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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2002] EWCA Civ 1835 (27 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1835.html Cite as: [2002] EWCA Civ 1835

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(HIS HONOUR JUDGE HOLT)

		Royal Courts of Justice Strand London, WC2 Wednesday, 27th November 2002

1. LADY JUSTICE HALE: This is a mother's application for permission to appeal against the order of His Honour Judge Holt on 16th October 2002 in the Watford County Court dispensing with her agreement and freeing her daughters for adoption. These are NB, who was born on 28th August 1998, and so is now aged four; and SN, who was born on 12th June 2000, so is now aged two.
2. The mother has two older children, JD, aged 12, and RB aged seven. Care proceedings began in 1999 before S was born, when the three oldest children were living with the mother and her then husband, CB, who is N's father. CB clearly has serious problems, including problems with drugs and alcohol and violence. The underlying reason for the proceedings was serious domestic violence between the couple, for which Mr B was sent to prison, coupled with hygiene problems and neglect in the home, which were observed by a police officer. The precipitating factor was a paediatrician's concern about N's weight, having looked at her centile charts, coupled with the mother's failure to bring N for an examination. She was therefore removed under an emergency protection order, and later an interim care order, in August 1999. The other two children stayed with their mother at home. Whilst her husband was in prison the mother had a relationship with LN, as a result of which S was conceived. Her husband returned to the home after his release from prison and interim care orders were obtained in relation to the two older children in February 2000.
3. There was an assessment of the mother and then of the two older children, later joined by her husband and then by N. The mother seems to have done pretty well in that assessment when she was on her own or with the two older children. I have seen the initial report from the assessment unit, which mentions positive features about the mother's care. The conclusion was that there should be a phased return home. But then at the end of April 2000 there was a serious domestic violence incident between the couple. At that stage the mother was quite well gone into her pregnancy with S. A strategy meeting decided to remove all the children from the family. N and R were placed with foster parents, J was quite soon placed with his own father and stepmother and separate care proceedings were bought in respect of the new baby, S, when she arrived in June 2000.
4. There was an 11-day hearing before His Honour Judge Connor in September 2000. By this time the husband was back in prison as a result of the incident and the mother was back with Mr N. The judge made findings that the threshold criteria in relation to the three older children were satisfied. He recognised that the mother was an intelligent woman who loved her children. He found certain aspects of her evidence unreliable and pointed to various inconsistencies between the accounts that she had given at different times and to different people about things. He found that she had no insight into the problems caused for her children by her various relationships. He had no confidence that her relationship with Mr N, although he was a very different person from Mr B, would last any longer than her previous ones. He rejected the mother's complaints that the local authority had not investigated matters properly and her proposal for a further assessment. He approved the placement of J with his father under a residence order with a supervision order. He approved a care plan for the adoption of R and N, but he deferred his final approval until the local authority had given further consideration to placing them together. N's father, Mr B, supported the adoption plan, and indeed was anxious for it to be put into effect as soon as possible. It was later to be held that he had in fact given his consent to her adoption.
5. The judge did not defer his consideration for long. Final care orders were made on 4th October 2000 authorising the denial of contact. The last visit took place at the end of November 2000 and N was placed with prospective adopters on 29th December 2000. She has been there ever since and all the reports indicate that she is doing very well.
