B (Children), Re [2008] EWCA Civ 695

Case No B4/2008/0170[2008] EWCA Civ 695
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(HIS HONOUR JUDGE APPLEBY QC)
(LOWER COURT No: MA06C01437)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 21 st May 2008
Before
LORD JUSTICE LAWSLORD JUSTICE SCOTT BAKERLORD JUSTICE WILSON
IN THE MATTER OF B (Children)
(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Anthony Hayden QC and Miss Erica Carleton (instructed by Rowlands) appeared on behalf of the Applicants, the parents.
Miss Heather Hobson (instructed by Salford City Council) appeared on behalf of the First Respondent, the local authority.
Mr Bansa Singh-Hayer (instructed by Temperley Taylor) appeared on behalf of the Second and Third Respondents, the children by their Children’s Guardian.
Judgment
[1]By separate notices of appeal, unmarried parents, both represented by Mr Hayden QC and Miss Carleton, apply for permission to appeal against care and placement orders made in relation to two children by His Honour Judge Appleby in the Manchester County Court on 22 February 2008. The parents have each also filed notices of appeal against an earlier decision of the judge dated 24 December 2007; but Mr Hayden confirms the impression given by his skeleton argument, namely that they do not today press that proposed appeal, which has been overtaken by events. This hearing takes place by virtue of a direction by Wall LJ that the applications of the parents be considered at an oral hearing, on notice to Salford City Council (“the local authority”) and to the two children by their Children’s Guardian, and on the basis that, were permission granted, the substantive appeals should be heard forthwith. The local authority and the guardian oppose the grant of permission and, were it nevertheless to be granted, would oppose the substantive appeals.[2]The judge’s orders relate to the two younger of four children born to the parents, namely C, a boy, who was born on 2 October 1999 and is thus aged eight, and S, a girl, who was born on 5 February 2001 and is thus aged seven. The two older children are D, a boy, who was born on 8 May 1995 and is thus aged 13, and (as I will describe her) L, a girl, who was born on 26 May 1996 and is thus aged almost 12.[3]Irrespective of whether anyone is to blame for the situation and, more particularly, of whether this court should arguably set aside the orders under challenge, the parents have a profound and understandable grievance about the way in which the proceedings have developed before the judge. For, in a sentence, he has changed his mind in relation to the central issue before him. The central issue has been whether C and S should, like D and L, be placed into long-term foster homes, thus on the basis that they would have continuing contact with D and L and with the parents, or whether they should be placed for adoption and, specifically, in separate adoptive homes and on the basis that, while they would continue to have contact with each other, they would continue to have direct contact neither with D and L nor with the parents. Whatever their shortcomings, the parents are devoted to C and S and firmly contended before the judge that they should be placed into long-term foster homes. On 30 July 2007, following a five day hearing, the judge agreed with them that long-term foster homes were more in the interests of C and S than adoptive homes. On 7 February 2008, however, following a further three day hearing, the judge changed his mind, made care orders in relation to C and S upon a plan that they should be placed for adoption and also made placement orders in relation to them on the basis that the consent of, as he said, both parents should be dispensed with.[4]There is no doubt that for these children the rival merits of long-term foster care and adoption are very finely balanced. The thinking of the local authority has wavered; the thinking of other professionals has wavered; and, as indicated, the thinking of the judge has wavered. The basic question is whether the value to the two younger children of maintaining their links, through contact, with the two older children and with the parents, by allowing them to remain in foster care, outweigh, or are outweighed by, the greater permanence which usually attends adoption. But, irrespective of the judge’s final view, there are question marks against the ability of the local authority to find adoptive placements for C and S, particularly the former in the light of his age. Were adoptive placements not able to be found for them, the issue before the judge, and before us today, would be exposed as academic.