M (Children) [2016] EWCA Civ 61

Case No B4/2015/0436 & A & B[2016] EWCA Civ 61
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Cambridge County Court and Family Court
His Honour Judge Yelton
PE14C01003
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/02/2016
Before
LADY JUSTICE KINGLORD JUSTICE SIMON
Between
Re M (children)AppellantRe M (children)
Paul Diamond (instructed by Michael Phillips) for AppellantDebra Gold (instructed by Cambridgeshire County Council) for 1st RespondentSuzy Shackleford (instructed by CB4 Law) for 2nd RespondentHearing Hearing date: Tuesday 19th January 2016
JudgmentLady Justice King :
[1]This is an appeal from care orders made by His Honour Judge Yelton on 23 January 2015 in respect of two boys, JK born on 3 February 2003 (12yrs 11 mths) and JA born on 18 November 2005 (10 yrs 2 mths). The boys are the adopted children of Mrs and Mrs M (the parents).[2]The parents accept that JK’s best interests can only be served by the continuation of the care order made in respect of him by the judge. They appeal only against the making of the care order in respect of JA. They seek the discharge of the care order and the immediate return of JA to their care[3]The key issue in the appeal is whether or not the judge was wrong in making the care order and in doing so had failed adequately to analyse and consider the question of whether JA could return home alone with adequate support from the local authority.[4]At the hearing of the appeal on 19 January 2016, the appeal was allowed; the following judgment gives other reasons for coming to that decision.

Background

[5]No one reading the papers in this case could remain unmoved; at the plight of these two young boy with their appalling life experiences to date and the poor prognosis for their future happiness, and feel pity for the parents who gave these children what was intended by all to be their permanent home and who love each of them dearly. Despite everything the parents do not admit defeat in relation to JA but wish, even now, to honour their commitment to him. Sadly for all parties, this case is a paradigm example of where the laudable desire on the part of a local authority to find an adoptive placement for profoundly disturbed and damaged children appears to have led to those children being placed with a couple who, with the benefit of hindsight, it might be thought were unlikely ever to have been able to cope with their, and in particular, JK’s, disturbed and challenging behaviour.[6]JK and JA had been subjected to appalling neglect including physical and possibly sexual abuse whilst in the care of their birth parents. The children were removed from their parents by Suffolk Children’s Services in August 2007. At that time JK was already having violent fits of rage, and exhibiting sexually inappropriate behaviour towards his little brother. JK had a history of severely challenging behaviour, towards female carers and figures in an attachment relationship. Unsurprisingly against this background, the children had had multiple placements following their removal from their birth family, resulting in each new attachment they made to a carer being fractured as the placement broke down when their carers were no longer able to cope.[7]Assessments were conducted on behalf of the local authority in order to determine the future needs of these little boys, Those assessments had been unequivocal in concluding that their best interests could only be served by the brothers being separated and living apart from each other.[8]The children’s final foster placement before they moved to live with the parents was more successful than the earlier ones and things seemed a little more settled. The children started going to a primary school in a village which came under the auspices of Cambridgeshire County Council. The mother was JK’s teacher. She became aware that the children were to be separated and that Suffolk Social Services were struggling to find adoptive placements for the children. The mother and father, then in their mid to late fifties, and their own family having grown up and left home, decided for all the very best reasons to offer a home to both boys. Notwithstanding the assessment that the boys should live apart from each other, Suffolk Children’s services placed both boys with the parents on 3 September 2010 with a view to them being adopted by them in due course.[9]Adoption orders were made in June 2013 but less than a year later, both boys were taken into care following an incident in May 2014 when JK arrived at school with his nose bleeding alleging that his mother had hit him in the face, whilst in the car on the way to school. The mother immediately accepted that she had slapped JK but she said it had been in circumstances where he was dangerously out of control and interfering with her driving of the car.[10]JA has not lived with his parents since. Care proceedings were instigated and by the time the matter came on for trial, the threshold criteria had been agreed between the parties. The agreement was recorded in a document dated 20 January 2015. The pertinent part said as follows:
“2. The parents adopted the children in 2013 and before their placement in 2010 both children had suffered significant psychological, emotional and behavioural difficulties as a result of neglect and abuse suffered before they were removed from the care of their natural parents. 3. The parents have smacked, shouted, and physically restrained the children which has been perceived as unfair and excessively punitive by the children. Their parenting style has been re-traumatising for the children due to the children’s experiences with their natural parents and the parents have failed to consistently provide the high level of nurturing expected in their care which these very vulnerable children need. 4. It is acknowledged that these parents love the children, are committed to them and took on a huge task in caring for them.”
[11]Against the backdrop of this concession, it was the task of the court to consider whether it was in JA’s best interests to return to the care of his parents with local authority support.[12]It follows that key to that enquiry was a consideration of what had gone wrong and why. The issue of the level of support which the parents had received and the nature and style of their parenting was critical to any assessment as to whether the relationship between JA and his parents could be rebuilt with appropriate support (therapeutic or otherwise). Also important was the question of whether the parents had the necessary understanding and insight into the reasons why their parenting style had caused the children significant harm, so as to enable them to provide the high level of care needed for JA with his particular needs and vulnerabilities.

