B (A Child : Application for Leave To Revoke Placement Order) [2017] EWFC 26

[2017] EWFC 26Case No LS17C00125
IN THE FAMILY COURT
Venue SITTING IN LEEDS
Coverdale House
East Parade
Venue LeedsDate 10/05/2017
Before
THE HONOURABLE MR JUSTICE COBB
In the matter of B (Application for leave to revoke Placement Order)
Hearing Hearing date: 10 May 2017
The parents in person
Ms Sara Anning (instructed by City Solicitor) for the Local Authority
Ms Philippa Wordsworth (instructed by Eaton Smith) for the child
Judgment Approved
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]The applications before the court concern a child (‘B’) who was born in August 2016, and is therefore 9 months old. She is the fourth child of M (who I shall refer to as “the mother”), the third child of F (who I shall refer to as “the father”). All of B’s siblings and her half-sibling have been removed from the care of the parents in circumstances which I shall briefly describe below.[2]There are three cross-applications for determination, as follows: i) By the parents for leave to revoke the placement order made by HHJ Lynch on 11 November 2016; this is a ‘deemed’ application in fact, having been indicated in substance by the submissions made by the parents at an earlier hearing; this application is to be determined by reference to the provisions of section 24(2)(a) / (3) of the Adoption and Children Act 2002 (“ACA 2002”); ii) By the parents for increased contact with B, pursuant to section 26 ACA 2002; (they currently see B once per month); iii) By the Local Authority (in this instance acting as adoption agency) for permission to place the child, B, for adoption under section 24(5) of ACA 2002; this application is not strictly necessary, but has been made in order that the parents understand the local authority’s intentions in the event that the application outlined in [2(i)] above fails, and in an endeavour to be transparent about the forthcoming processes.[3]This hearing was set up by HHJ Lynch, in a case management order made on 24 March 2017. I note that the parents made an application on that date for HHJ Lynch to recuse herself. She did not in fact do so; but having refused their application, she nonetheless allocated the case to me in order that it could be progressed without delay.[4]The parents appear before the court in person; they have both addressed me orally at the hearing, with courtesy and respect. However, their sense of grievance and anger at the court processes concerning their children is thinly disguised in their presentation. B was joined to the proceedings by HHJ Lynch at an earlier case management stage, and appears through her Children’s Guardian, Miss J. I have a helpful report from Miss J. The Guardian is represented by counsel, as is the Local Authority. I am particularly grateful to Ms Anning (for the Local Authority) for the careful and scrupulously fair way in which she has prepared and presented the case for the Local Authority.[5]I deliver this ex tempore judgment at the conclusion of the hearing, and have explained that a typed note of it will be available to the parties within 24 hours.

