Case No: B4/2008/1242
Neutral Citation Number: [2008] EWCA Civ 1605
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION 
(HER HONOUR JUDGE ANDREW)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 30th September 2008

Before:

LORD JUSTICE PILL,
LORD JUSTICE BUXTON
and
LORD JUSTICE WALL
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IN THE MATTER OF M & L (Children)

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Miss J Dodson (instructed by Messrs Ewings) appeared on behalf of the Appellant.

Miss E Lecointe (instructed by London Borough pf Southwark) appeared on behalf of the First Respondent.

Miss A Moore (instructed by Messrs Amphlett Lissimore) appeared on behalf of the Second Respondent.

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Judgment
Lord Justice Wall:

1.	Before dealing with the facts I would, speaking for myself, like to express my gratitude to Miss Joanna Dodson QC, representing the mother this morning. When I first read the papers it struck me as being of the utmost importance that she should be represented in this application (inaudible) faced as she was with opposition from the local authority and the guardian.  As it happens, we have not felt it necessary to call on the other parties to the proceedings, although we do have documents from them. 

2.	This application concerns two small children, both of whom are boys.  Earlier in the proceedings we imposed reporting restrictions.  As a consequence, I will refer to them by initials only.  They are respectively PM, born on 27 March 2006, and his full brother ML, born on 28 May 2007.  Their mother, who is 40, seeks permission to appeal against orders made by HHJ Andrew, sitting in the Principal Registry of the Family Division.  She placed both children in the care of the local authority.  She also made placement orders under section 21 of the Adoption of Children Act 2002 in relation to both children.  In order to be successful in her application for permission and in the subsequent appeal; the mother must seek the discharge of both the care and the placement orders.

3.	The mother’s application for permission to appeal came before Ward LJ on 23 July 2008.  He directed that it be heard on notice to the local authority, with the appeal to follow if permission was granted.  We have a transcript of his judgment, to which I shall make further reference in due course.

4.	Although this appeal relates only to the two youngest children, PM and ML, the mother has a total of seven children - all boys. For present purposes, as Miss Dodson properly accepts, the only relevant father is a man called RM, who is the father not just of the two youngest children but also of CR.  As I have already indicated, CR is 17 and it is thus apparent that the mother had a relationship with him (inaudible) RM some years ago and subsequently, many years later, has resumed it.  I therefore refer to RM as “the father”.  

5.	The judge plainly knew the case well and she gave two lengthy judgments, both of which, in my judgment, repay careful study and go to explain the course which she took.  She was, of course, only concerned with the four youngest children and, as I have already indicated, the older children are not the subject of this application for permission to appeal.  Their care was at the end of the ultimate hearing adjourned by the judge for further hearing, which we are told took place on 3 December.  We are concerned with the four youngest children.  At paragraph 5 of the judgment which she gave on 26 September the judge set out some of the background:

“5. Every one of the children and the mother’s circumstances have given cause for concern over the years. [WM] was received into care aged 5 years having been taken by the mother to her grandparents to live when she knew that she herself as a child had suffered sexual abuse by her grandfather. [WM] suffered likewise, and was removed from their care. In September 2003, [CR], [LF] [DM] and [QW] were placed on the Child Protection Register under the category of neglect (mother does not admit neglect in the threshold criteria document), there being reports that [CR] and [LF] were involved in criminal activities, were absconding from school, were caring for each other, and were running away from home.

6. [DM], [QW] and [LF] were accommodated in January 2006, when the mother was sentenced to 18 months imprisonment for importing cannabis valued at £33000 in which [CR] aged 15 was involved, in September 2005.

7. In August 2006 the LA applied for ICOs in respect of [LF], [DM], [QW] and [PM] following [the father’s] return to the mother, and their fears that the children were exposed to domestic violence. Subsequently. [LF] was made the subject of a care order in April 2007. I have not been privy to the papers in his case. 

8. [PM] was born to the mother whilst she was in prison and remained with her in a mother and baby unit at the prison until her release on tag in June 2006, and in her care at home until September 2006. Following [ML’s] birth, the LA considered that it was too risky for him to return with mother from the hospital to the refuge where she was then living, and he was taken into care. HH Judge Hughes made an ICO in respect of Moses on 6th June 2007.”

