R, Re [2014] EWCA Civ 1110

[2014] EWCA Civ 1110

Case No B4/2013/3361

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM TAUNTON COUNTY COURT

HIS HONOUR JUDGE BROMILOW

TA13C00011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2014

Before

LADY JUSTICE ARDEN

LADY JUSTICE BLACK

LORD JUSTICE BRIGGS

Between

RE R (CHILDREN)Appellant

RE R (CHILDREN)

Ms Sheila Taurah (instructed by Forrester Sylvester Mackett) for Appellant

Lauren Pitchford (instructed by Somerset County Council) for Respondent

No appearance by the Mother

Zahid Hussain (instructed by Gareth Webb & Co) for Childrens Guardian

Hearing Hearing date: 10th June 2014

Judgment

Lady Justice Black :

[1]On 31 October 2013, His Honour Judge Bromilow made orders in relation to two children, a girl (E) who is 12, and a boy (N) who is 6. E’s father (F) seeks to appeal against those orders. Although N is not biologically his child, he has always treated him as his own and is as committed to bringing up N as he is to bringing up E. He had applied for the discharge of care orders that had been made earlier in relation to both children; Judge Bromilow dismissed that application and granted the placement order that the local authority (LA) sought in relation to N. He declined to make any order in relation to contact between F and the children. F seeks to appeal against these decisions.

[2]In preparation for the hearing, Judge Bromilow had been asked to order an addendum report from a psychologist, Dr Franzen, who had provided a full report earlier in the proceedings. On 26 September 2013, he declined to do so, on the basis that it was not necessary in order to determine the applications that were before him. F also seeks to appeal against that decision.

[3]The courts have been involved with E and N for a considerable period. I will not set out here the detail of the history but a short outline is necessary in order to establish the context of this appeal.

The history up to May 2012

[4]LA’s concerns about the family go back many years. The children’s mother (M) had many disadvantages. Looking after the children proved to be challenging for their mother (M). As she plays no part in this part of the proceedings in relation to them, I need not go into the details of her problems and I can turn my focus elsewhere.

[5]The problems were not confined to M. The relationship between the parents was a volatile one. The final threshold document, which the parents accepted, said that there were incidents of domestic violence between them giving rise to “mutual injury”. It also said that they had failed to act upon advice from educational and health care professionals with respect to a number of ongoing health problems. It referred to neglect of E and to home conditions being poor, with there being numerous examples of the parents failing to engage sufficiently with LA and work collaboratively with it. The situation was summarised in the document as follows:

“As such, the children have been exposed to or are at risk of being exposed to chronic neglect, physical and emotional harm.”

[6]These general statements in the threshold document do not convey the picture which emerges much more clearly from the social work chronology of protracted instability and neglect, disrupted by parental altercations and separations, sometimes involving violence. In her witness statement of 30 September 2013, the social worker spoke of the children having lived with F for their entire life with M frequently leaving the family home with no explanation (iv/122) and E being in a parental role for N.

[7]It was in February 2011, that LA began care proceedings. In March 2011, the children were placed with foster carers. Throughout the protracted proceedings that followed, they have been kept together.

[8]By the time of the final care hearing before Judge Bromilow in May 2012, the section 31 threshold was conceded and neither parent was seeking to look after the children. F had hoped that he would be able to do so but, as the judge said (§11 17 May 2012 judgment) “he made the brave decision to abandon this aspiration”. LA, supported by the guardian, considered that the appropriate plan for the children was adoption and therefore sought placement orders in relation to both children. F opposed this and supported instead a plan of long term fostering for the children, with him continuing to have contact with them.

[9]In order to resolve the dispute, the judge heard evidence from the social worker and the guardian and from Dr Franzen who had produced a 78 page report which the judge described as “a thorough and incisive assessment of these parents, E and N”. He found the psychologist “realistic and clear …. in her thinking”. She emphasised the children’s need to remain together and to be found a permanent family home regardless of the legal label for the arrangement, although acknowledging that finding an adoptive family for both children together would be difficult. The judge found her realistic and clear in her thinking and accepted her evidence. LA responded to it by expressing their commitment to keeping the children together unless something wholly exceptional happened. The judge approved their amended care plans, which were also supported by the guardian, saying (§22 May 2012 judgment):

“I have concluded that I must approve the amended care plans which are for a concurrent search for adoptive and long term placements with the former being the priority. The children will remain together, they need a permanent family and I conclude this is best achieved by adoption. …. In reaching this conclusion I have born in mind the likely difficulties in finding an adoptive placement for children of this age and background, namely their knowledge of their parents…..the search will be time limited to about ten months….”

He declined to make contact orders, taking the view that they would be likely to restrict the search for a long term placement, which would be contrary to the best interests of the children. He made care orders and then went on, in view of his conclusion about adoption, to dispense with parental consent and make placement orders in relation to both children.

Following the making of the care and placement orders

[10]The detail of what happened next can be found described in the judgment of McFarlane LJ who was a member of the Court of Appeal which dealt, on 6 September 2013, with M’s appeal against those orders (Re R (Children)

[2013] EWCA Civ 1240

). In short, by the time of that appeal hearing, the landscape had changed. The parents had final contact with the children during November 2012. However, it did not prove possible to find either an adoptive placement or a foster placement for the two children together. Furthermore, LA came to the view in time that the children had developed in such a way that it was no longer necessarily in their best interests to be together and its plan had changed to a plan to place them separately. It had accepted that an adoptive home would not be found for E and the placement order in relation to her had been revoked by agreement on 15 July 2013. It continued to hope that N, being considerably younger, could still be placed for adoption. However, it agreed that it was appropriate for there to be a fresh consideration of whether placement for adoption was appropriate for him in the changed circumstances of the case and it agreed to the placement order in relation to N being revoked as well so that the Judge Bromilow could evaluate afresh what was appropriate for N’s welfare. The Court of Appeal therefore allowed the appeal and set aside the placement order in relation to N.

[11]There thus remained only the care orders in relation to both children. There was already on foot an application by F for discharge of those orders. To it was added a fresh application by LA for another placement order in relation to N and by F for contact with the children. Judge Bromilow took charge of the case again, giving various directions in preparation for the hearing in October 2013 at which the orders presently under appeal were made. By now, LA’s case, supported by the guardian, was that separate plans should be made for the children, with E being placed in long term foster care and N being placed separately from her, with the search for an adoptive family for him continuing. F’s case was, essentially, that the children should return to his care. 26 September 2013 refusal of F’s application to instruct Dr Franzen

[12]On 2 August 2013, Judge Bromilow had refused applications by both parents for permission to instruct Dr Franzen to advise the court further. However, the issue required to be re-determined in the aftermath of the appeal decision on 6 September 2013. The judge therefore returned to it on 26 September 2013.

[13]He was told that Dr Franzen could report in time for the full hearing and there was a draft letter of instruction ready for him to consider. He acknowledged that the request to involve Dr Franzen again was “quite understandable because she wrote a very lengthy report in November 2011 which certainly assisted and influenced the ultimate decision that I had to make in respect of both children”. He set out accurately the law in relation to the instruction of experts (to be found in Part 25 of the Family Procedure Rules 2010 as amended, Re TG (Care Proceedings: Case Management: Expert Evidence)

[2013] EWCA Civ 5

and Re H and L

[2013] EWCA Civ 655

). He was conscious that a central issue for determination was whether it was in the interests of the children to be separated.

[14]He was “wholly unconvinced” that Dr Franzen’s input was necessary to assist the court to resolve the proceedings. He considered that there was nothing exceptional or unusual about the questions that it was proposed should be put to the psychologist and that the issues arising were those:

“commonly assessed, teased out and ultimately decided upon by judges hearing public law cases. These are issues that are always considered by social workers, always considered carefully by Guardians and they are also matters upon which parents, and in particular in this case F, can express clear views.”

[15]He had already examined in his judgment of 2 August 2013 the expertise of the social worker in the case and the guardian, who he commented “knows the case inside out because she has been in it from the start”, and concluded that it was “considerable”. After re-examining the question on 26 September 2013, he still did not consider that there was any gap in the evidence that needed to be filled by Dr Franzen so refused the application.

Judgment of 31 October 2013

[16]The judge reviewed the developments in relation to the children. E’s behaviour had become increasingly challenging (§27). She had been expelled from school and her foster carers reported that she was increasingly difficult to manage. There was “good evidence of an increasingly difficult relationship between him and his sister” (§28). The children’s original foster placement had broken down in March 2013 and the judge commented that the placement with the new foster parents was “holding up, which no doubt is due in particular to their very considerable skills” (§28).

[17]LA and the guardian agreed over what arrangements were in the children’s best interests. It was considered that E needed a specialist foster placement where she would receive therapy, do life story work, and have a proper explanation as to what had happened to her so far. At the time of the hearing before the judge, it was thought that there was a respectable possibility of such a placement starting in January 2014. LA planned for N still to be found an adoptive placement, albeit that if the search was not successful in six months, the plan would be for long term foster care. It was intended that the children would have contact at least twice a year.

[18]F’s proposal, supported by M, was that eventually both children should be living with him. This would be done in stages. He proposed that E should move to a specialist placement where she would receive specialist care, moving to live with him when she was ready to do so. Meanwhile, his contact with N would be re-established and built up gradually, leading to N living with him.

[19]The judge heard extensive evidence from the social worker who had worked with the children for some 13 months and he was impressed by her. She had sought information about the children from appropriate sources and made her own observations and she was able to give examples of the children’s behaviour to back up her recommendations. In her opinion, the relationship between the children was failing and was becoming increasingly challenging for even the most experienced foster carers with whom they were living and the time had come for them to be placed separately. The nature of her evidence on this topic can be illustrated by quoting from two paragraphs of the judgment:

“49. Ms Harris was asked in some detail about separation. It is a central issue in this case. She had this to say. She said that E’s behaviour and her separate needs, as well as her continued parenting of N, were clear factors in favour of separation. She gave the example of N reporting that he has been kicked, that he has been tormented by E He told her that E was ruining his life, would kick and hit him, and then he burst into tears so the subject had to be changed.” “53. In her opinion, E’s relationship with her younger brother is not about caring for him. She picks on him and chooses her time to do so. Sometimes she rejects him. Sometimes she can be cruel to him….”

[20]The judge found the guardian also to have carried out a full and fair balancing of all the competing options in a search for what is best for the children. She had concluded that the relationship between the children was negative, about domination (E’s power and control over N), and no longer healthy. N had told the guardian that he wanted to see E but not to live with her and he was unable to talk about her in a positive way. The guardian had recognised the benefit of siblings being together but had set out for the judge the risks for N and E in this, including delay for N in decisions being taken about his future and the risk of further placements breaking down.

[21]The judge concluded that there was increasing evidence of the children being confused and that E has very considerable emotional needs. He also concluded that they both needed some certainty in their lives and he took the view that if the care orders were to be discharged, they would face “overwhelming uncertainty as to their future” (§72) and “the risk of further significant harm is clear, because of insecurity, their particular needs and the lack of understanding on the part of F, in particular, as to what happened in the past” (§74).

[22]The judge was careful to note the efforts that F had made to improve himself as a parent and his love for the children and genuine wish to care for them. However, the core of his reasoning for refusing to discharge the care order, which also underpinned his decision about placement, is to be found in two paragraphs of his judgment.

[23]In §57, he concluded from F’s responses to questions about the past that he had only a superficial understanding of the concerns there had been and continued:

“He likes to present himself as a victim of domestic violence with no real acknowledgment of the impact of his behaviour upon his children. In my judgment, he has no real grasp of the challenges that are certain to be presented by E and N in the future, and most particularly if they came to live with him.”

[24]Then, in §75, he found that:

“He has made some modest progress, but in my judgment is not capable of meeting the particular needs of these two children. He has no true understanding of the significance, the impact of what happened in the past. I conclude that he lacks the capability of parenting E and N, whether separately or together.”

[25]Having dismissed the application for the discharge of the care orders, the judge considered the placement application as a separate matter, as he was obliged to do, considering the various options for the children and the pluses and minuses of each. In this context, he specifically explained his reasoning for deciding that the children should be placed separately. He accepted the professional advice that things had moved on since Dr Franzen originally advised and that the children should now be separated. Whilst acknowledging their inevitable distress, he proceeded upon the basis that with proper explanation, planning, support and sensitive contact, they would cope with it.

[26]Judge Bromilow went on to rule upon F’s application for contact with E. He took the view that it would be detrimental to her progress to reintroduce her to F at a time when she was about to move placements and start therapy although the possibility of contact later on in the process remained open. The judge proceeded on the basis that E had said that she did not want to see F. F’s counsel pointed out to the judge at the conclusion of his short judgment on this point that the guardian had said that E had made a card for F and had a present for him which she wished to give him. Her submission was that what E says and what she feels can be quite different things. LA said that their plan was for there to be indirect contact and the judge then acknowledged that that should take place. This appeal Permission to appeal

This appeal

[27]F’s application for permission to appeal was originally considered on paper by McFarlane LJ and refused. The application was renewed orally to Ryder LJ on 1 April 2014. He adjourned it to a hearing before the full court with the appeal to follow if permission was granted. For my part, I would grant permission to appeal. The evidence available on the issues arising a). Introduction

[28]For two reasons, I intend to set out some details of the evidence which goes to the issues which the judge had to decide. The first reason arises from the very unusual course taken by Ryder LJ when he considered the renewed application for permission to appeal. Ryder LJ ordered that an addendum report from Dr Franzen should be obtained by F. We have had to consider the impact of the report on the appeal and the process of instruction of Dr Franzen following Ryder LJ’s order also requires analysis and comment. The second reason is that it is helpful, when examining certain of F’s grounds of appeal, to have in mind the nature of the investigation and analysis carried out by the guardian and the social worker, as well as an idea of what each of their various reports and statements contained and when it was filed. b). Dr Franzen’s new report

[29]Ryder LJ’s order provided:

“An addendum report from Dr Carol Franzen shall be obtained by the applicant, to be filed and served no later than 4 p.m Wednesday April 2014. The question of whether the evidence thereby obtained may be adduced as additional evidence before this court shall be reserved to the inter partes hearing. The report shall answer the key question of whether the children should be separately or jointly placed and why and whether a joint placement with the applicant is in each of their interests having regard to the therapeutic needs of the elder child. The court has determined that the instruction of the expert is necessary having regard to Part 25 FPR to determine the issues in this appeal. The letter of instruction is to be drafted by the applicant’s solicitors and if possible agreed between the parties to the proceedings. In default of agreement, the draft letter and any alternative formulations are to be referred to Ryder LJ for determination on paper on Tuesday 8 April 2014.”

[30]Unfortunately, it has not been possible to have access to the reasons why Ryder LJ decided to take this step in this particular case. However, I would emphasise that it was a wholly exceptional step and that parties to an appeal should not expect that the court will normally authorise the preparation of such a report in advance of the appeal. This is particularly unlikely to happen where, as here, there is an appeal against a refusal by the trial judge to authorise the very same report. What happened following Ryder LJ’s order should not have happened and cannot have been foreseen by him, but it underlines that there are difficulties intrinsic in such an order.

[31]The end point is that Dr Franzen was instructed to provide a report covering considerably more than Ryder LJ had authorised. She was, indeed, requested to advise on whether the children should be placed separately and on matters ancillary to that. However, advice was also sought on matters such as contact, whether F now had the ability to parent one or both of the children, support services that might assist him, and how the children may be reintroduced to his care.

[32]The letter of instruction to Dr Franzen was drafted by F’s solicitors and agreed by all parties. It asserted that the court had granted permission for Dr Franzen to see the children. This was not the case. For Dr Franzen to do so would have required an amendment of Ryder LJ’s order, as was also required for the widening of the scope of her report.

[33]We were told that the agreed letter of instruction incorporating these unauthorised extensions (“the 10 April 2014 letter of instruction”) was lodged with the Court of Appeal on 10 April 2014. It was appreciated by the parties that the order needed to be “amended” to cater for Dr Franzen seeing the children. I am not sure that it was considered that the extension of the ambit of the report in other respects required Ryder LJ’s approval, it being thought that it was enough that the parties agreed. When the matter was brought to the attention of Ryder LJ, he was not prepared to amend his order to include Dr Franzen seeing the children without a consent order being provided by the parties. A consent order was sent to the court office on 23 April 2014 but for some reason it does not seem to have been brought to the attention of Ryder LJ. What is clear is that he did not make the amended order that the parties sought. The net result of all of this is that the operative order was that made by Ryder LJ on 1 April 2014 so the ambit of the instructions to Dr Franzen should have been confined to that which was authorised by it and she should not have been given an expanded remit or told, as she was in anticipation of authority being forthcoming from Ryder LJ, that the court had authorised her seeing the children.

[34]Meanwhile, Dr Franzen’s work was in fact well underway. As she recorded in her report of 25 April 2014, she saw F on 17 April 2014, presumably following receipt of the 10 April 2014 letter of instruction with its unauthorised extensions. Fortunately, she did not see E and N for the purposes of her report. Very responsibly, she declined to do so at that stage because she felt it inappropriate to unsettle the children as things stood. But she did address matters which should not have been within the scope of her instructions, reporting in particular on F’s capabilities.

[35]Apologies have been proffered from some quarters for what it is acknowledged was inappropriate conduct of the instruction of Dr Franzen. Apologies were undoubtedly required. First, the parties do not seem to have realised that the expansion of the topics that Dr Franzen was asked to cover required express permission from the court. The events with which we are concerned pre-date the changes of 22 April 2014. If, notwithstanding Rule 2.1 FPR 2010, the FPR 2010 applied in the Court of Appeal (and I do not intend to divert from the main issues in this case to consider that question), Rule 25.8(2) FPR 2010 provided for the court to give directions approving the questions which the expert is required to answer. Ryder LJ had done so and it was not open to the parties to alter the questions without court approval which had not been given. Secondly, rule 25.4 FPR 2010 provided that a child may not be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in the proceedings without the court’s permission which had not been given. In the post-22 April era, rule 25.8(2) has not been amended and the Children and Families Act 2014, section 13(3), covers the ground formerly covered by rule 25.4.

[36]We did look at the whole of Dr Franzen’s report, but did so de bene esse in so far as it went outside the scope endorsed by the court.

[37]Dr Franzen remained of the view that separation of the children should be seen as a last resort and she had reservations about whether LA’s plan for E to be placed in a therapeutic placement would be to her benefit.

[38]However, I think it is fair to say that the disabling effect of Dr Franzen’s position on the sidelines (which was no fault of hers) is apparent in her advice. In relation to the question that Ryder LJ had sanctioned, that it to say whether the children should be placed separately, she began her advice as follows (§13.17):

“As I have little information on the children’s current placement my opinion must be generalised.” and at §13.16 she had said specifically: “I am unfamiliar with E’s current level of need or behavioural or emotional dysfunction and can only surmise that [the proposal of a therapeutic placement] is being made in light of this.”

[39]Dr Franzen’s opinion on the question of F’s capacity to care for the children was based upon the documents she was sent plus her interview with him on 17 April 2014 and psychometric testing. It was therefore inevitably a view of the position six months after the hearing before Judge Bromilow. Furthermore, it was a view formed in something of a vacuum given that she had not had the chance to assess the children’s presentation for herself and it is not known whether she had copies of the relevant guardian’s reports. Dr Franzen was appropriately cautious about the reliability of her conclusions, recognising that the source of her information was essentially F himself. Summarising the import of her report in her executive summary, she said:

“Opinion is offered which is positive about F’s viability as a parent if that which he demonstrated in interview can be verified and sustained.”

[40]The report itself is detailed and it is neither appropriate nor possible to reflect all of it here, so I will pick out some features. Dr Franzen set out what F had told her, including about the changes he had made to his lifestyle and the benefit he considered he had derived from professional counselling, and about his being less angry and more controlled. She said that his theoretical understanding of parenting appeared to have improved but that he had had little opportunity to demonstrate those changes in practice or to develop them. She also set out her assessment of his personality. She suggested that F had made a considerable move forward in that he was now able to indicate to her his acceptance that he and M were wrong when they had care of the children. She also found him to have a better awareness of the issues. She said that there was no doubt he would require support to parent his children successfully and that it was difficult to know whether he would work with agencies co-operatively and positively; given his personality features, some level of mistrust was very likely to remain. She referred to surprising research into the return of children to their parents after a time in care which she said shows that returning to a birth parent is the ‘least successful permanence option’. c). F’s evidence in support of discharge of the care orders/in opposition to the making of a placement order in relation to N

[41]Turning to the evidence that was before the court in October 2013, an important feature of it was F’s own statements of 14 August 2013 in which he opposed separation of the children and N’s placement for adoption and explained why he felt he had addressed the concerns raised by LA in the care proceedings and could provide a home for “either both children or E alone” (iv/57). He listed what he had done on his own initiative to improve his position, including undergoing counselling and taking a course in CBT, keeping his home clean and tidy, enrolling on an Access to Higher Education Course, making enquiries about another parenting programme, and contacting his GP about therapy/counselling for E. In his statement of 18 October 2013, he accepted that his relationship with M and his previous way of life was not suitable for the children (iv/149) and spoke of having enrolled on a college course in care and counselling. He said that he thought it would be in the best interests of the children for his contact to be reinstated as soon as possible with them and then gradually N could be reunited with him whilst E was placed in a residential therapeutic placement with the ultimate goal of being reunited with F and N (iv/155). d). The social worker’s and guardian’s evidence about the children

[42]The social worker’s statement of 30 September 2013 described the children as they were when they arrived in foster care and now. It made clear that E’s behaviour is difficult (see, for example, iv/126). This is something that also emerged clearly from earlier documents such as the social worker’s statement of 5 August 2013 (for example at iv/44) and her sibling assessment of 3 April 2013 which also spoke plainly of the difficulties in the relationship between the siblings, which was said not to be a normal healthy sibling relationship but one which was detrimental to N (for example at iv/18). The social worker said that N “does not identify with” his parents (iv/129 and see also iv/45). She expressed the view that N’s need for permanence and no further delay or disruption must now be the overwhelming priority in the case.

[43]The guardian also referred in her reports of 4 September 2013 and 20 October 2013 to E’s challenging behaviour for which she considered she needed therapeutic support. She had concluded that E was going to struggle in any foster placement throughout adolescence and there was a high probability of placement breakdown unless there was a great deal of work completed and matching was well managed (report of 4 September, vi/104). N had none of the attachment or behaviour issues that E had but the guardian thought that would be likely to change if he remained with E (vi/104) and he should be placed for adoption separately as soon as possible. In her report of 4 September 2013, she rejected the idea that there should be further assessment of either parent, believing that the way forward was clear and that both children have an urgent need for permanency and for their placement and therapeutic needs to be met without further delay and uncertainty. Her report of 20 October 2013, which followed her meeting with F to discuss his proposals and which was produced on the first day of the hearing, contained a further review of the children’s presentations and needs, essentially along the same lines as before. e). The social worker’s and guardian’s evidence about F

[44]The social worker’s statement of 30 September 2013 summarised her interview with F on 18 September 2013 (which lasted 45 minutes) and her conclusions from it. She had concluded that there had been no substantial change in his ability to care for the children. She said (iv/127) that he “still does not fully accept the concerns of the local authority when the children were in his care”, “does not fully appear to understand the impact [of] the emotional abuse and neglect E and N experienced when in his and M’s care or in his sole care”, “presents as having limited insight into the needs of E and N” and has “limited understanding of the views and behaviours of E and N”. Her assessment was that there “is little or no evidence to support F’s claim that he is now able to meet E’s and N’s needs should they return to live with him” and that it was “unlikely he will be able to increase his current parenting skills in order to meet E’s and N’s emotional needs or understand their behaviours when he feels his current parenting abilities are already sufficient”.

[45]The guardian met F for the purposes of her report of 20 October 2013; F says the meeting lasted 1 hour 45 minutes. She had noted in her previous report of 4 September 2013 that the majority of the things that F said in his statement that he had done and the work he had undertaken had either been already ongoing or completed at the conclusion of the last proceedings (vi/106). Having met F, she noted the strengths in his position and some positive developments (vi/117 et seq): for example he had had counselling; he appeared to have “moved slightly in terms of accepting some responsibility for the children’s difficulties and abusive experiences” and for some “pushing and shoving” in his relationship with M; he had decorated the house; and according to him, he was now much calmer and able to accept help and advice. However, in the guardian’s view, he was still minimising his responsibility for the children’s experiences, he had not addressed the issues of domestic violence and the impact it had on the children and he did not have an understanding of the children’s differing needs or the skills to manage them. He had done a parenting course during the previous proceedings but continued to struggle with their emotional needs after it and he had not done any additional work on his parenting capacity, although he had made enquiries about a further parenting course. The guardian summarised her position as follows:

“44. To conclude F has not in my opinion concluded all the work necessary despite some progress in certain areas. I do not consider it to be within N’s timescales to wait for a further period in care to ascertain whether these changes can be made and sustained by F.”

F’s submissions and discussion a). Instruction of Dr Franzen

[46]A mainstay of F’s appeal was an attack upon the judge’s refusal of permission to obtain a further assessment report from Dr Franzen.

[47]It was submitted by Miss Taurah, counsel for F, that the judge had erred in refusing such an assessment by Dr Franzen, which could have been available without delay to the proceedings. This deprived F, she submitted, of a fair opportunity to pursue his application for the discharge of the care orders and led to the judge determining the case against him without sufficient information as to the changes in his and the children’s circumstances and about his ability to parent them now. The decision about Dr Franzen had to be made in accordance with recent authorities such as Re B

[2013] UKSC 33

and Re B-S (Children)

[2013] EWCA Civ 1146

which make it clear that adoption is a last resort and that there must be proper evidence analysing the arguments for and against the realistic options for the children. Here, Miss Taurah said, that necessitated the re-instruction of Dr Franzen which was “imperative/indispensable” given that Dr Franzen was familiar with the children, had been central to the change of care plans in May 2012 and had experience far in excess of the social worker and guardian, who did not have the requisite expertise. Her input was necessary, it was submitted, because it was the only reliable way to evaluate the options for the children, including issues such as whether therapy for E might be effective and make it possible to reunite the children, whether therapy could be carried out whilst E was with F or in some other alternative form not requiring the children to be placed separately, whether the children could be placed in separate long term foster homes with the bond between them maintained, what the impact upon them of separation would be, and whether F might look after one of the children only.

[48]Miss Taurah argued, I think by way of support for the proposition that more expertise was required, that it was of concern that there was what she described as contradictory and conflicting evidence from the guardian and the social worker as to E’s true feelings towards F. This submission was based on the fact that in oral evidence on 29 October 2013, the guardian said that E had said to her on the day before that she would like to get F a present and a card (transcript vii/217). This was said to undermine the evidence of the social worker that E did not want contact with F.

[49]Dealing with this last point first, the matter was drawn to the judge’s attention when he had given his separate short judgment on the question of contact (see above at §26). It was clearly material to that issue and the judge dealt with it in that context. Children involved in care proceedings not infrequently have conflicting and contradictory feelings about their parents and I do not accept that the existence of this apparent ambiguity in E’s views demonstrated that the case was of such complexity as to be outside the expertise of a social worker and guardian who had the experience of this family, and generally, that this social worker and guardian had. As far as I am aware, no one asked for the social worker to be recalled so that what E had said to the guardian could be explored with her. As for the guardian, if one reads on in the transcript, it can be seen that she dealt with the import of E’s recent comment perfectly appropriately herself. She explained that up until the previous day, E had been saying she did not want contact but that E had now “opened that window of opportunity and is willing to do that” and she, the guardian, thought that was positive and provided an opportunity. In response to questioning from Miss Taurah, she explained that before this E had been adamant about not seeing F, even when she challenged it with her, and that it was “about where E is at within herself”, “about doing it when E is ready”.

[50]In any event, F’s criticisms of the judge’s refusal to authorise Dr Franzen’s further involvement must be examined principally from the perspective of the 26 September 2013 hearing. By then, the evidence available included the social worker’s sibling assessment and her statement of 5 August 2013 (see §42 above) and the guardian’s report of 4 September 2013 (see §43 above). The judge was also aware of the social worker’s and guardian’s approach from the earlier part of the proceedings and he had particularly commended the social worker in his May 2012 judgment for adapting to Dr Franzen’s evidence (§15 May 2012 judgment). He was well placed therefore to consider whether they were aware of and able to deal with the issues in the case and nothing in their August and September 2013 reports undermines his assessment that they were. He fully appreciated that Dr Franzen had been helpful and influential in the original care and placement proceedings but he was entitled to take the view that the issues he was to determine in October 2013 could nevertheless be determined on the basis of the professional evidence and advice of the guardian and social worker.

[51]This court will not interfere readily with case management decisions (see, for example, §35 of Re TG). The decision to refuse a further assessment by Dr Franzen was a case management decision which was well within the discretion of Judge Bromilow and properly explained by him in his judgment of 26 September 2013. Miss Pitchford, counsel for LA, pointed out that the expert evidence regime had become significantly more stringent since the first instruction of Dr Franzen, with the changes to Part 25 of the FPR 2010, but the judge did not need to rely upon that to arrive at the decision he made, which was based upon an analysis of what issues needed determining and what evidence was going to be available from existing witnesses to assist him with them.

[52]I would therefore reject this ground of appeal. b). Other grounds of appeal

[53]There were a considerable number of other grounds of appeal. From them, the following themes of argument emerged: i) The October 2013 hearing was procedurally unfair to F in that material evidence only became available late in the day and he did not have the opportunity to digest it before he gave evidence, and also by virtue of submissions being limited to a short fixed time. The process was also flawed because the guardian was unable to consider and address the final statement of LA because it was filed on the first day of the hearing. ii) The judge did not have the evidence to conclude that F lacked the capacity to care for the children, there being no report from Dr Franzen and insufficient assessment of him by the social worker and guardian, and the social worker having formed a fixed view of him based on the history and failed to adjust it in the light of the current circumstances. iii) The impact on the children of separation was not properly assessed, the judge wrongly concluding that they would cope with it. iv) N’s interests were preferred to those of E with too much weight being put on the optimal outcome for N of placement for adoption and too little on the damaging impact this would have on E. v) LA had not considered all the available options and the judge did not have the necessary in depth analysis from the social worker and the guardian of the possibilities. The judge failed to recognise that the burden of proof was on LA in respect of the placement order. vi) The possibility of F caring for N alone was not given proper consideration and should have been accepted as feasible. vii) Contact was not dealt with properly, either as between the children (for whom the care plan was for contact twice a year) or between F and the children and account was not taken of E’s contradictory comments on the subject. The judge failed to have regard to the duty of LA to promote contact between a parent and a child in care.

[54]I will deal first with the procedural complaints. It was said by Miss Taurah that the time allowed for F’s final submissions was only 10 minutes. LA responded that whilst submissions from LA and the guardian were curtailed, in fact F’s submissions were not. The transcript showed that the judge asked LA’s counsel to curtail her submissions because the parents “ought to have more than anybody else” (vii/227) and that the submissions made by Miss Taurah were considerably longer than either LA’s or the guardian’s submissions although it is fair to say that Miss Taurah showed herself to be “conscious of the timing” as we can see from vii/233.

[55]I am not persuaded that there was any unfairness in the way in which submissions were dealt with. There was no suggestion that oral evidence had been curtailed, so issues will have been fully aired already in examination in chief and cross examination. It emerged during argument before us that the judge contemplated written submissions being put in by noon the following day. It was not feasible for counsel for F to do this but she did not ask for more time to put in additional submissions in writing as she accepted she could have done if there had been matters with which she had not had time to deal.

[56]Similarly, I do not think, in the light of the analysis of the various statements and reports which I set out earlier, that F can have been taken by surprise by the evidence, whether about the presentation of the children or other relevant issues, notwithstanding that the social worker’s final statement and the guardian’s final report came in on the first day of the hearing.

[57]The difficulties with E’s behaviour and in the relationship between the children were identified in the social worker’s sibling assessment of April 2013 and her statement of 5 August 2013 as well as by the guardian in her report of 4 September 2013. When F met with the social worker on 18 September 2013 and when he met the guardian for her October 2013 report, he will already have had this information. The social worker provided another statement dated 30 September 2013 when the final hearing was still over three weeks away. The final statement of the social worker and the guardian’s report filed on the first day of the hearing did not raise new themes which had not been advertised in this earlier material. There was furthermore no application for an adjournment on the basis that it was impossible to deal with the material at this late stage in the proceedings.

[58]As for information that emerged in the oral evidence, it is almost inevitable that more detail does emerge in cases such as this in the course of oral evidence and we have not been directed to anything that was of such import as to put F at a disadvantage in responding during the hearing. In any event, as LA pointed out, the hearing was not concluded on 22 October and was resumed on 29 October. Accordingly F and the guardian would have had a week to consider the contents of the material filed on 22 October, as well as anything that emerged in the social worker’s oral evidence on that first day, before the hearing resumed on 29 October when F and the guardian gave evidence.

[59]I turn now to the arguments which I have summarised in §55 ii) to vi) above. These were directed to the judge’s decision as to what was in the children’s best interests and were another mainstay of the appeal.

[60]It is important to remember that the judge had an enormous advantage over this court in considering the issues that he had to determine. He had been in charge of the proceedings from the earliest stage and was thus favourably placed to evaluate whether there had been material change since he had made the care and placement orders in 2012. He had seen at first hand the impact of Dr Franzen’s report on the planning for the children in the original proceedings, including how she had inspired the recognition of how important it was to keep them together and he reminded himself of this again in his October 2013 judgment. Who better, therefore, to determine whether the separation of the children should now be contemplated, whether F had made sufficient changes, and whether the revised assessment of LA and the guardian held water? In addition, he had the opportunity over 2 days to see the witnesses giving evidence, which meant that he was uniquely well-positioned not only to determine the reliability of the professionals’ advice to him but also to assess, with their assistance, F’s acceptance and understanding of the history and the problems for the future, and his ability to meet the challenges.

[61]It would, of course, have been open to Judge Bromilow, even at the stage of the October 2013 hearing, to have adjourned for the purposes of obtaining more evidence about F’s position and/or about the children’s particular needs and how they might be addressed, but he considered that he had sufficient material before him. He was, in my opinion, entitled to take that view. He had been advised that the children required their futures to be resolved with no further delay and uncertainty and he had been told that adoption would be more difficult to achieve for N as a school age child. He was clearly in no doubt that decisions needed to be made as soon as possible. He had up to date information about F relayed to him by the social worker, albeit following a shortish interview, and by the guardian after a longer interview, and I do not think he can be said to have been wrong to make his determination upon the basis of this, in conjunction with what he saw of F whilst he was in the witness box. He acknowledged the progress that F had made but the totality of the information before him led him to the conclusion about F that he set out in §§57 and 75 of the judgment (see §§23 and 24 above). It has not been demonstrated that it was a conclusion which he was wrong to reach on the material then available. Nor does anything which emerges from Dr Franzen’s recent report significantly undermine it.

[62]It is important to note that the judge’s conclusion at §75 was that F lacked the capability to parent E and N “whether separately or together”. F’s predominant argument before the judge seems to have been that N would return home first and then be joined by E after she had received therapy. It was argued that the judge should nonetheless have considered N returning home alone. The short response to this is that he did, as we can see from this paragraph. He might, perhaps, have expressed himself more fully on the subject but that may be the product of the way in which the case proceeded in front of him. The fact remains that his conclusion was that F was not capable of parenting N alone. Given the need for N to have his future reliably secured without further delay and uncertainty, this was perhaps not a surprising conclusion. It is one which the social worker had reached in her statement of 16 October 2013 where she set out a list of the options for placement of the children which included the possibility of one child in placement with one of the parents (iv/138). She set out advantages of this but also identified disadvantages, notably that the child “would continue to experience further harm due to the inability of either parent to meet their needs”. She said (iv/139):

“Neither M nor F has been able to demonstrate that they have made sufficient changes in order to meet either E’s or N’s needs. M and F have limited, if any insight into the wishes and feelings of either E or N, neither M nor F accept the concerns of LA and their engagement with LA to address concerns [has] been irregular and often tokenistic.”

[63]As for the separation of the siblings, the plan at the conclusion of the May 2012 hearing was not a cast iron guarantee that the children would be kept together; it would have been inappropriate had it been because there must always be an ability to respond to unexpected changes in circumstances. By autumn 2013, the professionals were unanimous in their view that what had been thought to be beneficial for the children had become unhealthy and damaging for N at least. The case for the separation of the children was convincing and the judge was entitled to accept the evidence of the social worker and the guardian about it. I do not detect any inappropriate favouring of N’s interests over E’s. As counsel for LA observed in her skeleton argument, judges frequently have to carry out a delicate balancing exercise to work out how the competing needs of children have to be met and the judge did that. He did not disregard the distress that would be caused to the children by the process of separation but he was entitled to reach the view that they would cope with it and that it was in their interests. In so concluding, he recognised that the contact between the children following N’s adoption, if adopters were to be found, may be limited. He rightly said that in relation to their contact with each other, much would depend on where the children were placed but he accepted that LA acknowledged the significance of the relationship and had the issue at the forefront of their planning. Given the difficulties in placing an older child such as N and the uncertainties inevitably attending the progress of therapy for E, there was little more that the judge could do. It would not have been helpful to have encumbered the search for adopters with rigid stipulations as to contact between the siblings.

[64]I also reject the argument there was not a proper analysis of the options for the children by the professionals or by the judge, who was well aware of the fundamental nature of the placement decision that he was required to make. A full reading of the evidence that was before the judge and of the judgment discloses that the realistic options were given appropriate consideration.

[65]I turn finally to the criticism of the judge’s decision under section 34 Children Act 1989. A placement order having been made in relation to N, F’s application for contact related to E. Even taking into account such confusion as there may be in E’s views about seeing F, the order that the judge made dismissing the application was entirely within the range of orders that he could make, given her troubled presentation and the therapeutic process that was due to begin. He was not ruling out the possibility of direct contact, including during the therapeutic process, but he cannot be criticised for declining to make an order requiring it.

Conclusion

[66]For the reasons I have set out, I would grant F permission to appeal but dismiss the appeal.

Lord Justice Briggs:

[67]I agree.

Lady Justice Arden:

[68]I agree. Permission is therefore granted and the appeal is dismissed.