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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 (Children), Re [2002] EWCA Civ 676 (27 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/676.html Cite as: [2002] EWCA Civ 676

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Mr Nicholas Mostyn QC)

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

1. LORD JUSTICE WARD:This is an application brought on very short notice, or hardly any notice at all, by the London Borough of Camden and by the father of the children concerned, supported by the guardian ad litem, for a stay of the execution of the order made by Mr Nicholas Mostyn QC, sitting as a deputy judge of the High Court, on 22nd March 2002. The local authority and the father also seek permission to appeal that order. The order was that the application by the local authority for an interim care order be refused and that there be a supervision order (not expressed to be an interim supervision order) in favour of Camden until 30th September 2002.
2. The judge then made, as an interim measure, a joint residence order, the effect of which was that the children should live with mother, save that every alternate weekend they were to go to father on Friday afternoon after school until Monday morning when school started. The holidays were to be shared. He attached conditions to that interim residence order, including a condition that the mother submit herself to psychiatric examination to determine whether she is suffering from any mental illness.
3. The boys are O, who was born on 8th August 1996 and so is five and a half, and W, who was born on 8th January 1999 and so is three. The judge directed that W was to continue to receive psychotherapy as provided for by Camden. O was to commence psychotherapy in accordance with arrangements to be made by Camden.
4. There were then a number of injunctions endeavouring to control the mother's behaviour and protect various people from her harassment. The judge gave further directions that the parents should each issue applications for residence orders; that those applications be heard on 23rd September by the judge; and that the parents exchange their statements (as Mr Clough, for the local authority, makes the point) before Camden had filed its statement and its plans.
5. The order for the handover of the children, currently with father, was apparently to take place tomorrow afternoon after school (though at the moment I do not see where that is provided for in the order from which I have been reading) and that indicates why the matter is urgent.
6. The parents never married. That may be a source of difficulty for the mother. The father remains married, although he continues, on the judge's findings, to have a sexual relationship with the mother. He therefore has failed to separate himself from her and she from him, and that may be a source of difficulties.
7. The mother's behaviour is erratic and volatile. She has shown herself, on the evidence of Lorraine Bolger (evidence which the judge, I am told, accepted), to be capable of harsh treatment of the children. There is an abundance of evidence of hysterical and abusive telephone calls from the mother which have two important characteristics. First, they consist of thoroughly offensive, foul-mouthed abuse, frequently, it seems, in the presence and hearing of these young children. Secondly, they have (I think both during 2001 and, more recently, just before Christmas of last year) contained threats by the mother to kill herself and to kill the children; and there is evidence that the children were listening to this emotional tirade of abuse.
8. Camden became involved because of general concern in the proceedings pending between mother and father over contact arrangements for the children. That led to a report from the Monroe Young Family Centre in June 2001. It is not necessary to read much of that except to record, for example, the conclusions of concern about O being "beset by feelings of anxiety and aggression"; that O is:

"... acutely sensitive to his parents' emotions and is reactive to them in a way that is not conducive to his own emotional development";

and that O's:

"... emotional development is likely to be significantly impaired if he continues on his current developmental pathway."

9. The diagnosis of W is even more concerning. The report says that he is:

"... extremely cut off and will rarely seek adults to meet his needs. He is actively avoidant and it is our view that he is showing characteristics as would be seen in children with an autistic spectrum disorder."

10. The view was that W was "globally developmentally delayed". The prognosis is worrying. The report says:

"If this situation continues unchanged, it is likely to exacerbate [W]'s already disturbed emotional development ..."

11. Thus, and perhaps to no one's surprise, the conclusion was:

"In our view the children are suffering significant harm from the pattern of care given by their parents who have not behaved as would be expected from reasonable parents. The parents' intelligence and social status should not in our view be allowed to obscure this.

Observations indicated that the relationship between Mr [B] and Ms [R] is intense, volatile, enmeshed, loud and intrusive."

12. They found the father to be "quietly provocative" and the mother to be "over-reactive".
13. Taking on face value the assessment that these are intelligent parents, they ought to be thoroughly ashamed of their performance and should hang their heads in shame and ask themselves how, as intelligent parents, they can have allowed their personal difficulties so to intrude on, and to the obvious detriment of, their children. So again, with no surprise, I read the conclusion of the report dated 29th June 2001 that:

"If the parents continue to behave in the way they have to date, in our view the situation is emotionally abusive to the children and the local authority may need to consider whether to institute Child Protection Procedures."

14. Did these intelligent parents take a blind bit of notice of the expert's report? It does not seem likely. I will read from a transcript of a telephone call that took place on 21st December. In thoroughly foul-mouthed language the mother made perfectly plain that she was not going to put up with this any longer. She did not wish to stay in "this shitty life", she said, and "I will not leave my children behind either". She was crying as she said it, and there are other indications of wailing. What appals me is the conversation on page E15 of the bundle, which I will quote:

"[Mother's voice rising to a crescendo] "I can't fucking carry on living a life like this, you understand, I can't carry on living a life like this and I'm not going to leave my children behind either, you understand you mother fucker, you think you can put all your friends against me, you mother fucker ..."

15. And now the words that tear at my heart, even if they have no effect on these parents:

"... oh mummy, oh mummy, oh mummy, oh mummy [wailing and crying] ..."

16. And mother's response to her children's distress?

"... you mother fucker, you think you're speaking to your father ..."

17. If that is the half of it, who can be surprised that, when the judge came to consider all of that evidence, he found that the section 38 criteria had been satisfied. There is, he said, "no question but that the threshold is satisfied".
18. He had before him other important evidence. It is contained in the psychotherapy report of Miss Youell of the Tavistock Clinic, who spoke of the deteriorating behaviour of the mother at the clinic. It gives a graphic account of what had been happening at page C64 of the bundle.

