M (A Child) [2013] EWCA Civ 132

Case No B4/2012/1776[2013] EWCA Civ 132
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE JENKINS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 17 th January 2013
Before
LORD JUSTICE THORPELORD JUSTICE LONGMORELORD JUSTICE PATTEN
Between
Applicant MotherApplicantRespondent FatherRespondentRespondent ChildRespondent
In the matter of M (a child)
(DAR Transcript of
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Ms Valerie Sterling (instructed by Crockett and Co Solicitors ) appeared on behalf of the First Applicant Mother
Ms Clare Garnham (instructed by the Local Authority) appeared on behalf of the First Respondent Local Authority
Ms Sally Terris (instructed by First Law Solicitors) appeared on behalf of the Second Respondent Father
John Hayes (instructed by Switalski Solicitors) appeared on behalf of the Third Respondent Child via his solicitor
The Fourth Respondent Child via his Guardian did not appear and was not represented
Judgment
[1]This case has rightly been universally described as extraordinary. The family consists of mother, father and four children. I say four “children”, but the two elder, Mary and Aloysius, have obtained their majority during the course of the proceedings in the Leeds County Court, initiated by an application by both mother and father for contact to all four children. The two subsequent born are Christopher and Ephraim, who are still in their minority. Christopher is 16 and Ephraim is 12.[2]The history need not for for the purposes of this judgment be investigated in any detail at all. The children were removed by the local authority as victims of physical injuries inflicted on them by the parents of such severity that they have been characterised both in family and criminal proceedings as victims of torture. Criminal proceedings were taken against the parents. They were convicted and sentenced to lengthy terms. The father remains in custody still serving his sentence. The mother has completed her shorter sentence, but is still detained, a deportation order having been made on 17 August 2012. The mother has sought to resist deportation, but her appeal to the Upper Tribunal was dismissed on 15 June 2012 and that resulted in the signing of the deportation order to which I have referred.[3]The applications in the Leeds County Court, we are told, were simply contact applications issued on the standard C1 form. If that is right, it was in my view procedurally erroneous. The care proceedings culminated in a hearing before HHJ Cahill QC and, in making the care orders which she did, she also granted the application of the local authority authorising them to refuse to allow contact between the children and their parents. Obviously the foundation of that order was essentially protective. The children, as victims of torture, were not to be put at any sort of risk, emotional or physical, by future contact with their parents without variation of that authorisation. The section, s.34 of teh Children Act 1989, specifically provides a path to variation in subsection 9, which says:
"The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order."
[4]Accordingly the applications that were refused by the judge were essentially regarded by him, and rightly regarded by him, as applications brought under section 34(9). The applications were listed before HHJ Jenkins on 22 June 2012 and he dismissed both. The Appellant's Notice filed by the mother was dated 13 July and was swiftly followed by an Appellant's Notice from the father dated 17 July, and those applications were considered on the papers by Munby LJ. He granted permission on both applications, observing that the case was unusual and the order draconian, particularly in the light of the expressed views of the children. That had been the principal plank in the submissions of counsel in the court below. There was emphasis on the fact that the two older children were swiftly approaching majority and should therefore have the benefit of professional aid in preparing for the relationship with their parents that they would elect once they became autonomous adults and left the protective care of the local authority. Then there was strong reliance on the express wishes of Christopher and, although perhaps less weighty, there was evidence that the youngest, Ephraim, was also curious to communicate with, and perhaps meet, his parents.[5]The basis of Munby LJ's decision, certainly in relation to Christopher, melted away when Christopher's guardian and counsel had a meeting with him to discuss the appeal created by Munby LJ's order. During the course of the meeting he made it quite plain that he had changed his mind, that he had come to terms with the judge's order and that he did not wish to see it varied.[6]The position in relation to Ephraim has not changed in any significant degree. He has been visited recently by both the local authority and the guardian and has expressed to both a desire to question his parents, his mother particularly, at some future stage. So when the case comes to the listing before us today, we have, pursuant to the direction of Munby LJ, a single agreed core bundle and a single agreed bundle of authorities. The agreed core bundle was supplemented by Mrs Sterling for the mother, who prepared some preliminary documents which unfortunately seem to have been lost in transmission, but she has during the course of her submissions found a spare copy, which we have had triplicated and which is now before us. It does not seem to me that those preliminary documents add very much, although they do clarify the basis of the mother's detention and the basis upon which she is subject to a deportation order.[7]The appeals are firmly resisted by the local authority and by Christopher's counsel and Ephraim's counsel. Once Christopher had come to terms with the judge's order it is difficult to see how the appeal in relation to his relationship with his parents could succeed overall. The whole basis of the case below was the express wishes and feelings of Christopher. Once they disappeared what was left to be said for the appellants in relation to Christopher? Mrs Sterling for the mother did her best, saying well, we all know that adolescents are like weather vanes, one moment they say one thing, the next moment they say another, so we should not be over influenced by what Christopher is currently saying, because she suggests he will be saying the reverse soon enough. That endeavour to finesse this fundamental development of the case did not impress me.[8]So what was Mrs Sterling's attack on the judge below? Her only criticism was directed to an observation made by the judge during exchanges post--judgment in which he considered and refused her application for permission to appeal. We see at letter D on page 59 that the judge says:
"Secondly, I have taken the wishes and feelings of the children into account and demonstrated why I think in this exceptional case they carry no weight, even if they were as fervent as is urged upon me, and that seems to me to be essentially a question of fact."
[9]However, that was a mere slip of the tongue because, at the top of page 61, counsel for the guardian said:
"My Lord, there was one matter. It was not what you said in your judgment but I think it was dealing with the leave to appeal application made on behalf of the mother where you said that the wishes and feelings of the children in this particular case carry no weight... The judge: Did I say that? Counsel: I think in the lead application. The judge: Miss Smith nods. No, that certainly was not what I intended to say."
[10]It does not seem to me that any weight at all can be attached to what was an unintended unconscious observation during the course of post-judgment exchanges. Mrs Sterling made no criticism in her oral submissions of anything which the judge said in his judgment or anything which he failed to say.[11]Ms Terris for the father did criticise one paragraph of the judgment, which is paragraph 18, in which the judge made a practical observation that, given that the fact that the father is in custody in prison, the implementation of any contact order would present practical difficulties which would no doubt have to be referred to the Governor himself. The judge also made the observation that, since the children were the victims of very serious physical abuse, there would have to be a MAPPA assessment before any further steps could be taken. But I do not think that that passage is open to the criticism that Ms Terris intends. The judge is not saying that these applications fail because there are insurmountable problems in implementation. He is simply making the relevant observation that, were he to grant the applications, then these would be the ensuing realities. It is perhaps a mark of the qualities of the judgment below that neither appellant has made any strong criticism or any criticism other than from those I recorded. In my opinion the judge dealt with a difficult situation, a difficult case, an extraordinary case, with great expertise. He reviewed all the available professional evidence. e considered the case of each child separately and conducted the balancing exercise that he was required, comprehensively giving weight to the wishes of Christopher in particular but explaining why those wishes were outweighed by the very considerable countervailing considerations necessary to arrive at a rounded welfare decision.[12]I understand the circumstances in which Munby LJ granted permission to appeal, but, as these appeals come before us today, they, in my judgment, lack any substance or foundation and I would simply dismiss them.[13]I agree.[14]I also agree.

Order

Appeal dismissed