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||Neutral Citation Number:  EWCA Civ 1284
||Case No: B4/2015/2384
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
Ms Justice Russell
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE UNDERHILL
DAME JANET SMITH
Mr James Turner QC and Miss Madeleine Reardon (instructed by Osbornes Solicitors) for the Appellants
Mr Andrew Bagchi QC and Mr Martin Downs (instructed by Brighton and Hove City Council Legal Services) for the First Respondent
Miss Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells Solicitors) for the Second Respondent
Miss Catherine Jenkins (instructed by Wannops Solicitors) for the Third Respondent
Mr Jonathan Bennett (instructed by Railton Solicitors) for the Fourth Respondent
Hearing date : 22 October 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice McFarlane :
- These proceedings concern a girl, W, who was born on 9th November 2012 and is therefore now aged 3 years. W's welfare has been a live issue before the Family Court, save for a short gap, from the time that she was one month old. On 8th December 2012 the local authority issued an application for a care order with respect to her. The case has a complicated, protracted and unattractive procedural history which culminated in a full welfare hearing before Ms Justice Russell in May 2015. By that time W had been living with prospective adopters for 15 months and the issue was whether she should be adopted by them or return to live with her father and three siblings. The outcome of that hearing, which is described in a judgment handed down on 22nd July 2015, is now the subject of the present appeal.
- W is the youngest of four children born to the same parents. The older children, X, Y and Z, born respectively in 2003, 2007 and 2009 have, following the parents' separation in 2012, remained in the care of their father, Mr C. Tragically the children's mother has long term mental health difficulties which, it is accepted, render her unavailable to take on the care of her children.
- W spent the first 8 days of her life in hospital with her mother. Upon discharge, W went to the family home and into the care of her father who was already caring for the older three children. One month later W was removed from the father's care under an interim care order made on 18th December 2012 because of concern that he was under significant pressure and that the introduction of the baby into the household had compromised his ability to care for all four children. W then remained in foster care until the conclusion of the care proceedings on 19th September 2013 at which point District Judge Gamba made a residence order to the father with respect to X, Y and Z coupled with a supervision order, but made a full care order with respect to W and granted the local authority an order authorising them to place W for adoption. Thereafter W continued to reside with the same foster carers until 17th January 2014 when she was placed with "Mr and Mrs A" for adoption. At that time, which is now 22 months ago, she was aged 14 months and she had last seen her father in October 2013 when she was less than a year old.
- On 14th May 2014 Mr and Mrs A issued their application to adopt W. That application seems to have triggered a response from the father who instructed solicitors and a barrister who in turn made an application on his behalf for leave to oppose the making of an adoption order under Adoption and Children Act 2002, s 47 ["ACA 2002"]. That application was dismissed by DJ Gamba. The father and his legal team then sought to appeal that decision and also to re-open an earlier application for permission to appeal against the original care and placement order that had been made by the father in person in October 2013, but that had not been prosecuted by him following an early refusal of permission on paper by a circuit judge.
- The father's two applications for permission to appeal were heard by HHJ Farquhar on 12th November 2014. Permission to appeal against the September 2013 orders was refused, on the basis that the application was out of time, but the appeal on the issue of opposition to adoption was successful. Following a re-hearing on that issue the father was given leave to oppose the adoption application and the contested adoption was the primary matter set down for determination before Russell J at the hearing in May 2015.
- Notwithstanding the fact that W's welfare was to be considered afresh at the May 2015 hearing, the father sought to challenge HHJ Farquhar's decision to refuse to extend the time for appealing against the original care and placement for adoption orders. Following a hearing before this court (McFarlane and Gloster LJJ and Sir Robin Jacob) on 6th May 2015 the father's appeal was allowed for the reasons set out in a judgment circulated in draft to the parties and to Russell J prior to the start of the May hearing but handed down on 11th June 2015 (Re H (Children)  EWCA Civ 583).
- The effect of this court's decision in allowing the father's appeal is itself a matter of controversy within the present appeal and it is therefore a matter to which I will return in detail in due course. The relevant parts of the Court of Appeal order, as agreed between the parties following the conclusion of the appeal hearing, are as follows:
"3. The appeal against the welfare decision made by District Judge Gamba on 19th September 2013 in respect of W is allowed and is remitted to Ms Justice Russell for re-hearing;
4. The care and placement orders made in respect of W on 19th September 2013 are hereby set aside;
5. W is placed in the interim care of the first respondent local authority until further order;
6. Pursuant to s 42 (2)(a) of the Adoption and Children Act 2002 the prospective adopters are granted leave to make the application for an adoption order;
7. For the avoidance of doubt, the application for an adoption order issued by the prospective adopters on 11th May 2014 shall be treated as a valid adoption application and also as a valid notice of intention to adopt W pursuant to s 44 (3) of the said Act."
- Russell J's conclusion, as described in her judgment of 22nd July 2015, was that W should be removed from the care of Mr and Mrs A and returned to the care of her father. On the basis that no party sought a care order at that stage, but that there was a need to provide some form of legal structure over the transitional arrangements, W was made a ward of court until the implementation of the re-unification plan was completed. Russell J refused permission to appeal and declined to grant a stay. The next day, 23rd July, an application for permission and a stay were made to this court; both were granted by me after consideration of the papers on that day.
Hearing before Russell J: An overview
- In order to make sense of the grounds of appeal, to which I will turn in a moment, it is necessary to give a brief overview of the progress of the hearing before Russell J in May 2015. At the start of the hearing the position of the parties was as follows. The father, supported by the mother, argued for the adoption application to be refused and for W to be rehabilitated into his care so that she would grow up living with him and her three full siblings. Mr and Mrs A's application for adoption was supported by the local authority and the children's guardian, Mr Richard Madge. Expert evidence had been commissioned for the hearing from a clinical psychologist, Dr Willemsen and an independent social worker, Mark Hatter. In his written report, Dr Willemsen indicated that he regarded this to be a finely balanced case. Dr Willemsen was not instructed to provide an opinion on the ultimate issue in the case, his opinions, however, on attachment and other issues favoured W remaining with Mr and Mrs A. Although not instructed to provide an opinion as to W's welfare, Mr Hatter had in fact done so in his written report and he too recommended that W should be adopted by Mr and Mrs A.
- During the hearing the position of the parties and the recommendation of the experts and guardian significantly changed. Dr Willemsen, who of those three professionals gave evidence first, considered that the Court of Appeal decision was important in the context of its impact on W when, in some 10 years time, she may come to know of it. In consequence he changed his opinion to one in favour of W going to live with her father. Mr Hatter followed Dr Willemsen into the witness box. He too considered that the Court of Appeal decision would have an adverse impact upon W if she were to remain in the care of Mr and Mrs A. That factor, coupled with the fact that "the expert on attachment", as he described Dr Willemsen, had changed his recommendation, led Mr Hatter to alter his opinion so that he too favoured placement with the father. Finally, on the third day of the hearing, the children's guardian filed a supplemental report in which he also indicated a change of opinion and accepted that W should be reunified with her birth family.
- In addition to the expert/professional witnesses I have mentioned, the judge also heard oral evidence from the social workers, the father and Mr and Mrs A.
- As I have indicated, Russell J concluded that the adoption application should be refused and that steps should be taken to rehabilitate W to her father's care.
Grounds of Appeal
- Miss Madeleine Reardon, who appeared for Mr and Mrs A before Russell J, pleaded the appeal on five grounds which in summary are:
i) In a "finely balanced" case, where it was incumbent upon the judge to keep an open mind, Russell J displayed judicial bias by stating a clear and firm conclusion as to the outcome of the proceedings from day one and, as a result, the appellants did not receive a fair hearing and their rights under ECHR Article 6 were thereby infringed;
ii) Failure to give sufficient weight to the likely impact on W, throughout her life, of a move from the appellants' care and the rupture of her secure attachment to them;
iii) The judge misunderstood the effect of the Court of Appeal decision of May 2015 and this misconception led directly to the change in Dr Willemsen's recommendation (which in turn had a direct impact upon the recommendations of Mr Hatter and the children's guardian);
iv) The judge failed to give any or sufficient weight to the Article 8 rights of Mr and Mrs A, their son and W as part of W's current family unit;
v) The judge was over influenced by her disapprobation of the stance taken by the local authority to such an extent that this clouded her judgment and prevented her from forming a balanced view of the totality of the evidence.
- In developing these grounds of appeal during his oral submissions Mr James Turner QC, who led Miss Reardon at the hearing before this court, sensibly grouped the core grounds of appeal together to support an overall submission to the effect that the proceedings before Russell J, taken as a whole, were sufficiently flawed to render the outcome unsafe and therefore justify the judge's order being set aside and the welfare issue being re-determined by a different judge.
