B & R (Children), Re [2009] EWCA Civ 556

Case No B4/2009/0541[2009] EWCA Civ 556
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE BIRMINGHAM DISTRICT REGISTRY
(MR JUSTICE MACFARLANE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 1 st May 2009
Before
LORD JUSTICE WALL
Between
Applicant fatherApplicant
IN THE MATTER OF B & R (Children)
(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Applicant father appeared in person, assisted by a McKenzie Friend.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is an application by the father for permission to appeal against an order made by Macfarlane J sitting, I think, in Nottingham on 17 December 2008. The father has five children whose ages range between nine and the youngest, I, who was born on 26 May 2006 so will be three at the end of this month.[2]It is, I think, necessary for me to set out the history of this case not in huge detail but simply so the context in which I come to consider the case of I can be fully understood. The father is Muslim and has lived in this country all his life. Unfortunately the children’s mother, his wife, has learning difficulties and in the summer of 2005 one of the middle children, a girl, A, was admitted to hospital. She had a recent fracture at the back of her skull; she had a healing fracture of her tenth rib, which was about four to six weeks old; she had a healing fracture of her upper arm, also about four weeks old; and she also had 18 marks on her body which included lacerations, scratches, scabs, bruises; and the frenulum, which links the gum to the lip, had been lacerated and was missing. Both big toes it appears had bruised nail beds. These were very serious injuries for a very small child, and both the father and his wife were prosecuted. Nobody suggests, and the judge certainly did not, that the father was physically responsible for the injuries. He did not inflict any of them. But he did fail, as I think he now with some regret accepts, he did fail to protect his daughter and he was convicted and sentenced to a term of community service. I think it reflects the fact that he did not inflict the injuries himself that he was given such a sentence. I am told his wife had a suspended sentence, and both are appealing although the appeals have not been heard. But on any view with injuries of this severity it was unsurprising that the local authority became involved and care proceedings were taken.[3]There was a hearing before Sumner J in November of 2006 which was what we call a fact-finding hearing. He investigated the injuries and the causation of the injuries and he made the findings that I have already indicated. The children’s mother accepted the injuries to A were non-accidental and, as I say, the judge acquitted the father of inflicting them but found the mother had, both in 2004, which is the most serious injury, I think, to the skull, and later. The result was that the judge made care orders in relation to all five children and may also have made, I think, placement orders placing them for adoption.[4]The children’s mother sought permission to appeal against that order, and I have seen the judgment by my Lord Hughes LJ dated 21 August 2008 in which he refused permission to appeal. It seems that the application for permission was based largely on the fact that the mother, who, as I say, suffered from learning difficulties, had been represented in the proceedings by the Official Solicitor. Her view was that she should not have been and she sought to appeal, partly at least, on that basis.[5]In the event Hughes LJ, basing himself on a recent decision of this court, took the view that was not a basis for appeal and dismissed the application. So the placement orders and the care orders stood. I do not think the father sought permission to appeal against those orders at that stage.[6]At that point, as I understand it, the local authority’s plan for the children, albeit a somewhat optimistic and ambitious one, was that all five should be placed together, they should remain in sibling contact and that they should be adopted together. It will not take much imagination to appreciate that that application was not fulfilled. The consequence since then as I understand it has been that, Marfarlane J having dealt with the case recently, the placement orders for the two children have been revoked so they remain in the care of the local authority but with foster carers. In relation to the two middle children, the father has made an application to revoke the placement orders in relation to those two children, for whom, as I understand it, prospective adopters have been found. The judge has refused that application and the father is seeking permission to appeal it. That will be heard on another occasion, that application. The application before me, therefore, is the application which the father made to the judge in December of 2008 when he applied for permission to revoke the placement order in relation to I and the judge, as I say, refused.[7]Before I go any further I do need, I think, to explain to the father andto his Mackenzie friend who, if I may say so, has been very helpful this afternoon and both have addressed me in very careful and moderate terms, but I need to explain the function of this court. Many litigants come here thinking that we have very wide powers to put the clock back; that we can simply say:
“Well, we do not agree with the judge below. We think he did the wrong thing therefore we are going to do X, Y and Z”
