A (a child) and M (a child), Re [2008] EWCA Civ 137

Case No B4/2007/2653[2008] EWCA Civ 137
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(HIS HONOUR JUDGE HUGHES)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 7th February 2008
Before
LORD JUSTICE WALL
Between
Applicant MOTHERApplicant
IN THE MATTER OF A (A Child) AND M (A Child)
(DAR Transcript of
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THE APPLICANT MOTHER APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is an application by Mrs FM for permission to appeal against care orders made by HHJ Hughes, sitting in the Watford County Court on 14 September 2007. The judgment under review was given on 12 September, two days earlier. The case concerns two girls, who are Mrs FM’s daughters: A, now nine, and P who is four. The orders made by the judge were that both children should be in the care of the local authority, but the care plans were that each girl should live with her father: that is Mr A in the case of A and Mr M in the case of P.[2]The indication was that if all went reasonably well the local authority would apply to discharge the care orders at about the end of a year but in the meantime, although the local authority was willing to promote sibling contact and to review maternal and sibling contact at reviews, there was a very limited order for contact made in Mrs FM’s favour. The consequence is that the contact she has had with the children has been firstly supervised by the local authority and latterly, she says, has, in effect, broken down completely.[3]The judge conducted a lengthy hearing and Mrs FM was represented by counsel, who plainly took a full and very active part in the proceedings. There are several references in the papers to counsel’s cross-examination of a number of the witnesses.[4]Mrs FM’s attack on the judgment is not so much on what the judge decided on the material that was available to him. She was frank enough this morning to say to me that she was not saying that the judge’s decision was wrong on the information with which he had been provided. Her complaint is that the judge was provided with inaccurate, and in some instances perjured information, all of which was designed on the part of the local authority to paint Mrs FM in a bad light with the result that she has, effectively, in her eyes, been branded a bad mother, unable to care for her children, who she says need her and should be living with her.[5]As I explained to Mrs FM, both on this occasion and on a previous occasion when she appeared in front of me, what has happened since the order was made is really none of my business. If the order has not worked out in the way the judge envisaged, then Mrs FM’s remedy is to go back to the judge and either apply to discharge the care orders or, at the very least, to vary the contact orders so that she has proper contact with the two girls. My function is to look at what the judge did, to see whether what the judge did was permissible, whether the findings that he made were open to him on the evidence and whether the conclusion he reached was one which he could properly reach in the exercise of his discretion. Provided the judge has obeyed the rules, made appropriate findings of fact and exercised his discretion in what he properly perceives to be the best interest of the children, then there is nothing this court can do. This court simply cannot interfere.[6]In that regard I therefore go to the judgment, which is very long. It runs, in all, to some 133 paragraphs and the judge had a great deal of evidence as well as the opportunity in particular to see Mrs FM herself in the witness box. The judge had no hesitation in finding that the threshold criteria under section 31 of the Act were satisfied. That is really not the burden, I think, of Mrs FM’s complaint. There was plainly material on which the judge could so find. The relationship between the mother and Mr M had been very difficult and had involved domestic violence, which the children had witnessed, and there was a particular incident in October 2006 where the judge found that A had disclosed to a teacher that her mother had made threats against her, and the local authority took proceedings as a consequence. The judge’s summary in paragraph 7 of his judgment was:
“The picture which emerges from this fairly brief resumé of recent family history is one of a disruptive family life punctuated with domestic strife and arguments in the presence and hearing of these children, coupled with poor parenting, which caused these children to suffer significant emotional harm.”
That in my judgment was a conclusion the judge was plainly entitled to reach on the evidence before him and therefore he had then to decide what orders, if any, should be made in relation to the children and what their welfare required him to do.[7]As I say, the judge had an abundance of evidence. He had an independent social worker, who reported on Mr A and his partner, and who concluded that they were capable of caring for one child. There was a report from a senior family support worker from the NCH, who reported on Mr M and who likewise found him an appropriate parent to care for a child. There was a report from AR, who produced a parenting assessment. There was also a report from a consultant child psychiatrist who was invited to take an overview and there was a report on the mother herself from Dr G, who made it perfectly plain that in his view there was nothing in relation to the mother’s mental health which would prevent her caring for her children. Insofar as Mrs FM requires assurance, it seems to me quite clear the judge was satisfied that, whilst he did not accept all of Dr G’s conclusions, there was nothing wrong with the mother’s mental health. The judge, as I say, conducted a very careful review of all that evidence and various of the witnesses were cross-examined in front of him. He made very clear findings on what evidence he accepted and what evidence he rejected.[8]The particular complaint which Mrs FM has relates to the social worker in the case whom she says fabricated her evidence and deliberately was out to do Mrs FM down. That is a lady called BA. The judge heard her over a period of time. He heard her cross-examined fully and vigorously by counsel instructed on behalf of Mrs FM and he came to the clear view, having listened to the extensive cross-examination, that Mrs FM’s complaints about the social worker were not well-founded. Indeed he said of Mrs FM that she seemed:
“more preoccupied with her battle with social services rather than address the very real concerns in relation to the care of her children. It is consistent, in my judgment, also with the mother’s battles with the fathers, to the detriment of the interests of the children, and symptomatic of her behaviour when challenged.”
[9]So the position was that the judge heard all the evidence and made clear findings. In paragraph 54, for example, he was satisfied that whilst in her mother’s care A was underachieving at school, and two years or so is a measure of underachievement which had been suggested in this case, a suggestion he had no reason to doubt. He was satisfied that A had great problems in relation to socialisation which went to her educational needs status at school and that her problems were capable of remedy in the right environment. That was the evidence of a representative called on behalf of the education authority, which the judge plainly accepted. As I say, the judge very carefully went all through the evidence in every respect, making findings and reaching conclusions. I have tried to explain to Mrs FM, but I repeat for the benefit of this judgment that the function of a judge at first instance is precisely that. He listens to the evidence. He reads the documents. He listens to cross-examination and he makes up his mind what evidence he accepts and what evidence he rejects.[10]Now Dr W, for example, the consultant psychiatrist, gave evidence and Dr W’s evidence was clear:
“…that both A and P had suffered significant harm and described the day-to-day care which they had received from mother as haphazard, lacking in boundaries and consistency. [Dr W] said he did not think that A or P had the need for mental health treatment and was clear that the mother did not have the ability to be a good parent for either of them; she had no insight into her difficulties and either denied or minimised problems or failures on her behalf.”
[11]That was a view of an independent psychiatrist instructed in the case. The judge heard him cross-examined and concluded that he was right and that his evidence was correct. The judge plainly accepted the expert evidence that were Mrs FM to resume the role of primary carer for either child there had to be a strong probability that things would not work out in the interests of the children. Indeed the judge was satisfied, as he says in terms in his judgment, that the children could not properly live with their mother. As I say, these findings were all made in the context of very severe cross-examination by counsel on Mrs FM’s behalf and any suggestion that she was not appropriately represented or did not have a fair crack at the whip at the hearing is plainly belied by the transcript and the judge’s findings in relation to cross-examination in particular.[12]So the evidence goes on over page after page, in which the judge analyses what he listened to and comes to his conclusions. The main conclusion to which he came at the end of the day were that the children could not live with their mother. Each needed to live with their respective fathers who would care for them. They needed to have inter-sibling contact. They needed to have contact with their mother but if the contact with their mother was to be successful there needed to be a substantial change on Mrs FM’s part and in particular she needed to accept the placements and not seek to undermine them.[13]So there it was. At the end of his judgment, therefore, the judge reached the view that that was the right course in the interests of the children and, as I say, Mrs FM this morning accepts that on that evidence the judge really had no choice but to reach the conclusions which he did.[14]She says several things. She says that the evidence was tainted. Well, that I simply do not accept, given the care in which the judge examined it. The simple fact of the matter is Mrs FM does not agree with it. That is not the same thing at all. She says that she wants to clear her name. Again, with great respect to her, that is not the function of the proceedings. She has not been designated “a bad mother”. What the judge has done is to decide that the children’s welfare requires them to live with their respective fathers. They are not, in the care system, removed from Mrs FM’s influence entirely. Indeed she would be able to have greater contact with them were she able to recognise the criticisms which the judge made of her and adjust her behaviour accordingly. The judge thought care orders were required, particularly in relation to Mr M, because he was likely to allow unauthorised contact between Mrs M and his daughter, and the judge gives examples of situations which justified that finding.[15]Furthermore the judge, in addition to the wealth of professional evidence, had the support of the guardian who was independent; who represents the children; whose reports the judge found balanced, fair and child-centred; and the guardian supported the course of action which was proposed by the local authority. There was, in other words, as I think Mrs FM accepts, overwhelming evidence presented to the judge that the course proposed for the children to live with their fathers under care orders was entirely appropriate. At the conclusion of his judgment the judge summarises the position at paragraph 120 onwards when he finds not only the threshold satisfied but the course which is being proposed as being the right one.[16]Of course this is not the end of the children’s lives. Mrs FM tells me today that in her view the contact is not working as it should. The local authority is deliberately attempting to curtail her contact to try and separate her off from the children and I explained to her that if that was her view her remedy was to go back to the judge and ask him to vary the order. I have looked at the order as the judge made it in September of last year and, as the judge made it in September of last year, I am entirely satisfied that he was entitled to find the threshold criteria satisfied and was entitled, going on from there, to decide that the children’s best interests required them to live with their respective fathers.[17]The judge was satisfied in paragraph 130 that the children could not return to Mrs FM’s care either now or in the foreseeable future but that it was vitally important that she played a part in their lives and that needed to be assessed further by the local authority against her behaviour in contact. So the case is not over. The case can and possibly should go back to the judge in due course to decide whether or not the care orders should be discharged and what should happen to the children and what contact Mrs FM should have with them. But as an exercise of discretion I can see absolutely nothing wrong in what the judge did. The judge was entitled to make the findings he did. I reject the suggestion that the evidence was perjured or false or made up. Mrs FM would be well advised to read the judgment through carefully once again and to reflect on her own behaviour and to consider whether or not she is the one out of step rather than everyone else. Her position in society and her wish to pursue a professional career – these are not matters with which I can deal. I am concerned simply with the judge’s assessment of the facts before him in relation to these two children and, as I have already said, he was satisfied, in my view correctly, that the threshold criteria were satisfied; and he made orders in exercise of his discretion which are perfectly acceptable and ones with which this court could not possibly interfere.[18]In these circumstances, although the matter has now been delayed some time, Mrs FM recognises that the solicitors she wanted to instruct cannot be available. They have written to the court on 29 January making their position clear. There is thus no point in an adjournment for her to be legally represented.[19]Mrs. FM has argued her case fully and carefully today. I have come to the clear conclusion that there is no prospect of success for any appeal and that to refer this matter to the full court would be simply to raise false hopes for Mrs FM, which would be bound to be dashed when the application came on for hearing. In these circumstances her application for permission to appeal must be dismissed.[20]As the matter is ongoing, however, and as Mrs FM is in person, I propose to direct that a transcript of my remarks be prepared at public expense and made available to Mrs FM.

Order

Application refused

Cited in 2 later judgments