Support for the parents when the boys lived at home

[13]The enormity of the task the parents faced when JK and JA moved to live with them can be seen throughout the papers but is encapsulated in the expert psychological report commissioned for these proceedings and prepared by Dr Leanne Horrocks who was jointly instructed by the parties and reported on 27 October 2014. She said:
“251…it is clear that both children have been exposed to significant developmental trauma within their birth family which is likely to have impacted significantly on all aspects of their development but specifically their ability to feel safe, contained and able to trust the adults around them. 252. The experience of multiple placements in a short period of time is likely to have provided a further insult to their precarious and fragile emotional worlds, resulting in ongoing experience of lack of consistency, containment and predictability in their attachment relationships. These experiences have supported the development of an internal working model of others as untrustworthy and rejecting and the self as unlovable. 253. The children did appear to develop meaningful relationships with their foster carers prior to being placed with the Ms. It is likely that the loss of these relationships reactivated feelings of rejection and associated rage. In addition, the children have since learnt that their biological mother has died. The impact of this for JK was not explored in the current assessment, JA’s response to discussions of this topic was in keeping with his emotionally inhibited stance. 254. The placement with the Ms appears to have always been indentified as high risk due to the nature of the siblings’ difficulties, their trauma bond and the concerns that their individual needs necessitated individual placements. The early reports from the placement planning meetings suggest that the foster carers were concerned about the adopters’ commitment and JK was presenting with early rejection behaviours towards the adopters. Mr M was expressing concern as to how the couple would manage the extremes of behaviour and concern was raised concerning Mr M’s perceived inflexibility and the long term prognosis of the placement.”
[14]The mother had given up her job as a teacher in order to care for the boys full time. Between their placement in September 2010 and their subsequent adoption by the parents in June 2013, the family benefitted from considerable support from Suffolk Social Services. For a period of two and a half years, JK regularly saw his therapist; unfortunately, when the therapist left, JK was unable to establish a bond with a replacement trainee therapist leaving him without regular therapeutic input.[15]The parent’s case at trial was that although things had been difficult initially, by 2014 they had what was to all intents and purposes, a normal family life. This they said was confirmed by the fact that Suffolk continued to approve the placement and supported the making of the adoption order in 2014. The judge did not accept the parent’s case saying, in brief terms in his judgment, that the parents had “wholly underestimated the problems they had and completely failed to appreciate the problems that there might be and which have happened in relation to JK”.[16]The parents did not and do not accept that to be the case and put the subsequent failure of the adoption down to the fact that following the making of the adoption order, the support they were offered by the local authority in caring for these very demanding children, fell away, amounting only to the opportunity to attend courses in Suffolk, which courses the mother was unable to take up due to her commitment to caring for the boys. Things were made more difficult as the mother’s own mother had died somewhat unexpectedly in late 2012 which had caused the mother considerable distress over a period of time. The parent’s perception was not accepted by the local authority and the parenting assessment carried out by them within the care proceedings had concluded that the parents had had a great deal of support (particularly initially) but that they had found it difficult to seek additional support and help when it was needed.[17]Notwithstanding this conflict of evidence, the judge made no findings about the level of support offered to the parents, whether they could, or should, have taken up/ sought support and whether the presence or absence of such support did, or would, have impacted on the way in which they chose to manage the challenging behaviour of the children. The judge’s finding in relation to this critical issue was:
“The M’s – and it was not up to them; it was up to Suffolk County Council – were very anxious to adopt both of the boys together. As I have already indicated they did so in 2013. They say that after that – and it really is a function of the way in which things are operated – the amount of direct help to them fell away.”
[18]Dr Horrocks in her report recorded that post adoption support would have been “imperative for the adoptive parents”. In its absence she said that the adoptive parents “may not have had opportunity to reflect on their parenting practices” which:
“….appear to have become increasingly based on reactive controlling strategies rather than promoting and sustaining a sense of playfulness and acceptance which could foster attachment repair. Post adoption the M’s report an increase in a dangerous aggressive behaviour from JK. This combined with a loss of professional support and a sudden bereavement for Mrs M are likely to have been important factors that undermine their coping, resources and parenting resilience.”
[19]There are no findings (and no assistance can be found in the threshold findings) as to any causal link between the deterioration in the boy’s behaviour post adoption and parenting style identified as abusive at paragraph 3 of the threshold. The parents’ case is that there was a significant deterioration JK’s behaviour once the adoption order was made and they were receiving no support. The judgment does not however deal with the issue of post adoption support save in the vaguest terms; the court does not know for example whether once the adoption order was made, these boys remained ‘children in need’ as a consequence of damage caused to them in their early life which would have activated the local authority’s duties under section 17 of the Children Act 1989, or whether an assessment for adoption support services pursuant to section 4(1) of the Adoption and Children Act 2002 was ever carried out.[20]Following their reception into care, investigations were carried out by the local authority; both boys made allegations that they had been hit and slapped by the parents; they also said that they had had soap put in or around their mouths when they had sworn and that JK had been put in cold showers when he had behaved badly. Information was also received from a member of the public that a prayer group meeting had been held at the home of the parents’ address because JK had ‘demons’ in him. When asked about this JK said that the meeting had taken place and that he had been held down by numerous people who had “spoken in a different language”.[21]For a brief period of time in October 2014, JK returned to the care of his parents seemingly placed back home by the local authority as JK was repeatedly running away, was hitting his foster carers and making unsubstantiated allegations of being hit and sworn at by the foster carers. That temporary return home predictably came to an end on 15 October 2014 when JK physically attacked the mother.[22]JA also had a change of foster placement following allegations made by him that his foster carers had shouted at him. JA has now been with his present current carers for over a year.[23]When the care proceedings came on for trial, the social worker, Dr Horrocks and the children’s guardian each concluded that it would not be in the best interests of either child to return to the care of their parents.

