J (Child) [2013] EWCA Civ 1685

Case No B4/2013/1444[2013] EWCA Civ 1685
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON DISTRICT REGISTRY
HIS HONOUR JUDGE BROMILOW
UH12C0006
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2013
Before
LADY JUSTICE BLACKLADY JUSTICE RAFFERTYLORD JUSTICE FLOYD
Between
J (Child)AppellantJ (Child)
Ms J attended in person -Appellant for in personMr Christopher Naish (instructed by Somerset County Council Legal Services) for the1 st RespondentMiss Susan Campbell QC (instructed by Gareth Webb & Co) for 2 nd RespondentHearing Hearing date: 21st November 2013
JudgmentBLACK LJ:
[1]On 20 March 2013, His Honour Judge Bromilow made a care order in relation to K who was born in September 2003 and was then 9 years old. He also ordered K’s mother (M) to hand K’s passport to the local authority and granted an injunction preventing M from going within a 50 metre radius of K’s school or foster home. M appeals against these orders with permission from McFarlane LJ.[2]M would have been entitled to public funding for legal representation but, after a period when she was represented, she began to act in person and she chose to represent herself before Judge Bromilow at the final hearing, assisted by IM who was her fiancé at the time. IM was still assisting her when McFarlane LJ considered the matter on 22 October 2013. However, by the time of the appeal hearing before us, M had parted company with him and was assisted by two new McKenzie friends. Her approach orally was very different from that which had been evident from the plentiful papers which she had provided for the appeal.[3]The paperwork reflected that, as had also been the case in front of Judge Bromilow, M and IM considered that they were claiming to proceed under “Common Law Jurisdiction and Authority”. They considered that this affected the proceedings in a number of ways. For example, in M’s skeleton argument for the appeal she said, speaking of the proceedings at first instance, that:
“we established Common Law Jurisdiction prior to the hearing and Mr Bromilow confirmed he was on his Oath before the hearing began. Therefore, as a Court de Jure was in effect, no consent means Mr Bromilow had no authority”
Another feature was that M treated the name by which she would normally be known as her “legal fiction” and insisted that she be addressed by a rather differently formulated version of it. Furthermore, she and IM did not consider they were bound by orders to which they did not consent.[4]The local authority submitted to us that M’s then adherence to this notion of Common Law Jurisdiction and Authority had contributed to the case being challenging to manage. I have no difficulty in accepting that submission. The judge described the material sent to the court by M by way of evidence as “voluminous” (§19 of the judgment) and that description is corroborated by the bundles supplied to us, containing both the original material that formed part of the care proceedings and new material generated for the appeal.[5]M freely acknowledged to us that she had been under IM’s influence and had developed misguided beliefs. She put this down to her vulnerability following an accident she had had, about which I shall say something later. She accepted that her reference to “Common Law” was wholly inappropriate and she said she could understand why objection had been taken to IM. She made a prepared oral submission in support of her appeal which was in a distinctly different tone from that adopted in her written submissions and in which her former beliefs played no part. She also abandoned some of her grounds of appeal. This was sensible given that they could not have succeeded. The effect of M’s new constructive approach was to enable us to concentrate on the issues that required determination.[6]The local authority identified seven issues raised by McFarlane LJ when giving permission to appeal.[7]Four of the issues related to case management. They were as follows: i) Whether the judge had taken a correct approach to the role of IM as McKenzie friend or lay representative; ii) Whether K should have been represented by his own solicitor; iii) Whether the judge’s decisions about the witnesses who were to be called were open to criticism; iv) Whether a further assessment of M should have been ordered rather than the judge proceeding to make a final care order.[8]Two issues related to the judge’s substantive decision. They were: i) Whether the judge had made adequate findings in relation to the threshold criteria; ii) Whether the judge’s decision to grant a care order was sufficiently reasoned.[9]The final issue was whether M had had proper access to the documentation in the case for the purposes of the hearing.[10]M did not wish to pursue the first case management issue, that is the judge’s approach to IM’s role in the proceedings. I need say no more about that.[11]She no longer wished to argue, either, that K should have been represented by his own solicitor. She accepted, rightly, that that would not have been appropriate or in his best interests and that it might have been stressful for him.[12]The focus of the appeal narrowed, therefore, to the judge’s decisions as to the witnesses who would be called at the hearing, his failure to order a further assessment of M, the way in which he dealt with the threshold criteria, the adequacy of the reasons he gave for deciding to grant a care order, and the question of the documentation available to M. Before I go on to consider these issues, I need to give some history.