[5]In January 2006 the local authority issued the application for care orders in respect of all four children. The parents had proved unable to care for them for reasons connected with alcohol misuse, domestic violence and, in the mother’s case, also drug misuse and mental health problems. At that time the father was in custody on remand referable to a charge of having assaulted the mother. Now the situation is reversed: for the mother is in custody on remand referable to a charge of arson in relation to the family home with intent to endanger life, in particular, so I understand, the life of the father. Notwithstanding the nature of the charge, the father says that he will refuse to testify against the mother and hopes that she will be acquitted and able to resume cohabitation with him. Throughout the proceedings it has never been the contention of either parent that they, or one or other of them, would be capable of resuming the care of any of the four children other than possibly in the distant future.[6]Between January and November 2006 the local authority were content that the four children should be placed with maternal relations. Then, however, they moved them into four different short-term foster placements. Since then C has moved into a second such placement, while S has remained in the same placement.[7]Early in the proceedings it was the intention of the local authority to present to the court a plan that the two younger children, as well as the two older children, should be placed in long-term foster homes. In November 2006, however, their permanency panel did not accept that such was the best course for the two younger children. Thus, by the time of the first long hearing before the judge, which began on 23 July 2007, the local authority’s care plan was that the two younger children be subject to separate adoptive placements on the basis that, given cooperation on the part of their respective adopters, they would continue to have contact with each other but that they would not continue to have contact either with the two older children or with the parents. In June 2007 the local authority had also issued applications for placement orders referable to the two younger children.[8]For the hearing in July 2007 Miss Lawton Baxter, then the Children’s Guardian, filed a report in which, notwithstanding earlier hesitation on her part, she contended that the sense of identity of the younger children with their family, and the need for it to continue to be cultivated by continuing contact with the older siblings and the parents, militated in favour of their being placed in long-term foster homes and that, for them, this factor outweighed the advantages of adoption. She had also instructed Miss Collier, an educational psychologist, to report to the court; and the latter’s report, confirmed in her oral evidence given at the hearing in July 2007, ran along the same lines. In particular Miss Collier identified important relationships both between C and the father and between S and L. Unfortunately Miss Lawton Baxter became ill during the hearing in July 2007 and was unable to give oral evidence. It was accepted, however, that she continued to favour long-term fostering for the two younger children and that her reasoning ran parallel with that of Miss Collier.[9]On Monday 30 July 2007, being the sixth day of the hearing, the judge disseminated a written judgment. He explained why he had concluded that long-term foster homes would be more in the interests of the two younger children than adoptive homes and why, accordingly, he was unable to approve the local authority’s care plans for them. Having summarised the evidence given to him, including the concession of the senior social worker that the issue was very finely balanced, his summarised his findings as follows:
“1. The Court accepts that statistically there is a greater likelihood of a breakdown in placement in long term foster care than an adoptive placement. 2. The task of finding suitable adoptive placements for the two children would not be easy but achievable within a realistic timeframe. 3. The loss of contact for all 4 children if [C] and [S] were placed for adoption would be significant and could have lasting detrimental consequences. 4. Indirect contact, however imaginative, is an inadequate substitute for direct physical contact when it comes to children of the ages we are dealing with. 5. The evidence of witnesses who have had direct contact with the children carries greater weight than the evidence of those who have had to rely on their information from other sources. 6. In circumstances where an expert is instructed by the Court to consider the psychological effect certain outcomes will have on the children and no other expert is called to refute those findings the Court should follow such advice unless to do so would in the judgment of the Court be detrimental to the welfare of the children.”