The judgment

[24]The judge made no findings as to the nature and extent of slapping and hitting of the boys (with or without implements), and did not refer to important background material such as the fact that the father had accepted that he had put JK under a cold shower as a punishment or that both he and the mother accepted that there had been a prayer meeting at their home during the course of which JK had been physically restrained whilst certain attendees at the meeting ‘talked in tongues’ around him.[25]The judge referred only to the fact that the father accepted that he had “tapped or smacked or used mild physical violence towards the children”, and said in relation to the threshold findings:
“it seems clear that in fact the parents were accepting that that had happened on more occasions than they do now in the course of their oral evidence. I do not need to go further into it than that. It is there and anyone can read it.”
[26]An agreed threshold findings document is intended, and usually allows, the court to proceed immediately to a welfare analysis without further investigation of the facts. The court would not wish it to be thought that it does not appreciate the work involved by all parties in reaching agreed threshold findings which address the gravamen of a case without becoming unnecessarily over elaborate or lengthy; nevertheless, certain aspects of the agreed findings may, from time to time, require further exploration. In the present case the parents appeared to be moving away from the generalised concessions made in the threshold when giving oral evidence. Further there was a significant gulf between the parties as to how the threshold was to be interpreted which was highly significant to the welfare analysis.[27]The parents’ case was that lack of support from the local authority, and the impossible behaviour of JK, had driven them, on occasion, to slapping or hitting JK. The local authority’s case (whilst accepting that JK presented extraordinarily challenging behaviour) was that the parents were determined to manage things in their own way, which was by way of an inappropriate, damaging and punitive regime of discipline which went beyond a “tap” or “smack” as to both its nature and extent.[28]The judge having heard evidence from the parents, social worker, the guardian and Dr Horrocks, gave a brief 33 paragraph extempore judgment concluding that neither child should return to the care of the parents. The judge quoted extensively from the report of Dr Horrocks but his welfare analysis and balancing exercise is found within two paragraphs as follows:
“31. In considering whether or not I should make a care order, I have to consider all the alternatives and there are really only two alternatives so far as JA is concerned. With JK, I have already indicated, the matter is more or less agreed. In relation to JA, there are only two alternatives. One is that he is the subject of long term fostering. The other is that he goes back to live with his adoptive parents. In my view, it is in his interest – and it is not in the interest of many children – with the particular problems that he has and may have in the future, that he remains in long term foster care and under a care order. 32. I have considered, in coming to that conclusion, the Human Rights Act and the interference with the family life of the M’s. I am absolutely satisfied that they will continue to support both boys in so far as is within their power so to do, but it seems to me that it will not be in JA’s interest to return him to live with them at the present time or in the foreseeable future.”
[29]With the greatest of respect to the judge, in my judgment, significantly more analysis was required. The learned judge appears to have accepted (paragraph 5) that the direct help available to the parents “fell away” following of the making of the adoption order. Dr Horrocks, as referred to in paragraph 18 above regarded parental support as imperative in assisting any carers of these damaged children. In my judgment, consideration of the undoubtedly compelling evidence of Dr Horrocks to the effect that JA should not return to live with his parents, had to be considered against a backdrop of findings of fact in relation to: i) The alleged lack of support or otherwise given to the parents and the impact it had upon their care of the children. ii) Findings as to the regime in the household: were there a few perhaps understandable examples of over chastisement at a time when the parent’s were unsupported and JK’s behaviour was unbelievably difficult? Alternatively, was this a rigid and controlling environment where the parents, notwithstanding their love for the boys, were unable to accept help and responded to the challenges posed by the children with a rigid and punitive regime which went far beyond ‘strict’ in any ordinary sense of the word and served only to re-traumatise the children? iii) The extent to which the parents undoubted willingness to co-operate with the local authority in the future, and if so advised, to apologise to the children for what had happened, was underpinned by a true and genuine understanding of the effect that their parenting style had had on their children. iv) What support could the local authority provide in the event that JA was to return home on his own?