Case No: B4/2007/0463
Neutral Citation Number: [2007] EWCA Civ 577
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT 
(HER HONOUR JUDGE NORRIE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 24th May 2007
Before:

LORD JUSTICE THORPE
and
LORD JUSTICE TOULSON

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IN THE MATTER OF B (a Child)

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(DAR Transcript of 
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Ms S Earley (instructed by Messrs Owen White and Catlin) appeared on behalf of the Appellant Father.

Mr D Woodward-Carlton (instructed by West Sussex County Council) appeared on behalf of the Respondent Local Authority.

Ms E Szwed (instructed by Messrs Howlett Clarke) appeared on behalf of the Respondent Guardian.
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Judgment

Lord Justice Thorpe:
1.	This appeal concerns S, who was born on 29 January 2006.  There is a relatively complex family background.  Her parents are K and KB, who are in their middle twenties. There are older children 6, 4, and 3 -- S, C and A -- and then, as a result of the father’s vacillation between KB and SH, there are the children, S and P, born to their relationship, a child F, who is the child of SH but not of KB and then, of course, finally S.  Now all these complex patterns had to be considered by HHJ Norrie in the course of a hearing in the Brighton County Court which commenced on 22 January.  On that day she disposed of the issues concerning S, C and A, who were placed by agreement with their maternal grandfather and his partner.  That left the question of what was best for S.  There were essentially two options before the court. The first option was that she should go to live with her father and with SH, together with S, F and P.  What went strongly for that option were the facts that K is S’s father and SH is clearly a highly competent mother.  The other option, since KB was not a possibility, was a final care order and swift move to final adoptive placement. 
2.	The court heard, on the second day, from the principal social worker in the case; on the third day from a clinical psychologist, who had made assessments in relation to S, C and A, but who had not made an assessment of the option advanced by KB; on the next day, the judge heard from the father and from SH; and on Friday, the last day of the week, she heard evidence from the guardian and submissions. She then reserved her judgment which she gave the following Friday, 2 February.  She rejected the father’s application and granted the order sought by the local authority, an application which had the support of the guardian.  
3.	The decision was the subject of a Notice of Appeal which, regrettably, was not filed until 1 March.  It is important to emphasise that, in this court, the provision of 21 days in which to file Notice of Appeal is a necessary provision for the general course of civil business, but is generally inappropriate for family proceedings and practitioners need to make an effort to get their Notices of Appeal in early rather than late within the prescribed time period. Judges in the court of trial, if they anticipate a Notice of Appeal, should consider putting the parties on terms as to filing before the expiration of the period permitted by the rules.
4.	However, the papers were referred to Wall LJ who, on 11 May, set out a hearing on notice with appeal to follow.  He identified the critical question for HHJ Norrie as whether or not it was in S’s interest to live with her father or to be adopted.  He continued, “The judgment does not read well, and to my mind appears both discursive and unfocused”.  Regrettably, I must express my complete agreement with Wall LJ’s criticism.  I read the judgment assuming, in the judge’s favour, that it was an extempore judgment.  Only this morning did I learn that it was reserved. That circumstance only underlines how exceptional it is for a judge in the county court (deciding issues as important as this and taking seven days in which to order judgment) not to carry out the essential function, which is to make clear findings of fact on disputed issues, to give careful direction as to the law and then to come to a clearly expressed conclusion. 
5.	The hallmark of this judgment is that the judge discursively cites evidence that had been before her either in written reports or orally, without making any clear findings as to where she stood on the issues that arose from the respective evidential cases.  It is fair to say that the judge directed herself, at an early stage in her judgment, in terms appropriate, given that the choice that she had to make was between a placement in the natural family, or a placement outside, thereby denying the child all the opportunities and advantages that come from an upbringing within the family.  That direction appears at page 4, line 2, when she said: 
“In considering all the evidence I have, at all times, had in mind the first and foremost.  I have to decide whether there are any compelling factors that override the prima facie right of the child to an upbringing by the natural parent, in this case, the father. As I have already said, mother does not seek to have the child returned to her and furthermore that any intervention in the family life of a child and parent must be proportionate to the risk and harm to the child.  In other words, the risk of harm must be so high that the child’s welfare requires alternative care.”
Whilst the judge may have had that consideration in her mind at the outset, it does not seem to have been maintained in her mind during the course of the delivery of the judgment.  It is plain that the judgment was not prewritten, let alone handed down. It is plain from various pointers that the judge was extemporising, although it is possible that she was relying on notes.  Towards the close of the judgment, when she comes to express her conclusions, she seems to wander from the essential legal direction and simply to identify a series of factors, pros and cons, that were relevant either to the first or to the second option.  During those passages in which she identifies the factors relevant to each option she does not make clear findings or clear adoptions of passages within the evidence.  Rather, she simply recites observations of witnesses going one way or the other. Mr Woodward‑Carlton, who has argued the case for the local authority very ably and very fairly, has asked us to infer that these recitations were effectively findings.  That submission implicitly accepts the fundamental flaw.