Thus the judge invited the local authority to consider amendment of their care plans referable to the two younger children and, meanwhile, made only further interim care orders. Nothing was done in relation to the applications for placement orders: all aspects of the final determination were adjourned.[10]On 17 September 2007 there was a further hearing before the judge. The local authority informed him that, in the light of his judgment, they proposed to amend their care plans in order to propose long-term foster placements for the two younger children. In a sense the local authority did not have much option in that, in the light of the judge’s presumed refusal to make placement orders, they could not have placed the children for adoption. Upon learning that Miss Lawton Baxter remained ill, the judge directed the appointment of another Children’s Guardian; and, two weeks later, Mr Langhorn was duly so appointed. In the belief that the only remaining issue of substance related to the quantum of contact which the two younger children should have with each other, with the older siblings and with the parents, the judge also directed that Miss Collier should file an addendum report in that regard.[11]At the next hearing, however, which took place on 13 November 2007, there was a dramatic development. The solicitor for the children told the judge that Mr Langhorn took a different view from that taken by Miss Lawton Baxter and firmly considered that the interests of the two younger children lay in adoption. She asked the judge to reconsider his decision dated 30 July 2007. The local authority joined in that request. The parents opposed it on the basis that following a protracted inquiry a decision had been made and should not be revisited. The judge directed that this preliminary issue be resolved at a further hearing.[12]The further hearing took place on 21 December 2007. At the conclusion of the hearing the judge announced his decision and indicated that a written judgment would follow shortly. His decision was that the issue whether the two younger children should be placed in long-term foster homes or for adoption could and should be reopened by him at a further hearing.[13]On 24 December 2007 the judge disseminated the short written judgment by which he explained the reasons for the decision announced three days earlier. He stated that he made seven findings as follows:
“1. The Court acknowledges the exceptional if not unique circumstances which have arisen in this case. 2. There can be no question but that this Court is still seized of the applications that have been made by the Local Authority including the applications for placement orders in respect of [C] and [S]. 3. The Court’s paramount consideration must be the welfare of all 4 children as referred to in the judgment of 30.07.07. 4. Whilst the Court recognises the distress that any postponement of the final decision may cause to the parents this cannot take priority over the Court’s responsibility to the welfare of the children. 5. For the Court to decline to receive evidence from a guardian who has been appointed by the Court to act in the best interests of the children would be to be neglectful of its duty to these children. 6. In so far as the guardian may be presenting no more than a second opinion on a finely balanced case such opinion will and should be open to scrutiny by the parties by way of cross examination and must then be weighed in the balance by the Court. If there is further evidence which the guardian considers relevant to the determination of the future welfare of the children then again this will be considered by the Court. 7. The Court is unlikely to regard the changed circumstances of the mother as a significant factor whatever the outcome of the criminal proceedings in determining what is principally an issue of inter-sibling relationships.”
Then under a heading “Decision”, he wrote:
“The Court will therefore allow the guardian’s solicitor to present further evidence in the form of a report from the new guardian who should address such issues as he sees fit in acting in the best interests of the children. It would also be appropriate for the child psychologist Pauline Collier to review her own position in the light of any significant changes identified by the guardian. The Court gives leave for Ms Collier to again see the children if thought appropriate. Such further evidence must then be open to examination at a further hearing. The Court does not view the allowing of further evidence to be anything more than ensuring that all relevant information is before it to assist in making its final decision. This is not a rehearing. The Court has already reached a view which will no doubt be maintained unless there is significant evidence to the contrary. The Court recognises the potential delay that this decision brings to the conclusion of these proceedings but this, though regrettable, is unavoidable given the circumstances that have arisen.”
[14]On 25 January 2008 the mother filed in this court an Appellant’s Notice by which she sought to challenge the decision of the judge dated 24 December 2007 to reopen the substantive issue. By then the further substantive hearing before the judge had been fixed to begin on 4 February 2008. The parties and indeed the judge himself sought guidance as to whether, in the light of the mother’s proposed appeal, the hearing should proceed. Wall LJ gave informal guidance, which was contained in a letter from this court to the mother’s solicitors. He expressed the view that the substantive hearing should proceed; that the proposed appeal against the order dated 24 December 2007 was premature; and that the judge “was entitled to order a review of the findings in light of fresh evidence and in view of the fact that no final order had yet been made in relation to the care of the two children.” Wall LJ observed that, were the result of the substantive reconsideration to be unfavourable to the mother, she could attempt to appeal against that decision.[15]Thus the further substantive hearing began on 4 February 2008. On 7 February 2008, after three days of evidence, the judge announced his decision, again on the basis that explanation for it would be contained in a written judgment to follow; and on this occasion his decision was that the two children should be placed for adoption along the lines of yet further care plans which I assume had been placed before him and that they should be the subject of placement orders, in relation to which he purported to dispense with the consent of both parents.[16]At the hearing in February 2008 Miss Collier again gave extensive oral evidence to the judge. It is clear that she was substantially more ambivalent about the advantage of long-term foster care than she had been when giving evidence in July 2007. In his written judgment disseminated on 22 February 2008

the judge summarised her evidence as follows:

“Miss Collier accepted that in her initial report in February 2007 she had expressed the view that adoption should be seriously considered. However by July 2007 she felt that the strength of the family ties would make adoption very difficult. By the time of the Professionals’ Meeting on 25th January 2008 her position was one of greater pessimism over long term foster care rather than a greater optimism for a successful outcome for adoptive placements. This pessimism had continued during the time in which Miss Collier had given evidence. By the conclusion of her cross examination by Mr Singh-Hayer on behalf of the guardian she felt that after reading the guardian’s report and ‘after a lot more thinking over the last two days’ she was more inclined to say that adoption should be considered but she still thought it would be extremely difficult for [C] and [S] to accept another Mum and Dad.”