6. S, meanwhile, had been fostered since shortly after her birth in June 2000. But there had been evidence from a psychologist in the earlier proceedings that the mother might be able to look after one child and so she was placed with her mother and Mr N, her father, in March 2001. That went reasonably well. There were some concerns, but certainly no reason to remove S from their care. The reason that she did not remain with them was an allegation in April 2001 by J that his mother had sexually abused him. It was clear that he had witnessed adult sexual activity, but it was also alleged that his mother had engaged in sexual activity with him. He made that allegation first to his stepmother. It was reported to the authorities and he was interviewed and repeated most of it. He has later retracted the allegations specifically against his mother.
7. S was accordingly removed from her parents and returned to foster parents. There was another trial before His Honour Judge Connor in October 2001. His long and very careful judgment is dated 11th October. He had clearly had the benefit of seeing and hearing the evidence about the abuse allegations, including the benefit of expert guidance. He decided, on the balance of probabilities, that J's allegations were true. He found the threshold criteria proved in respect of S.
8. There was a further hearing the following month, and on 27th November 2001 he made a care order in relation to S, who was by then nearly 18 months old, and approved a care plan for adoption. He observed that it would be very unfortunate if the adoption proceedings were delayed. He did acknowledge that the mother had made significant progress recently. Contrary to his view the previous year, her relationship with Mr N had lasted. She had got herself a full-time job, but in his view she still lacked insight into her children's needs. She did not have a close relationship with S, who had of course spent most of her life in foster care. Accordingly, the last visit between them was on 28th November 2001 and in February 2002 she was placed with the same prospective adopters as her half-sister, N. Again, all the reports indicate that it is going very well.
9. The application to dispense with parental agreement to adoption and free the children for adoption came before His Honour Judge Holt on 16th October 2002. The mother had previously been represented by solicitors and counsel for all the care proceedings, but on this occasion she represented herself and also S's father, Mr N. The judge paid tribute to how well she did so. She had filed a 9-page written statement which amply bears out the tribute paid by the judge. It is certainly one of the best written statements that I have seen from a parent acting in person in these sorts of proceedings. It had with it a large number of attachments. In summary, the points made were these.
10. First, the mother wanted to reopen several of the issues which had already been decided by His Honour Judge Connor. His Honour Judge Holt did not think that that was appropriate.
11. Second, it emphasised that the events leading to taking the children away from her were all connected with her deeply abusive relationship with Mr B. The exhibits contained literature about the effects of domestic violence on a person's self-esteem and ability to cope, including the ability to rescue oneself from such violence. This was associated with a complaint about the lack of positive help and support from the local authority in seeking to do so.
12. Third, it emphasised the progress that she had made since then. Her current relationship had proved stable. They now have good accommodation in their own home. They are both in good jobs. The mother's job is one of some considerable responsibility. Their finances are soundly based. The mother's mental state is improving all the time. Mr N has proved a devoted father to S's older half-brother, M.
13. Fourth, the statement recognised that to reunite the family would be an upheaval for the girls, but they would get over it and they would benefit from being placed in a stable loving family with their own birth relatives.
14. Fifth, it argued for a fallback of maintaining face-to-face contact with the children once a month, and there was reference made to research showing that even adopted children do better if they can remain in contact with their birth family.
15. His Honour Judge Holt correctly directed himself on the law. He had first to decide whether adoption was in the children's interests. All the evidence supported how well they were doing with their prospective adopters and how well they were getting on together. So clearly it would be in their interests. He had next to decide whether a reasonable parent could withhold her consent. He listed four points about this. A reasonable parent would:

"... firstly acknowledge the evidence and the reasons given by Judge Connor in making the Care Orders and approving the Care Plan for adoption.

And she would acknowledge that the children have formed deep mutual bonds of love and affection for the Applicants.

Thirdly - and this is very difficult for a mother - she would acknowledge that each child's welfare requires that each child should stay with the Applicants, and if removed, the risk of emotional harm would be too great for a loving parent to contemplate.

Fourthly, she would acknowledge that the children's need for stability and security requires adoption and not a lesser status."

16. He went on to say that in her submissions the mother had come close to acknowledging the strength of these factors, and she nearly acknowledged that the welfare of each child would be best served by staying where they were. He recognised that she was torn because of her love for the children, but it was a feature that she had come near to acknowledging the compelling case of the applicants. If she could acknowledge that she would give her consent, and a reasonable parent would do so. That is why he made the order that he did.
17. The mother now seeks permission to appeal. She is, it must be emphasised, wishing to appeal against the last of a long series of orders relating to her two daughters. I can only give permission to appeal if an appeal would have a real prospect of success.
18. In her very able submissions to me, Mrs B has emphasised again that the background to all of this was her relationship with a violent and abusive man. She was doing pretty well until then. She argues that the emergency protection order that was issued for the removal of N was premature. She argues that the assessment of the family indicated that she was perfectly capable of looking after the children and the local authority did not give adequate attention to that assessment. She complains about the constantly changing views of the local authority, their delays in writing reports and submitting evidence to the courts, thus delaying taking final decisions about N and S which was not good for them. Above all, I believe, she complains that she was doing perfectly well with S until J's allegations were made and that those allegations are complete nonsense and totally unbelievable. She wants the chance to prove her innocence of those allegations, and she makes a variety of points about how unlikely it is that, in the circumstances in which she found herself at the time when J alleges that these things took place, she would in fact have engaged in any sort of sexualised behaviour with him. She was looking after her mother who was terminally ill. She was pregnant. She was taking medication which she was concerned would have an effect upon her unborn child. In every way she was not somebody who might be expected to take an undue interest in sexual activity, let alone with her own son. She also argues that a black picture of her was painted in the courts by social services and this tainted the whole of the proceedings against her. So she does not feel that she add a fair trial at the outset. Of course in support of those submissions she draws attention to the relevant Articles of the European Convention on Human Rights.
19. The difficulty that she faces, and I believe she knows this, is that I am concerned only with the last of this series of orders. She was represented throughout the care proceedings. There were long trials. It is the function of those trials to subject the case presented by the local authority to careful scrutiny. The judgments of His Honour Judge Connor which I have read indicate that he did indeed do that. He reached certain conclusions. There was no application for permission to appeal against those conclusions. Mrs B tells me, and I am quite sure that that would be right, that she was advised that it would not be possible for her to appeal. That advice was probably accurate, in the sense that she would have had to have sought permission to appeal and permission would only have been granted if there was a real prospect of success.
20. But the fact of the matter was that no such application was made. No appeal has therefore been brought against any of the factual findings which have led to the present situation. The present situation is that N and her mother have been separated now for a very long time, and they last saw one another two years ago. S and her mother have hardly lived together at all, and they last saw one another a year ago. These are still very young children, and the damage to them of disrupting their present placements and attempting to reintroduce them to their mother and to S's father would be enormous. So I see no prospect of this court -- which does not hear evidence, but merely hears submissions -- deciding that His Honour Judge Holt was wrong on this occasion.
21. It is of course a quite separate question whether there is any way in which the mother can persuade the authorities to revisit the decision made in relation to J's allegations. It is not for me to suggest how that might be done. But there are circumstances in which, should it become relevant on a later occasion, it is possible to persuade a court to look again at such allegations to see whether they have any relevance or should be relied upon for the purpose of determining what might happen, for example, with another child that the mother might have.
22. The mother also makes it clear that she intends to go to the European Court of Human Rights should this application fail. Again, her case before the European Court of Human Rights would be a completely different one, because no doubt she would be asking the court to look at the whole process as it has affected her and her children, which would be a different issue from the one which is before me today. She recognises that the chance to prove her innocence and the question of getting her children back are two separate questions. I regret to say that I must refuse her application, which answers the second of those questions and I have no jurisdiction over the first.
23. That is why this application must be refused. Reading it, I have huge sympathy for the mother. There is reason to suppose that a large part of her difficulties was the result of this seriously abusive relationship and that had that not happened things might have been very different. But that does not mean that I think I can grant her application. I will make the usual order that she has a copy of this judgment at public expense, so that she has got the written official version of everything that I have said.

ORDER: Application for permission to appeal refused; copy of the judgment to be provided to the applicant at public expense.

(Order not part of approved judgment) ______________________________