[30]The judge having made such findings, could thereafter have turned to consider whether it might be in JA’s best interests to return to live with his parents and thus avoid a further fractured attachment. This would have included considering, not only what support was available and whether the parents would respond to it, but also as part of the evaluation process, a careful consideration of the positives and negative aspects of a further attempt to have JA at home, set against the obvious disadvantages of long term fostering for a child of his age. This would include consideration of whether the relationships between the adults and children was beyond repair and therefore no amount of support would change that unhappy state of affairs?[31]In her helpful skeleton argument, Ms Gold on behalf of the local authority highlighted the fact that the evidence had focused on these very issues. She submitted that whilst not specifically dealt with by the judge, it was implicit that these were the central issues to be determined and would have been at the forefront of the judge’s mind throughout the hearing.[32]I unhesitatingly accept that those were key issues to be determined by the judge but unfortunately, whilst he may well have had them in mind, nowhere in the judgment does he deal with them.[33]The judge made no reference, no matter how brief, to the law which underpins care proceedings, whether in relation to the burden and standard of proof, that the child’s welfare is paramount or to the welfare checklist found at section 1(3) Children Act 1989. His reference to Article 8 and The Human Rights Act is perfunctory.[34]The local authority submits that it is implicit that the judge had the welfare checklist well in mind. I bear in mind that this is a most experienced judge and accept without reservation that a judge is not obliged, or even encouraged, to conduct a formulaic approach to its consideration: H v H (Residence[35]Had the judge referred to the evidence of JA’s wishes, the parents would have known that the judge had taken into account that JA had told the Guardian that he wished to return home, “providing they don’t smack me again”.[36]Not only are the wishes and feelings of the children subject to care proceedings an important part of the welfare checklist, but fairness demanded that this piece of evidence was placed alongside the evidence of Dr Horrocks central to the judge’s judgment that JA sought the approbation of his parents whilst in their presence, but when spoken to away from them was “full of rage and resentment, feeling he was not cared for properly and he should not have been hurt if they loved him”.[37]The threshold finding contains an acceptance by the parents that their children suffered significant harm whilst in their care and it may well be as the judge found that these parents significantly minimised the difficulties they were having with the children. Their case is however that had they continued to have proper and effective support following the adoption, the cracks may well have shown before it was too late, and JK could have been moved whilst there was still a chance of JA remaining with his parents. Nowhere in his judgment does the judge record their case or give reasons for rejecting it, and nowhere in the judgment does the judge consider the difference there might be in the household without the presence of JK.[38]It is often said the principle purpose of a judgment is to explain to the losing party why they have lost their case. The crisp and concise judgment is undoubtedly to be applauded. In my judgment however, the judge, no doubt in his endeavour to provide an immediate decision, failed adequately to analyse the evidence or explain his reasons for reaching the conclusion he did. Every parent whose child or children are removed permanently from their care at the conclusion of care proceedings is entitled to understand why the judge has decided as he has. These parents needed to understand with clarity why it was now too late for there to be reparation on their part even though they had made abundantly clear their willingness to do anything required of them which would mean JA could return home to their care.