- To support that overall submission Mr Turner makes a number of key points. Firstly that the manner in which the judge conducted the short opening session of the hearing on day one demonstrated that the judge had, at that early stage, formed a concluded view as to the outcome. Further, and in any event, the statements made by the judge at the opening session gave a strong steer which thereafter permeated the whole process and led to the experts, and subsequently the guardian, changing their recommendations to the court.
- Mr Turner's second core point is that the Court of Appeal decision set aside the district judge's welfare determination solely on the ground that the judge had failed to undertake an adequate analysis; at no stage, he submits, did the Court of Appeal conclude that the outcome, namely a placement for adoption order, was "wrong". Mr Turner submits that Russell J wrongly concluded firstly that the Court of Appeal had indeed held that the making of a placement for adoption order had been "wrong". Secondly, he submits that the judge also concluded that the circumstances at the time the district judge came to make his determination were such that no court could have made a placement for adoption order. The judge's position in this regard, namely that a placement for adoption order could not and should not have been made in September 2013, was (in Mr Turner's submission) erroneous yet it came to colour her view of the case and influence the understanding of the two experts and, consequently, led to a change in their recommendations.
- The third central theme of Mr Turner's submissions is that the judge's analysis of the law and the evidence lacked balance. Although the judge did quote extensively from domestic and international case law, it is submitted that the cases chosen all related to the importance of placement in the natural family and maintaining "the blood tie" to the exclusion of other authorities which emphasise the importance of "the status quo" and the child's ability to maintain and/or re-form attachments. Mr Turner submits that this lack of balance followed through to the analysis of the evidence during which the judge failed to refer to a central aspect of Dr Willemsen's opinion which was to identify a risk that requiring W now to fracture the secure attachment that she has formed with the A family (following the previous fracture of her good attachment to the foster carer) might compromise her ability to re-connect, or form sound attachments, with the father and her siblings so that in the long terms she would live in an emotional "void" and be, to use a phrase which comes to my mind, something of a cuckoo in the father's family nest.
- The submissions of Mr Andrew Bagchi QC on behalf of the local authority effectively adopt and support those of Mr Turner.
- Mr Jonathan Bennett, on behalf of Mr Madge the children's guardian, also adopts and supports the submissions made on behalf of Mr and Mrs A. The guardian's position is, however, complicated. The guardian's final advice to the lower court was that he accepted that W should be reunited with her father, yet he now supports the appeal against that outcome. Mr Bennett explained that, following the conclusion of the proceedings, and after seeing the criticisms made of the overall process in the Grounds of Appeal, the guardian considered that he had been susceptible to impermissible pressure put on him by the judge and, as a result, he now favours a fresh hearing before a different tribunal.
- On behalf of the father, Miss Janet Bazley QC has sought to meet each of the points of criticism with submissions that are both robust and clear. Those submissions will make more sense if I rehearse them after providing some more detail of the relevant parts of the High Court hearing. The mother, represented by Miss Catherine Jenkins, effectively adopts and supports the submissions made on behalf of the father.
Hearing before Russell J: Opening session
- The hearing on the opening day of this trial was short. It lasted only 20 minutes and the court then adjourned to continue reading before the first witnesses were called at the start of day two. Despite its short compass a number of detailed points arise both as to the words spoken by the judge and the manner in which she came to speak them. At the start of the appeal hearing we listened, in open court, to the digital recording of this preliminary session. It is now necessary to set out some parts of the transcript.
- Immediately after the judge came into court the following words are recorded:
"Russell J: I take it everybody has seen the Court of Appeal judgment?
Miss Reardon: Yes, my Lady.
Russell J: Which means that the care order and the placement order are set aside.
Miss Reardon: Yes.
Russell J: The effect of that is that the court needs to keep in mind that, had the proper decision been made in the first place, there would have been no placement."
- There then follows a short discussion during which Miss Reardon raised an issue at the Bar as to the order in which the respective cases of the parties should be taken. The transcript continues:
"Miss Reardon: So if I may outline that [i.e. the point about the order in which cases would be presented], although I know there are different views along the front (inaudible) that ….
Russell J: No you may not. I would like everybody to keep in mind the words of Hedley, Mr Justice Hedley in the case of Re L (Care: Threshold Criteria)  1 FLR 2050."
The judge then went on to quote the well known words of Hedley J at paragraph 30 of Re L to the effect that society, and the State, must be willing to tolerate very diverse standards of parenting and that the principle enunciated by Lord Templeman in Re KD (A Minor:Ward) (Termination of Access)  1 AC 806 to the effect that "the best person to bring up a child is the natural parent" remained valid.
- Following that quotation the transcript continues:
"Russell J: That is my starting point.
Miss Reardon: Yes my Lady and there was no issue as to that being the appropriate approach for you to take.
Russell J: Yes. I would also remind everybody that any weight that is placed on the time that W has spent with Mr and Mrs A has to be put in proportion to the entirety of her life and the circumstances of this case, including the fact that in due course, should she be adopted, she will find out how and why she was adopted."
- Some short time later, following a housekeeping discussion as to disclosure of documentation, the judge heard from Mr Bennett on behalf of the guardian:
"Mr Bennett: My Lady, Mr Madge agrees with the suggested course of action about the local authority presenting their case.
Russell J: And is he still supporting an adoption order?
Mr Bennett: He is.
Russell J: Is he? Well, I shall expect a full analysis from him."
- Towards the end of the session the following interchange between Mr Bagchi and the judge took place regarding the consequences of the Court of Appeal decision:
"Mr Bagchi: Well, on the basis … My Lady, the basis on which the decisions were overturned was not on the basis that the decision made by District Judge Gamba was wrong or plainly wrong, merely, as Your Ladyship will see, that the learned judge did not approach the matter in such a way as it is possible to say that he had undertaken the proper analysis.
Ms Justice Russell: Well that was wrong.
Mr Bagchi : Yes, that was wrong. But there was no indication from the Court of Appeal that the underlying judgment on the merits …
Ms Justice Russell: Alright, I do not agree with your analysis of the judgment of the Court of Appeal, which I have had since this morning and have …
Mr Bagchi: Yes.
Ms Justice Russell: … probably been able to read more carefully.
Mr Bagchi: Yes, I think we got it just before we came over to Court.
Ms Justice Russell: Yes.
Mr Bagchi : I will re-read it, My Lady. But …
Ms Justice Russell: Yes.
Mr Bagchi : … there we are. As we understand the position, the Court of Appeal … the net effect of the Court of Appeal's judgment was to set aside the Care and Placement Orders but, in effect, not to say that either the application should never have been brought or that the Court have made a decision on the underlying merits, which indicated an outcome one way or the other. These are the matters which are …
Ms Justice Russell: Well, I really think you had better re-read it."
- The hearing then concluded following a further short discussion about the threshold criteria.
- Having mentioned the threshold criteria in CA 1989, s 31, I will deal with that issue shortly here. It is apparent that the hearing before the district judge in September 2013 failed to descend to any detail as to threshold findings. Both parents accepted that the threshold criteria were met and the judge held accordingly. No document recording the detail of the threshold findings was apparently drawn up. During the hearing before Russell J Mr Chris Barnes, junior counsel for the father, produced a "final threshold document" drawn from the case files and, apparently, from discussion with counsel who had been instructed in 2013. It purports to set out the factual matters that had not been disproved before the district judge and, seemingly, remained current at the time of that hearing. That document records that the father had made concessions that the children had suffered emotional harm as a result of the parents' relationship and the mother's mental health and alcohol abuse, together with his lack of awareness of, or insight into, the stress that he was under in December 2012 (being the relevant date at which care proceedings were commenced). The document went on to record four incidents of "adult violence" between the parents in 2011 and 2012, some instances of "physical chastisement and/or injuries to the children", examples of "mother's alcohol misuse", examples of "lack of protection and inability to work openly and honestly" and a longer list of occasions when it was accepted that the children had suffered "emotional harm". The document concludes with a summary of the mother's unfortunate mental health difficulties and records a diagnosis in March 2013 of "emotionally unstable personality disorder borderline type". The assessing psychiatrist had advised that the risk of harm to children from these personality traits would be increased if the mother used alcohol or was under stress.
Hearing before Russell J: Interpretation of Court of Appeal decision
- In describing the opening hearing I have already set out two occasions where the judge expressed a view about the Court of Appeal decision. Firstly, "that had the proper decision been made in the first place, there would have been no placement". And, secondly, where the judge took issue with Mr Bagchi's interpretation that the District Judge's "decisions were overturned… not on the basis that the decision made by DJ Gamba was wrong or plainly wrong, merely,…that the learned judge did not approach the matter in such a way as it is possible to say that he had undertaken the proper analysis."
- On the second day of the hearing, during the evidence of one of the social workers, the judge interposed as follows:
"Russell J: You see what worries me is that W will at some stage find out that the reason that she was removed from her family would not, would not stand up to the scrutiny of the higher court because the threshold was not met. Do you understand that?
