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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> L (A Child)  EWCA Civ 489 (03 May 2013)
Cite as:  EWCA Civ 489,  1 FLR 807
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ON APPEAL FROM SWINDON COUNTY COURT
DISTRICT JUDGE RALTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
|L ( A CHILD)
Mr Leslie Samuels QC with Miss Maria Gallagher who was unavoidably absent from the hearing but engaged in the preparation for it (instructed by Lemon & Co Solicitors) for the (Mother) 1st Respondent
Mr Graham Kean (instructed by Withy King Solicitors) for the (Father) 2nd Respondent
Miss Alison Burge (instructed by Bevirs Solicitors) for the (Guardian) 3rd Respondent
Hearing dates : 26th March 2013
Crown Copyright ©
Lady Justice Black :
"The Local Authority's previous involvement with M suggests that she has the potential to achieve positive changes but may be unable to sustain these improvements. M's ongoing pattern of behaviour, drug use, criminal lifestyle and poor lifestyle choices raises questions regarding her long term commitment to parenting her child and prioritising their safety and welfare."
"there are reasonable grounds to believe that according to M's history and ongoing lifestyle choices, she will be unlikely to be able to parent A upon her release from prison. In addition to this and in accordance with A's timescales the Local Authority does not think that it is in A's best interests to assess whether M now has the capacity to make the necessary changes upon her release. Therefore options of permanency will need to be explored for A as soon as possible."
DJ Ralton's judgment of 11 February 2013 in relation to the interim care order
i) He proceeded on the basis that it appeared that M had "been able to separate herself wholly" from the father of her older two children. He commented that "[w]hether she is yet capable of avoiding abusive partners in the future is another matter" although he acknowledged that M's reaction in the witness box when the question of A's father's anger management problem was put to her was positive in that it showed that M "was carefully looking at things". He accepted that there was nothing more between M and A's father currently than being biological parents of A.
ii) He recorded that it seemed that once M was free of the older children's father, "her drug use tailed off considerably and she told me that she was only an occasional user of crack cocaine" but that during her pregnancy "for a three week period she tells me she was using crack cocaine on a daily basis". He said that therefore "it would appear from the current limited information before the court that M's reliance on crack cocaine as soon as there is crisis [sic] in her life is, on current evidence, as alive today as it ever was". He considered that the fact that she had not used drugs in prison did "not take her case that much further forward".
iii) He was anxious that she would "change her story according to her objectives and her audience", noting she had lied to get herself on a drugs programme.
iv) He noted her failure to attend for ante-natal care because she was afraid the baby would be taken away and considered that that showed her putting her own wishes before the interests of the foetus.
v) He said that "one has the impression from the evidence ….that when M cooperates it is because there is, from her perspective, no better solution available. Of course lying to authority, avoiding authority and the fact of jumping bail shows a continued defiance even if all criminal offences, other than the offence of jumping bail itself came to an end at the end of 2011 which I think is established by the records we have".
vi) He was troubled about M going to the maternal grandmother when she absconded whilst on bail, notwithstanding that JS was living there.
i) A will have formed a degree of attachment to his foster parents and would have to transfer that to M "in circumstances where, given the lack of improvement and change on her part, the prospects so far as they can be assessed at the moment of M caring for A in the long term on release have to be regarded as gloomy". If that gloomy prognosis proved right, A's attachment would have to be transferred elsewhere again. If he went back to foster parents at that stage, rather than to his father, there could have to be yet another move.
ii) M's proposal imported considerable risk from delay which could easily amount to 12 more months and which would prejudice A's welfare.
"In the informed light of pessimism given the lack of evidence of M's ability to change to date causes me to conclude [sic] that on balance it would not be right to return A to her care, that return to her care would have to be regarded….as a temporary measure and in effect a stay on the proceedings. There may be cases when that could be justified, in this case I come to the conclusion that A's welfare does not justify it."
The submissions on appeal
"The making of an interim care order is an essentially impartial step, favouring neither one side nor the other, and affording to no one, least of all the local authority in whose favour it is made, an opportunity for tactical or adventitious advantage."
" ….Above all it seems to me important to recognise the purpose and the bounds of an interim hearing. There can be no doubt that a full and profound trial of the local authority's concerns is absolutely essential. But the interim hearing could not be allowed to usurp or substitute for that trial. It had to be properly confined to control the immediate interim before the court could find room for the essential trial.
 …..In my judgment, the Arts 6 and 8 rights of the parents required the judge to abstain from premature determination of their case for the future beyond the final fixture, unless the welfare of the child demanded it."
"The decision taken by the court on an interim care application must necessarily be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture"
"whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care" (Re B  §31)
"I agree with the judge that the s 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB's welfare did demand her immediate removal from her parents' care….In my judgment, KB's safety, using that word in a broad sense to include her psychological welfare, did require interim protection." (§56)
"…..Reliance on that feature of the case seems to me insecure. The status had been achieved in circumstances that were certainly under question and in dispute. In the measured view of the case, the 8 or 9 weeks that R had been parted from her family had to be balanced against the much longer period that would result from the continuation of the interim care order."
i) Although the guardian had worked hard on the documents, she had only recently come into the case and had barely met M. She had not yet prepared the written report that would normally be required from her for the final hearing. The preparation of the guardian's report is a valuable discipline for the guardian because the process of reducing one's view to writing forces careful reflection. The report is also important in that it provides a parent with the opportunity to understand in advance of the full care hearing what the guardian's view of the case is and why and to make a considered response to it.
ii) There was no addendum to Dr Indoe's 2010 report addressing whether, in his view, there had been any material changes in M or in the surrounding circumstances. I do not suggest that it will always be appropriate for an addendum report to be obtained in circumstances such as these. Expert evidence is only to be permitted where it is necessary to assist the court to resolve the proceedings (FPR 2010 Part 25 rule 25.1), robust case management is to be expected as cases such as Re TG (A Child)  EWCA Civ 5 underline, and not every parent will be able to apply successfully for a section 38(6) assessment (see for example Re T (Residential Parenting Assessment)  EWCA Civ 812). However, an addendum was required to Dr Indoe's report here and the district judge subsequently made an order for it to be provided.
iii) No report from Trevi House, the unit where M had lived with MS, appears to have been included in the bundle. It might be anticipated that this would have provided information as to M's strengths and weaknesses at that time which would assist social services, the guardian and the court to evaluate M's assertion that she had since changed materially.
iv) In view of the order we made at the conclusion of the hearing, the evidence at the final hearing will no doubt also include some information as to how M has managed with the care of A in the prison unit.
Lord Justice Patten:
Lord Justice Lloyd:
Note 1 In this, as in all quotations, I have substituted initials for names. [Back]
Note 1 In this, as in all quotations, I have substituted initials for names. [Back]