Background facts

[6]The case has a long and complicated litigation history which needs to be summarily reviewed in order to place these current applications in context. B is the mother’s fourth child. Her first child, who I shall refer to as S, was born in December 2002. She was the subject of public law process in December 2013 (when she was 11 years old), having made allegations that she had been sexually abused by her stepfather (the father of B). She was interviewed under ABE Guidelines shortly before Christmas 2013, and in light of the contents of that interview, she was removed into care under Emergency Protection procedures. The proceedings concerning S were complicated to some extent by the fact that neither the mother nor the father (i.e. the step-father of S) chose to have legal representation – a decision they have maintained for most of all subsequent litigation concerning their children. Although the mother and father were advised in correspondence, and at interim hearings, that the issues they faced were serious, and the findings sought against them of such gravity that if made they would have profound consequences for them, the parents chose (so it appears) not to co-operate with or participate in the proceedings, and continued unrepresented. The mother at least would have been automatically entitled to public funds. The father chose not to intervene in those proceedings and in the end the mother failed to attend the fact-finding hearing. In February 2014, HHJ Anderson conducted that fact-finding hearing, delivering a judgment on 3 March 2014. She made a range of findings against the father. The judgment is lengthy running to over 70 paragraphs.[7]Notably, the judgment contains this passage at [9/10]:
“…there is a four-page chronology of some of the efforts which have been made by the court, by the local authority and by the Guardian to keep the mother and her husband informed of what is happening in the case and to encourage the mother and the husband to take part in the proceedings. I do not consider that more could have been done to secure the mother’s engagement or to secure a response from the prospective intervener. The parents cannot be compelled to take part in care proceedings. An intervener is invited to intervene but it is a matter for him whether he accepted that invitation.”
[8]I do not propose to rehearse the schedule of findings made by HHJ Anderson in its entirety but note that she concluded that: i) S had suffered significant physical and emotional harm as a result of sexual assaults; ii) S had made complaints to a number of people about the sexual assaults; iii) The assaults were perpetrated by S’s step-father (the father of B); iv) The mother failed to protect S from these assaults; v) S was at risk of significant harm as a result of the parents’ conduct. A care order was made in relation to S.[9]In July 2014, a second girl, K, was born; the first child of both parents. The local authority applied for a care order, and initially the mother indicated her willingness to participate in assessment of her capacity to parent the baby. That early promise was soon supplanted with a reluctance, indeed an opposition, to engage with the social workers; the parents indicated a wish to appeal against HHJ Anderson’s findings and resolved not to work with the authority until that had happened. The parents made repeated application for HHJ Anderson to recuse herself; those applications failed. Although initially represented in these proceedings, within three months the parents’ solicitors both came off the record. An independent social worker (from outside the area) was appointed by the court to assess the parents; her work did not get off the ground given the parents stance. In February 2015, a final care order and placement order was made in relation to K.[10]The parents applied for permission to appeal those final orders. King LJ refused permission certifying the application as totally without merit.[11]In July 2015 H was born following a concealed pregnancy. She remained in the parents’ care for approximately two weeks before the local authority became aware of her existence and sought protective legal orders, and her removal. These proceedings were once again, it seems, characterised by obstruction on the part of the parents, or the very least an unwillingness to engage; to accept service of documents; to participate in assessments; or attend court hearings. In November 2015, a final care order and placement order was made in relation to H.[12]In December 2015, the father stood trial in the criminal court in relation to the allegations made by S. He was acquitted. The parents issued an application for permission to oppose the adoption order in respect of K; they issued an application in the Queen’s Bench Division for injunctive relief to restrain the local authority from taking further steps in relation to the adoption. They further issued an application for permission to apply to revoke the placement order in respect of H. All of these applications failed. The dismissal of the applications in the Family Court by HHJ Lynch was the subject of an application for permission to appeal to the Court of Appeal; Black LJ adjourned the consideration of permission to an oral hearing which was conducted by McFarlane LJ; on 1 September 2016, he refused the parents’ permission.[13]In August 2016, B was born and was removed shortly thereafter into foster care. Three days later she was made the subject of an interim care order.[14]On 11 November 2016, following a full hearing at which the mother attended but the father did not, HHJ Lynch made a final care order and placement order in respect of B. The judge essentially relied on the factual findings from 2014, explained and illustrated by the newly available transcript of the 2014 judgment. Significantly, the parents’ case is described by HHJ Lynch thus:
“… the focus for the parents remains the injustice of the findings made by HHJ Anderson back in March 2014. The parents say they do not accept as valid the findings that the father was found to have sexually assaulted [S] and that the mother had been found to have failed to protect her daughter…”
[15]In December 2016, the parents filed an application for permission to appeal those orders. That application was refused by King LJ on 16 March 2017. In the meantime, on 14 February 2017, the parents applied for contact with B (the application identified at [2(ii)] above). That application comes before the court at this hearing, together with the other applications identified at [2](i) and (iii) above.[16]K and H have been placed successfully for adoption. An adoptive home awaits B. The parents have not engaged meaningfully with the Local Authority in the meantime. The Local Authority maintains that B is doing well in foster care; the parents have raised concerns about her well-being and consider that she has been neglected and suspect that she has been abused. They raised specific concerns following a contact session on 22 March 2017; those concerns were investigated at the time by a doctor, and were found to be unsubstantiated. I have also seen the evidence of a medical examination conducted for pre-adoption purposes, which describes B as a healthy normal little girl.[17]Contact between the parents and B has been reduced in accordance with the care plan, and from a frequency of three times per week at the time of the final hearing in November 2016 is now at a frequency of once per month.