. But the reality is, I am afraid, quite different. This court is a court of review. It is not a court of trial. It does not find facts. It does not hear oral evidence. It does not see witnesses. It listens to argument, and in cases involving children it asks itself essentially two questions. Did the judge make any error of law in making the decision he did? And secondly, has the judge made an error in relation to the factors, either which he took into account or which he left out of account, so that this court can say that the exercise of his discretion was plainly wrong? And as was pointed out to me this afternoon, and correctly pointed out to me this afternoon, overarching the whole ambit of the Children Act and the Adoption of Children Act 2002 is the Human Rights Act and the Convention, which gives rights to everybody, including, of course, to I: respect, for his family life, and to ensure that he and everyone in court has a fair hearing. Of course, any intervention by the state under the Convention has to be in accordance with the law and the remedy has to be proportionate to the wrong which has allegedly been committed.[8]I think it important therefore for me to start from this proposition: that really, when I go back to 2006 and 2007, it is plain that the middle child had suffered very severe injuries indeed and there was no effective appeal nor could there really be an appeal against either Sumner J’s findings of fact nor the care and placement orders which he made. In any event I have no power in relation to those matters. They are a long time in the past and they are water under the bridge. But those orders stand. That has a relevance because the father says, and I respect him when he says it, that adoption is wholly contrary to his faith and to his way of life. He is the father of these children. He has recognised the error of his ways in relation to the injuries which were suffered by his daughter back in 2005 and 2006. He has done everything he can to demonstrate to the judge and to others that he is now a fit person to take the care of his children, and therefore it is wrong in principle both for the judge to pursue the course of adoption in relation to I, and quite wrong for the judge to refuse him position to re-open the matter.[9]So I come to the first question I have to ask myself and that is: did the judge make any error of law? I think really the father accepts that the judge applied the law correctly in this sense: he said he had to exercise a two-stage process. He had to look first of all to see whether there was any change of circumstances and, if satisfied there was a change of circumstances, then he had a discretion as to whether or not to set aside the order. He based himself on the recent decision of this court which has become known as the Warwickshire case (Re M (Children) (placement order) [2007] 3 FCR 681), and it is quite clear the judge followed that case which was binding on him and followed it faithfully. So I do not think it can be said that he made any error of law. He applied the right test.[10]The father’s challenge, though, goes to the exercise of discretion, because he says that the judge made a number of mistakes, errors in the balancing exercise in the factors which he either took into account or failed to give proper weight to or failed to take into account, and it is that failure properly to conduct the balancing exercise which vitiates, destroys or damages the exercise of his discretion and entitles this court to intervene. And of course that is a basis upon which this court can intervene. If a judge has not exercised discretion appropriately and reached a conclusion which is plainly wrong, this court can and indeed must intervene. But at the same time the father must appreciate a number of things. First of all, Macfarlane J is a very experienced family judge. He is a very humane and decent man. He also was the judge on the ground. I was not there. I did not see the witnesses. I did not hear the evidence. I have not had experience of the case except by reading the papers today and hearing argument, and therefore I am in a different position. Therefore what I have to do is to ask myself, well, was it arguably wrong for the judge in the circumstances to say there had been no change of circumstances and to refuse the application?[11]One of the principal changes of circumstance on which the father relies is the fact that he and his wife, the mother of his children, have separated. He says that he is now on his own, free from her influence, and he wishes therefore to demonstrate to the world that as a father he is capable of caring for his children, which he regards rightly as his duty. He has today produced a number of letters, one indeed from the children’s mother, others from a brother and sisters-in-law, all of which support the application and support him. I of course understand that, but the judge’s view of the separation was that it was effectively cosmetic, that although there may have been a physical separation in the sense that the mother and father were now living in separate houses, they were emotionally still a couple. He observed, for example, that they had sat together in court and appeared to communicate with each other, and his view was that there was not a full-blown emotional separation. It was, he said – and I use his words – a cosmetic rearrangement of the circumstances, not an emotional separation.[12]This is a good example of how this court looks at a case. Was it open to the judge to make that finding? Had I been sitting where the judge was, I do not know what I would have found. I might have agreed with him, I might not. I might have taken a different view. But that is not the test. The test is, was the judge entitled to say, with his knowledge of the case and all his experience, having seen the witnesses, having seen the father in particular and listened to the father, was he entitled to say: “I think this is a cosmetic rearrangement”? And when I put the question like that I have to conclude, I think, that it was open to the judge to reach that conclusion. I am sure the father does not agree with him. I am sure the father would tell me and did tell me today that he had separated from his wife and that the separation was permanent. But that was not what the judge thought, and the judge was there. I was not.