N-F (Children), Re [2009] EWCA Civ 274

Case No B4/2009/0249[2009] EWCA Civ 274
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
(HIS HONOUR JUDGE O’MALLEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 10 th February 2009
Before
LORD JUSTICE THORPELORD JUSTICE HUGHES
IN THE MATTER OF N-F (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)
Mrs H Wiltshire (instructed by Somerset County Council) appeared on behalf of the Appellant.
Ms P Ireland (instructed by Messrs Foot Anstey) appeared on behalf of the First Respondent and Second Respondents, the mother and the father.
Judgment
[1]The local authority in Somerset have been burdened for 20 years or so by a troublesome family. The parents are at a very low level on the scale of cognitive competence, and the children born to their relationship are five in number: T, R, C, Tk, L and W. The parents have also children by earlier relationships, and any recording of the performance of these children and of the parents in caring for the children suggest that the prospects for C, Tk, L and W are pretty poor. So the local authority were moved to action, and on 29 October of last year there was a Public Law Outline meeting. A care order application in relation to all four children was issued in December, and the management of the case was the subject of an attempted consensual resolution when the local authority drew up a list of their requirements of the parents and an agreement to incorporate that list for the signature of the parents to enable the three youngest children to remain in the home. The local authority were in no doubt that C had to move into foster care, but they were prepared to leave the three youngest children where they were if the parents signed up to the contract.[2]The Guardian saw a clear distinction between the risks to C and Tk and the risks to L and W, so the Guardian would have drawn the line under Tk and not above Tk, as the local authority proposed. However, the distinction in their respective assessments fell to no import when the mother point blank refused to sign any sort of agreement with the local authority, and the father produced a response which indicated his disinclination to sign up to not only the requirements that were arguably unreasonably extensive but also to requirements that were clearly in the children’s interests.[3]So there was, therefore, a contested interim hearing before HHJ Stephen O’Malley in the Taunton County Court. He heard evidence from two social workers on behalf of the local authority, the mother and the Guardian. The father’s performance was far from impressive, since he lurked in the building and did not show his face before the judge.[4]At the hearing on 5 February the judge made the order and delivered the judgement that reviewed the three days of evidence he had heard. He granted the interim care order in relation to both C and Tk, no doubt to the relief of the Guardian, but to the disquiet of the Guardian and the local authority he made only an interim supervision order in respect of L and W. The local authority sought permission to appeal, which the judge refused, and accordingly Mrs Wiltshire, counsel for the local authority below and here, approached the office lawyer and said she wanted an urgent hearing. Accordingly I gave directions on Friday last, setting up the hearing today on the basis of permission on notice with appeal to follow. I deliberately restricted representation. I said we would only hear counsel for the local authority and one counsel for the parents, who had been separately represented below.[5]I invited written submissions from other parties. So this morning we have Mrs Wiltshire, who presents the application and effectively the appeal; we have Ms Ireland, who represents both parents, albeit that they were separately represented below; we have a strong skeleton argument from the Guardian, which not only adopts Mrs Wiltshire’s skeleton argument but adds additional points; and we have a position statement on behalf of C, the third respondent.[6]The criticisms of the judge, advanced by Mrs Wiltshire and fully supported by the Guardian, are, principally, first, that he misunderstood or misrepresented the evidence of the Guardian when he summarised her evidence thus:
“She said it may be that [L] is safe enough at home -- the level of risk at home is much lower.”
It is said that throughout the Guardian made it plain that, although she accepted that the level of risk for the two boys was lower, she always maintained that it would be unsafe for them to remain at home. It is also said that the judge is guilty of inconsistency when he has, on a number of issues and some of them crucial issues, rejected the evidence of the mother but in the end founded himself on an express trust in her compliance with the majority of the local authority requirements. The third point made is that, had the judge fully understood the Guardian’s recommendation, it was only open to him to reject it if he sufficiently explained himself and that he has not done.