The law

[18]It is agreed that the application at [2(i)] should be determined with reference to the provisions of section 24 ACA 2002. This reads as follows: Revoking placement orders(1) The court may revoke a placement order on the application of any person.(2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless— (a) the court has given leave to apply, and (b) the child is not placed for adoption by the authority.(3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.(4) If the court determines, on an application for an adoption order, not to make the order, it may revoke any placement order in respect of the child.(5) Where— (a) an application for the revocation of a placement order has been made and has not been disposed of, and (b) the child is not placed for adoption by the authority, the child may not without the court's leave be placed for adoption under the order. (emphasis added)[19]It is agreed that the first point which I should consider is whether there has been a change in circumstances (section 24(3)). The change in circumstances can be a change of the circumstances of the parent or the child, or generally, as Russell J said (sitting in the Court of Appeal): “44. The change has to be relevant to the circumstances of the case; s24(3) does not relate the change to the circumstances of the parent or parents and it would be unacceptable on any level to exclude any change in circumstance to the children who are the subject of the orders. As set out in paragraph 31 in Re P ‘Section 47(7) does not relate change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances “since the placement order was made”.’ This must apply to s24. … “60. The judge was wrong to find that there had been no relevant change of circumstances. The judge should have considered any change of circumstance within the context of the case as a whole. In any case the relevance of any change should be set against the finding or threshold upon which the original orders were made so that the test is not set too high. This will vary from case to case but in this case the threshold was at the lower end of the scale and the test should reflect that; it should be proportionate to the facts of this case.” (T (Children) [2014] EWCA Civ 1369).[20]I have also considered in this regard, the comments of Macur LJ in G (A Child) [2015] EWCA Civ 119, and further the judgment in Re P (Adoption: Leave Provisions) [2007] 2 FLR 1069 which serves to underline that the statute does not require that the change is ‘significant'.[21]The second question is this. If a change in circumstances can be shown, should leave be given to revoke the placement order? At this stage of the process, the welfare of the child is relevant but not paramount. The court would consider, among other factors, the prospects of success of the application.[22]The third question is whether I should give permission to the LA to place B for adoption.

The parents’ case

[23]The parents have set out their case fully in writing. They supplemented their written case with oral submissions, as earlier indicated. Their essential points are these: i) S’s allegations remain just that – ‘allegations’; they have not, in the eyes of the parents, been satisfactorily proved; ii) The father has, since 2015, been acquitted in the Crown Court of the charges which were founded on her allegations; this exposes the falseness of the allegations; iii) They feel that they have been “punished without trial” in relation to the events relevant to S; they indicated that they did not believe that they had ever had a fair trial; iv) They consider that there has been some “fraud” in the system by the production of a “false document”, namely an unapproved transcript of HHJ Anderson’s 2014 judgment; they were not prepared to say who had perpetrated the fraud; in their written document for this hearing, they put it thus:
“HHJ Lynch had NO authority whatsoever under any circumstances to make any orders using an UNAPPROVED JUDGEMENT as the findings made by HHJ Anderson has no legal standing having been made UNLAWFULLY with FALSE AND MISLEADING INFORMATION…”
(emphasis by capitals and bold in the original). v) They consider that the social worker is lying, and that the local authority is guilty of multiple breaches of articles 6 and 8 of the ECHR, and multiple incidences of unlawfulness, assault on the babies, and child abduction; vi) That HHJ Anderson is guilty of acting in a way which was in breach of their Article 6 rights; vii) That they have not been guilty of substance misuse and have no mental illness; viii) They considered that there were material discrepancies between the schedule of findings which had been drawn up following the 2014 hearing (on which the decisions concerning K, H, and B were founded), and the transcript of the judgment, which was in the end only available to the parties on 11 November 2016 – the day of the hearing before HHJ Lynch. When pressed on the issue, they argued that: a) the Judge had not specifically found that the mother had failed to protect S; b) the judge claimed in her judgment to have heard witnesses from whom she did not in fact hear (a point she also raised before HHJ Lynch – see [29] of HHJ Lynch’s judgment).[24]In relation to the ‘second stage’ of the test (i.e. should permission be given?), the parents go on to say: i) That if I am with them in relation to ‘change in circumstance’ because I am satisfied that they have demonstrated an injustice in the way in which the 2014 findings have been reached, then it would be unconscionable (my word) for me not to grant leave; ii) Everything needs to be “studied” not just “looked at” with considerable care all over again; iii) The process needs to be more thorough than it was in 2014.[25]I can say at this stage that were I to find that the parents had demonstrated an injustice in the way the 2014 findings were achieved, I would have had little hesitation in concluding that they should have permission to apply to revoke the placement order. Ms Wordsworth for the Children’s Guardian with whom I briefly debated the issue, found herself unable to disagree.[26]The mother and father consider that B has been abused or neglected in foster care and point to the occasion at contact in March when the mother believes that she saw blood in B’s vaginal area. They contend that the paramedic who attended confirmed the presence of a scratch or blood; this was not however confirmed by paediatric examination.[27]The parents’ case is that the Local Authority has been guilty of “serious neglect” of B, and claims that they unlawfully are holding B as they do not legitimately have parental responsibility for her.