6.	There has been some difference of recollection between counsel who appeared at the trial and who appear before us today as to what was the precise nature of father’s primary case.  It is suggested by Ms Szwed for the guardian that, on day 3, at the conclusion of the evidence of Dr Helps, who had assessed family relations in relation to the older children, the father’s counsel, Miss Earley, effectively retreated from an application for a residence order to an application for a three-month assessment of her client under interim care orders to be carried out by the same Dr Helps.  
7.	That is disputed by Miss Earley, who says her primary case was, and at all times remained, for a residence order.  Certainly, on this point, the form and expression of the judgment supports Miss Earley, since the judge at the outset recorded the rival applications: the local authority’s application for a care order with a care plan for adoption and therefore an application for a placement order; the father’s application for the child to be placed with himself and his partner and for her family name to be changed to B.  Further support for Miss Earley’s position is to be found in the manner in which the judge dealt with the possibility of further assessment.  It does not emerge until page 20 of the judgment, when she gives her reasons for rejecting the possibility of further assessment.  In the course of that reasoning she nowhere indicates that an application for assessment had come before the court and rejects the possibility by saying: “I do not consider that I need further assessment to enable me to make a reasoned decision”.
8.	Before I come to the rival submissions, there are one or two points from the history that I think do deserve special mention.  There has been some criticism, advanced particularly by Ms Szwed, of the father for the fact that he did not issue any proceeding or enter the litigation until S was some six or seven months old.  In fairness, that has to be seen in the context that S’s paternity was not established until July 2006 and the father’s immediate reaction was to put himself forward as a carer.  There is also criticism of the father for apparently failing to propose fresh assessment in relation to S by Dr Helps.  That criticism again seems to me to be somewhat unbalanced.  Once the father had put himself forward as a carer, and in the light of the fact that he was the only blood-related potential carer, it could equally be said that the local authority should have seen the opportunity and the obligation to put some assessment in train other than an internal assessment by the social worker.  
9.	There are also criticisms of the father for failing to seek support or help to fortify his capabilities.  It is suggested by Mr Woodward‑Carlton that he had had a clear steer by reports that had been prepared in 28 April 2006 by, I think, a social worker, Mr Russell Byer, and then by Dr Helps on 10 May 2006.  It seems to me that the short answer to that is that both those professionals were, at that stage, concerned with his capabilities in relation to the three elder children.  Those pointers, if pointers they were, predated the establishment of paternity and the emergence of K as a potential carer.  
10.	So I come to the root question: given that the judge correctly directed herself at the outset of her judgment, what ultimately were the compelling factors, to use the judge’s language?  Alternatively expressed, was the risk of harm so high that S’s welfare required adoption?  Mr Woodward‑Carlton has faced up to the task of identifying the compelling factors or alternatively the so high risk of harm.  
11.	He has, first of all in his skeleton argument and then his oral submissions taken delay, given that a further assessment would have taken some three months.  I have two answers to that.  The first is that three months of delay, although clearly to be avoided if at all possible, could not in itself be said to amount either to a compelling factor or so high a risk of harm.  Furthermore, the question of delay only arises if the application is for an assessment under section 38(6).  This case cannot be so categorised.  
12.	So Mr Woodward‑Carlton, quite rightly, then draws attention to question marks over the father’s motivation.  It seems that, as a 26-year-old adult, he is not particularly self-assertive, nor particularly galvanised to achieve difficult objectives. But in identifying the father’s actual rather than potential weakness, Mr Woodward‑Carlton has pointed to his delay in getting involved with the proceedings and his delay in seeking assessment, both of which points I have already answered.  He also points to his past defections, in that he has walked away from family life with both KB and SH.  Obviously, there are indications in the history that have to be brought into the reckoning but it does not seem to me that those risks could possibly be characterised as so high as to require alternative parenting for S.  
13.	So then Mr Woodward‑Carlton marshals his submissions around the heading of outstanding work.  The father needs help with his personality, his tendency to be unassertive.  He needs help with parenting skills and he is criticised for his failure to go out and seek that help.  I have already partially answered this in the observations I have made on the history.  It does not seem to me that he had a very clear steer from the local authority that that was their expectation of him.  If he did have those needs, given his unique capacity to provide a family future for the child, it does seem to me that there was an obligation on the local authority not only to point out their areas of misgiving but also themselves to take active steps to lead him to available resources.  I have the feeling that the case might have proceeded differently had KB and SH been West Sussex residents.  Of course, there is a difficulty in that they are Buckinghamshire residents and we have been told that there are no particular arrangements or practices that enable West Sussex to contact Buckinghamshire to explain the nature of the need and to ask their assistance in meeting the need.  So I do not find anything under that heading that begins to approach either a compelling factor or a high risk of harm.
