W-J (Children), Re [2015] EWCA Civ 788

Case No B4/2015/1531[2015] EWCA Civ 788
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT
(Deputy Circuit Judge O'Brien)
Venue Royal Courts of JusticeDate Thursday, 21 May 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE MCFARLANE
LORD JUSTICE UNDERHILL
LORD JUSTICE VOS
IN THE MATTER OF: W-J (CHILDREN)
(Computer-Aided Transcript of the Stenograph Notes of
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Ms K Kochnari (instructed by Pope & Co Solicitors) appeared on behalf of the Applicant Mother
Mr R Powell (instructed by Kent County Council) appeared on behalf of the Local Authority
Ms G Farrington (instructed by Pearsons) appeared on behalf of the Children's Guardian
J U D G M E N T

LORD JUSTICE MCFARLANE:

[1]This is an appeal from the determination made by His Honour O'Brien, sitting as a Deputy Circuit Judge, on 12 May 2015 in the Family Court at Canterbury. The decision was made in the early stages of care proceedings which had been issued with respect to four children aged between the ages of eight and two and a half, but in fact the issue that the judge had to determine only related to the youngest child, a girl, T, born on 2 September 2012 and therefore, as I have said, aged two and a half years.[2]The circumstances that led the court to be hearing care proceedings are troubling. They are troubling in the sense that, in many ways, the mother, who is the primary carer of these four children and had been their primary carer until very shortly before the hearing before the judge, has been seen to be able to provide good care for them in many aspects of their lives. There is no complaint that they are not presented at school on time, they look well, they present as ordinary children in many respects but the Achilles heel in the mother's ability to parent, very sadly, arises, it is thought, from difficulties that she has from time to time with her mental stability.[3]The judge did not have a full psychiatric assessment of the mother but the information that was available to him indicated that she was likely to have a personality disorder identified as one which was Unstable Personality Disorder of an impulsive type. There was also some concern that her symptoms might qualify for a diagnosis of Bipolar Affective Disorder. What does that label mean in terms of this lady's functioning? In short terms, from time to time she loses control of her behaviour, loses her temper, and the trigger for this is often a trivial matter which would not affect other people. On one occasion, for example, she describes losing her self-control simply because she was irritated by the noise of someone eating a packet of crisps.[4]When she does lose control, she behaves in a physically violent way, normally towards inanimate objects, utensils in the kitchen, other matters of that sort. Sometimes she can detect the onset of these symptoms and make arrangements for the children, if they are at home, to go outside the house or go to be with someone else. On other occasions she is not able to have such foresight and it is plain from what the children have said that they have witnessed the distressing spectacle of their mother behaving in this way.[5]The judge had before him a report from a locum consultant psychiatrist who had reviewed the mother relatively recently on 20 October 2014 and, during the course of that consultation, the mother described the sorts of behaviour that I have just summarised and his report includes the following:
"She often lost control at this time and would not care about what goes on around her, including how other members, as well as her children, would feel at the time. On these occasions the children have to leave the home to stay with the neighbours. Episodes have variable time limits and she can be quite stable in herself for a couple of weeks in-between. Her mood significantly fluctuates as well as her biological symptoms."
More recently, the judge had a report from a community mental health nurse dated 26 March 2015, which records the mother's engagement with the services provided to her and states this:
"She continues to display typical features of Emotionally Unstable Personality Disorder, mainly that of impulsive destructive behaviour."