The Local Authority case

[28]The Local Authority contend that: i) There has been no change in circumstance since the case was before HHJ Lynch in November 2016; ii) The parents have continued not to co-operate with the Local Authority; iii) It would not be in B’s interests to give the parents permission to revoke the placement order, and the prospects of success are slim; iv) Contact should remain at its present level come-what-may; v) They seek clarity from the court (whether under an order under section 24(5) or not) as to whether they can place B for adoption.[29]The Local Authority’s case is supported by the Children’s Guardian.

Discussion

[30]Having listened with care to the arguments on all sides in this case, with particular attention upon the statutory test, and having read the documents with equal care, I have reached the clear conclusion that the parents have failed to demonstrate that there has been a ‘change in circumstance’ since HHJ Lynch made the care and placement orders in November 2016 such as to justify passage through the first test in section 24(3), or indeed at all. Their continued focus on the injustice (as they perceive it) of the 2014 findings underscores all of what they say, but this of course harps back to a period many years even before B’s birth. Their case at this hearing is not materially different from the case presented to HHJ Lynch (see [14] above). The 2014 findings have never been appealed, and have indeed provided the factual foundation of three final orders under the Children Act 1989 and ACA 2002 in respect of B’s siblings; there have been no fewer than three applications for permission to appeal to the Court of Appeal, all of which have been based on the parents’ dissatisfaction with the 2014 process and outcome, and all of which have been knocked back at that permission stage.[31]Moreover, I am not persuaded that there are any or any material discrepancies between the schedule of findings and the transcript of the 2014 judgment, as the parents have argued. The mother is wrong, in my judgment, to assert that the HHJ Anderson’s judgment fails to support the finding that she failed to protect S; in that regard (and without rehearsing the full contents here) I have particularly noted paragraphs 69 to 71 of HHJ Anderson’s judgment. Moreover, the judge set out at paragraph 21 a list of the witnesses from whom she had heard, and Ms Anning (who was present at that hearing) has not sought to contradict the accuracy of that account.[32]It is not therefore necessary or appropriate for me to go on to consider whether leave should be given (the second stage).[33]For the sake of clarity, I wish to emphasise the following points: i) The court made findings of fact in 2014; these findings were made in a process which sought to engage the parents as fully as possible. It is quite apparent that the mother and father were encouraged by the Judge, as well as by professionals, to engage in the process and they did not so engage. The findings were made on the basis of the evidence as it was presented; the judge’s judgment is careful; it is in my view binding as against the parents until or unless it is set aside; ii) While I am aware that there is no strict rule of estoppel binding upon any of the parties in children's cases (see Re B and Another (Minors) (Care Proceedings: Evidence: issue estoppel) [1997] 3 WLR 1, [1997] 1 FLR 285: per Hale J; and for the strict test see DSV Silo- und Verwaltungsgesellschaft mbH v Owners of the Sennar and 13 Other Ships; The Sennar (No 2) [1985] 1 WLR 490, 499A), the court will be particularly slow before it embarks on a re-trial of a case at the behest of a party who is adversely affected by the outcome where that party has been given every chance (indeed encouragement) to participate, and has declined to do so; iii) In the circumstances, those 2014 findings stand, and can be relied upon by all other courts who are considering the same facts; iv) The fact that the father has been acquitted of the allegations in the Crown Court is of limited (if any) consequence for two principal reasons: a) First, as is well known, the standard of proof between this court and the criminal court is different. While the family court judge has found on the balance of probabilities that the father did perpetrate harm, the outcome of the criminal process signifies at least a reasonable doubt about this. These outcomes are not mutually inconsistent; see F v Cumbria County Council and M (fact-finding no 2) [2016] EWHC 14 (Fam). Interestingly, the mother told me that she believed that the family court should operate in accordance with the criminal standard of proof, given the gravity of the decisions which it makes. While this is a respectable opinion, it does not accord with the current law, which I am satisfied HHJ Anderson faithfully applied and so must I. I associate myself entirely with what Peter Jackson J said in the Cumbria case at [45]: “… the Family Court judge does not have to be satisfied beyond reasonable doubt that an event has occurred. Requiring the higher criminal standard of proof would deprive children of protection from mistreatment and abuse. Moreover, the evidence that can be admitted in the family courts is likely to be more extensive than would be admitted in a criminal trial” b) Secondly, the father’s acquittal in the Crown Court pre-dated the making of the placement order which is under challenge now, and is therefore not in itself a change in circumstances since November 2016. v) I am not persuaded for one moment that B has been abused in care; the outcome of the investigation into alleged abuse did not demonstrate harm; the pre-adoption medical confirms that B is being well cared for; the report of Dr. CS does not verify the concerns of the parents; vi) Notwithstanding the above, the parents have been shown to be generally loving and attentive to B in contact. vii) They remain unwilling or unable to co-operate with authorities or work constructively with social workers or Children Guardian;