6.	The matter was dealt with largely on the documentation.  However, the judge dealt with the position of the two older children. That occupies a very substantial part of the judgment.  She was satisfied that the threshold criteria under Section 31(c) of the Children Act 1989 was established in relation to the two youngest children, and she conducted what has become known as split trial.  Having spent a substantial period of time dealing with the position of the two elder children, the judge then turned to the local authority’s case over the next six months.  She then sets out what the local authority’s care plan was for the two children and gives the reasons for it.

7.	There then follows a long section, much of which is taken up -- importantly, in my view -- with a discussion of the father’s domestic violence towards the mother and the older children.  She records that there was a “wealth of evidence that the mother has had relationships involving violence”, and there are also references in the judgment to the father’s violent conduct at contact, the description of which the judge describes as disturbing.  There are also descriptions of the mother with injuries which she denied had been inflicted by the father; indeed, for very substantial periods the mother denied that the father had been abusive or violent towards her.  However, the judge found, and indeed the mother eventually accepted, that the father had behaved violently in the home to her and indeed to the children.  That, in my judgment, an important finding made by the judge in her first judgment.  There was, further, before the judge at that first hearing, evidence that the parents remained in contact with each other despite their denials that they were in such contact and there was, as the judge recorded, abundant evidence of violent behaviour by the father towards the social workers.

8.	There was also before the judge on the first occasion, and not before us, a great deal of expert evidence directed to the question of domestic violence and the capacity of the parents to change.  

9.	In the event on the first occasion, the judge felt unable to reach a final conclusion.  She expressed severe dissatisfaction with the conduct both of the local authority and the guardian. The latter she felt had effectively sought to support of the local authority whilst not sufficiently investigating the case independently on behalf of the children.  She had also, I think, seen very little of the mother.  The result was that the judge discharged the guardian, adjourned the matter to a second hearing and expressed the view that the local authority ought to change its practices.

10.	At the second hearing there was, of course, a fresh guardian, who is currently represented before us, but the local authority remained the subject of criticism by the judge, not least because the same social workers had remained involved.  However, it seems to me on reading -- although I accept that this is a somewhat broad brush reading -- that the principal criticism of the local authority go much more towards the conduct of the local authority towards the two older children with whom the judge was concerned rather than the two youngest, and for reasons which I will now endeavour to explain it seems to me that however critical one may be of the local authority’s behaviour, and I fully understand the judge’s reasons for being so critical, the critical point she found in relation to the two youngest children does not depend in my view, or is not heavily influenced by the local authority’s behaviour towards the two youngest children.  

11.	What the judge found to be critical in relation to the two youngest children was what she found to be the ongoing relationship between the mother and the father.  She begins the judgment by citing two letters written by the father to the court.  He had previously been represented and wanted to come off the record, and at that stage he was in prison on remand.  He has since been convicted of assaults, one I think on the mother and one on a former cohabite, and there is some doubt about when he is likely to be released.  We are doing the best we can, I think, on the available material before us.  We have a number of documents but we have, in particular, a letter from the probation service which would seem to indicate that given the sentence he has received, although the immediate receipt of parole may not be particularly likely in the circumstances of his overall violence, nonetheless the likelihood is that he will be entitled to be released on 6 February 2010 at the very latest.  There is a possibility that he may be released on 6 February 2009 and, equally, it must remain a possibility that any time between those two dates, subject to his conduct, he will be entitled to be released, and therefore there is every prospect that in the reasonably foreseeable future the father will be at liberty.

12.	The judge recorded that when father had given evidence on the earlier occasion, he had given what she describes in paragraph 5 of her judgment as “quite strong” evidence about his feelings in relation to the two younger children and his wishes for their future and the judge expressed this view: 

“I have no confidence in the proposition that he wants nothing more to do with his children.”

She goes on to say this:

“It is quite clear that [the father] is prone to losing control of his emotions; is not able to control his anger, and he is volatile in the extreme.  He clearly desperately needs professional help.”

Having made passing reference to the expert opinion, she goes on to say: 

“During the course of these proceedings he has threatened to kill the social worker…and [the mother], the most recent of those threats, as I understand it, having been made in conversation with the Guardian.  He, three times, changed his mind about wanting contact with the children when [the Guardian] interviewed him in October.”

“I have no confidence,” she says in paragraph 6: 

“…in the proposition that he wants no more to do with [the mother].  His withdrawal from proceedings is, I believe, a demonstration of the contempt in which he holds Local Authority proceedings; the actions of social workers, and the court process, described by him to the Guardian as ‘court nonsense’.”

13.	The judge, at the same time -- and I shall give other citations of her judgment in a moment -- gave a number of positives about the mother’s behaviour since the last hearing.  She says in terms in paragraph 8 of her judgment: 

“I have heard a great deal of evidence about the significance strides made by the mother since this matter was last before the court in August.  Without exception, she has been given credit for the way she has engaged with cognitive analytical therapy; for the progress she has made in engaging with that therapy, and in accessing complementary courses and programmes in respect of domestic violence and parenting.  She has applied to be re-housed.  She has apparently arranged a meeting with Victim Support next week and says she would like to take steps to change her identity.”

14.	In the next paragraph the judge identifies further positives.  However, in paragraph 11 she posits what is to her the critical aspect of the case: 

“…the most significant concerns in these proceedings and key, in my judgment, to the whole situation in which she finds herself, that is, her continued contact with [the father].  She knew, and had advice last year, of the danger that [the father] had posed to her and her family since she had been associating with him.  She knew then, but did not admit, that he had been violent to her and that the children had witnessed that violence.  She denied it in the witness box when [the father] was in court. She denied it to the professionals who interviewed her during the course of the proceedings.  In evidence before me she said she had parted from him, she had moved away, she had a post-box address.  He said he did not want anything further to do with her.  She said that she had broken up with him. That was not the first time that those statements had been made by [the father] and [the mother].  It is significant that [father’s] belongings are still in her flat, something which [an expert] was not aware of.  It is significant that she failed to disclose to the Local Authority, or to her own solicitors, the true version of events that occurred on 9th December or the true version of what occurred subsequently, that she is still in touch with [the father]; that she visited [the father] in prison, not once but ten times, and that even following her admission of that to the Local Authority, when confronted with a letter from the prison confirming it, she subsequently had two further telephone conversations, wrote what she described as an ‘angry’ letter to [the father], and received a letter from him with a Visiting Order only days after he wrote the letter to me on 17th April saying that he did not want any further contact with her.”

Slightly later on the judge went on in paragraph 14: 

“It seems to me that [the mother], like [the father], is a very complex character, and finds it difficult to put into effect the lessons she learns and the advice she has been given.  In my judgment, there is still a continuing link between [the father] and [the mother].  It is a fact that she contacted him and booked five visits on 17th December.  I know that she has denied that and I know that she has given evidence saying it was one visit at a time.  I know her case is that she went to appease him.  To [the social worker] she said that she went to keep him sweet.  As a result of her Christian beliefs, another reason was that she felt everyone makes mistakes and they need help and that is why she visited him. She suggested that she wanted to make peace as a result of knowing that she erroneously made reference to [the father] having a knife at the time of the assault on 9th December.  There is no doubt that she suffered an assault on that date.  She was punched and she fell down the stairs knocking out her teeth.  [The father] apparently has pleaded guilty to that assault, but the assault which, in the eyes of the prosecution, was an assault which involved a knife.”

Next paragraph: 

“Mother fears, she says, that if [the father] is imprisoned for any length of time he will cause others to come to her flat, where she is living, to threaten or kill her.  These threats to kill are serious and should not be taken lightly by anyone.  The difficulty that has arisen as a result of the various evidence given by [the mother] is knowing whether she is telling the truth or whether she is not.  It is right that previously she was not able to make points against [the father] and that is in more recent times that she has been able to admit to [the expert], and in her statement, that he has been violent to her.  She has also admitted that reports made previously by [one of the children] of a bloodied knife being put through the door and violence perpetrated to her, […] were true.  However, she was able to deny those previously and not just when [the father] was in court listening to her, but when she was giving instructions to her solicitors in proceedings which she knew might result in her children being committed to her care.”

In paragraph 19 of the judgment the judge says this: 

“The whole proposition of any return of any of the children to this mother rests on whether or not she was parted from [the father], because unless and until that happens, in my judgment, none of these children can possibly be assessed to be safe and not ‘at risk’.  That is the key to this case, so that despite all the extremely hard work -- and [one of the experts] described it as ‘hard won progress’, and I believe that, and credit the mother for it -- despite all those efforts, because all the professionals and experts involved are in doubt that she has truly separated from [the father], and because all the evidence suggests that contrary is the case, it is frankly impossible for this court to find that it would be safe in the foreseeable future for this mother to secure the return of her children.  It is one of the most difficult things a court ever has to do, to make a decision which would result in the children not being returned to their parents, particularly when such efforts have been made and the evidence is before the court.  [The counsel] argued tirelessly for [the mother] in respect of all her efforts and I doubt whether [the mother] would have had, or could have had, such able representation from anyone else.”

15.	I have deliberately cited substantial extracts from the judge’s judgment for the following reasons.  The first is that one has to then ask the question: was there material upon which the judge could properly make those findings?  And the answer to that is, in my judgment, overwhelmingly, yes there was.  It follows therefore that if the judge was entitled to make such findings, the second question one has to ask oneself is: well, do those findings have the consequences which the judge indicated they should have, namely that it would be unsafe for the children to be returned to their mother’s care?  And in my judgment the answer to that is overwhelmingly, once again, yes.  If it is dangerous because of potential domestic violence and a volatile dangerous relationship for children to be returned to the care of parents, then it is plainly not in the interests of the children to be so returned.  The judge was, after all, at the welfare stage of the inquiry.  She had found the threshold criteria satisfied; she was now concerned as to whether or not it was in the best interests of the children to be adopted or to be returned to their mother, and in my judgment it was wholly open to the judge, on the findings that she made, that a return was potentially extremely dangerous because of the relationship between the parents, and therefore the children should not be returned to their mother’s care, despite the efforts of the mother, or the ostensible efforts of the mother, in seeking help.  As to that, of course I do not wish in any way to seek to detract from what the judge said, but it must be borne in mind that, whilst she was going through these courses and attending them, she was not telling the relevant benefits, or indeed the local authority or anyone else, that she was having clandestine meetings with the Father.

16.	In these circumstances I am, I regret to say, wholly unable to accept Miss Dodson’s able submissions that really all the mother was doing was seeking to conciliate the father and, as it were, to terminate the relationship with him in a civilised and organised way.  In my judgment, the evidence speaks to the contrary and the judge was entitled so to find.  Equally, the second point taken by Miss Dodson, namely that the judge had scant regard to the mother’s human rights, seems to me inappropriate in relation to the two boys.  First and foremost, it seems to me principally to apply the elder children; but secondly, if it is the case that to return the children to their mother would be to put them in a position of potential danger, then in my judgment that is clearly a proportionate response to ensure that they are not returned, and one that makes it plainly necessary for them to be placed for adoption.

17.	As to the latter, it seems to me (and Miss Dodson did not emphasise this and so I can take it quite shortly) that the judge took the matter with sufficient seriousness to make it clear that in her view the only proper and available course available to the court in the circumstances was for the children to be adopted and, having taken that course, it seems to me perfectly entitled both to make placement orders dispensing with agreement in relation to the children and to make the orders under Section 21 of the Act.

18.	In my judgment, therefore, ably though this case has been argued by Miss Dodson, it does not cross the permission threshold, and I would therefore refuse permission to appeal.  Before concluding, it seems to me I ought to deal shortly with the observations made by my Lord Ward LJ, who of course had this application on an ex parte basis without notice and with only the mother present as a litigant in person.  I have considerably sympathy with the Ward LJ describing the case as not being entirely a satisfactory state of affairs, but, in relation to what Ward LJ said, first of all I think it has to be pointed out we do have the advantage of full documentation and, of course, a skeleton presented by the local authority and by the guardian.  Secondly, it seems to me the judge did give every credit to the mother for her conduct and for her attempts to put herself on the appropriate courses even if she may not have been entirely frank with those who were dealing with it, but it does seem to me, with great respect to Ward LJ, that he was under a misapprehension if he thought that the father was not likely to be released reasonably soon and was going to be out of the way for a sufficient length of time for the mother to be able to put her house in order.  First of all, the evidence is from the judge that the mother was not going to be in a position to put her house in order, but secondly, even if she were, the evidence plainly was that it was going to take a very long time.

19.	Whilst I fully understand, therefore, why Ward LJ adjourned the matter for full argument and listed it for permission to appeal with appeal to follow if permission granted, I myself, having listened very carefully to the arguments advanced by Miss Dodson, would nonetheless refuse permission to appeal.

Lord Justice Buxton:  

20.	I agree.

Lord Justice Pill: 

21.	I also agree. 

Order:  Application refused

Please note: This audio was full of loud rustling interference, making much of the judgment inaudible