History

[13]The orders made by Judge Bromilow were not the first to be made in relation to K. He was made the subject of a supervision order by the family proceedings court in January 2012. The background to this, briefly stated, was as follows. In early 2009, there were two significant incidents in relation to M’s care of K, involving her consumption of alcohol. In February 2009, she was charged with drink driving whilst K was in the car with her and in April 2009, K, then aged 6, called the emergency services because M had become unconscious under the influence of alcohol and prescription drugs.[14]Some time thereafter, M and K moved regions. In March 2010, social services in the new area were contacted because people in the community were concerned about M’s care of K and her use of alcohol. Over the following months, there were problems of this nature and K was accommodated in foster care for periods. However, in due course, M improved. In their order of January 2012, the family proceedings court recorded that there was by then evidence of M being able to work with the local authority, that K was now making good progress in school, and that M was attempting to promote his relationship with social workers and had demonstrated the ability to address the family’s housing needs. The supervision order made by the family proceedings court in the circumstances was accompanied by a “Schedule of Expectations” which appears to have been designed to ensure that M worked co-operatively with social services and controlled her alcohol intake.[15]In the months that followed, M received support from the local authority in the form of visits from a senior social work assistant, Mr Wall. There was in the bundle for the care and placement order proceedings a chronology prepared by him which set out the detail of his visits. It gives a detailed picture of the situation between the making of the supervision order and the crisis that occurred on 14 August 2012.[16]The chronology commences with an entry for 12 December 2011 and ends with an entry dated 14 August 2012. The predominant theme throughout the period is M’s serious difficulty in managing K’s behaviour. The records show that as the school summer holiday approached, consideration was given to assisting M by ensuring that K had activities to occupy him. Towards the end of July, there start to be entries concerning M’s anaemia and the treatment prescribed for it. There is a record of K and another pupil having broken into the local school on 4 August 2012 and money having been taken.[17]The record for 7 August 2012 is to the effect that M had telephoned Mr Wall and said that K had been driving her mad lately and she was desperate for some respite and had booked him into an activity club. It is noted that she was “extremely upset and concerned with what K has done” and that she had been “very poorly” and was concerned about her health and how her lack of energy was impacting on her ability to parent K. There is a long entry on 8 August 2012 which includes a further reference to M’s health difficulties and a reference to her having befriended a local teenage girl who had expressed an interest in caring for K during the day to give M some respite but who was known to the local authority to be unsuitable. On that day, Mr Wall advised M that he would be away on annual leave for 2 weeks from 13 August 2012. The record for the following day refers to the activity club having instructed M to collect K because they were not able to cope with his behaviour.[18]On 14 August 2012, M had a very serious fall whilst on a cliff. In the remainder of this paragraph, I will set matters out as she described them to us during the appeal hearing although there are other versions of the incident in the papers. M said she left K in the park with a babysitter and friends and climbed the cliff, taking with her a bottle of brandy. She left behind her two notes, copies of which are in the bundle, one addressed to K and one without an addressee; the local authority classed these as suicide notes but M denied that they were. She sat at the top of the cliff, spilled one glass of brandy but poured and drank another, then broke the glass and attempted to cut her wrist, not with suicidal intent but as a release. She texted IM and asked him to go to K. He rang her and they spoke for 45 minutes. She then dropped the phone and fell when she was picking it up.[19]It seems M fell a considerable distance and sustained a head injury. She was rescued and admitted to hospital overnight.[20]K went to stay with M’s older daughter, J. On 22 August 2012, an interim care order was made. The interim threshold document included reference to the following matters: i) the incident on 14 August 2012 which was described as an attempt by M to commit suicide; ii) K having been allowed out unsupervised and, in particular, having been seen out unsupervised on 13 August 2012; it was said that M was also seen in a local pub without K; iii) K having broken into the school on 4 August 2012; iv) M having slapped K in the face in March 2012.[21]K moved to local authority foster carers and has remained in foster care since.[22]The normal sort of preparations took place for the care hearing. Dr Price, a psychologist who had provided a psychological report in relation to K in November 2010 and an addendum to that in October 2011, was jointly instructed by the parties to provide a further addendum assessing M and K. Dr Barnes was jointly instructed to undertake a psychiatric assessment of M. The local authority were directed to file an assessment of M and IM.[23]There were also a number of more unusual applications made to the court in the period prior to the final care hearing. There is no need for me to go through them all here. They included a successful application by the local authority for injunctions to prevent M and IM publicising the situation relating to K on the internet. In December 2012, M was ordered to return all the documents she had relating to the proceedings to the local authority and she was only to have access to the case papers at the local authority’s premises but that order was quite soon reversed, on 15 January 2013. By this time M was not represented; the judge ordered that she would be served with any further papers filed in the proceedings. There had to be an application by the guardian later in January because M had requested that the child’s solicitor meet with K but M was not prepared for this to happen unless her MP was present or the meeting was recorded.[24]There was an important directions hearing on 26 February 2013. The transcript of this arrived after the appeal hearing. M appeared in person at the directions hearing but was accompanied by IM. Her application to have IM act as her McKenzie Friend was refused but in fact he was allowed to stay with her during the directions hearing and also during the final hearing. Her application for Judge Bromilow to recuse himself was also refused. The judge determined what witnesses should be called at the final hearing, limiting them to the social worker, M and IM, and the guardian but permitting M to file statements from her neighbours. He refused M’s application to call K to give evidence. He determined that M should put her questions to Dr Price in writing rather than orally and limited the questions that could be posed in this way, refining his order about this at a further directions hearing on 5 March 2013.[25]There was no appeal against the orders made by Judge Bromilow that day but the grounds of appeal against the final care and placement orders encompass complaint about some aspects of the decisions he then made. As the case management decisions of 26 February were reflected in the way in which the hearing proceeded on 20 March 2013, and as some of the issues identified by McFarlane LJ related back to those February decisions, we considered them as part of the appeal against the 20 March 2013 orders.