So that she's there, and its got absolutely no reflection on Mr and Mrs A and their care, which has been exemplary, but she's there because things happened in a way they should not have happened. Do you understand that that's the import of the Court of Appeal decision?
Witness: I do."
- In addition during the final 'Analysis' section of her judgment, Russell J made the following observations:
"… at the time the care proceedings were concluded the father and the mother had separated and that the decision for W to remain in state care with a plan for adoption was at best finely balanced." [paragraph 82; original emphasis]
"The fact that the orders made in September 2013 were set aside on appeal further underlines the inherent weaknesses of that primary decision which led to W being placed for adoption, for it is highly likely that had the principles set out by the Supreme Court in Re B, applied in B-S and the Court of Appeal cases preceding and subsequent to B-S been followed, with the adequate support that should have been put in place by the local authority, W would have been placed at home with her brothers and sister in their father's care." [paragraph 83]
"The difficulties that W is bound to encounter as an adopted person in circumstances where she should not have been placed for adoption (the Court of Appeal having set aside the placement order) will affect her throughout her life." [paragraph 86]
Dr Willemsen's evidence
- Dr Hessel Willemsen is a doctor of clinical psychology who has specialised in Child and Family Psychology as well as Adult Psychology. Before turning to the all important passages of Dr Willemsen's oral evidence in which he indicated a change of recommendation, I would highlight the following aspects from his written report in order to demonstrate his expert opinion prior to the hearing. In his opening 'summary' Dr Willemsen focussed upon:
a) His concern that the four significant separations that W had experienced already may affect her emotional development in the long-term and her apparent resilience to change may not last, it being hard to predict how she will deal with a further placement move;
b) The father has developed a great deal both personally and in his ability to care for X, Y and Z, who are settled and attached to him;
c) If W is placed with her father this may cause emotional strain on him and the family and upon the complex relationship he has with the local authority which appears strained. The father may therefore be isolated at times when he needs help.
- In the body of the report, after noting that W suffered early traumatic separations from her main and primary carers (moving from her mother at one week old, from her father four weeks later and from her foster carer a year after that), Dr Willemsen states:
"83. Having observed W in her prospective adoptive family, and having read her social worker's statements, I consider that W has found a place in the family. She was curious, kept her distance, sought comfort from the father and mother [ie Mr and Mrs A] when shy or unsure, but was equally wilful and determined in following her wishes. She remained distant from me only until the latter part of the observation when she began to show me her toys, after she had seen me speak with the father and the mother over a long period of time.
84. I wish to make a comment about the foster carer visiting the placement two weeks after W was placed [with Mr and Mrs A]. W clung on to the father and the mother and only in the latter part of the visit sought contact with foster carer. The likely understanding I would give to this situation is that W was traumatised by moving away from the foster carer and had displaced her trust of the foster carer unto the father and the mother with whom she now lived, as a manner of protecting herself from being removed once more. She clung on, intending to stay, not to have to suffer the trauma of separation again. Clinging is an action often taking place when a child (or adult) is afraid of, or anticipates, separation. I consider the development of the secure attachment took place over the months after she was placed with the prospective adoptive parents.
85. The question for W, in my mind, is whether she can manage a further placement move, and whether her father maybe able to emotionally receive her while remaining attuned to the needs of the three children.
86. It may firstly be important to note that the four early separations W suffered may apparently not affect her now but may, in time, during adolescence or later in life affect her emotional development. It may also be that this will not be the case, but it is important to note that this may be possible. Emotional problems may not only develop as a result of confusion about identity but also as a result of the (many) early traumatic experiences the child (and infant) suffered. It is not possible to predict this development – it is an unknown, but it is hopeful that she attached securely to her current carers. However, having suffered the early separation traumas, there is a strong argument, in light of W's further development, to keep her with the prospective carers to avoid a further separation."
- Having given more detail as to his positive report on the father and his concern that his relationship with the local authority may leave him isolated when, in fact, he needs their help ('summary' points (b) and (c) at paragraph 32), Dr Willemsen highlighted the potential for W to be confused by a 'what if' consideration when she learns that her three siblings were able to live with their father but she was not:
"98. In the short-term there will be little impact. In the medium term, when W will become aware of her adoption she may begin to raise questions about the reason for being adopted. The manner in which she responds to gaining more knowledge will depend a great deal on the support she receives from her adoptive parents.
99. It is very difficult to know, not possible to predict, how she will respond in the long-term. Some adopted children live their life with the adoptive family without ever questioning much about their previous life whereas others will wish to find out about their origins. Some will respond with mental health problems due to early separations and breaks, whereas others will not."
- With respect to her home with Mr and Mrs A, Dr Willemsen reported that W has formed a secure attachment to the prospective adopters and that her emotional needs are 'richly met' in this family. If she stays with them she will lose the possibility of living and growing up with her biological family, but if she moves she will lose the certainty that her emotional needs will be met. If she moves, there is the risk that the return will not be successful.
- It is of note that, although the tone of his report was balanced in favour of adoption, Dr Willemsen did not express a conclusion on the ultimate welfare question of whether or not W should move to live with her father or be adopted by Mr and Mrs A.
- Given the importance that the appellants attach to the asserted misunderstanding of the impact of the Court of Appeal decision on Dr Willemsen's evidence, I will set out the relevant passages in full. During initial questioning by Miss Bazley the following interchange occurred:
"Ms Justice Russell: Without speculating too much. But there are some things that we know about her life. Such as that she would grow up finding out that she had been adopted against the wish of her father, that he had wanted her to be at home; that she had three siblings who had remained at home; and that the prospective adopters had done their best to ensure that she didn't return home. I make no criticism, but that's their position.
Dr Willemsen: Yes that's their position.
Ms Justice Russell: That's a reality that she would have to grow up with.
Dr Willemsen: Well there will then be … she would grow up in a very large "as if" scenario. A "what if" scenario and then if I … I don't know how much I must keep that in mind, but I have the Court of Appeal decision also in the back of my mind.
Ms Justice Russell: You have to keep it in mind.
Dr Willemsen: And I have that in mind and so it makes it very finely balanced for me, My Lady, I must say that, it is very much in the forefront of my mind, because what do you tell her?
Ms Justice Russell: Right.
Dr Willemsen: And she is so much older.
Miss Bazley: Dr Willemsen, there's another (inaudible) which is that the full story includes the fact that the decision that resulted in her being placed with Mr and Mrs A was a flawed decision as the Court of Appeal …
Ms Justice Russell: Seriously flawed.
Dr Willemsen: Yes, yes.
Miss Bazley: … and so, from her perspective, as a result of … well she might well perceive it, an error of a judge, she was placed away from her family and a decision was then taken that because she had been there for 16 months, she couldn't be restored to her family.
Dr Willemsen: Yes.
Miss Bazley: And if one looks at the potential impact on her throughout her life, of trying to come to terms with that, may I ask you to consider that?
Dr Willemsen: Yes. I think I already show you very much my doubt about it, My Lady, and I certainly, you know, having just heard that information about the Court of Appeal, it just makes me think I have made these concerns very plain and the concerns in a sense, about the transition aren't gone.
Ms Justice Russell: No I understand that. Of course, they can't be.
Dr Willemsen: They are very powerfully there for me, but equally I also think if a decision has been made that was not correct, then I think the evidence that it will really not work would need to be so strong to keep her where she is and I think that what I talk about really is that it is very difficult to know how she will grow up.
It might be if, for example, she stays with Mr and Mrs A, a lot of children do ask about their background, but some don't, they are part of that family and it stays where it is.
But I do think that if … I've kind of said it before, just now, if she would ask the question why am I here, then how can you explain that on the basis of a decision that has been made by the Court of Appeal, I think that would be a very difficult thing to tell her. And then she will, she will, that is not … she can of course raise all sorts of questions about I had three siblings, I also have another sibling, because she is very attached to Mr and Mrs A's son, she is really part of that family. I mean she is, My Lady, she is doing wonderfully well there. I have really, I have so much respect for how Mr and Mrs A have worked with her. They've made so much time and so on available for her.
But I think that these dilemmas are of course very powerful and having just been told what I heard about the Court of Appeal, just resonated with one of the preoccupations I had when I wrote a report and it was really one of belonging, where does she belong? And of course a sense of belonging is so important and it is this, of course, that should she stay with Mr and Mrs A, should she begin to raise these questions, may in the end also become very disturbing.
Ms Justice Russell: Yes. ….
Dr Willemsen: I mean what is fundamental to a sense of identity is a sense of belonging, because that's the effective part of an identity. An identity is almost something a bit more that you know of, and know about. Belonging is a sense of where you are, who the people around you are, what they mean to you. And what is your home."
