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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 585

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Neutral Citation Number: [2002] EWCA Civ 585
B1/2001/0207, B1/2001/0208, B1/2001/0209

(His Honour Judge McIntosh)

Royal Courts of Justice
London WC2
Thursday 18th April, 2002

B e f o r e :





(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)


MR R TOLSON QC and MISS C WRIGHT (Instructed by Messrs Hooper & Wollen, Torquay TQ1 1BS) appeared on behalf of the Appellant/Mother
THE RESPONDENT did not appear and was not represented



Crown Copyright ©

  1. LORD JUSTICE THORPE: This is an application for permission to appeal brought on behalf of Miss J C, who is the mother of three children directly relevant for the purposes of this application. They are T, who is five, and I and J, who are twins born on 9th August 2000. The father of all those children is T B, who has been found in the course of proceedings in the Exeter County Court to be a danger to children. It is his dangerousness which has led to a series of judgments in that court, delivered by His Honour Judge McIntosh between December 1999 and January 2002. The January judgment is the latest in the line and it is the judgment the subject of this application.
  2. I want to emphasise how fortunate the applicant is to have had throughout the professional services of Mr Tolson QC. He conducted the trial on her behalf and he has prepared this application, both by his written skeleton argument and by his oral submissions today. Nobody could possibly have said more on behalf of this applicant than Mr Tolson has done. Nobody could have conducted this task more conscientiously and with greater conviction than he.
  3. But it is only necessary to put the judgment of January 2002 into the litigation context to see what an immensely difficult task Mr Tolson faces. The judge, on 9th February 2001, gave a judgment which narrowly consigned T to rehabilitation, a course which the experts in the case had come to embrace comparatively late in the preparation of the evidence. But he made a very clear direction in relation to the twins. That was that they should be placed for adoption under the aegis of care orders. That conclusion was supported by the experts, who emphasised that the mother's prospects of success with T were fragile enough if T were her only responsibility. The prospects of success would be severely jeopardised if she had to cope with the twins as well. Another point that impressed the experts was the timescale and the importance of settling the twins as soon as possible into their future family.
  4. The local authority might have sought and obtained a freeing order on 9th February 2001, but they did not do so. Accordingly, a year later it was necessary for the judge to rule on their application for freeing orders for the twins. At the same time the mother sought to persuade the judge effectively to execute a U-turn by requiring his decision on applications, supported by the father, for the discharge of the care orders. Once a route has been set for very young children, endeavours to reverse the plan seldom succeed absent some dramatic change of circumstance. So if the mother's applications for discharge were to have any realistic prospect of success, it was necessary for her to demonstrate to the judge that the circumstances in January 2002 were dramatically different to those which he had considered in February 2001.
  5. What were her prospects of doing so? It is true that in that interim she had to her credit successfully completed a parenting assessment. On the other hand there were contrary indicators as found by the judge. First, there was her failure to engage in a therapeutic process to address her past problems (probably psychotherapeutic but not necessarily so) which all the experts regarded as crucial. Secondly, there was the fact that in the interim she had conceived and had suffered a very serious miscarriage with life-threatening consequences which she had not dealt with in a very sensible or responsible way. These were all issues of fact the subject of judicial finding.
  6. However, what really stood against any judicial U-turn was the unanimity of the expert evidence that such a reversal would be manifestly contrary to the twins' interests. The judge had the unusual advantage of expert opinion not just from Dr Gay, but also from Dr Heller, Dr Redding and an adult psychiatrist with a particular interest in placement, Dr Jamil. All of them were united in their view that these twins needed to be moved forward to their future adoptive home as soon as possible.
  7. The only contrary view was expressed by a Dr Mulhall. Dr Mulhall did not impress the judge as an expert worthy of reliance. He described him as a rather prevaricative and evasive witness. He found him guilty of a failure either properly to read or properly to understand the case papers. He found him to have colluded in a technical sense with his patient in perceiving his role as to help her to achieve the things which she wanted to achieve.
  8. The judge was equally strong in his condemnation of the mother. He said of her that she was not honest and trustworthy. She was devious and manipulative. Those sort of findings of fact, those sort of assessments as to the credibility and reliability of a parent, those sort of assessments as to the worth of the expert opinion are absolutely crucial to outcome. They are assessments and findings to be made by the trial judge in the course of a trial, and once made are not to be circumvented by analytical probes conducted either by the advocates in the appellate process or by the court itself. They must be respected. They lead to an inevitable conclusion.
  9. Mr Tolson has made much play of the Human Rights Act, of the absolute finality of the orders made by the judge and for the need for proportionate judgment before arriving at such absolute conclusions. He emphasises his client's rights, particularly under Article 8. Those submissions may, in a case which on its facts and findings proves to be much nearer the borderline than this, have validity. True, the views of Hale LJ expressed in the case of C & B were probably not before Judge McIntosh in February 2001. But this is simply a mile away from that sort of borderline case. Obviously the rights of individuals under the Convention are liable to conflict, and where they do the decisions of the court emphasise in broadly similar terms that the rights of the vulnerable children are to be regarded as paramount. What the judge ordered may have been an invasion of the applicant's rights, but it was a necessary and appropriate invasion in order to safeguard the rights of the children.
  10. Mr Tolson's last point is that this was not really a case in which the local authority should have applied for freeing orders. It was a case in which the couple who have cared for the twins since May 2001 should have themselves been applicants for adoption orders. That submission was clearly advanced forcefully in the County Court and it was carefully considered by the judge. He pointed to episodes in the history which suggested that the couple caring for the twins might be exposed to pressure were they to come into the front line. He said that accordingly on the facts of this case there was an overriding need for security and stability, not just physical but emotional and psychological, and that that overriding need justified the issue of the freeing applications. The judge was entitled to reach that conclusion and I do not see any force in this subsidiary ground.
  11. For all those reasons, I do not think that Mr Tolson has demonstrated sufficient prospects of success. I would refuse this application.
  12. MR JUSTICE MOSES: So would I.
  13. ORDER: Application for permission to appeal refused; detailed assessment of the applicant's Community Services Legal Funding.
    (Order not part of approved judgment)

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