[6]That this was the case had been known for some time but what led to the proceedings being issued by the local authority were two instances relatively close together where the children reported on separate occasions being injured as a result of the mother's behaviour. The first occurred on 2 February 2015, when the mother threw a shoe and it hit one of the older children. She accepted that and she indeed accepted a caution at the police station as a result of that behaviour. She accepted that she had thrown the shoe and thrown it at the child but she asserted that she was not deliberately intending to hurt him. She said she had lost control. The second occasion on 20 March 2015 was when the mother's foot came into contact with the 7-year-old girl. The judge heard some evidence about that. The mother accepted that, physically, her foot came into contact with her daughter but was not accepting that this was deliberately in order to cause injury. The child nevertheless was injured, albeit not very seriously. Following the second of those two outbursts, the local authority issued the proceedings.[7]In the time between the issue of proceedings and the judge's judgment on 12 May, a number of short court hearings had taken place. Initially, the local authority were seeking interim care orders with respect to all four children. Happily, as time ticked by, progressively each of the older three children was found a home with one or other relative within the family.[8]That left the youngest child, T, in the care of the mother. Initially attempts were made to make safe enough arrangements for the mother's care of T by requiring her to live with her own mother, T's maternal grandmother. However, that was not satisfactory, partly because the grandmother went away on a planned 1-week holiday during the period but, more significantly, because it became apparent that events had occurred in the grandmother's sight and hearing which should have caused her concern, with the mother to a degree losing self-control, and yet nothing had been reported to the social services or the children's guardian and so the judge accepted that the maternal grandmother could not be relied upon as an appropriate supervisor for the mother's case.[9]The application of the local authority was simply for there to be an interim care order and for young T to be placed alone in foster care (alone in the sense of being separated from her mother). Equally starkly in the circumstances, the mother's case had to be, there being no other family placement for T, that the interim care order application should be refused with the consequence that T would remain living in the community with her.[10]In the course of the robust and constructive representation that the mother had at the hearing provided by Ms Kochnari, her counsel who represented her before the judge and before this court, Ms Kochnari drew attention to the jurisdiction that the Family Court may have in certain circumstances under the Human Rights Act 1996 to grant an injunction requiring a local authority to take a particular course of action. That jurisdiction in part is based upon, obviously, the wording of the Act itself but also decisions of this court, in particular Re: H (Children) [2011] EWCA Civ 1009 and a decision of the High Court: Re: DE (A child) [2014] EWFC 6. In short terms, Ms Kochnari's submission was that the judge should grant an injunction requiring the local authority to keep the mother and child together, leaving it up to the local authority how that should be achieved.[11]That describes the position of the parties, mother and local authority, before the judge. The children's guardian has plainly given this matter a great deal of anxious consideration. Both the guardian and the judge (and it is particularly important to stress that this was the judge's perspective) saw the value for young T, particularly at the age she currently has reached, in remaining together with her mother. They have a good attachment and it would be seen as a detriment to that attachment, and a detriment to that important aspect of her best interests, for mother and child to be separated for any significant period at this juncture of her life.[12]But the question was how a maintenance of maternal care could be achieved. The guardian indicated that she would support a placement of the mother and child together in a foster home or some other form of residential accommodation if that could be achieved. The judge agreed with the guardian. The judge apparently said during the course of submissions that "heaven and earth" should be moved by the local authority to try to find a suitable placement and indeed an hour and a half or so was allowed during the course of the court day for the local authority to make enquiries. Those enquiries failed to identify any placement on the local authority's books that could provide a mother and child placement at that stage. The local authority, however, took a more principled stand in addition to the practical difficulty of finding a particular placement. Their submission to the judge was that it was simply inappropriate to consider a mother and child foster home for this sort of case, this sort of case being one in which there is no real concern about the mother's ability to provide day-to-day, hour-to-hour ordinary parenting, the concern being about her mental well-being and the local authority indicated that it would be difficult to find a foster carer who would be prepared to accept the risk of having an adult, namely the mother, in the foster home when what is said about her behaviour is being said and is being said in the current period of time.[13]So the judge did not have an option before him for a mother and baby placement if he was to make an interim care order. As I have indicated, he went on to make an interim care order with respect to T and that order obviously is the target of the mother's appeal to this court. The judge gave a relatively full judgment considering the pressure of time that the court was under. He summarised the background, as I have in my turn sought to do in the course of the shorter summary that I have given, and then he faced up to the issue before him and he says this at paragraph 17 of the note we had:
"The main area of risk is the mother experiencing sudden outbursts. The social worker and the children's guardian take the view it is not safe unless the mother is supervised."