[17]Today Mr Hayden presses upon us that that was too summary, and not entirely accurate résumé of the evidence which Miss Collier had given to him in February. I do not accept Mr Hayden’s criticisms in that regard and I would cite six brief extracts from the transcript of Miss Collier’s evidence now provided to us which in my view justified the judge’s résumé and also, and vividly, betrayed her ambivalence. 1:
“At the professionals meeting [on 25 January 2008]… I think my concern was…that in terms of long-term fostering my approach was more a glass half full and everyone else seemed to think that long-term fostering was a glass half empty” 2: “I think at the professionals meeting I said I’d become more optimistic about the possibility of adoption… [but] perhaps I meant that I had become more pessimistic about long-term fostering.” 3: “one of the changes in me is that my views in long-term fostering as an answer have been to some extent undermined by everything I have heard” 4: “it also seems…that there are many more adoptive placements than there are foster placements… So I think, although I still feel strongly that adoption would be very hard for these two children, I have a sense of being overwhelmed…by…those resource possibilities not to do with the psychological needs of the children” 5. “from the point of view of their psychological needs, yes, I still would say that [long term fostering is the preferable option].”
Finally (this being an important quotation, to which the judge referred and on which Mr Hayden has placed considerable reliance in his oral submissions today): 6. “I think I’m more inclined to say that [adoption] should be considered but I cannot get past my view that it will be extremely difficult for [C] and [S] to make that switch from having a mum and dad that they know so well to a new mum and dad.”[18]Although the mother was brought from prison to court for the hearing she did not give oral evidence to the judge. The father, however, did so. He reiterated his plea that, in their interests, the two younger children should be placed into long-term foster homes and reiterated that he had a particularly close relationship with C and furthermore that there was a close bond between L and S. There was, however, other evidence before the judge that the bond between L and S had, since July 2007, been weakened, partly as a result of L’s move in September 2007 from the school which she and S had both attended. The judge was apprised of the fact that, since her remand in custody in November 2007 following breaches of her conditions of bail, the mother had not seen any of the children but that she hoped that they would be brought to prison to see her and, of course, hoped that her incarceration would in any event by short-lived.[19]Oral evidence was given, finally, by Mr Langhorn. In his judgment

the judge summarised his evidence as follows:

“Mr Langhorn was firmly of the view that adoptive placements should be sought for both [C] and [S] as the best chance of achieving security and permanence for each of the children. He felt that placement needs had to take priority over direct contact. He stated that the prospect of [S] being in long-term foster care for the next 12 years would do irreparable damage to her. Speaking generally he said that children who grew up in long term foster care experience a large number of moves and that continued contact with the birth family can be disruptive.”