"[The children] will certainly have witnessed her angry and dismissive outbursts on the telephone to the Tavistock and other agencies. When in a rage, Ms [R] presents as a frightening figure. She stutters and her eyes roll backwards as she tries to make her case. As an adult, one can sometimes sense how close she is to collapsing into distress, but for a child, her anger is a most alarming experience and not one which can easily be filtered out. The children have been exposed to the full force of her volatility and the intensity of her emotional responses, with very little compensatory experience elsewhere. It is difficult to judge to what extent [W]'s capacity to cut himself off is a developmental response to this."

19. Her conclusion was that it was not safe to return the children to the mother's care until such time as her willingness to accept treatment and her capacity to change had been fully tested over time.
20. That reference to returning the children to the mother's care arises because the local authority were so troubled by the threats to take her own and the children's lives that they began emergency protection proceedings in the family proceedings court. They were dismissed because the justices felt that these were threats not likely to be implemented and that there was no emergency. Perhaps wrongly, the proceedings were then commenced in the Principal Registry. Rightly or wrongly, they have been constituted and the irregularity is no longer of significant importance. The district judge made an interim care order without notice. District Judge Bradley then continued that interim care order on notice to the mother, but directed that the matter be heard in the High Court urgently, with a day and a half fixed for the hearing. It took four and a half days, and poor Mr Nicholas Mostyn QC had to deliver himself of his judgment, not as I am doing at 4.30 in the afternoon, but at 7.30 in the evening. One must therefore look sympathetically to the content of that judgment and not be overcritical of it, delivered as it was in those circumstances.
21. The application for permission to appeal is based, it is said, upon the fact that, even if (as he found) the threats to harm herself and the children were mere rhetoric, and even if (as he found) it was clear that the mother did not genuinely or seriously threaten to harm the children, nevertheless he was wrong, in the balance he struck, in failing to take account of the fact that these were seriously emotionally harmed children; and that the harm had been caused (as I read the reports) by both parents but, of course, being in the mother's care, particularly by the mother's failure to control her emotions. That presented a risk. The risk had been identified in June and the warning had then been given that, unless the mother could control herself, that risk would justify the institution of these care proceedings.
22. There is a criticism of the judge in his observation that:

"The factor which impacts the most is my perception that it is seriously contrary to the children's best interests to be separated from the mother."

23. That is open to two objections. The first I have voiced: that it is, on one view of the evidence, seriously contrary to the children's interests to be exposed to the mother's volatile behaviour. The second is that the judge (who did not listen to the evidence of the guardian ad litem, who had not had time to report at all) failed to take account of the observation (which may not carry a great weight, given the boys' ages) that O was not wishing to return to live with his mother and wanted to continue to be with his father.
24. I expressed concern (which counsel have assured me is quite misplaced, and I have no doubt he is right about it) that the orders are a little inconsistent in that the interim care order was refused but a supervision order made. I thought that was tantamount to saying that the application was dismissed. I was of a view (wrongly, it may be) that the care proceedings cannot stand whilst there is this residence order in force, but that no doubt is simply forgetfulness on my part as to how these things operate.
25. But the judge did make an order which nobody asked for. He did not take account of the guardian's views and he did not give reasons why he should not follow the overwhelming professional advice that he was being given. Those points seem arguable, even when allowance is made (as surely it must be) for this hastily constructed extempore judgment. All I have to be satisfied about on this application is that this is not a fanciful application for permission to appeal. I am not aware of authority of this Court on how judges should deal with applications for interim care orders. This judge appears robustly to have dealt with it more on the basis of a full hearing than an interim one, and those concerns impel me to say that permission to appeal should be given.
26. It follows from that that I must put a stay on the execution of the order until the hearing of the appeal. In view of the fact that I am granting permission to appeal, subject to anything counsel may submit to me, I would have thought that section 40 of the Children Act requires me, or at least empowers me, to make an interim care order pending the outcome of that appeal, and I am minded to do so unless I am persuaded out of that course by counsel.
(Counsel made further submissions)
27. LORD JUSTICE WARD:In the discussions following the grant of permission to appeal and the imposition of the stay, the question really arises whether the court has the power under section 40 of the Children Act to impose an interim care order.
28. Mr Rice, for the mother, correctly points out to me that the preconditions in section 40(1) are that the court dismisses an application for a care order. We might be able to get over that if "care order" is defined, as I think it is, to include an interim care order. But subparagraph (b) provides that, at the time when the court dismisses the application, the child concerned is the subject of an interim care order. I am inclined at the moment, on re-reading it, to think that the relevant time is the time that Mr Nicholas Mostyn QC made his order and that at that time an interim care order was in force. Rightly or wrongly, therefore, I shall assume the jurisdiction under section 40(1), reading "interim care order" for "care order" in subparagraph (a), and so make an interim order pending the appeal.
29. If I am wrong about that, Mr Rice realistically accepts (and I am grateful to him for that realism) that it is in the best interests of the children that they have the local authority in control, and he would have been prepared to submit to the imposition of the interim care order, without prejudice, of course, to his seeking to uphold paragraph 1 of the order under appeal. It may be another matter on which the Court of Appeal might wish to give guidance after full argument.
30. I also direct that any application to renew that interim care order, which expires on 30th April, be made to the High Court.
Order: permission to appeal granted (appeal to be heard by 3 LJJ, one preferably from the Family Division of the High Court, time estimate one day); stay on execution of order granted; interim care order made pending appeal (any application to renew to be made to the High Court); public funding costs assessment for mother and guardian ad litem.