The hearing of 20 March 2013 and the judge’s judgment

[26]The judge’s judgment is short but it contains references to the papers that enable the reader to see the basis for his approach and the evidence which formed the foundation for his conclusions. He referred to the “real concerns” that there had been about K’s welfare prior to what he called the “most frightening and serious incident” in mid August 2012. He expressed himself “quite satisfied that the threshold….[for a final care order]….is met” and it can be seen from §30 that a) he found the assertions contained in the threshold document established and b) he considered them sufficient to show that K was actually suffering significant emotional harm at the relevant time and was at risk of both emotional and physical harm. The threshold document to which he referred was the same as the interim threshold document except that it seems that the reference to the events of 14 August having been an attempt at suicide had been scored out and replaced with the more neutral assertion that there had been an “incident”. This was reflected in the judge’s reference at §8 of his judgment to the “incident” in the middle of August, in relation to which he found that M had been drinking that day.[27]The judge set out M’s position which was that she was enjoying much better health. He made reference to a letter from her GP. This was a letter of 8 February 2013 in which the GP said that M had made a good recovery from the injuries that she sustained in her fall but was awaiting a review by a psychiatrist with regard to symptoms such as poor concentration which she had experienced since it happened; he also reported an improvement in her anaemia. The judge accepted that M was making “some progress to deal with her very significant medical past and current problems”. He not only had evidence from the GP and Dr Barnes about this, he had also seen for himself that she was presenting as very much better. He took into account that she said she had a secure home base and a happy long term relationship with IM as well as some support around her, some of it evidenced by letters from neighbours. He said that “[t]here are many positives in [M]’s life at the moment, and I accept those that she has identified”, going on to refer as well to the strengths identified by the guardian at §49 of her report.[28]The judge was conscious that the local authority’s proposal that there should be a care order with limited contact for M was draconian and he reminded himself that the courts do not intervene lightly in the lives of parents and their children.[29]In determining what was in K’s best interests, as section 1 Children Act 1989 required him to do, the judge accepted and relied upon the evidence/advice of Dr Barnes, Dr Price, the social worker and the guardian.[30]Dr Barnes summarised his findings in his report of 31 December 2012 as follows:
“2.0.1 [M] experienced significant trauma in childhood and adolescence. This affected her to the extent that she manifest [sic] conduct problems and later, in early adult life, personality characteristics consistent with an emotionally unstable personality of the borderline type. As time has passed these characteristics became less salient but are manifest when she is subject to stress. The symptoms of this condition are known to overlap with post traumatic stress disorder. This has been termed complex PTSD. Alcohol dependence arose as a secondary phenomenon. 2.0.2 This problem has affected the manner in which she relates to her children and has limited her capacity to respond appropriately to K’s needs. 2.0.3 She is likely to slowly continue to adjust to her past but remains vulnerable to stressors which cause her to rapidly decompensate, as occurred last August. Specific psychotherapy may be helpful but will take many months to complete. The prescription of diazepam requires review.”
[31]Dr Price said in his report of 28 November 2012 that he was very concerned about K’s current psychological, emotional, behavioural and social well being and that since his last assessments, K had become significantly more vulnerable and was functioning significantly less well, including in school. He said that K lacked a main carer to whom he could form a secure attachment. M was not ready to look after him at present and he could not predict when she would be. He said that he agreed with the social worker and the guardian that if K returned to M at present he would be at risk of physical and emotional harm. Dr Price said he would be surprised if K returned to M’s care in the short or medium term and it was possible he would not return in the long term either. He advised that K needed a permanent placement with a carer to whom he could form a secure attachment.[32]In the social worker’s most recent statement, she had said that she would be very concerned for K’s welfare if he were to return to M’s care at that time because K had some complex behavioural and emotional needs which needed to be addressed in a safe, secure and stable environment and M and IM did not appear to recognise that his needs arise out of his experiences and instability in M’s care.[33]In her report, the guardian set against the strengths that she had identified in M a long list of concerns that she had about M’s parenting capacity including her use of alcohol, her inconsistent approach to professional help and to support, her methods of managing K, and the events of 14 August. She had concluded that M was not able to meet K’s emotional and physical needs consistently and said that she would be concerned he would be at risk of further harm if he were returned to her care. She said that M needed to develop a deeper understanding of her emotional wellbeing and address the issues that affected her parenting capacity before she would be in a position to care for K and she said she accepted the advice of Dr Barnes and Dr Price that this was unlikely to be achieved quickly enough for K whose needs were therefore best met in long term foster care.[34]It can be seen from the transcript of the hearing that the judge asked the guardian about the possibility of there being a further assessment of M rather than a final decision being made there and then (A62xliv). The guardian accepted that M was now physically well following her fall but did not consider that the difficulties M had with her parenting stemmed from the fall. She said that she shared the view of Dr Barnes and Dr Price that there were “other far more complex issues” that M would need to address in order to have K home. She also pointed out that a further assessment of M would mean significant delay in deciding where K’s future lies which she considered would not be in his best interests.[35]The judge did not have before him any formal application for a further assessment of M. His question to the guardian appears to come about because, as he said in §16 of his judgment, he “sensed that [M] was wanting there to be further assessment of her, now, because she is so much better”. The judge obviously had that wish in mind but did not consider it the right course to take.[36]The evidence of the professionals and the judge’s own evaluation of the circumstances led him to conclude that, as he said in §34 of his judgment:
“….if [K] went home to live with [M] and [IM] now or in the very near future he would be exposed to a real risk of suffering from significant harm, namely, emotional harm. There is a real risk of yet further upheaval, of unsatisfactory and neglectful parenting.”

The grounds of appeal: witnesses

[37]In her oral submission to us, M’s criticism of the judge in relation to his refusal to require live evidence from witnesses to whom she wished to put questions was focussed upon Mr Wall, Ms Stevens (the initial social worker who had filed a statement in support of the interim care order), the head teacher of K’s school, and her (M’s) sister. There was also Dr Price, in relation to whom the judge confined the questions that she wished to put and required them to be posed to the witness in writing rather than orally.[38]Perhaps M’s most serious complaint was in relation to Mr Wall who she argued was a key witness. The questions that she wanted to ask him can be seen from a document sent by her to the local authority on 5 March 2013. They fall into a number of categories. Some were plainly questions that were better put to the social worker than to a social work assistant as they concerned management issues, including the alleged failure of the local authority to help M sufficiently when her health was getting worse. Some were questions that were not likely to assist the court at the final hearing, such as those relating to the earlier social worker whose statement was filed in support of the initial application for an interim care order. There were also questions designed to elicit information about M’s emotional state and her requests for help; these were potentially more relevant.[39]I have given very careful thought to whether M’s case was prejudiced by the judge having declined to require oral evidence from Mr Wall. I have concluded that it was not. The reason for that conclusion is that there was available Mr Wall’s very detailed record of his involvement in the case and the points M wanted to make could have been drawn from this. Entries deal with her mental and physical health including, for example, an entry in July 2012 dealing with M’s anaemia, her concerns about how she would cope in the summer holidays and her enquiry about respite care and activities for K. An advocate instructed for M would also have wanted to draw out positive features of M’s case from Mr Wall although this was not a particular focus of the list of questions that M drew up prior to the hearing before Judge Bromilow. But here again, Mr Wall’s chronology already contained the sort of material the advocate would have been seeking, such as examples of M honestly admitting difficulties in her care of K, adopting a more effective parenting approach on occasion, and being remorseful when she scratched K once when she slapped him.[40]As for Ms Stevens, she was no longer the social worker and things had moved on from the time of her statement. The line of questioning that M told us she wished to pursue with her related to the interim care order and would no longer have assisted the judge. Relevant cross-examination on any social work questions could have been put to the current social worker, who did give evidence.[41]As for the head teacher and M’s sister, it was, in my view, proportionate for the judge to decline to require/permit them to give evidence given the issues that M would have asked them to consider. In so far as she wanted to explore actions taken by social services at the time of the interim care order, by the time of the final hearing that aspect of the evidence had been overtaken by subsequent events. In so far as she wanted to elicit evidence about K’s wish to part company from the guardian, that is no longer relevant since she sensibly abandoned the whole question of K being separately represented. There was no reason to require the head teacher (or anyone else) to come to court to deal with this. M also wanted to ask the head teacher about K’s progress at school but the judge was entitled, I think, to determine that she should not be required to attend to deal with that orally. The guardian had already spoken to her as part of her enquiries, as had Dr Price (see his report at §8 which contains a full account of his meeting with her). There was a large amount of evidence about how K was from other sources which provided a picture of his quite complex presentation. Questioning of the head teacher at court was very unlikely, in the circumstances of this case, to have made a material difference to the judge’s assessment of the situation.