T (A Child) [2013] EWCA Civ 128

Case No B4/2013/0010[2013] EWCA Civ 128
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOLVERHAMPTON COUNTY COURT
(HER HONOUR JUDGE BUSH)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 23 rd January 2013
Before
LORD JUSTICE McFARLANE
IN THE MATTER OF T (a Child)
(DAR Transcript of
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The Appellant did not attend and was not represented.
The Respondent did not attend and was not represented.
Judgment
Lord Justice McFarlane:
[1]This is an application for permission to appeal made by Mr H, who is the father of a young child, who I will refer to by the initial of her first name, E, who was born on 15 October 2011, and is therefore now some few months over the age of one. The application for permission to appeal was filed on 2 January 2013, and Mr H seeks permission to appeal the determination made by HHJ Bush on 11 December 2012 sitting at the Wolverhampton County Court. On that day the judge made orders placing E in the care of the local authority, made orders providing for the consent of the parents to be dispensed with to placement for adoption, and made a placement for adoption order. The father seeks to appeal the entirety of the judge’s order and seeks to do that on the basis that the entire process was conducted by a judge who was wholly biased against him. He asserts that the process and the outcome of it were an injustice committed against the father and the child’s mother.[2]As is the case where an applicant for permission to appeal acts in person, the papers have not been placed before a Lord Justice or Lady Justice of this court for preliminary consideration, and the case was simply listed for hearing yesterday, 22 January, to provide the father with an opportunity at a 30-minute appointment to present his case orally to persuade a judge -- and it turned out to be myself -- of the merits of his application for permission to appeal. Shortly before the case was called on yesterday, I received a clip of documents that had been sent by post to the court by the father. Amongst the documents was an application by Mr H dated 21 January to adjourn the hearing on 22 January. The application stated the following:
“Adjourn my application for permission to appeal, to enable the local authority to prepare a report for my advantage. The report of the local authority to prove me and my wife were good parents and safe parents throughout all contacts.”
The text of the application then goes on in some detail to set out, once again, the father’s claim that the judge was biased and that witnesses were not called before the court to prove the local authority case. In the course of his handwritten document he emphasises positive aspects of some of the contact. In addition, the clip of documents included a statement prepared for the father and filed in the lower court, dated 27 November 2012, and that deals with his account of some of the recent contact visits. I had already read that statement in the bundle that has already been filed in support of the appeal.[3]I did not grant the application for an adjournment prior to coming into court for the hearing of the matter. Mr H did not appear before the court, as I had anticipated that he would. I asked the court to make telephone contact with Mr H, and that was achieved. Mr H explained that he did not understand that he needed to attend court yesterday, because he anticipated that his application for an adjournment would be granted. It was explained to him in my hearing by the court clerk that the adjournment application was refused save that the case would be put back one day and that he should attend court today at 11.00a.m. to make oral submissions to the court. During the afternoon I understand that the court office again confirmed to Mr H that the case was going ahead at 11.00a.m. today, and that he needed to attend. This morning I am told that the court office had a lengthy telephone conversation with Mr H, who was apparently very exercised at the prospect of having to attend court here in London. I should explain that he lives in Wolverhampton. Again, later this morning, but before 11.00a.m., I think shortly after 10.00a.m., Mr H sent a short email to the court in which he made a further request for an adjournment. The email stated that he wished to have an adjournment so that he could obtain a transcript of the oral hearing that took place before HHJ Bush, and secondly he asserted that he had been advised by his doctor not to travel in consequence of the current adverse weather conditions.[4]I refused that email application for an adjournment and explained in doing so that it would not be granted in the absence of any explanation as to why at this preliminary stage of his potential appeal a full transcript of the hearing before the lower court was necessary, and secondly because there was no explanation by Mr H and no medical certificate or other communication from his doctor to explain why the current weather conditions would prevent him from attending court. I also observed that the two reasons given this morning supporting an adjournment were not mentioned by Mr H in his written document dated 21 January. For the record, the current weather conditions have included significant snowfalls across the country, perhaps particularly in the Midlands, but that snow fell on Friday, and if it was a feature of the case that Mr H was in some way prevented from attending London because of the conditions and because of some particular condition that his doctor is concerned about, I would have anticipated that he would mention that in his written document. The case has now been called on at 11.00a.m. and, not surprisingly in view of the history of communications during the course of this morning, Mr H has not presented himself before the court. It is now 11.12a.m., and I propose to proceed with this hearing.