14.	Mr Woodward‑Carlton’s best submission in my judgment comes under the heading of overloading.  Now this is an absolutely obvious and undeniable concern since, on the making of a residence order, K and SH then have on their hands S, F, S and P.  As far as S is concerned, given that K has walked away from that family once, there are obvious relationship difficulties in re-establishing himself as the father in the home.  In relation to F there is a paternity issue.  He is not the father of that child and F does not appreciate that. As far as the younger children are concerned, S and P have different mothers and are only five months apart in age.  That would be an obvious challenge for SH, but it must be borne in mind that, amongst the few findings expressed by the judge, are first of all page 4 of judgment, line 10: 
“Therefore I focus on what father, supported by SH, can provide for S and how capable they are of meeting her needs.  I say immediately that I am totally convinced of father’s genuine wish to care for this little girl and that he sincerely believes that that is in the best interests of her welfare.  I also say immediately that I find that SH is similarly motivated and that she is a caring young woman, content and indeed relishing maternal roles.”
Then later in the judgment, as my Lord, Lord Justice Toulson reminds me, page 23, line 12: 
 “I also want to consider the relationship of the father and SH. I accept, at present, that they are committed to each other. I do not doubt their current intentions and I hope that it does work out for them, both for their sakes and for the sakes of the children.”
Also at page 16, line 5: 
 “It is quite clear that SH has a structured regime for the children where she ensures that there is individual time for each of the children, particularly at bedtime, and that she does not think that having the addition of S would be too much for her.”
So again, although there are legitimate concerns as to overloading, they were not found by the judge, and understandably not found by the judge, to be either a compelling factor or a high risk of harm.  
15.	Finally, Mr Woodward‑Carlton points to the dangerousness of KB, particularly if her passions are roused by the continuing relationship of K and SH with her daughter in their charge.  That again is a fair area of concern, but it does seem to me that the judge has underrated the possibility of judicial safeguards once a residence order is in place.  She simply said: 
“Now I recognise the fact that it has been urged that KB’s contact with S could be controlled and dealt with by way of court orders, but, as anyone who sits in my position knows, it is not as simple as that.  One can make orders, it is true, but it would be involving S in a conflictual situation and impose stress on whoever is caring for her.”
That seems to me to be a somewhat defeatist approach to the powerful forces that the court can bring to control disruptive or even malevolent passions. 
16.	So taken individually, it does not seem to me that any of the factors urged by Mr Woodward‑Carlton could be said to be the justification for this extreme order.  Of course they must be considered cumulatively as well as individually but, even looked at cumulatively, they seem to me to fall well short of what the eventual order needed for its foundation.  Of course, I recognise that a carefully-crafted judgment might have survived analysis in this court, given the support that the local authority and the guardian gave to the adoption option.  However I do wonder whether the local authority and the guardian have throughout been sufficiently faithful to the principle that children are not to be denied parenting within the home, unless there are compelling reasons.  If this order stands, this is the only child of all those we have surveyed who would be directed out of the family and into adoption.  
17.	So, for all those reasons, I have come to the very clear conclusion that the judgment does not demonstrate the necessary foundation for a strong order and I would accordingly allow the appeal. 
18.	That does present the problem of what order should now be made in the face of rival submissions from Ms Earley, from Mr Woodward‑Carlton and from Miss Szwed.  I am equally clear in my conclusion that, again, I prefer the submissions of Miss Earley.  It seems to me that any further assessment of the father would be quite impractical, in a situation where the child remained with foster parents and was only visited for contact, albeit of much higher frequency. The only way of assessing effectively would be to create a new family by way of enlargement, and accordingly it seems to me that it is right for this court to replace the care order with a residence order, but a residence order under statutory supervision, so that the local authority will have the opportunity of continuing rigorous investigation and assessment.  
19.	It seems that there is the unfortunate need to open a new book in Buckinghamshire, who have had no previous statutory involvement nor done any previous work.  The supervision order must go to them.  They will have the statutory responsibility and within that responsibility, they must make a real effort to ensure that the father receives the support that has been identified and which he himself accepted during the course of his oral evidence.  Apparently, he and his partner indicated that they had already identified local services, and had perhaps enrolled.  We do not know what has happened since.  But if those supports have not yet been accessed, it is important that they be accessed very quickly, so perhaps there should be a reasonable delay in the implementation of the residence order to enable West Sussex to communicate and collaborate with Buckinghamshire, to ensure that the professional baton is passed from one to the other, without anybody dropping it.
20.	Those then are the orders I would propose.
Lord Justice Toulson:  
21.	I agree.

Order: Applications granted.  Appeal allowed.