[42]I turn to Dr Price. M listed a dozen questions she wished to ask him and the judge considered these at the hearing on 5 March 2013 at which M was not in attendance. It is pertinent to note that just prior to that hearing M had told both the local authority and the judge by email that she did not intend to attend that hearing or the final hearing. The questions that the judge permitted M to put to Dr Price, in writing, were about his expertise in adult psychology as opposed to child psychology. The other questions she wanted to ask would on the whole not have assisted the court to reach a decision about K’s best interests. Certainly the judge was within his discretion when he confined matters in the way he did.

Grounds of appeal: further assessment of M

[43]Although M did not apply specifically for a further assessment, she sought to persuade us that the judge should nevertheless have ordered one because the previous assessments were carried out when she was still suffering from the consequences of having been severely anaemic and from the effects of her head injury as well as the strong medication she took for it and she was now in better health. She told us that she has had CBT, that she no longer drinks alcohol, takes no sleeping tablets and is taking a reduced amount of diazepam. She has also realised the importance of structure in her life, she said, and is aware of unhelpful influences on her. She feels she is in a better position than she has been for years.[44]The judge recognised that M had made real progress with her health and overall wellbeing, taking into account her GP’s letter and his own observations. He was conscious of the potential relevance of this to her case and, as we can see from his questions to the guardian about further assessment and from his judgment, he considered whether a further assessment should be carried out. The assessments by Dr Price, Dr Barnes and the social worker had addressed M’s ability to meet K’s needs not only in the present but also in the foreseeable future and they were not dependent on her state of health. Dr Barnes expressly took into account the possibility that M may be suffering continuing symptoms related to her head injury when he reported at the end of December 2012. The social worker was in contact with M as the hearing approached, as can be seen from her statements, and she updated her assessment as she went along so would have been able to take account of improvements in M’s condition. However, the evidence of recent history in the run up to the hearing cannot have encouraged the judge that things would be any different if there were to be a further assessment. There had, for example, been an incident on 28 February 2012 at K’s review meeting during which M lost control and ultimately assaulted the social worker; the social worker inferred from this that M’s mental health continued to be very unstable and she remarked upon the significant impact that the events of that day had on K who saw some of them.[45]In these circumstances, and given the evidence of the guardian as to the importance of decisions being made for K without delay, the judge cannot be said to have been wrong not to have adjourned the case, of his own motion, for a further assessment to be carried out. No such assessment was necessary for him to determine the issues that were before him.[46]Prior to the appeal hearing, M filed an application for permission to adduce new evidence in the form of an assessment report on her by an independent social worker. The local authority and guardian opposed this application, questioning the credentials of the author and pointing out that the report did not comply with the requirements of Part 25 of the Family Procedure Rules 2010. These are material factors and contribute to my view that permission should not be granted for the report to be adduced. Furthermore, the author did not have the benefit of being fully instructed and, although her report is undated, it must date from well after the judge’s decision in March 2013 as it refers to a letter from M’s GP dated 6 August 2013. All in all, it is not material that will assist us to determine the appeal.