[5]I refused the applications for adjournment for the reasons that I have given. In particular, the application made in writing seeking a report from the local authority is not one that goes to the merits of the appeal. It is hard to understand, in any event, that the local authority would now provide a positive report about contact. Issues as to whether the contact was positive or negative, or a more subtle view of the contact, could have and should have been raised before HHJ Bush for her determination, and they are not matters that now can be raised for the first time by generating a fresh report from the local authority.[6]Standing back, therefore, from the detail of the proposed adjournments, which I reject, I now look at the case itself. The proceedings before HHJ Bush are recorded, for the purposes of this hearing, in a note prepared by Helen Arthur, who was apparently counsel instructed on behalf of the mother at the first instance hearing. I have read the notes of HHJ Bush’s judgment of 11 December 2012, and they record that there is a history in this matter to an older child, S, who is the child of this mother and this father, and who was made the subject of a care order and placement for adoption order in the Birmingham County Court on 11 April 2008. It appears that the case that supported the making of those orders relied to a large extent upon the parents’ inability to provide safe or good enough care for their young child, S. In particular, the evidence identified that the mother had significant mental health difficulties, which impeded her ability to be an effective parent.[7]Before the judge, both parents were legally represented. The judgment describes the judge’s approach in law, which in my view entirely correctly states the legal context within which she had to make the serious decisions that were before the court. In the course of summarising her approach to the case, HHJ Bush concluded, unfortunately, that the mother and father had both lied repeatedly and often in the course of their evidence to the court. She also recorded their case as being that they wished to have both of their daughters, S and E, returned to their care. A further significant observation to be drawn from the judgment is that despite the very strong opposition voiced by the parents to the proposed orders, and despite the fact that both parents were legally represented, neither parents through their lawyers have made any real attempt to mount any challenge to the evidence in support of the local authority’s applications. The parents’ stance was simply to say that the case against them was all “lies”. Therefore, apart from the social worker, no witnesses were required by the parents to attend to be cross-examined as to the factual background. In particular, at paragraph 7 of the note of judgment the following appears:
“Father’s approach in giving evidence was the same [as the mother’s] in the sense that it was conceded by Father’s Counsel that no real challenge was made, but he wished to make a statement about what he wanted, which he then did.”
[8]The case in relation to E had come to a head, so far as the Social Services were concerned, when the circumstances in which E was living became known in December 2011. E had in fact been born in Switzerland during a period when the parents were away. They returned to the UK in November 2011 when E would have been about one month old, and in early December social workers had attempted to make contact with the parents, but failed to do so. On 21 December 2011 police apparently forced entry to the family home and the conditions that were found there were described by HHJ Bush as being “appalling”. The note of judgment gives details of what was found, and the label “appalling” seems to me to be apt for that description. It is of particular note that HHJ Bush’s information about the state of the household relied upon photographs taken by the police at the time of their visit. Given that it is part of the father’s case, if not a central core of his case, in support of this appeal that the judge was biased, it is hard to understand how that central assertion can be sustained when the judge, rather than forming her own view of matters, was relying upon first-hand photographic evidence of what the state of the family home was seen to be in December 2011.