Conclusion

[34]I therefore refuse the parents permission to apply for revocation of the placement order.[35]I refuse their application for an increase in contact.[36]I propose to direct that today’s order contains the recital that the court has been informed that the plan is for B to be introduced to her prospective adopters on 11 June, and be placed by 23 June 2017; that the court approves this plan; that it is unnecessary in the circumstances for the court to make any order under section 24(5)ACA 2002.[37]That is my judgment.

LATER

[38]Following this judgment, I was invited by Ms Anning to consider giving directions in relation to a stay of my order, in the event that the parents seek permission to appeal. In fact, the parents did not formally apply for permission to appeal to me (they are not obliged to do so: rule 52.3(2) CPR 1998) but, as is apparent from my recording of the history (above), they have appealed most (if not all) other substantive orders made in this court, including the last refusal of their application for permission to revoke the placement order in relation to K.[39]Following representations from all parties, I propose to make this[40]I have set up these arrangements in this way to allow the parents the fullest opportunity to present their case on an appeal within the prescribed period (for which they have contended), but with in-built encouragement to them to be swift in doing so, given that it is in the interests of B for there to be clarity about her future as soon as possible, particularly given the potential immediate prospect of her placement with prospective adopters. End.

order

i) Time for Appeal: The ordinary time-limit for lodging an application for permission to appeal shall apply in this case (i.e. within 21 days after the decision: rule 52.12); any such application for permission shall therefore be lodged with the Court of Appeal on or before 31 May 2017; ii) Automatic stay: If the parents lodge their application for permission to appeal with the Court of Appeal by 12 noon on 19 May 2017, providing at least outline grounds of appeal, there shall be a stay of this order until the issue of the stay can be further considered by the Court of Appeal; iii) In the event that an application for permission to appeal is lodged by 12 noon on 19 May (as contemplated by (ii) above), the Court of Appeal is invited to consider the question of a continuation of the stay on the first available date thereafter; in fixing such a date the Court of Appeal is invited to note that the introduction of B to prospective adopters is currently scheduled to take place on 11 June 2017; iv) Application for a stay: For the avoidance of doubt, if the parents lodge their application for permission to appeal after noon on 19 May but on/before 31 May 2017, there will be no automatic stay of this order, and the parents will have to apply separately to the Court of Appeal for a stay.