Grounds of appeal: the threshold criteria

[47]M’s argument in relation to the judge’s approach to the threshold criteria concentrated particularly on her perception that the judge had found that she was attempting to commit suicide on 14 August when, she said, there was no evidence to establish this and it was not the case.[48]It would not be helpful, I think, to review the evidence about the events of that day here. By the time of the hearing before the judge, the threshold document referred to an “incident” which is all that the judge found had occurred; he did not make a finding that M had attempted to commit suicide. He said that there was “a most frightening and serious incident” (§3) and he said that M had been drinking (§8). Both of those findings were amply supported by the account that M gave to us of what happened, even taking into account that she said she had only drunk a part of the bottle of alcohol.[49]The local authority submitted in their skeleton argument that at that time M was not emotionally available to meet K’s needs and that by reason of her condition and the effect on the child of this incident, there was a likelihood of significant harm to him. I would accept that entirely and it applies even if M’s ultimate fall was accidental rather than an attempt at suicide. Indeed, M herself very realistically accepted in her submissions to us that there were occasions when her emotional state had had a negative impact on K before he went into care. The guardian’s report of her discussion with K about the cliff incident demonstrated the effect of the events of that day upon him. He told her of his sense of responsibility for the incident, saying that if he had not gone to the park but had followed mummy, maybe she would not have fallen. The guardian was rightly concerned that he should feel such responsibility.[50]Understandably, M focussed on the improvements in her situation since that day but those improvements were not relevant to the threshold criteria which fell to be considered as at the date that the local authority applied for a care or supervision order, namely 20 or 21 August 2012 (the date is given variously). Improvements made prior to the final hearing before Judge Bromilow were relevant in relation to what order, if any, was in K’s best interests and I will deal with them later in that context.[51]M made submissions also about the other features of the threshold (which can be found listed at §20 above). I will deal with each in turn but I think it is fair to say, in broad summary, that she accepted that some things had been going wrong but she pointed out that she was ill and blamed the local authority for not having provided her with adequate support.[52]M did not dispute that K was in fact out unsupervised and accordingly, there could be no criticism of the judge’s acceptance that K had been allowed out unsupervised. Her case was that this was accepted practice, that all the local children did it safely, and that the local authority should have taken into account the general environment in which she and K were living and not criticised her for this aspect of her child care. Mr Wall’s chronology contained entries showing that he had raised with M the time that K had been spending away from the house unsupervised (see, for example, the entry for 12 June 2012) and had put to her that K’s behaviour had been problematic on occasions when he was unaccompanied. A particular example of this was when he broke into the school in early August 2012; M accepted that this incident had happened but said that K had been led astray by another child. Given the state of the evidence, the judge was entitled in my view to find that M’s lack of supervision of K was problematic and was properly a component of the threshold criteria. Whatever the local practice, playing out unsupervised was clearly not working for K and either M was allowing him to play out alone when he should not have been doing so or she did not have sufficient control of him to prevent this.[53]I think that M accepted in argument before us that there had been an incident when she slapped K and caused him a slight scratch with her long nails but in any event, there was evidence to support a finding to this effect. For example, the chronology prepared by Mr Wall contains entries dealing with this, including a record that M was “very emotional and remorseful” about it. When one reads the totality of the entries in the chronology, one can see that it formed part of M’s struggles to deal with chaotic and challenging behaviour on K’s part. She submitted to us that it was disproportionate to rely upon the incident as part of the threshold. I do not accept that. It was a proper ingredient and was not treated as sufficient in itself to justify local authority intervention.[54]All in all, I accept that the judge was entitled to make the factual findings that he did pertaining to the threshold and that, as the local authority submitted, it was clear from the evidence that at the material time K was suffering and/or was likely to suffer significant harm within the ambit of section 31 of the Children Act 1989.