[20]In his written judgment the judge followed his summary of the evidence with a section entitled “SUBMISSIONS AND DECISION”. He wrote:
“It is clear from the submissions that I have heard that there is no perfect solution in this case. It has to be a balancing exercise to achieve the best overall outcome for all the children. But the issue that was before the Court in July 2007 has not changed. It is right that the starting point of my findings must be the position as stated in my judgment in July 2007. In December 2007 I determined to hear additional evidence from the new guardian and for the conclusions of the guardian to be reviewed by the child psychologist. Pauline Collier in her evidence was clearly concerned at the pessimistic view taken by the guardian as to the likely breakdown in placements for [C] and [S] if placed in long term foster care. That is not evidence which was before the court in July 2007. It was also generally recognized (except perhaps by the parents) that [L] and [S] were no longer as close as they had been in July 2007. This was inevitable given the reduction in contact and the change in [L’s] schooling. In my judgment there has been significant new evidence now placed before the Court which requires me to review the benefits of an adoptive placement over that of long term foster care and to weigh in the balance those benefits against the reduced effect the absence of direct contact will have on the children. This loss of direct contact will still be significant and work would have to be done to ameliorate against the harmful effect it would have on all four children. I said in my judgment in July 2007 that indirect contact is no substitute for direct contact and I do not retract from that statement. But there are ways that, with imagination, the benefit of indirect contact can and should be enhanced. I have as yet made no reference to the changed circumstances of the mother and the inevitable short and long term effect this will have on all the children. By itself this would not have been sufficient to change the balance but it is a factor which needs to be taken into account when reaching a final decision. I now find on balance that the benefits that [C] and [S] would receive from an adoptive placement do outweigh the loss that all the children will suffer by the absence of direct contact. The possibility of a long term foster placement breaking down is more significant than had hitherto been considered and must be taken into account. [Miss] Collier cautioned against the prospect of adoptive placements being found, particularly for [C]. This is recognized by the Local Authority in their care plan for [C] in that they are to be both looking for both types of placements for the first 6 months before concentrating on a long term foster placement alone. It should not be for the Court to deny [C] at least the chance of an adoptive placement being found on the basis that the finding of prospective adopters will not be straightforward.”
Then, under a section entitled “ORDER”, the judge stated that he approved the further revised care plans of the local authority and made full care orders in respect of all four children and placement orders in respect of C and S. In that regard the judge added:
“Furthermore the Court dispenses with the consents of both parents, finding as it does that it is in the best interests of these children for the remainder of their lives that adoptive placements be sought.”
That sentence, to which I will return, contains at any rate one obvious slip. For, in that the father does not have parental responsibility for the children, his consent did not fall either to be given or to be dispensed with. In effect therefore the judge was there dispensing with the mother’s consent.[21]I have indicated that the parents no longer pursue their appeals against the judge’s decision dated 24 December 2007. They certainly contend that, in the event, the evidence received by the judge in February 2008 did not entitle him to change his mind; but they no longer argue that he was not entitled to set up the further hearing for the purpose of reopening the issue determined in July 2007. In my view the parents’ decision not to prosecute their appeals against the earlier order is wise. I assume that Mr Langhorn thought long and hard before he decided to announce his firm disagreement with the decision dated 30 July 2007 and, for that matter, with the views of his predecessor. But, in that he had become the professional charged with responsibility for presenting to the court the interests of the children as he saw them, there was in my view no way in which the judge could have properly declined his request for his views about the optimum programme for their future to be considered. It is clearly established that, in the exercise of its semi-inquisitorial jurisdiction on behalf of children under the Children Act 1989, the court has power to review even clear findings as to past fact, for example that a father or stepfather perpetrated acts of sexual abuse on a child: see the decision of this court in Re S (Discharge of Care Order) [1995] 2 FLR 639. For the judge in the present case to decide that he could and should revisit the fundamental issue, relating not to past fact but to future programme, was in my view all the more obvious: although the parents could properly claim that the issue had seemed to have been definitively determined by his judgment dated 30 July 2007, the proceedings were far from at an end; no full care orders had been made; issues at any rate about contact were acknowledged to remain; and the local authority’s applications for placement orders had not even been dismissed. Provided that he started from the proposition, as in his judgment dated 24 December 2007 he said that he would, that he had already reached a view in relation to the fundamental issue which he would no doubt maintain unless there was significant evidence to the contrary, I consider that, unfortunate though it was and unfair to the parents though it must have seemed, he was right to reconsider it.