[13]Secondly, as I indicated earlier, the father submits that the people who have been chosen as prospective adopters for his youngest child are unsuitable. Not merely is adoption anathema to him – that, I think, is more difficult, given the time that has elapsed -- but that the people who have been chosen are not right and they will not be the best people to bring up his son. Therefore, he says, the change of circumstances is really quite stark. Originally the local authority had planned to adopt all five children. Now they at best will find adoptive parents for three, possibly only for one. That represents a radical change in the circumstances which the judge should have reflected in his judgment.[14]The judge’s view was, well, it was always aspirational, really, that five children should be adopted. It was an ideal solution -- not ideal, it was the best that could be devised in the circumstances, and he said in terms in his judgment that that would have been ideal, had it worked, but he then went on to say:
“I agree with the local authority and the children’s guardian’s submissions. It seems to me that the failure to realise arrangements that might lead to all the children being in direct contact with each other is not a change of circumstances. The plan was not written in as stark terms as the father through [his counsel] submits. It was an aspiration. It has not been able to be realised in relation to [two of the children], and that was expressly catered for in the plan itself. It seems to me that it is not, therefore, a change of circumstances of a type that should get the father past Section 24(3) of the Act. In the same manner, whilst the local authority has a duty to give due consideration to the child’s cultural and religious background (ACA 2002, S.1(5)), the fact that the proposed placement is not an exact match for the father’s own religious and cultural background cannot be regarded as ‘a change of circumstances’.”
[15]Once again I have to ask myself, well, was that a viewpoint which was open to the judge? Was it within the ambit of reasonable discretion? And again I have to answer the question, I think, by saying yes it was. I do realise that here we appear to have a genuine clash of cultures, between the Muslim concept of adoption and the English concept of childcare and adoption. But the judge had to apply English law. Of course he had to take into account the circumstances of I, and the father, and in my judgment he has done so. It is a factor that he has taken into account, weighed in the balance and reached a particular conclusion. So in my view, those being the two principal changes, the judge was entitled to find there had been no real change of circumstance.[16]I do express my admiration for the father for the steps he has taken to put himself in a position to care for the children, and I have seen today a letter which has been written on his behalf indicating that he is proposing to undergo a further course with an organisation called Parents and Children Together (PACT) which will start shortly, and he tells me that he has already undergone one parenting skills course. So it is quite clear the father has done everything he possibly can to try and put himself in the position to care for his children, and for I in particular. But in my view the judge was entitled to find that there had been no substantial change of circumstances, or no change of circumstances sufficient to trigger the exercise of his discretion. But conscientious as he was, the judge went on to consider the exercise of discretion on the assumption he was wrong about the change of circumstances; and in paragraph 28 of his judgment onwards he considered whether or not, assuming the exercise of discretion fell to be undertaken, how would he exercise it? Once again in my view he applied the law correctly. He based himself on Wilson LJ’s judgment in Warwickshire, and he did not think, in all the circumstances of the case and taking the child’s welfare very much into account, that the father stood a good prospect of success in obtaining the revocation of the placement order. In this he pointed to the long passage of time which had occurred since the hearing before Sumner J, and he pointed to the fact that I had been placed and appeared to be flourishing. The prospect, therefore, of removing I from that household in order to see whether the father could care for him in due course was one which in the exercise of his discretion the judge was not prepared to undertake.[17]So, having read the judgment carefully, and having thought very carefully about what has been said to me this afternoon, I have come to the conclusion that the judge was entitled to reach the conclusions which he did. He was entitled to refuse the application, he was entitled to find there was no substantial change of circumstance and therefore entitled to dismiss the application insofar as it related to I. It is quite clear in my mind that the judge took into account all relevant factors, including the fact of the father’s faith and background, and weighed them carefully in the balance. The father tells me that if his application is refused he will wish to pursue the case in Europe. Of course I have nothing to say about that, it is a matter entirely for him. This court has now begun to be faced in a number of cases with the social conflict that exists or can exist between aspects of Muslim law and faith and English law and practice, and no doubt jurisprudence will in due course emerge in which those factors are carefully considered by a higher court than this one, perhaps. But Macfarlane J had to apply the law as it stood, and in my judgment he applied it correctly.[18]Sympathetic, therefore, as I am to the father’s position, this application must be refused. However, as he is in person I propose to direct that a copy of my judgment is transcribed and made available to him at public expense so that if need be he can take it to Europe for further consideration.

Order

Application refused