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Cite as: [2007] EWCA Civ 395

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Neutral Citation Number: [2007] EWCA Civ 395
B4/2007/0403 & B4/2007/0404


Royal Courts of Justice
Strand, London, WC2A 2LL
28 March 2007

B e f o r e :





(DAR Transcript of
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MR FEEHAN (instructed by Messrs Belmores) appeared on behalf of the Appellant.
MR FLETCHER (instructed by the local authority) appeared on behalf of the Respondent.



Crown Copyright ©

    Lord Justice Thorpe:

  1. These are care proceedings. They relate to H, a little girl who was born on 7 March 2006, and who is therefore even now only a little over a year old. The matter came on for final hearing before HHJ Darroch sitting in the Norwich County Court who gave judgment on 26 January 2007. At the end of the hearing, in which he heard evidence not merely from the mother and her current partner but also from a number of experts and a guardian, the judge acceded to the invitation of the local authority, made a care order, approved the local authority's plan which was for permanency through adoption, and proceeded to make a placement order. It is against that judgment and those orders that this appeal is brought. At least with the benefit of hindsight it can be seen that the proceedings prior to that hearing had taken a somewhat unfortunate course. A discrete fact-finding hearing in relation to some, but by no means all, of the matters of fact which were being alleged by the local authority took place before HHJ Curl also sitting in the Norwich County Court on 24 October 2006. That fact finding hearing was inconclusive because crucial witnesses, without whose evidence the relevant facts could not be found judicially, declined to give evidence. Following that hearing, the local authority revised its threshold document and on 7 November 2006 filed a statement of the facts relied upon by the local authority in support of its case. The mother's response to that was a document described as "threshold concessions", the detail of which does not matter but which can fairly be described as in significant measure a mixture of confession and avoidance.
  2. Accordingly, when the matter came before HHJ Darroch in December 2007 there was no threshold document reflecting either those threshold facts which were agreed by the parties or those threshold facts which, in the absence of agreement between the parties, had been judicially determined. HHJ Darroch accordingly had to approach what had been intended as a disposal hearing picking out from the concessions made by the mother those matters which were admitted. The case was on any view one of some complexity. The complexity arose in this way; that as the judge himself recorded:
  3. "All experts, social workers and guardian, agree the parents are able to meet [the child's] emotional and physical needs at the present time. I have already said that. I say it again."

    The difficulty arose because, as he went on:

    "Concern is based on expert evidence that at some time in the future emotional instability will result in emotional, possibly physical, harm to H. That is the substance of the case. It does go further in my view. The expert's point to real difficulties, real dangers, real risk, real uncertainty if [H] is placed with the mother."
  4. The judge had the benefit of reading expert reports prepared by, and then hearing the oral evidence of, Dr Philip Murphy, a clinical psychologist, and Dr Richard O'Flynn, a psychiatrist, and also the evidence of the guardian, the mother and her partner. There were a number of risks which it was suggested H might be exposed to. There was a risk of domestic violence, probably directed at his partner rather than at H, on the part of the mother's partner. More particularly, and this seems to have been the focus of the cross-examination of the expert witnesses, there were a number of risks identified as flowing from the fragile personalities of both the mother and her partner.
  5. There is no need in light of the decision to which I have come to explore those matters in great detail. The first risk was a risk of fragility in their relationship, a risk that their relationship would break down for some reason or another. Flowing on from that there was a risk that if the relationship broke down the mother, due to difficulties in her personality, might herself react adversely, and flowing on from that if that became the reality there was in consequence a risk that H might be exposed to emotional and possibly, due to the volatility of the mother's personality, physical harm.
  6. The importance of that analysis it seems to me is this: that there were, leaving on one side the question of the possible risk posed by the mother's partner were there to be future domestic violence, a sequence of risks each of which could become a reality in all probability if, but only if, a previous risk had itself become a reality. The experts and consequently the judge were therefore faced with a more than usually difficult problem. They and he had to evaluate the degree of risk that the parties' relationship would break down. They and he had then had to go on to evaluate the consequences if that relationship were to break down and in particular evaluate the risk that in those circumstances the mother's fragile personality would succumb to stress; they and he then had to go on to evaluate the risk that that in turn might expose H to emotional and/or physical harm.
  7. I need say no more. The complex and difficult nature of the exercise is apparent. Appropriately, the judge was referred to the important judgment of Hale LJ, as she then was, sitting in this court with Sir Christopher Staughton in the case of Re C & B (Children) [2000]. That case is important for present purposes for a number of different reasons. One is that as Hale LJ pointed out in paragraphs 28 and 29 of that judgment the court has to distinguish between the degree of risk of something happening and the gravity of that something if it becomes a reality. As her ladyship pointed out, comparatively small risk of really serious harm can justify action while even the virtual certainty of slight harm might not. As she went on to point out, and this was of course in the context of care proceedings, the nature and gravity of the feared harm must be highly relevant to the action taken in response to it.
  8. Further well-known passages in Hale LJ's judgment, which there is no need for me to recite in detail, go on to explain the approach which the court must adopt in order properly to give effect to the rights of all the parties in accordance with the European Convention for the Protection Of Human Rights and Fundamental Freedoms as implemented by the Human Rights Act 1998. As her ladyship stressed, the critical analysis is one which requires identification of the proportionate response to what is feared in the particular case in the light of the particular circumstances. As she pointed out, it does not follow that merely because there is a significant risk of harm to a young child that must necessary result in a care order in which the care plan is adoption. The outcome must be proportionate to the risks which have been identified. She concluded:
  9. "The principle has to be that the local authority works to support, and eventually to reunite, the family, unless the risks are so high that the child's welfare requires alternative family care."
  10. Now in the present case, as will be apparent, the judge was faced with a doubly difficult exercise because not merely were the risks which he had to evaluate more than usually complex; that exercise, as he himself had acknowledged, was being embarked upon in circumstances where it was, as I have said, common ground between all the experts and accepted by the judge that at present the parents were able to meet H's emotional and physical needs.
  11. That being the nature of the issues confronting the judge and that being the framework of legal analysis which, in the light of Re C & B, he had to apply, I turn to consider the remainder of HHJ Darroch's judgment. In my judgment I regret to have to say that it falls short of what is acceptable. The judge to an extent summarised at least parts of the evidence he had heard. He expressed the view, commenting upon the evidence of the two experts, that in substance they had remained of the same view at the conclusion of their evidence as they had in their written reports.
  12. Mr Frank Feehan, who appears before us on behalf of both the mother and her partner, challenges that and takes us to many passages in the transcript of the examination and cross-examination of the experts showing, as he would have it, deficiencies in the evidence of one and significant numbers of matters in the evidence of both where they had to a greater or lesser extent departed from their original views. So far as concerns that part of Mr Feehan's attack upon the judgment of HHJ Darroch, I have considerable sympathy with his submissions although, as Mr Fletcher on behalf of the local authority points out, the position is perhaps not, on a close examination of the transcript, quite as stark and clear cut as Mr Feehan would have us accept.
  13. The real deficiencies in this judgment however lie in a different quarter. It was the obligation of the judge, as it seems to me, to evaluate in relation to each of the risk factors which had been identified, both the degree of the risk of that which was feared would in fact become reality, just as it was for him to evaluate the gravity of the resulting state of affairs. It was his obligation to perform that exercise and then to set out his reasoning in a judgment referring his conclusions to the evidence and setting out, maybe in plain and homely language, enabling the mother and her partner to understand what findings he was making and why he was coming to this final conclusion.
  14. Unhappily, in his judgment what one finds is little more than broad statements to the effect that the experts were all of the view that there were real risks, real dangers, uncertainties so on and so forth; without any sustained or, in my judgment, sufficient analysis of what those various risks were, how they related to the evidence he had heard, how they related to the shifting evidence of the experts, to the extent that the experts had shifted. Most important, there seems to be no awareness in the judgment, and certainly no articulation in the judgment, of the fact that in very significant measure the feared risk of either emotional or physical harm to H was a risk which would become a reality only if the parents' relationship broke down, and in consequence of that the mother suffered a collapse in her personality, and in consequence of that H was exposed to and suffered either emotional or physical harm.
  15. Because the judge did not in his judgment evaluate the various strands in the risk analysis which was presented to him, it follows that he did not in his judgment adequately articulate his analysis of the balancing exercise; his balancing on the one hand the fact that the parents are currently providing an adequate level of parenting against, on the other hand, the risk that in future something might go wrong. Thus he failed properly to address the crucial question as to whether what was being proposed by the local authority, namely a final care order and adoption, was a proportionate response to what was feared in this case. The ultimate question for the learned judge was to reach a conclusion as to whether, to adopt Hale LJ's language, the risks were so high that H's welfare required alternative family care. HHJ Darroch paid lip service to the need to embark upon that exercise. He referred to Re C & B. He accepted that his order had to be proportionate to the risks and he, too baldly in my judgment, stated his conclusion that the real risk was such that nothing short of a care order would suffice adequately to protect H.
  16. This court, like all appellate courts, must be astute to resist the temptation by over-refined textual analysis of a judgment under attack to find error when in truth there is no error; I need refer only in that context to the well known speech of Lord Hoffmann in the family case of Pigloska v Pigluski. But in my judgment the deficiencies in the judgment in this case go far beyond that. There will be occasions when, although a judge has not expressly articulated some point or expressly stated some finding, one can properly and safely conclude from what he has said that he has the point in mind. But in my judgment we are very far removed in the present case from that position. The judgment is long and in many ways detailed. But I regret to say that the route by which the judge travelled, from his largely unparticularised assertion that there were difficulties, dangers, risks and uncertainty to his ultimate conclusion, is not adequately explained to us nor more particularly to the parents.
  17. The parents in a case such as this need not be given a long and detailed judgment. As Mr Fletcher pointed out it may well be, in cases such as this, of more assistance to parents if judgments are expressed in homely rather than technical language. But what the parents were entitled to in this case was a judgment in which the judge identified the risks which he was satisfied existed, in which he evaluated those risks, and in which he adequately articulated the reasoning which led him to the conclusion that the risks were such as to require alternative care through permanency. In my judgment, this judgment fails to address those matters.
  18. Putting it plainly, I do not know whether the judge's decision was in the final analysis right or wrong. What I am clear about is that his judgment does not adequately explain to us or to the parents the process of his reasoning.
  19. It seems to me that there is no alternative but for this matter to be remitted for a re-hearing before a different judge. What the outcome of that hearing will be I do not know. It would be inappropriate for me to speculate and it is unnecessary to go any further into the evidence or deal in any more detail with Mr Feehan's other attacks upon this judgment.
  20. But for those reasons this appeal must in my judgment be allowed. The matter will be remitted for hearing afresh by a different judge. It seems to me that HHJ Curl, who is the designated family judge at Norwich, and who as it happens has had some previous involvement in this case, should, if available, be the judge who conducts the re-hearing.
  21. Lady Justice Smith:

  22. I agree.
  23. Mr Justice Munby:

  24. I also agree.
  25. Order: (1) Application granted. (2) Appeal allowed.

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