- In his oral evidence Dr Willemsen referred back to his concern as to W being left in a "void" if a move to her father's home failed to establish a sound connection for her in place of the solid connection she currently has with Mr and Mrs A. He said this:
"Dr Willemsen : After whatever the court decides. There is something that has been set in motion and I think it is very difficult to know how she will take all this and how this early disturbances of care in which she has nevertheless seemed to attach well, will play out in connection then with such information. The information of what will happen. What will happen in the longer term to outweigh that against a move now, I think I will just say such a move will be hard work I think.
Ms Justice Russell : Hard work.
Dr Willemsen : Hard work, I think if it happens we will have to set very proper containing space in place for to make that transition as easy as possible. But I have no doubt that it will be traumatic. It cannot be but traumatic. I mean, I think that. Maybe it is actually important to spend a few words on that.
Ms Justice Russell : Yes please do.
Dr Willemsen : Yes, because she is now at an age and it is quite different from these earlier separations, where these parents who look after her are much more internalised, aware. Some of the social work statements speak about loss. I think, I don't disagree with that so much, but you see loss means it's an ability to mourn when you know that somebody who was there, is not there anymore, but you nevertheless can still keep them in your mind. They are still there.
My worry would be that if there is yet another move that she lets go of these internalised images so that she doesn't connect, because who can she connect to? So that is the word that in the extreme sense, My Lady, there is some sort of a void.
That, I think, is the troubling part and we have very little evidence of that, indeed that might or might not happen, but if you just think of that visit two weeks after that, I think what you see her do, she clutches on to this internal object in her mind that is then Mr and Mrs A. She clings. That is important to some extent, because it is defensive and in that way protective. And yet, it is of course also clinging.
So there's not … you see there is not the confidence of I keep that image in my mind and steady as it is. This is my worry about that move, that somehow she needs to make that transition from Mr and Mrs A as the persons and people in her mind, to making that connection to her father. That this father becomes this person for her that she can also keep in her mind."
- With respect to the prospect of rehabilitation to the father, the judge went on to ask this:
"Russell J: And as we can't prevent it [trauma resulting from the move]…and it is about guiding it, do you think that [a move to the father] is a realistic possibility? Or do you think it won't work?
Dr Willemsen: I think I can't say that it won't work. Because I think I have said too much. Actually we don't quite know how it will work, so I think in that sense it is a possibility."
- Later Dr Willemsen returned to the impact of the Court of Appeal decision.
"Dr Willemsen: My Lady, when I heard this about that Court of Appeal decision I felt maybe this possibility that she goes back needs to be considered. I will be putting it like that and I'm not without concern for this child.
I am very worried because I do think this is going to be another very traumatic move and I just worry perhaps not so much the immediate effects of that. Because what is important to note is that even if she does go back to the family and we have talked about (that) a great deal, you know the importance of it is that does not preclude that in time there may well be ramifications for all these separations that have taken place. I think it is impossible to say how that will develop over time. It's just an unknown, I think. So that concern, I think, in that sense is not lighter."
- Shortly after that interchange the judge enquired whether the Doctor had changed his recommendation, this passage is clearly important:
"Ms Justice Russell : Overall … you may not be able to answer it so say exactly what you feel but, overall, do you feel that you've changed your recommendation to W, or that …
Dr Willemsen : Well …
Ms Justice Russell : … you're more in the middle, or …?
Dr Willemsen : I will tell you … yeah, no, no, no My Lady when I did my report, in the first instance I thought this child belongs with the father.
Ms Justice Russell : Yeah.
Dr Willemsen : That's where I arrived first. That was my starting point and then I became to be very worried about this child (inaudible) and the good attachments that she has built up. And of course at that time, you know, I had the legal evidence before me as it was.
Ms Justice Russell : Sure.
Dr Willemsen : I verged towards thinking this is not, I am really worried about this child moving. The additional evidence that there is now for me is that there is a father, you know, by going to this Court of Appeal that says I want to be a good father to my child and I want the new father to be a good father to my child.
Ms Justice Russell : Yeah.
Dr Willemsen : So there's further evidence that he actually understands some of the needs of W. I think that is really important.
So I think it is clear to say that it has changed because it seems to me … I think the most important argument for me is knowing what the Court of Appeal has decided what are you going to say to this child when she is 12 or 13 or 14? That is the kind of age where such questions will be asked. What are you going to tell her?
And then would you say well it was a miscarriage of justice or … you know much depends … I don't know that is my words. You know, how will she interpret this?
Much will depend on how she is then embedded in this family and some of these questions may not be raised and yet they can be.
But I think this argument to me is certainly an important one that went through my mind just whilst I was sitting outside and the importance of that if she comes to ask such questions.
Ms Justice Russell : So on balance what do you say, then?
Dr Willemsen : I think that she belongs with her father."
- Later, during cross examination by Miss Reardon, Dr Willemsen was asked whether his primary concern was how W would, in time, come to understand how she came to be in care and came to be adopted. Dr Willemsen replied:
"No I think it was more detailed than that.
Because I think I have talked about…I mean that is of course a very important issue and what I said is that went through my mind. Went through my mind because what you are going to tell this child when she is 12, 13 or 14 years old?
I think I've also made it plain that I think that it brings another facet of the father which is his wish, his determination, to go find a good father in this process and to find this good father in himself by being persistent in addressing the courts in a way about our work and so I really put this forward as an important consideration too."
- Finally, towards the end of his evidence Dr Willemsen returned to the topic of the "void":
"Dr Willemsen: Well I mean, this is what I talked about earlier that you know that she has made these new connections with these carers, with Mr and Mrs A.
My worry is that when she leaves that she will make this transition from Mr and Mrs A to the father and that somehow along the line she might lose that connection. This is where I think such a separation will not work properly and that she would fall in, what I call, a void…"
Miss Reardon referred back to this later in her questioning and reminded Dr Willemsen of paragraph 86 of his report in which he had stated:
"However, having suffered the earlier separation traumas, there is a strong argument in light of W's further development to keep her with the respective carers to avoid a further separation."
Miss Reardon then asked the following question:
"Miss Reardon: And can I ask you about the words "in light of W's further development? What you are talking about there is a long-term impact not just a short term transition?
Dr Willemsen: Yeah.
Miss Reardon: An impact that is potentially lifelong.
Dr Willemsen: Yes.
Miss Reardon: Because the risk is if a move takes place that will affect her whole psychological functioning in the future as adolescent and adult, as well as a child.
Dr Willemsen: It can do that. And of course but in that balance there is also that can happen nevertheless. I mean I just want to put really two sides really there. But yes, no, I do…that is certainly true. That is one of my worries, yeah. I think I have said that before."
Independent Social Work Evidence
- Mark Hatter, a social worker with long and extensive experience, was commissioned to provide an independent social work report on the father's parenting capacity and upon the relationships that he has with the three children in his care together with the impact on that family unit of W being introduced into it. In addition Mr Hatter was asked to assess the father's capacity to support W in the adoptive placement if she is to remain there and to assess the adopters' views as to the advantages and disadvantages of a special guardianship order as compared to an adoption order.
- In his report, dated 24th March 2015, Mr Hatter gave an overwhelmingly positive account of the father's relationship with and care for X, Y and Z. Whilst noting that the family live in an "an extremely cramped two bedroom flat" he gave credit for the good level of physical care that the father is, nevertheless, providing.
- In reply to a request to "assess the father's capacity to meet W's needs in the short and long term in the context of his on-going care of the older children", Mr Hatter considered that it was possible that the father would manage to meet W's needs in the short and longer term, but that option was not without risk and might result in her, once again, being removed from his care in the future with consequential significant harm to her emotional and psychological functioning which in his view "cannot…be under-estimated". He went on to state as follows:
"67. In my opinion it would take an exceptionally skilled and emotionally attuned parent to manage the return of a child to the family unit after such a long time and to still be able to emotionally support the other children. In such circumstance the ability to accept Local Authority support and to listen to the advice given is essential and the Local Authority questions how able [the father] would be in accepting this support.
68. Having met the prospective adopters and observed W in their care and having read the most recent statement of [social worker] it was very evident to me that W is a very much loved child who has formed a secure attachment to her carers.
69. On balance, I am of the opinion that given the past concerns, the current concerns of the Local Authority and the impact on W of removing her from carers with whom she has formed a secure attachment to, the risks that [the father] will be unable to meet her overall needs are too high to justify the inevitable harm that will occur to W's emotional wellbeing should she be removed from her current placement."
- At the start of his oral evidence Mr Hatter confirmed that he had been made aware of the Court of Appeal decision and of Dr Willemsen's recent change of recommendation. After stressing that the case remained "extremely balanced" he said that:
"But in view of the two changes in circumstances, I would have to support a return home for W."
- Mr Hatter explained that much of his previous opinion had been based upon the attachment that W has with her prospective adopters. He explained that he is not a psychologist and therefore is very much reliant upon the recommendation of Dr Willemsen which had now changed. He went on to explain the impact of the Court of Appeal decision on his thinking in this manner:
"Secondly, I struggle with what W's journey would now be in respect of being placed for adoption and being an adoptive child when the backdrop to this case appears to be a placement order and a care order that now have been set aside and I struggle to understand how she would cope with knowing that at some stage in her life, whilst also knowing that she has three siblings who have remained in the care of their father and, on balance, I believe that with very clear support to the father, with the father fully engaging with the local authority and accepting that support that the potential harm to W being in a placement where she is being adopted and will know of the difficult versus the potential of her being able to remain within her birth family, those new circumstances now outweigh and make me wish to change my recommendation. But I would again stress that this is very finely balanced in my professional opinion and I would still hold concerns."
- Later, during cross-examination by Miss Reardon, the following interchange took place:
"Miss Reardon: And when you wrote your report, your primary concern was about the impact on W and on that family that a move would have.
Mr Hatter: I would continue to have that concern but, as I said within my report, it was finely balanced…once I knew the care and placement orders had been set aside, you know, doubt creeps in as to [where] does this now take us? And then I come to court today and I hear that the other expert who has the expertise in attachment has also shifted their position and now supports the return home. You know, it has to move my balance towards W going home, notwithstanding that that in itself has its risks but there is now a potential risk that if she were to remain in placement and be adopted, that she has a history where she may actually … I would anticipate there can be significant difficulties in the future by her being adopted by what's happening with the process.
- A short time later Mr Hatter enlarged on this point as follows:
"She will, no matter what the adopters try to do to protect her from him, have the potential of learning what's happened, how this whole process took place.
My concern would be that that then will cause her a lot of emotional distress, a lot of upset, a lot of anger potentially and may destabilise her placement and the reality is that adoptive placements, as the local authority know and as we all know, they can breakdown. You know, I have dealt with countless teenagers where adoptive placements have broken down and my reasoning of it is, on balance, I think this is a potential placement breakdown of the future. And when I look at that, I have to think about the risks of them returning home and I balance that and based on where we are at now, I think there is a greater risk to her in the future of the placement breakdown, rather than being at home."
- At the hearing before the district judge Mr Madge, who acted as children's guardian for all four children in those proceedings, recommended the outcome which was eventually endorsed by the judge, namely the three older children remaining with the father under a supervision order and W going off for adoption. In his written report for the re-hearing in May 2015 Mr Madge recommended that an adoption order be made in favour of Mr and Mrs A. It was this report which prompted Russell J on the first morning of the hearing to state that she expected "a full analysis" from the guardian in support of his recommendation. It is now accepted that the guardian's analysis in this report fell short of what is now required in the Family Court following the decision in Re B-S  EWCA Civ 1146. The guardian's report is dated 27th April and was therefore written some 10 days prior to the first appeal hearing during which there was common ground amongst the parties that were represented (which did not include the guardian) that the district judge's analysis had been badly wanting. In the circumstances, it is obviously regrettable that in this particular case the guardian's analysis fell short of what was required and, in particular, had not been re-visited prior to the start of the oral hearing.
- It is to be noted that, although in their oral evidence the two experts changed their recommendation away from the outcome that the guardian was then making, Mr Madge did not instruct his counsel, Mr Bennett, to ask either of these experts any questions at all.
- Mr Madge did, however, provide a further, more comprehensive, analysis in an addendum report filed on 20th May, by which time the oral evidence of the two experts had been heard. As I have indicated, the guardian announced a change in his recommendation in this report. He describes the process by which that change had occurred as follows:
"For obvious reasons, it would be most exceptional for a children's guardian to change their recommendation towards a child's permanent placement once s/he had been placed, other than in the most extraordinary circumstances. In this context, I was somewhat taken aback by the nature and tone of comments made by the presiding judge on Day 1 of this Final Hearing. When I filed my report in this matter (on 27 April 2015) the Court of Appeal had not at that point made its judgement setting aside the original Care and Placement Orders, and as I made clear in Para 1.3 I was unclear as to the potential ramifications of this.
The subsequent decision of the Court of Appeal to quash the original Care and Placement Orders has left the prospective adoptive placement if not unlawful, in a legal vacuum.
While it appears to be acknowledged that there were valid concerns at the time of the original care proceedings, the Father's circumstances have now demonstrably changed in that he has shown his ability to provide good care for the other three children over more than two years. While arguably this change is outside W's timescales, it cannot be proven that he would be unable to do the same for W who is the fourth of his birth children.
As guardian, my conclusions will always necessarily be influenced if not determined by the views of experts in a case. While there remain a number of risks – and I continue to hold serious misgivings about the emotional impact on W should this course of action go wrong – I note that both Dr Willemsen and Mr Hatter have shifted their position today in oral evidence, stating that in light of the Court of Appeal's decision and progress by [the father] the balance has shifted in favour of reunification. The court has also had a clearly discernible steer on this since Day 1 of this Final Hearing."
- In the following paragraph under the heading "Recommendations" the guardian states: "I accept that reunification of W with her birth family should take place".
- In his oral evidence Mr Madge held to the revised recommendation that he had made to the court.
Judge's interventions during the opening session
- I now propose to consider each of the core points made by Mr Turner in the light of the detailed material that I have already set out.
- Listening to the tape of the opening session of the hearing was instructive. Before doing so a number of the parties had described their perception of the judge's intervention in various ways. At the start of the second day of the hearing itself, Mr Bennett on behalf of the guardian had expressed the guardian's concern at the judge apparently questioning the guardian's stance in favour of adoption by using the following words: 'oh he does, does he'. Mr Bennett said to the judge, in terms, that this 'gave the impression of prejudging the matter prior to hearing the evidence'.
- Miss Reardon's Ground 1 characterised the judge's presentation on day one as 'stating a clear and firm conclusion as to the outcome of the proceedings'. Mr Bagchi, in his skeleton argument, submitted that by reading the extract from the judgment of Hedley J in Re L, questioning the position of the guardian and remarking on the effect of the Court of Appeal decision, the judge had made an 'impermissible indication' of her views on the merits at the earliest stage of the process. Even Miss Bazley, who defended the judge's actions, described her recollection of the judge's comments about the guardian's analysis as being said 'sharply and with irritation'. These observations coming, as they do, from four members of the Bar who are each known for being measured, as opposed to extravagant, in their approach, plainly merit serious consideration.
- I have already set out the relevant parts of the transcript [paragraphs 21 to 26]. The transcript shows that, contrary to the perception of Mr Bennett and the guardian, the judge did not say 'oh he does, does he' in response to hearing that the guardian was still supporting adoption. Her observation was 'Is he? Well, I shall expect a full analysis from him'. Listening to the tape was also informative on this point as, rather than speaking sharply and with irritation, as Miss Bazley recalled, the judge's words were spoken in a calm and measured voice. Mr Bennett was left trying to explain the apparent difference in the perception of counsel from that demonstrated by the recording on the basis, he accepted, which was that 'you had to be there' to understand the impact of the judge's intervention.
- On this point, Miss Bazley submits that the judge was fully entitled to question the guardian's position as she did on the basis that, as is now conceded, his analysis did indeed fall well short of what is required under Re B-S. I agree. Having now heard the recording, I consider that the judge was doing no more than signalling, albeit obliquely, her concern at the inadequacy of the guardian's analysis rather than, as others obviously perceived, indicating that his conclusion was unsustainable.
- Other aspects of this opening session are, however, of more concern. Firstly, the judge's description on two occasions of the impact of the Court of Appeal decision, which I will deal with shortly under a separate heading, and, secondly, the quotations made by the judge from Hedley J's judgment in Re L and her reference to the need to put the time spent with Mr and Mrs A into proportion as against her whole life.
- Mr Turner submits that these prominent interventions, coming so early in the case, set the tone for the hearing and became determinative of the whole case. He submitted that the judge was surely not reading out Hedley J's well known words for the benefit of counsel, but in order to send a clear message to the parties. This was, he submits, a sensitively balanced case in which the judge should have kept, and be seen to be keeping, a fully open mind at the start of the hearing.
- In response Miss Bazley submits that the judge was entitled to remind the whole court of the approach in Re L, which is a totally correct statement of the law. She observes that none of the points now taken regarding judicial bias were raised on behalf of Mr and Mrs A or the local authority at any stage of the hearing and neither of those parties supported Mr Bennett's complaint to the judge on this issue at the start of day two. Miss Bazley argues that it is simply too late to raise these matters for the first time on appeal. Looking at the issue more widely, she submits that the judge's conduct throughout the hearing shows that she was indeed maintaining an open mind and that her judgment shows that she came to a reasoned and balanced conclusion.
