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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H (A Child) [2015] EWCA Civ 1284 (11 December 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1284.html Cite as: [2015] EWCA Civ 1284 |
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2015] EWCA Civ 1284 | ||
2015/2384 |
CIVIL
DIVISION)
ON APPEAL FROM THE
HIGH
COURT OF JUSTICE, FAMILY DIVISION
Ms Justice Russell
SD14C00594
Strand, London, WC2A 2LL |
||
2015 |
B e f o r e :
LORD JUSTICE UNDERHILL
and
DAME JANET SMITH
____________________
Re: H (A child) |
____________________
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 :
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.
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.
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.
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.
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.
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)
[
2015]
EWCA
Civ
583).
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 inrespect
of W is allowed and is
remitted
to Ms Justice Russell for
re-hearing;
4. The care and placement orders made inrespect
of W on 19th September 2013 are
hereby
set aside;
5. W is placed in the interim care of the firstrespondent
local authority until further order;
6. Pursuant to s 42 (2)(a) of the Adoption andChildren
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."
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
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.
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.
have
mentioned, the judge also
heard
oral evidence from the social workers, the father and Mr and Mrs A.
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
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 aresult,
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, throughouther
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 May2015
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 byher
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.
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.
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.
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.
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.
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.
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
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.
recorded:
"Russell J: I take it everybodyhas
seen the Court of Appeal judgment?
MissReardon:
Yes, my Lady.
Russell J: Which means that the care order and the placement order are set aside.
MissReardon:
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."
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:
"MissReardon:
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 ofHedley,
Mr Justice
Hedley
in the case of
Re
L (Care: Threshold Criteria) [2007] 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) [1998] 1 AC 806 to the effect that "the best person to bring up a
child
is the natural parent"
remained
valid.
"Russell J: That is my starting point.
MissReardon:
Yes my Lady and there was no issue as to that being the appropriate approach for you to take.
Russell J: Yes. I would alsoremind
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."
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 ishe
still supporting an adoption order?
Mr Bennett:He
is.
Russell J: Ishe?
Well, I shall expect a full analysis from
him."
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 thathe
![]()
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 Ihave
![]()
had
since this morning and
have
…
Mr Bagchi: Yes.
Ms Justice Russell: … probably been able toread
more carefully.
Mr Bagchi: Yes, I think we got it just before we came over to Court.
Ms Justice Russell: Yes.
Mr Bagchi : I willre-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 neverhave
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, Ireally
think you
had
better
re-read
it."
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
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."
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 thereason
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 noreflection
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."
her
judgment, Russell J made the following observations:
"… at the time the care proceedings were concluded the father and the motherhad
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 ishighly
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 nothave
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
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 fatherhas
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 withher
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.
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 andhad
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 whetherher
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 affecther
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 ofher
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."
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.
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.
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 abouther
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 areality
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 knowhow
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: Youhave
to keep it in mind.
Dr Willemsen: And Ihave
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 thatresulted
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, fromher
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 onher
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 decisionhas
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 ofchildren
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 Ihere,
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 andhaving
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 yourhome."
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 thathas
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 afterher
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 wehave
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 inher
mind, to making that connection to
her
father. That this father becomes this person for
her
that she can also keep in
her
mind."
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 [traumaresulting
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 Ihave
said too much. Actually we don't quite know
how
it will work, so I think in that sense it is a possibility."
returned
to the impact of the Court of Appeal decision.
"Dr Willemsen: My Lady, when Iheard
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 wehave
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."
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 yourrecommendation
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 myreport,
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 thischild
(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 amreally
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 thathe
actually understands some of the needs of W. I think that is
really
important.
So I think it is clear to say that ithas
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 onhow
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 withher
father."
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 Ihave
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 ishis
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."
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 shehas
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:
"MissReardon:
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.
MissReardon:
An impact that is potentially lifelong.
Dr Willemsen: Yes.
MissReardon:
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 canhappen
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
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.
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.
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 thereturn
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 ofremoving
![]()
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."
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 wouldhave
to support a
return
![]()
home
for W."
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 inrespect
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."
Reardon,
the following interchange took place:
"MissReardon:
And when you wrote your
report,
your primary concern was about the impact on W and on that family that a move would
have.
MrHatter:
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.
Hatter
enlarged on this point as follows:
"She will, no matter what the adopters try to do to protecther
from
him,
![]()
have
the potential of learning what's
happened,
![]()
how
this whole process took place.
My concern would be that that then will causeher
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."
Children's
Guardian
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 [2013]
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.
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.
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 obviousreasons,
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 Ordershas
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 circumstanceshave
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 thereremain
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."
heading
"
Recommendations"
the guardian states: "I accept that
reunification
of W with
her
birth family should take place".
his
oral evidence Mr Madge
held
to the
revised
recommendation
that
he
had
made to the court.
Judge's interventions during the opening session
have
already set out.
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'.
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.
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.
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.
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.
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.
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.
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.
have
been raised.
Interpretation of the Court of Appeal decision
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) Thereason
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 threereferences
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)'.
He
points, in support, to part of my judgment when granting the father permission to appeal [
Re
H
[
2015]
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 affordedrespect
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.
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.
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.
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.
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
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.
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'.
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, wehad
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.'
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.
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.
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.
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'.
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].
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.
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.
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
'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 ….'
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 givehis
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".
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 tochild
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
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 thatchildren'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) [2007] 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) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141
respectively,
said this:
'The best person to bring up achild
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 mayregard
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."
relating
to
children,
there is no presumption in favour of a parent (
Re
G (
Children)
[2006] UKHL 43; [2006] 1 WLR 2305 and
Re
B (A
Child)
[2009] UKSC 5; [2009] 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.
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 significantharm?
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.
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 ofchildren
![]()
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
….'
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.
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.
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 achild
should be brought up within
her
family." [paragraph 87]
"… even if it were not a presumption thatchildren
are best brought up within their natural families …" [paragraph 88].
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.
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)
[2013] UKSC 33; [2013] 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
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) Whas
![]()
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 judgehad
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 byhis
care of the older
children);
e) Distress would be avoided if Wremains
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 affecther
'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 toher
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, thoughreal,
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 lastresort
or a situation where 'nothing else will do';
k) The fact that Whas
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 throughouther
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 authorityhas
a legal obligation to support
reunification.
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
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'.
have
very much
held
to that
requirement
and
have
striven to
hold
on to the judge's order unless satisfied to the contrary.
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.
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.
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.
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.
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.
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.
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.
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.
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:
Dame Janet Smith DBE: