to advise the court on the court’s jurisdiction to make orders under section 91(14) of the Children Act 1989 which contain conditions governing the circumstances in which any further application to the court can be made or which are expressed to last throughout the minority of the child or children concerned.[42]Finally, I said I would refer to the fact that part of Munby J’s order was itself made on an application for permission to appeal. Section 55(1) of the Access to Justice Act 1999 provides as follows: - “Where an appeal is made to ….. the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that –(a) the appeal would raise an important point of principle or practice; or(b) there is some other compelling reason for the Court of Appeal to hear it.”[43]In my judgment, neither proviso applies here. Accordingly, and for all the reasons I have set out, EL’s application for permission to appeal must be refused, with the exception of the issue under CA 1989 section 91(14) which I have identified in paragraph 41 of this judgment.

order

child’s welfare) [2000] Fam. 15. In making or declining to make such an order, the court is plainly exercising a discretion. The question for me, therefore, is whether or not, in making such an order, the judge exceeded the proper bounds of his discretion.