- For my part I consider that the manner in which Russell J conducted this short but important opening session was unfortunate. The way in which the judge introduced her account of the law, by cutting across Miss Reardon's opening remarks with the words 'No you may not' sounds on the tape as a display of the sharpness and irritation of which Miss Bazley spoke. Whether or not the words of Hedley J remain valid, their deployment at such a prominent stage of the process can only have generated an indication of judicial thinking in the minds of those present. I agree with Mr Turner that this was indeed a sensitively balanced case and there was a need for the judge to demonstrate an open mind. All parties in this emotionally fraught dispute needed, if possible, to have confidence that the judge was going to listen to both sides of the case and then determine the outcome in a proper and fair manner. The case might have gone either way and there was clearly a prospect that any judge might decide against Mr and Mrs A, it was therefore all the more important that they should experience a judicial process in which their side of the argument was fully and fairly considered. In that context it was, in my view, both unnecessary and unhelpful for the judge to make these interventions, and in this manner, at such an early stage.
- This aspect of Mr and Mrs A's case on appeal is tied to the judge's approach to the Court of Appeal decision, and those matters are, in turn, part of Mr Turner's global submission that all of the issues raised, taken as a whole, amount to a flawed and unfair process. In those circumstances I will express my concluded view only after looking at each of the other issues that have been raised.
Interpretation of the Court of Appeal decision
- Drawing on the detailed references in the transcript that I have already reproduced, the key passages are:
a) 'had a proper decision been made in the first place, there would have been no placement' [start of opening session];
b) Disagreeing with Mr Bagchi that the Court of Appeal did not give any indication concerning the underlying judgment of the district judge on the merits [opening session];
c) The reason that W was removed from her family would not stand up to the scrutiny of the higher courts 'because the threshold was not met' and 'because things happened in a way they should not have happened' [day two];
d) The three references to the Court of Appeal decision in the judge's final 'Analysis' section [see paragraph 31 above] including the assertion that W 'should not have been placed for adoption (the Court of Appeal having set aside the placement order)'.
- Mr Turner submits that the effect of the Court of Appeal decision was entirely neutral as to the merits of the district judge's decision as to welfare. He points, in support, to part of my judgment when granting the father permission to appeal [Re H  EWCA Civ 444, paragraph 16]:
'Mr Barnes [submits] that there is merit in the potential appeal because at the moment the welfare evaluation of District Judge Gamba stands and is to be afforded respect by the court that now looks again at the welfare decision, but if an appeal … is successful, the judge now evaluating W's welfare in 2015 comes at that process effectively with a clean sheet, unencumbered by the previous judicial determination.'
Mr Turner also points to the care taken by all parties in agreeing the Court of Appeal order which maintained a wholly neutral outcome.
- It is Mr Turner's case that the judge should not have attempted to determine whether or not a placement order would have been made in 2013 had the case been approached correctly by the district judge and he submits that the judge's firm conclusion that there would have been no placement was not justified. He submits that, rather than being in error, Mr Bagchi's formulation as to the outcome of the Court of Appeal hearing was correct. He also submits that the Court of Appeal did not hold that the 'threshold' for removing W from her father's care was not met.
- In her written submissions Miss Bazley, rightly, argues that it was no part of the judge's task to re-evaluate the evidence as it had been before the district judge; her task was to evaluate W's welfare as at May 2015. She agrees with Mr Turner that the focus was to ensure that the erroneous determination of the district judge was not afforded any weight by Russell J and she too relies upon paragraph 16 of my judgment when giving permission to appeal. Miss Bazley does, however, submit that the fact of the Court of Appeal decision was a very relevant factor in assessing W's future welfare and that the judge was fully entitled to take it into account as she did.
- In her oral submissions in response on this point Miss Bazley makes a short and robust point to the effect that the legal nuances of the Court of Appeal decision are really of no consequence when one is considering how those will be understood by W once she is of an age to begin to take on board what has happened to her. All that matters, submits Miss Bazley, is that the Court of Appeal concluded that the district judge had got it wrong.
- Having given this aspect of the case a great deal of thought, I find that I am in the position of agreeing with both sets of submissions. Mr Turner is entirely correct that, as a matter of strict law, all that the Court of Appeal decision did was to set aside the outcome of the hearing on the basis that the judge had not conducted an adequate analysis; Miss Bazley accepts that this is so. The court did not hold that the making of the placement order itself was 'wrong'. The judge's observations however indicate that the judge considered that the making of the placement order was indeed 'wrong' and that the Court of Appeal had held it to be so. Mr Bagchi's analysis was correct and the judge was in error in expressing a contrary view. However, I also accept Miss Bazley's submission that these legal distinctions are very likely to go over the head of a young girl in ten or so years time; all she is likely to understand is that she was moved away from her family as a result of an error by a judge.
- Matters, however, go further for, in addition to forming what I hold to be an erroneous understanding of the limited effect of the Court of Appeal decision, Russell J went on and, at a number of stages during the hearing (including prominently on day one) and within her judgment, expressed a concluded view that, on the evidence available in September 2013, W should not have been made the subject of a placement for adoption order and, later, placed for adoption. There is a need therefore to consider a different issue in addition to the possible impact upon W's thinking in some ten years time; that issue is the potential impact of the judge's view of the Court of Appeal decision on (a) the experts and (b) her own evaluation of the overall analysis of W's welfare. I will now take each of these two matters in turn.
The experts' understanding of the Court of Appeal decision
- During the appeal hearing, and in the days following, attempts were made, for the first time, to ascertain just what information had been communicated about the Court of Appeal decision to the two experts before they entered the witness box. The result of this investigation was not, I am afraid, very edifying in terms of adherence to the well known practice requirements for communicating with experts.
- Dr Willemsen and Mr Hatter were instructed jointly on behalf of all of the parties. The father's team were the lead solicitors. During the present hearing we were told that on 11th May, five days after the first Court of Appeal hearing, an email was sent to both experts simply informing them that the care order and placement for adoption order had been set aside. We were also told that on 18th May, the first day of the hearing and the day before they gave evidence, the experts were sent the draft Court of Appeal judgment. The following day at court none of the lawyers apparently conducted any formal discussion with the experts; Miss Bazley told us that she had simply asked Dr Willemsen whether he was aware of the Court of Appeal decision, to which he replied 'yes'.
- After the oral hearing in this appeal concluded, further investigations were made and, by email, Mr Barnes corrected the account initially given to this court (without reference to the computer records) by the father's legal team. It is now said that the experts were not sent a copy of the draft Court of Appeal judgments, but they had been sent a solicitors' attendance note by the father's legal team together with a fuller note taken by a pupil barrister each purporting to be a record of the first Court of Appeal hearing. The email sent to the experts on 11th May included the following text:
'Also, in connection with our client appealing the Care and Placement Orders, we had a final hearing on 6th May 2015 in the Court of Appeal when the Lord Justices set aside the original Care and Placement Orders. However, they felt for the time being W should be made subject to an Interim Care Order.'
- Mr Turner submits, by email following disclosure of this information, that it was unfortunate and inappropriate for a solicitors' attendance note (which included the author's perception of the Court of Appeal process) to have been sent to the experts without any disclosure of that fact or reference to the other parties. He also submits that the email referring to the Court of Appeal making an interim care order 'for the time being' may have suggested that this court had expressed views as to the permanence or otherwise of the placement with Mr and Mrs A. He submits that it is impossible to know what the experts will have understood of the Court of Appeal process.
- It is regrettable, to say the least, that, despite the high quality representation enjoyed by all five parties, no advocate sought to ascertain during the hearing what Dr Willemsen and Mr Hatter had been told about the Court of Appeal decision. On a number of occasions Dr Willemsen refers to the information that he has had about the Court of Appeal, yet no party enquired what that was. Given the prominence that the decision achieved in the experts' analysis this was plainly unfortunate; this is particularly so in the light of the ambiguity identified during day one regarding the judge's own interpretation of that decision.
- On a more basic level, straightforward adherence to the well known practice requirements regarding experts may have prevented these difficulties occurring. Where a joint expert is instructed, the lead solicitor has responsibility for being transparent, with respect to the other parties, regarding any information that is communicated to the expert. As a matter of good practice, all of the parties should have considered what, if any, information should be communicated to the experts following the Court of Appeal hearing. In any event, such information as was communicated should have been disclosed at the same time to the other parties. Equally, once it was clear that the experts had been given some information about the Court of Appeal process, it would have been sensible, as a matter of good forensic practice if not more, for one or more of the other parties to enquire what that information was. For these matters only to be investigated once the point had been raised during the present appeal hearing, given the prominence of the issue of the experts' understanding, is plainly unsatisfactory.
