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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R (A Child) [2014] EWCA Civ 1625 (16 December 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1625.html Cite as: [2015] 1 FLR 715, [2014] WLR(D) 539, [2015] 1 WLR 3273, [2014] EWCA Civ 1625, [2015] 2 FCR 499, [2015] WLR 3273, [2015] Fam Law 119 |
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ON APPEAL FROM EAST LONDON FAMILY COURT
HHJ Sleeman
IL13C00792
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MCFARLANE
and
LORD JUSTICE FLOYD
____________________
Re R (A child) |
____________________
Miss Emily James (instructed by X Local Authority) for the First Respondent
The Second Respondent Father appeared in person
Hearing date : 31 October 2014
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice McFarlane:
The Appeal – Factual Context
The judge's decision
a) The mother has had a problem with "binge drinking" which is of many years' standing. On her own admission, she was binge drinking in February 2014, only some four months prior to the final hearing. The mother now accepts that she has a problem, has undertaken a relevant course on two separate occasions, but still, to the judge, sought to draw a distinction between a person who drinks every day and someone who binges at weekends. The judge concluded that the mother was still grappling with her long standing problem of alcohol abuse;
b) The mother has a vulnerability as a result of a propensity to enter into and remain in abusive relationships. The judge concluded that this was a longstanding problem which had continued for some twelve or thirteen years. In particular she received, on the judge's findings, "a dreadful beating" in mid-January 2013 from Mr AR, he was arrested and charged with assault, she was the key witness, he was kept in custody until his trial on 22nd February 2013 at which the mother retracted her statement and the charge was dismissed. A few days later she resumed cohabitation with him. Despite the mother describing the incident as "the worst day of my life" the judge found that she lied on oath to the criminal court in order to re-engage in her relationship with Mr AR;
c) The judge found that although, by the date of the hearing, the couple had separated physically, they nevertheless maintained contact with each other and had been on friendly terms in the days before the hearing as a number of Facebook messages demonstrated. The judge found that there continued to be an emotional attachment and concern each for the other and that there was a substantial risk that, once the proceedings were over, they would resume their former abusive relationship;
d) The judge found that the mother was not a witness of truth and that she had lied to the court and the authorities in a number of respects relating, for example, to her cocaine use, her relationship with Mr AR, her own capacity to be aggressive when she feels provoked, particularly when in drink, and the contact that she had had with Mr AR in the lead up to the proceedings.
e) The mother accepted that there was "an attachment problem" between herself and ES. The mother's presentation at contact to her daughter was described in positive terms as being of good quality and demonstrating warmth. Nevertheless ES was described as being "wary of her mother" and exhibiting watchfulness to a level which was concerning to the social worker. The judge accepted the social worker's opinion which was that this young child's reaction arose partly out of fear because she had been present during violent incidents.
The judge was critical of the mother who, despite accepting that there was an attachment problem, was unable or unwilling to acknowledge any connection between the alcohol fuelled violence and the risks to a young child in that setting. The judge was unimpressed by the mother's explanation that the difficulty that existed in her relationship with ES arose because the foster carers could offer the opportunity for the child to play in the garden and also, because of the time that had passed, ES had become attached to her carers.
"(a) ES is too young to express her wishes and feelings.
(b) She needs a stable home -- incidentally, I noted the mother moved addresses seven times between November 2011 and March 2013 -- where ES's various needs will be met.
(c) Any change back to the mother will be fraught with difficulty, because I find (1) ES has an insecure attachment to her mother and may not settle properly; (2) it would not be possible to supervise ES's care satisfactory without the supervisor living in the home all the time in the light of the risks. A move is inevitable and a move to an adoptive placement would provide ES with a fresh start and is likely to be successful.
(d) ES is 22 months old and of mixed descent. There is nothing about her age, sex and background that would be likely to prevent her proposed adoption being successful, save [the social worker] will have to monitor ES's ability to attach to new carers carefully, bearing in mind the fact that she has an insecure attachment to her mother.
(e) ES has clearly suffered significant emotional harm at the hands of her parents and at the present time there is a substantial risk that she would suffer further harm of returned to the care f her mother due to her mother's propensity to prioritise her own need to have an abusive relationship fuelled by alcohol over the needs of her child or children.
(f) Neither parent can provide safe and consistent care now or within ES's timescale. ES needs a secure and permanent home now. In my judgment she cannot wait for 12 to 18 months to see if her mother might then be able to care for her safely after undertaking intensive counselling or therapy, which in fact may be unsuccessful. There is no other member of the family or friend available to care for ES.
(g) In this case the powers of the Court are either to make a care order on the basis of a care plan for adoption or to make ES the subject of a supervision order whilst allowing her to return to her mother's care. There is I find a substantial risk that if ES was returned to her mother's care under a supervision order that the mother, who has lied to various people, including the Court, and, of course, broken the agreement she signed on 28th October 2013, would not be open and frank about any difficulties she had in relation to her care of ES. She would be unlikely to reveal anything which might lead to ES's removal and would be likely to deliberately hide anything untoward from any supervising officer. Sadly, she cannot be trusted. In my judgment no support which the local authority could provide, short of a family support worker living with the mother in her home and remaining by her side both day and night, which is unrealistic, would alleviate the risks. Therefore I find that, sadly, this Court must approve the care plan and make a care order to the London Borough of Tower Hamlets."
The Appeal
a) The judge adopted a linear approach;
b) The judge relied unduly upon the mother's dishonesty;
c) The judge's exercise of discretion was wrong;
d) Breach of theHuman Rights Act
l998.
I propose to take each of these arguments in turn.
"We emphasise the words 'global, holistic evaluation'. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and ….multi-faceted evaluation of the child's welfare which takes into account all the negatives and positives, all the pros and cons of each option. To quote McFarlane LJ again:
'what is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.' "
(i) Identification of the risk
(ii) Assessment of the risk
(iii) Consideration of whether the risk can be managed
(iv) Consideration of whether the risk can be reduced
Miss Johnson submitted that the judge did identify the risk at point (i) but did not go on to undertake any of the other three stages that she described.
Discussion
Lord Justice Floyd:
Sir James Munby, President of the Family Division :
"the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."
She reiterated the point, para 215:
"We all agree that an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do."
This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:
"family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained."
"I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of "nothing else will do". That is, the orders are to be made "only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests." (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words "nothing else will do" to the exclusion of any "overriding" welfare considerations in the particular child's case."
"31 … steps are only to be taken down the path towards adoption if it is necessary.
32 What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:
"It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests." (my emphasis)
I emphasise the last phrase of that passage ("in her interests") because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them."
"real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments."
It continued "This is nothing new. But it is time to call a halt." It demanded (para 40) that "sloppy practice must stop". It spelt out (see para 33) "what good practice, the 2002 Act and the Convention all demand."
"33 Two things are essential – we use that word deliberately and advisedly – both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order.
34 First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option …
41 The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge …
44 … The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option."
"The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified."
I respectfully agree with that, so long as it is always remembered that, in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.
"rigorous analysis and comparison of the realistic options for the child's future … does not require a court in every case to set out in tabular format the arguments for and against every conceivable option. Such a course would tend to obscure, rather than enlighten, the reasoning process."
"Nothing else will do" does not mean that "everything else" has to be considered.
"Realistic is an ordinary English word. It needs no definition or analysis to be applied to the identification of options in a case."
"a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority."
"In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge's judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
I respectfully agree.