The judge then confronted the lack of a suitable placement on the evidence before him. He indicated that he had considered the welfare checklist and he was plainly well aware of the case law on the question of interim care orders being made where the effect will be to remove the child from the care of the parent. He approached the case correctly on the basis that he should only make such an order if the child's safety, emotional or physical, required immediate separation, and no point is taken in this appeal as to the judge's approach to the underlying legal test.[14]In the event, as he described it as being, with "a heavy heart" he concluded that he had no alternative but to make the order "in the absence of an alternative solution". The judge, however, acceded to a request by Ms Kochnari to grant permission to appeal and so the appeal now comes before this court. He also granted a stay on his order for 48 hours with the consequence that the mother and child carried on living in the community during that period, albeit subject to an interim care plan which saw young T going to nursery every morning during the week and with social workers visiting every afternoon.[15]The papers came before this court. I extended the stay for a very short period, arranged for an inter partes hearing before me last week and, having heard submissions from all of the parties and, very fortunately, knowing that the court office could accommodate the full appeal only 7 days later, I granted a stay until today, the hearing of the appeal. The stay was on similar terms as to supervision but it included the passage of a weekend and I for my part am extremely grateful to the social work team leader for putting herself out during the weekend, when she should otherwise be relaxing and moving away from the heavy caseload she no doubt has, and I am grateful to her for agreeing to visit young T on the Saturday and the Sunday. Fortunately, nothing untoward has been reported to this court as having taken place during the period of these extended stays.[16]The original grounds of appeal as indicated by Ms Kochnari ranged widely across the judge's decision and in particular criticised the judge's failure to grant an injunction preventing the mother and child from being separated. In the course of her skeleton argument the mother's case developed yet further and included submissions based upon the Disability Discrimination Act 1995. In the event, matters have moved on and the issues that my Lords and I have been required to contemplate this morning have been more narrowly drawn.[17]The passage of time during the period since the judge made his order has allowed the parties to investigate whether indeed there is any option for a mother and child placement. That has produced two possible placements identified on behalf of the mother by her legal team and two from the local authority, one of the four being a residential unit, the other three being foster homes.[18]So Ms Kochnari's case before this court today is really on two bases. First of all, she submits that the judge should have adjourned his determination for a short period of time to allow the parties to investigate what options there might be if a more thorough and comprehensive search were undertaken. Secondly, relying upon the Human Rights Act, Ms Kochnari asserts that if the judge found he was in the position of being able to identify a particular placement but facing a local authority which was refusing to implement such a placement for this child as part of its care plan, then Ms Kochnari submits the Human Rights Act would be engaged, the judge would be driven to conclude that the local authority was proposing to act unlawfully and that would trigger jurisdiction in the Family Court to make a mandatory injunction requiring the local authority to place the mother and child in the particular unit that had been identified.[19]I will deal with those points in turn. It is, however, right to observe that in making her submissions today Ms Kochnari, in my view entirely realistically, does not put at the forefront of her argument a submission that the judge was wrong to consider simply refusing the application for an interim care order and leaving T at home with the mother in the community without any responsibility on the local authority at all.[20]Dealing with the question of adjournment, the position before the judge is not altogether plain. It is clear that Ms Kochnari invited the judge in her closing submissions to afford more time for a more comprehensive search to be undertaken. She, in her submissions to us, urges us to interpret that as being really a request for the judge to consider adjourning the case for a period of a day or more to allow the sort of search that has now been undertaken to be conducted. The judge may have interpreted it simply as a matter of a further short time. For my part, given no doubt (although we have not got information about this) that that submission was made late during the course of the court day because this process will have taken up most of the court day, a request for more time almost inevitably meant more time when office hours are open and therefore another day, so in Ms Kochnari's favour I assume that was the import of her submission to the judge.