[7]Ms Ireland for the parents has prepared a skeleton argument which is succinct and full of relevance. She has come into the case at a late stage, not having appeared below, and she answers in turn all the criticisms advanced by the local authority and the Guardian and relies upon the judge’s broad discretion, the judge’s findings and the judge’s principled approach to the determination of an application to remove children pending investigations which may ultimately demonstrate that removal is not in their best interest.[8]I would pay tribute to the skill with which Mrs Wiltshire has prepared her case, approaching the officer lawyer in precisely the right way, putting in the essential paperwork that the court requires in order to conduct an expedited hearing, and the skill with which she has presented her oral arguments this morning. I can well understand that the local authority were profoundly concerned at the confidence which the judge had invested in two parents with such a poor track record. However, it is important to emphasise that the judgment is an ex tempore judgment. We do not have a transcript of it but only a note of it, and the crucial reasoning is to be found in paragraphs 14 and 15. In paragraph 14 the judge says:
“14. I consider W & L together since the same considerations apply to them. L is 9. His present vulnerability is to a lack of supervision. He is exposed to local stigmatisation, worried about his Mother, and there is friction with T. But he is fit and healthy and school provides a safe haven for him. He has 97% attendance. The Guardian says he manages the negative aspects of his placement with the family and is more able to adhere to parental expectations than the older children. She said it may be that he is safe enough at home -- the level of risk at home is much lower. 15. W too is fit and healthy. He is vulnerable to the same risks and harms as L. He also has 97% school attendance. The guardian observes he ‘may be safe enough at home’. The level of risk to him is much lower. Mr Adams, the Headteacher, says L is resilient. The Guardian’s view is that W & L too should be removed given the parents wouldn’t sign the list of expectations. I take the view that mother is prepared, and does in practice, comply with most of the requirements, even to the point of not leaving the children alone with father. She puts it into practice as much as possible, as best she can. It is obvious that, with C and Tk removed, and only W & L at home, there will be more time for the parents to attend to their needs than before.”
[9]I conclude that there is sufficient foundation for the resulting[10]So despite the powerful points, well made by Mrs Wiltshire and supported in Mr Powell’s skeleton for the Guardian, I conclude that the challenge fails. I would, in recognition of the strength of the argument advanced in support of the appeal, grant permission but refuse the resulting appeal. I only add this observation: that the management of the case by way of a three-and-a-half-page contract was in itself risk-laden, given the cognitive disability of the parents. The hearing before the judge would have been resolved if the parents had put their signature to the document without demur. But what would that have been worth for the three children left in the home? In a sense, it could be said to be to the mother’s credit that she declined to engage in the contractual exercise. There are a number of points in this very long and detailed document at which the drafter seems to have gone beyond what was essentially necessary.[11]The judge has trusted the parents only for a very short period. We understand that the final hearing should be fixed in the autumn, and, although that is necessary in order to enable the parents to obtain expert opinion, it is in the lives of the children a relatively short period. The prospects for the younger children remaining in the family are obviously not high, but removing them during the interlocutory stages is quite another thing. And the judge has only trusted the parents subject to supervision and upon his finding that in practice the mother is compliant with the local authority requirements. That might have been written into the order as its essential foundation. It was not, but it is implicitly there; and if it emerges before the final hearing that the judge’s finding, not just that the mother is but that the mother will remain compliant, if that finding is disproved by any event or discovery, then it is open to the local authority to go back to the judge to question whether the interim order can continue right through to final hearing. So those, as it were, additional observations I state because they have been influential in my overall conclusion that we should uphold the order made below.[12]I agree with everything that my Lord has said, and I echo his thanks with mine to counsel on both sides for helpful and realistic submissions.

order

interim care for C and Tk, supervision for W and L. The judge was entitled, despite his misgivings about the mother’s credibility, to make the finding, the all-important finding that the mother is prepared and does in practice comply with most of the requirements. The judge was inevitably entitled to conclude or to surmise that, with C and Tk removed, the parents would be able to perform better for W and L. Order: Application granted; appeal dismissed