[22]Mr Hayden’s attack, therefore, is upon the judgment dated 22 February 2008 and, in particular, upon what he contends to be the paucity of material to which the judge adverted as leading him to change his mind. Clearly the judge has an aversion, as many of us do, to the modern tendency towards long, diffuse judgments. But, says Mr Hayden, the judge’s economies of presentation went too far; or, to put the matter the other way, the articulation of his reasoning went not far enough.[23]It is clear, says Mr Hayden, that in his second substantive judgment the judge attached considerable significance to the statistics which indicate a greater likelihood of the breakdown of what are intended to be long-term foster placements, with the prospect that the home life, the relationships and the schooling of a child in long-term foster care are interrupted by, perhaps, a series of moves prior to adulthood. There is no doubt that this spectre was firmly pressed upon him by the local authority and in particular by Mr Langhorn and that, under the weight of it, the opinion of Miss Collier had to some extent buckled. But, as Mr Hayden points out, such statistics were the subject of evidence given to the judge by the local authority in July 2007 (for example as to the alleged failure of 43% of all “long-term” foster placements within five years) and they were referred to in his first substantive judgment, as Mr Hayden today demonstrates. Where, he asks, is the dramatic fresh development, of a factual nature, justifying the judge’s volte face? The real change, contends Mr Hayden, lay only in a quirk of fate, namely in the replacement of one guardian’s professional appraisal by that of another following the former’s indisposition.[24]I have considerable sympathy, at one level, for Mr Hayden’s submissions. In the end, however, I conclude that it is not arguable that it was not open to the judge to change his mind by reference to the evidence which he received in February 2008. The evidence which he had received in July 2007 gave rise to what was acknowledged on all sides, and in particular by the judge, to be a very borderline decision; and in my view, while the judge had been right to indicate on 24 December 2007 that such evidence as was said to displace it would have to be “significant”, not much was therefore needed in order to tip the balance towards the alternative conclusion that the interests of the children lay in adoption, were such to be achievable. In circumstances in which in February 2008 the judge was faced not only with a psychologist who had retreated from a recommendation of long-term fostering to virtual neutrality but also with a very firm presentation by the new guardian, apparently unshaken by cross-examination, to the effect that adoption, if achievable, was clearly preferable for the children and that, by contrast, long-term fostering might very well be seriously detrimental to them, I consider that it was clearly open to the judge to change his mind. The weakening of the bond between S and L, which had been a not unimportant factor in the decision in July 2007, was also rightly weighed, as, to a lesser extent, was the question-mark over the mother’s ability to maintain her relationship with the children in a normal environment.[25]In relation to the judge’s decision to make the placement orders, Mr Hayden complains, first, that the judge did not expressly remind himself of the matters to which, by s.1(4) of the Adoption and Children Act 2002, he was required to have regard. In particular, Mr Hayden stresses today that, by s.1(4)(f), the judge was required in particular to have regard to the relationships which the two children had with the members of their biological family and the value thereof to them. I reject that criticism because, notwithstanding the absence of express reference to the subsection, the judge clearly had the loss of links with the biological family following adoption clearly in mind as the principal factor in favour of long-term foster homes. Indeed it appears, upon our enquiry, that there was, at any rate during the hearing itself, no express reference in court on the part of the advocate to the provisions of s.1(4) of the Act. Mr Hayden complains -- and this is not something of which he has made much in oral argument, but it has featured in his skeleton argument and is, with respect, worthy of consideration -- that the judge’s treatment of the dispensation with the consent of the mother was summary and flawed. With respect to the judge, I am surprised that he chose to address dispensation not in the body of his judgment but in the articulation of his orders; and, more importantly, that, notwithstanding that he is no doubt well aware of the terms of s.52(1)(b) of the Act of 2002, namely that he must be satisfied that “the welfare of the child requires the consent to be dispensed with”, he chose -- and in a reserved judgment -- to express himself in words weaker than those mandated by s.52(1)(b). For he purported to justify dispensation by asserting that the best interests of the child lay in adoption and he failed to deploy the forceful verb deliberately chosen by Parliament in this regard, namely that the child’s welfare “requires” consent to be dispensed with, a word the significance of which has been stressed yesterday in a decision of this court, namely P (A child) [2008] EWCA Civ 535. It is, however, fanciful to consider that, had the judge at any stage, even after dissemination of his judgment, been requested by counsel to address the precise terminology of s.52(1)(b), he would, in the light of the gist of his judgment, have said other than that in his opinion the welfare of the children did indeed “require” the mother’s consent to be dispensed with. So, while such was an error which in my opinion should not have crept into the judgment, I cannot classify it as the arguable basis for a successful appeal.[26]My view is that permission to the parents to bring these appeals should be refused.[27]I agree.[28]I also agree.

Order

Applications refused