[21]But, in my judgment, the judge had to face up to the application before him and he did so without any consideration that another day or two could change the landscape and produce a firmed up and clear alternative for him to consider. He, with the reluctance that the choice of words that he used in his judgment clearly demonstrates, considered that it simply was not safe for this child to be at home with the mother for any period of time after the day on which he was giving judgment. In my view, he was entirely justified in coming to that view. I have referred to the psychiatric evidence, such as it was, that was available to him. He had evidence of the two recent episodes where the mother's behaviour had flared up to the detriment of the children. A factor that I have not mentioned is that the older children had indicated a clear wish not to return to their mother's care. He will have understood that for children, even if they were not physically injured by any particular deterioration in the mother's behaviour, simply to watch their mother, the person upon whom they relied, behaving in this way, will have been totally bewildering and frightening. The judge did expressly take account of the fact that the older children had been able to be protected by the actions of the local authority because they had spoken up, they had gone to school or they had gone to other carers and said that their mother had behaved in the way that is now established she had behaved. But young T, aged two and a half would not be in a position to blow the whistle, as it were, on any such behaviour.[22]The final factor, and to my mind it is the crucial factor, is that it is impossible for an outsider to predict whether the mother will or will not flare up at any particular moment of any particular day. It is not a risk that can be predicted, contained or controlled, either by the mother or by any outside agency.[23]With all of those factors in mind, the judge was, in my view, entirely justified in saying that the risk was not one that could be taken in T's best interests and immediate separation was required. So, even on the basis that a fully formed application for an adjournment had been made, in my view the judge's decision not to adjourn but to make the order that day could not be said to be wrong and indeed on his analysis of the evidence it would seem hard to justify an alternative conclusion.[24]Turning to the second aspect of the case, namely the approach that Ms Kochnari now urges us to take based upon jurisdiction under the Human Rights Act and the apparent power of the court to grant a mandatory injunction, that is clearly not a matter that was put before the judge at all in this form. The most that was argued was for a different form of injunction under the Human Rights Act. The application made to the judge was for a requirement on the local authority not to separate mother and child. That application made to the judge got nowhere. It got nowhere because it would have involved the judge entering into some degree of mental gymnastics from which only one conclusion could arise. The judge did not have before him any option for the mother and child to be together other than leaving them at home alone in the community. He clearly concluded that that was not safe. So it would be, to my mind, impossible for him to grant an injunction requiring the mother and child to be kept together if the result was that they would have to stay at home. So that application, the one made to the judge, was rightly not given any credence by the judge in his judgment.[25]The analysis that is now put before us in the course of submissions is altogether different. It is accepted that it is possible to contemplate a jurisdiction under the Human Rights Act for the court to intervene in a family case where unlawful activity in the context of human rights is established but all counsel before this court accept that there is no reported authority of any Family Court actually deploying that jurisdiction in a family case.[26]We are sitting as a Court of Appeal from the judge. This argument was simply not raised before the judge. He was not required to determine it and he did not therefore refer to it in his judgment. In my view, it would be quite wrong for this court now to entertain a completely fresh application in the course of an appeal, particularly so in a case which has come on at very short notice for urgent determination in the particular circumstances of this young child in the way that I have described. So I am afraid, understanding it though I do, I am clear that this court should not entertain the argument that Ms Kochnari now puts forward before us for the court to have granted a mandatory injunction under the Human Rights Act.[27]We are therefore left with the judge's decision to make the interim care order in the circumstances that he did. This is a worrying case. I explained the basis of the worry at the very beginning of this short judgment. It is a case that will require very careful evaluation by the authorities and by the court over the course of the next 2 or 3 months as material is prepared for a final hearing. Crucial will be a full psychiatric assessment of the mother's underlying mental health difficulties. At the end of the case, a judgment will have to be made as to the long-term welfare of these children and as part of that judgment the many positives that can be said about this mother will come into play. But all that the judge was doing and, all that we are contemplating, is making a decision about the child's welfare for the very short term under the interim order. In that context, important though the decision is, I regard the judge's determination as being unremarkable. It was a decision made carefully by a judge on the correct legal test, supported by the evidence and one which amply was justified by the welfare of this young child.[28]For my part, I would dismiss the appeal.

LORD JUSTICE UNDERHILL: So would I.

LORD JUSTICE VOS: I agree.