- Turning to the substance of what it was that the experts understood from the information that they had been given, the situation is now relatively clear. We now know that they had not at any stage seen or been given any account of the judgments of the Court of Appeal. They had been told that the care and placement orders had been set aside and that the court had made an interim care order for the time being. Dr Willemsen was told in the witness box, before he indicated a change in his recommendation, that the Court of Appeal had held that 'the decision that resulted in [W] being placed with Mr and Mrs A was a flawed decision' [per Miss Bazley] or 'seriously flawed' [per Russell J]. Miss Bazley then suggested to him that, from W's perspective, 'as a result of … an error of a judge, she was placed away from her family and a decision was then taken that because she had been there for 16 months, she couldn't be restored to her family.' Very shortly thereafter Dr Willemsen refers to 'having just heard that information about the Court of Appeal' and then states 'if a decision has been made that was not correct, then I think the evidence that it will really not work would need to be so strong to keep her where she is'.
- The lack of any other source of knowledge as to the reasons for the Court of Appeal decision, and Dr Willemsen's reference to what he has 'just heard' (which he later repeats) strongly suggest that he understood that this court had held that the original decision to make a placement order was flawed, or seriously flawed, and that as a result W was placed away from home as a result of 'an error by a judge', who had made a decision that was 'not correct'. He considered that the original decision might be described as 'a miscarriage of justice' [see paragraph 41 above].
- Without in any manner being critical of this expert, who had not, in my view, been adequately supported by the provision of a clear and sound explanation of the Court of Appeal decision by the parties and the court, the understanding that Dr Willemsen had of that decision was erroneous and significantly different from the true position.
- So far as Mr Hatter is concerned, the position is less clear in that he simply refers to the fact that the care and placement orders were set aside. Having not seen the judgments, and not having been given any other information other than the covering email recording an interim care order, it is a matter for conjecture whether he may have understood the difference between those orders being set aside on the basis that they had not been justified by the evidence, or, because of an internal failure in the judge's process of evaluation.
- The unfortunate process that I have described, compounded as it was by the judge's own misunderstanding of the Court of Appeal decision, therefore led Dr Willemsen at least into an erroneous view as to the significance of the outcome of the appeal. In terms of this appeal, that conclusion is not, however, the end of the matter. It is important to see how this factor was placed by the judge in her overall analysis of Dr Willemsen's evidence.
Judge's summary of Dr Willemsen's evidence
- The judge's judgment contains an extensive summary of Dr Willemsen's evidence. At paragraph 36 the judge observed as follows:
'I found Dr Willemsen's evidence very thoughtful, well balanced and fair, he remained focussed on W throughout his assessment and his oral evidence was largely taken up with the effect on her of moving her both in the short to medium term and in the long term. Dr Willemsen properly took into account the decision of the Court of Appeal and reviewed his recommendations as a result. It would be accurate to describe his original recommendation that W should remain with the prospective adoptive family as finely balanced. He described the distress, if not trauma that W would be likely to experience on being moved from the people with whom she had been living for a sizeable period of her short life and where it had been intended she should have her home … Dr Willemsen considered that the clinging behaviour exhibited by W when visited by the foster carers after she had moved was indicative of trauma and not of easily settling with the A family ….'
- The judge went on to summarise Dr Willemsen's analysis of the advantages and benefits of W being brought up by her own birth family before focussing in on the impact of the Court of Appeal decision (at paragraph 38) as follows:
'When Dr Willemsen came to give his oral evidence added to his consideration was the effect on W of finding out not only that the orders upon which her placement for adoption [was based] had been overturned but that the people who she was placed with had actively resisted her reunification with her family. Ms Bazley QC for C described W's circumstances (which [is] she not aware of at present) as being the subject of a process leading to her placement with her adopters which is "fundamentally flawed and a miscarriage of justice". It is arguable that is so and it is probable that it in due course it would be seen as such by the child at the centre of that legal process. As Ms Bazley said in her closing submissions it has become an integral and inescapable part of W's personal history and her lifelong reality. When Dr Willemsen was asked what his recommendation was in the light of that reality he said that the case had "preoccupied [him] greatly" and that he continued to regard his recommendation as being "very finely balanced".
- At paragraph 39, Russell J summarised and quoted from Dr Willemsen's evidence on the difficult issue of explaining the impact of the Court of Appeal decision to this young girl in years to come and the prominence that the expert gave to how this may affect W's sense of where she 'belonged'. The judge ended her account of this part of his evidence with a direct quote from the notes of evidence:
' "I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask". When asked on balance what he thought he said, unequivocally, "I think she returns to her father."'
Comparison between this note and the transcript (as reproduced at paragraph 39 above) indicates that the note is not entirely accurate. The witness actually said 'would you say well it was a miscarriage of justice' and 'much will depend on how she is then embedded in this family and some of these questions may not be raised and yet they can be'.
Judge's analysis of the law
- In view of Mr Turner's criticism of the selective nature of the judge's summary of the law, it is necessary to record what is said in the judgment in that respect. Russell J commenced her central description of the relevant law at paragraph 69 with these words:
'There is no conflict with [the] law contained in the Conventions and domestic law for as a matter of English and Welsh law the presumption is that children's interests are best served by being brought up within their own birth or biological family as described by Hedley J in his frequently quoted judgment in Re L (Care: Threshold Criteria)  1 FLR 2050.' [emphasis added]
Russell J then quoted from paragraph 50 of Hedley J's judgment as follows:
"Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor: Ward) (Termination of Access)  1 AC 806,  2 FLR 139, at 812 and 141 respectively, said this:
'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'
There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."
- Pausing there, Russell J's description of there being 'a presumption' in law in favour of the natural family in adoption cases justifies consideration. In the context of private law disputes relating to children, there is no presumption in favour of a parent (Re G (Children)  UKHL 43;  1 WLR 2305 and Re B (A Child)  UKSC 5;  1 WLR 2496). In a private law case, whilst the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child, the only principle is that the child's welfare is to be afforded paramount consideration.
- The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different, but also in this context there is no authority to the effect that there is a 'presumption' in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court's jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)). It is important to observe that Hedley J's remarks in Re L were entirely directed to the question of the threshold criteria. Russell J's quotation from paragraph 50 of Re L omits the two opening sentences of that paragraph which establish the context:
'What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK ….'
The outcome of Re L (Care: Threshold Criteria) was that Hedley J found that the s 31 threshold criteria were not met in that case.
- In like manner, Lord Templeman's words in Re KD, which are also quoted by Russell J, arose in a similar context in wardship proceedings and are preceded by the following two sentences:
'Since the last war interference by public authorities with families for the protection of children has greatly increased in this country. In my opinion there is no inconsistency of principle or application between the English rule and the [ECHR] rule. The best person to bring up a child ….'
- Neither the words of Hedley J in Re L, nor those of Lord Templeman in Re KD, were referred to by Baroness Hale in Re G when considering whether there is a presumption in favour a natural parent. That this is so is no surprise given that the former were describing the line that is to be crossed before the State may interfere in family life, whilst the latter was focussed upon the approach to be taken when affording paramount consideration to a child's welfare. Although Hedley J's words in paragraph 50 are referred to in each of the main judgments in the Supreme Court in Re B, such references are in the context of consideration of the s 31 threshold rather than welfare.
- In the circumstances, I consider that Russell J's reference to Hedley J's judgment in Re L was out of place, as a matter of law, in a case where the issue did not relate to the s 31 threshold, but solely to an evaluation of welfare.
- Russell J's use of the word 'presumption' in this regard at paragraph 69 is not an isolated reference and is in line with her prominent observation during day one that Re L was her 'starting point'. In addition during the final 'Analysis' section of her judgment the following references appear:
"The circumstances of this case set out in this judgment do not dislodge the presumption that a child should be brought up within her family." [paragraph 87]
"… even if it were not a presumption that children are best brought up within their natural families …" [paragraph 88].
- It is clear that for Russell J the outcome of this case did not turn on the deployment of the 'presumption' that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child's welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child's welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a 'presumption' in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.
- Moving on: after the quotation from Re L, Russell J's judgment continues by observing that the factual matrix in this case places it 'at the lower end of the threshold criteria necessary to permit the court to make a care order' and placement order. She correctly refers to the Supreme Court decision in Re B (A Child)  UKSC 33;  1 WLR 1911 as underlining the need for a proportionate approach. The welfare checklist in ACA 2002, s 1(4) is then set out, followed by further extensive reference to Re B together with subsequent Court of Appeal cases and the need to act proportionately and to consider adoption as a 'last resort' when 'nothing else will do'.
- Having considered the judge's summary of the law, I do not accept Mr Turner's submission that her approach lacked balance. Subject to the observations that I have made about Re L, and accepting that there is no reference to any case law relating to the 'status quo', the major part of the judge's description of the legal context is taken up with an entirely accurate description of the proportionate approach to be adopted in accordance with Re B.