Grounds of appeal: the judge’s reasoning for making the care order

[55]M’s case before the judge was that she was much better than she had been. Indeed, she told us that she was now in a better position than she had been for many years and I hope that that is so but I must direct my focus firmly to the situation as it was when the matter was before the judge because, as a Court of Appeal, our role is not to determine the case as if we were the trial judge but rather to scrutinise the approach and decision that that judge took.[56]I have already remarked that the judge’s judgment is short. It has to be borne in mind that the judge can hardly have been aware when he gave it of the intense focus that there would be this year on the form and content of judgments. It was given well before the decisions in Re G [2013] EWCA Civ 965 and Re B-S [2013] EWCA Civ 1146. However, although he kept the judgment short, the judge gave clear signposts to the evidence that supported his conclusions; I have summarised above the salient features of the evidence upon which the judge said he relied. It is not incumbent on a judge to replicate all the evidence in his judgment, provided that he identifies sufficiently the evidence he has accepted, what he takes from it and what findings he makes based upon it. In my view, this judge did that and, taken as a whole, his judgment clearly shows that he engaged with the essence of the case and directed his mind to, and answered, the key questions. We can see from it why it was that he made the orders that he did.[57]The only options open to the judge were that K would return to M, with or without the protection of a statutory order, or that he would stay in foster care under the auspices of a care order.[58]There was abundant evidence to the effect that M was unable to provide for K’s needs at the time of the hearing. His needs were complex and had resulted from the unstable care he had been receiving at home. He needed a safe, secure and stable environment. The unanimous evidence of Dr Price, the social worker and the guardian was that M could not provide this as things were and that K would suffer harm if he was looked after by her. Dr Barnes was also of the view that her capacity to respond appropriately to K’s needs was impaired. As to whether there may come a time in future when M would be able to look after K, the evidence was non-committal, leaving open the possibility that M may not be able to provide for him even in the long term. The judge set this evidence appropriately in the context of the positive things that could be said about M, including that she was making progress in dealing with her medical problems. However, he still concluded, as he was entitled to do, that M did “not have the capacity now or in the immediate, indeed, foreseeable, future of meeting K’s needs” (§35) and that, with her, K would be at real risk of being at the receiving end of “yet further upheaval, of unsatisfactory and neglectful parenting” and of suffering significant emotional harm. K therefore needed a permanent placement with a carer with whom he could form a secure attachment and that inexorably led to the judge making a care order. It is to be noted that a supervision order had already been tried but had not preserved the situation which had deteriorated, as had K’s behaviour and functioning.

Grounds of appeal: access to the documentation

[59]M complained to us that she had not had all of the court documents and that she had not received a court bundle, only the contents list for it. She said that documents went to her former solicitors rather than to her, although she did receive some through the post.[60]It is standard practice for the parties in a care case to receive a contents list from which to make up their own bundle for court rather than for the local authority to provide a copy of the bundle for each party. However, if M is right in her assertion that she did not have all the documents from which to make up the bundle, that would have been a problem. However, the local authority and the guardian said that she was provided with copies of all documents prepared by them. The local authority pointed out that statements that M put in referred to page numbers in the bundle. They also pointed out that M had received the index in advance of the trial but had not requested a trial bundle or copies of any documents that she did not have and that it does not appear from the transcript that the issue was raised at the final hearing. Taking all of this into account, I am not persuaded that M was without the documents that she needed and I do not consider that there is anything in this ground of appeal.

Conclusion

[61]I have concluded, after hearing full argument and carefully examining the grounds of appeal advanced by M and/or referred to by McFarlane LJ when he gave permission for this appeal, that none of them have substance. It has not been demonstrated that the judge went wrong in his approach, in his reasoning or in relation to the result at which he arrived. I would therefore dismiss this appeal.

RAFFERTY LJ:

[62]I agree.

FLOYD LJ:

[63]I also agree

Cited in 3 later judgments