[9]That was, as it were, the baseline starting point for concern about this couple’s ability to care adequately for their daughter. As in many care cases, the key question for the professionals, and ultimately the court, is whether the parents(a) accept that the provision of care, as it is found to be, is inadequate and needs changing, and(b) whether the parents are prepared to engage with professional help and support to achieve a change in their approach to parenting, so that in the future the court and the professionals can have some confidence that life will not be lived in the same manner as it had been and that the care given to any child by these parents will be good enough. Unfortunately, the judge’s judgment records that the parents failed in both of these two important matters. There was, effectively, a total denial of any problem; a denial that the mother had any mental health difficulties; a denial that the state of the family home was inadequate or in any way of concern; and it follows that there was no acceptance of any need to change. The local authority case was simply met by the bald assertion that it was all lies and that the parents should now be given the care of both of their daughters and left to bring them up unhindered by professional intervention. During the course of the care proceedings attempts had been made to undertake a parenting assessment, but, as the note of judgment records at paragraph 16, this was largely ineffective and certainly not conclusive in a positive way to support a rehabilitation of young E to the parents’ care.[10]It follows, in my view, almost inevitably from the evidence that was before the judge, and from the parents’ stance in relation to that evidence, that a care order was the only order that could have been made to safeguard young E for her future welfare needs. Secondly, because of her age and the total inability for the parents to accept that there was a problem and to engage in work designed to neutralise the concerns and worries of professionals, the only viable plan -- there being no-one else put forward from the family or amongst the parents’ network to care for E -- was for her to be placed with strangers on a full-time basis, namely via adoption, and those were the orders that the judge made.[11]How does the father seek to challenge those orders in the course of his Notice of Appeal? I am bound to say that it is very hard to understand the basis of the proposed appeal. The grounds of appeal are shortly stated, and I now propose to read them out in their entirety:
“I [and then he gives his name] am appealing against the whole biased order of 11 December by Judge Bush at the court of injustice of British jurisdiction and I’m going to provide skeleton argument that Judge Bush was not only wrong but completely biased to achieve injustice despite the evidence I’ve provided to the court. Judge Bush was wrong because Judge Bush was unjust and biased.”
That document is dated 20 days ago, on 2 January. No skeleton argument has been provided, and apart from the short additional detail set out in the handwritten addition to the father’s application for an adjournment yesterday, I am effectively still in the dark as to the basis upon which the father seeks to challenge the evidence before HHJ Bush or, more importantly for the purposes of assessing the merits of an appeal, how it was that the judge acted in error, wrongly or unlawfully in coming to her determination.[12]More particularly, allegations of injustice and bias by a judge are serious allegations. Nothing that the father has said, other than the fact that the judge has made the orders, gives any hint as to why he might have grounds for saying that the judge was biased in this case. I have summarised the process, as I understand it to be, before the judge, and perhaps unusually the evidence in this case was, to a degree, photographic, and not capable of wide or biased or unjustified interpretation. It is a phrase that is sometimes used that “the camera does not lie”, and the judge based part of her assessment in this case on that photographic material. But it was also the case that the time for the parents to put up their evidence to challenge what was said against them, to prove that the local authority case was “lies”, was at the hearing before HHJ Bush, but they chose not to do so. They did not call any of the witnesses who gave factual evidence against them and they did not put up a positive case why they asserted that the local authority case was entirely wrong and should be disregarded by the judge. Having not taken that opportunity, and leaving the judge faced with really, as I would have to describe it, only one alternative, namely to make a care order and a placement for adoption order, it seems to me that there can be no valid grounds of appeal that this father could rely on to challenge the judge’s order. More than that, he has not put forward any valid grounds of appeal or descended into detail in any way in supporting his application for permission to appeal before this court.[13]Whilst I do not, as a human being, at all disregard the human impact on this mother and this father of the orders that have been made, they are the most serious orders that a Family Court can make, and the impact upon the parents will be hard to underestimate. I am, however, absolutely plain that there are no grounds for appealing here. Had these papers been placed before me rather than for an oral hearing, I would have taken the unusual step of categorising the case as being “totally without merit”, thereby ending the appeal process at that stage without offering the litigant the facility of an oral hearing. He has been offered the oral hearing through the ordinary process of listing; in the event, he has not taken that up, for the reasons that I have given.[14]Having looked at this matter in detail, I am utterly satisfied that there are no grounds of appeal and I therefore refuse his application for permission to appeal.

Order

Application refused.