The judge's welfare analysis
- I have thus far concentrated upon the points raised by the Appellants and those who support the appeal. Those points largely relate to matters of process and evidence. Before moving to my own conclusions on the appeal, however, it is important to look at the final analysis conducted by the judge in support of the conclusion to which she came. I have already made some quotations from this part of the judgment and it is possible to summarise the factors taken into account as follows:
a) W has received a high standard of care in the home of Mr and Mrs A, she is settled with them and is thriving as a happy and healthy girl;
b) The original decision was at best finely balanced;
c) If the district judge had approached the case correctly it is 'highly likely' that W would have been placed at home with her father and brothers;
d) There are undoubted risks in moving W. Any difficulties are 'likely to be short to medium term' and capable of being overcome with appropriate support and by the father's parenting abilities (as demonstrated by his care of the older children);
e) Distress would be avoided if W remains with the adopters, but it is more likely than not that there would be considerable difficulties for W in coming to terms with the circumstances of her adoption. It is most unlikely that she would not be, at least, confused by knowledge of her background. Mr and Mrs A, through no fault of their own, are not prepared for dealing with a disaffected child or adolescent; the likelihood of breakdown is a real one;
f) She is bound to encounter difficulties which will affect her 'throughout her life' as an adopted person in circumstances where 'she should not have been placed for adoption' (in the light of the Court of Appeal decision);
g) The sense of belonging identified by Dr Willemsen is fundamental to her sense of identity and her sense of herself;
h) The judge was impressed by the father and his approach to the likely difficulties;
i) Those difficulties, though real, are not sufficient to deny this child her place in her own family of origin and the law requires that she should be reunited with her family;
j) The facts of the case do not amount to the last resort or a situation where 'nothing else will do';
k) The fact that W has been with the A's for some time and is settled with them may militate against a move in the short term but it cannot form the reason for her remaining in this adoptive placement for the rest of her life;
l) Even if there were no presumption in favour of the natural family 'I would still conclude that it is in the interests of W's welfare throughout her life that she should be reunited with her father and siblings, and her mother … and to live within her family as she grows up';
m) The local authority has a legal obligation to support reunification.
- Mr Turner submits that the striking omission from this list is any reference to Dr Williamsen's concern over the possibility that W would fail, in emotional terms, to make the transition to her natural family would, as a result, be left in some form of emotional 'void' in the long term.
Discussion and conclusion
- It now remains to draw all of these matters together and to reach a conclusion on the outcome of this appeal. In doing so I should record that I have regarded this task as being a particularly anxious one; that this is so is reflected in the length of this judgment and in the time that I regret that I have taken to produce it. This is by no means a straightforward appeal. In addition to each of the issues that I have referred to thus far, I am acutely conscious that achieving finality, whatever the outcome in terms of W's placement, is likely to be of benefit to W as a factor in its own right. I have had at the forefront of my thinking the view that this child, who came into the system at the age of one month, has not been well served by the procedural history of this case to date and that to compound that situation by allowing the appeal with the consequent need for yet another hearing may be seen as little short of a disaster. I am also aware that the grounds of appeal go to 'process' rather than 'outcome'; no party suggests that Russell J's decision was 'wrong'.
- It is trite to say that no appeal should be allowed unless the appellate tribunal is satisfied that the grounds of appeal are sufficiently established to justify that outcome. In this case I have very much held to that requirement and have striven to hold on to the judge's order unless satisfied to the contrary.
- Despite the anxious approach that I have described I am, I am afraid, driven to the conclusion that Mr Turner's overall submission is made out and that the proceedings before Russell J were indeed sufficiently flawed so as to render the outcome unsafe, with the result that the judge's order must be set aside and the welfare issue must now be determined by a different judge.
- Taking each of the key points in turn, I have already set out my conclusion as to the judge's conduct of the hearing during the first day [paragraph 64] to the effect that her interventions were unnecessary and unhelpful in such a finely balanced case and at such an early stage. I now go further. As I have also already concluded [paragraph 71], the judge was wrong in her analysis of the Court of Appeal decision, which did no more than set aside the district judge's orders on the basis that he had failed to undertake any acceptable analysis. This court did not hold that the district judge's welfare decision was 'wrong' or engage in any analysis of what, if any, orders would or should have been made in September 2013. The outcome of that first Court of Appeal hearing was no more than that which had been sought by the father's junior counsel, namely the removal of the district judge's orders so that they could not be taken as resulting from a valid welfare evaluation at that time.
- Russell J's erroneous understanding of the first appeal had, in my view, an impact upon her conduct of the hearing, upon the understanding of Dr Willemsen (and in consequence Mr Hatter) and upon her ultimate evaluation of W's future welfare.
- So far as its impact on the conduct of the hearing is concerned, its presence as a key feature in the case was established by the very first words on the first day in court when Russell J referred to the Court of Appeal judgment and immediately stated that its effect was that 'the court needs to keep in mind that, had the proper decision been made in the first place, there would have been no placement.' That statement is not supported by any part of this court's judgment in the first appeal and it is wrong. Mr Bagchi's description of the neutral nature of the Court of Appeal decision was entirely correct and, regrettably, the judge's assertion to the contrary was also wrong. From these opening remarks, which are confirmed by subsequent interventions during the main part of the hearing and in the judgment, it is plain that the judge relied upon the Court of Appeal decision as support for her view that, had matters been properly analysed in 2013, W would not have been placed for adoption. Again, the judge was in error in so doing.
- As I have already explained [paragraph 81], there are grounds for significant concern over the process by which Dr Willemsen came to know about the Court of Appeal decision. I repeat my conclusion that Dr Willemsen was allowed to gain an understanding of the significance of the Court of Appeal decision which was erroneous and substantially adrift from the true position. That this occurred may, in part, be explained by the fact that, as I have held, the judge herself had formed a similarly erroneous view. It is clear that Dr Willemsen understood that the Court of Appeal had held that W should not have been placed for adoption and this understanding had a major impact upon his overall analysis; indeed it caused him to change his recommendation to the court. What his recommendation would have been if he had been given a careful, comprehensive and accurate account of the Court of Appeal decision, we do not know, but I am afraid that I regard the errors that led to this key expert being given a wrong account of this, to him, important matter fundamentally compromised the court's ability to rely upon his revised recommendation. This error, and Dr Willemsen's changed opinion, in turn had a consequential impact upon the opinion of Mr Hatter and, ultimately, the guardian.
- The conclusion expressed in the previous paragraph goes to the root of the case. The expert changed his opinion, which led to a similar change in those who relied upon him and the judge relied upon the view of all three of these professionals in forming her own evaluation of W's future welfare needs. The fault-line at this point is sufficiently serious as to make the judge's ultimate determination unreliable.
- Finally, and although this point would not justify allowing the appeal on its own, I do consider that the judge made a significant error with respect to her analysis of the risk that W might fall into an emotional 'void' if she were unable to make a sound connection with her father and siblings. As I have explained, for Dr Willemsen this was an important factor and one to which he was alert as a consequence of W's reaction to the previous foster carer soon after her move to Mr and Mrs A. On my reading of his report and his evidence, this was the principal factor that had led Dr Willemsen to hold originally that W should remain with Mr and Mrs A. Despite his change of opinion, he held on to this concern in his oral evidence [see paragraphs 38, 40 and 43 above] and it was a concern that could impact upon W in the long-term. Notwithstanding the prominence of this point in Dr Willemsen's analysis, it is not a factor that is referred to at all by the judge during her recital of the key factors in the case. Whilst the judge does accept that there may well be short to medium term difficulties for W as she moves to and settles down with her father and family, at no stage does the judge engage with the longer term potential difficulty that, no matter what is put in place, W may be unable to transfer her sound emotional 'connections' or attachment with Mr and Mrs A to her natural family and, if that is so, she would, in the long term, be left in some form of emotional 'void' with consequent significant adverse consequences for her wellbeing.
- For the avoidance of doubt, the point having been raised, I do not accept that the judge's interventions during the first day of the hearing were sufficient to establish judicial 'bias'. It is not apparent that the judge had formed a concluded view as to the outcome. What is apparent, as I have found, is that the judge had formed a concluded view as to the effect of the Court of Appeal decision; although that error, in terms of its consequences was, as I have explained, part of a fundamental flaw in the process, it is not evidence of judicial bias.
- For the reasons that I have given, and with a heavy heart when contemplating the consequences in terms of yet further hearings, I am driven to the conclusion that both the hearing itself and parts of the judge's analysis were flawed to such an extent that the outcome cannot safely be relied upon. As a result, if My Lord and My Lady agree, this appeal is allowed and the order made by Russell J must be set aside and the welfare issue determined afresh before a different tribunal. In so holding, I should stress, I am in no manner asserting that the outcome selected by the judge was either right or wrong.
Lord Justice Underhill:
- I agree.
Dame Janet Smith DBE:
- I also agree.
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