Discussion

[39]Mr Diamond on behalf of the parents told the court that these parents feel that, as adoptive parents, they have been treated differently from the way in which natural parents would have been treated within the care proceedings. Nothing I have read would indicate that this is the case.[40]Every application for a care order is considered in relation to a specific child. The court is concerned with all that makes up that particular child, including any physical or learning disability or as here, significant emotional damage resulting from early life experiences. Parents too come in all shapes and sizes and what can be robust, strict parenting for one child serving to provide him or her with secure well recognised boundaries can, in respect of another vulnerable or fragile child (as was the case with JK and JA), be inappropriate to the extent that significant harm is caused to that child. In my judgment this case has throughout been wholly focused on the parenting of these children by these parents.[41]There is a desperate need for men and women willing to offer adoptive homes to children who have been physically and emotionally damaged by the care they have been given as babies and young children. These altruistic people are owed in exchange, high quality assessment and matching as between the children and them as future parents. These parents wished to offer the boys a home together, and that is to their immense credit. It was for the local authority to have acted with considerable caution in the light of their own assessment that the boys should not be placed together, the more so when it was realised in the early stages that the placement was “risky” and, that JK was acting in a way which was rejecting of attachment. It may be that they did exercise such caution before concluding that adoption was nevertheless in their best interests; it is not apparent from the judgment one way or the other. The undisputed facts of this case nevertheless serve to highlight just how damaging it is for the children in question when an adoptive placement breaks down; not to mention the incalculable effect on the adoptive parents and their extended family[42]This case also serves to underline the importance of the provisions found at section 4 (1)(a) Adoption and Children Act 2002: 4 Assessments etc. for adoption support servicesE+W (1) A local authority must at the request of— (a) any of the persons mentioned in paragraphs (a) to (c) of section 3(1), or (b) any other person who falls within a description prescribed by regulations (subject to subsection (7)(a)), (c) carry out an assessment of that person’s needs for adoption support services. The section requires a local authority at the request of a parent, to carry out an assessment of their need for adoption services. The local authority is thereafter under no obligation to provide the services it has assessed as being needed - see Section 4(4) ACA 2002 which provides: (4) Where, as a result of an assessment, a local authority decide that a person has needs for adoption support services, they must then decide whether to provide any such services to that person. One can only hope that, even in the straightened times in which we live, local authorities appreciate that failure to find the funds necessary to support those who adopt disadvantaged children is all too often a false economy, and ultimately it is the children who pay the price when an adoptive placement breaks down.

Outcome

[43]Due to the extraordinary increase in work of the Court of Appeal, it is now a year since the judge made the care order and twenty months since JA left the care of his parents. I have considered with care whether, given the delay, it is possible for the court to allow the appeal and make its own order on the basis that much of the evidence which the court would have wished to have been considered by the judge in his judgment is available in the papers and in the transcripts of evidence. It is with great reluctance however that I have concluded that absent findings of fact on the key issues, we cannot do so.[44]The parents should understand that this court is not saying that the making of the care order in respect of JA was necessarily wrong but that for the reasons given in this judgment the matter will now have to be remitted for retrial. It follows that there can be no question of JA returning home immediately without updating evidence and assessment. The judge will conduct his fresh welfare evaluation in the light of all the circumstances as they now exist for JA and not solely as they were at the time either of his removal from his parents in May 2014 or at the date of hearing in January 2015. Lord Justice Simon :[45]I also agree.

Order

Leave to remove from the jurisdiction) [1995] 1 FLR 529. However, reference to the checklist is an invaluable aide memoire and can also ensure that all the relevant matters in a case have been considered and put into the balance; B v B ( Residence Order: Reasons for Decision) [1997] 2 FLR 602. Had the judge directed himself to consider the welfare checklist, he may well not have omitted to give consideration in his judgment to the wishes and feelings of JA, the first item on the welfare checklist.