P (A Child), Re, Court of Appeal - Civil Division, April 11, 2018, [2018] EWCA Civ 720

Resolution Date:April 11, 2018
Issuing Organization:Civil Division
Actores:P (A Child), Re
 
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Case No: B4/2017/2741 + 2742/FAFMF

Neutral Citation Number: [2018] EWCA Civ 720

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT FAMILY DIVISION

MRS JUSTICE PARKER

MK16C80076

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11/04/2018

Before:

LORD JUSTICE MCFARLANE

LORD JUSTICE DAVID RICHARDS

and

LORD JUSTICE PETER JACKSON

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Between:

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Jo Delahunty QC, Michelle Christie and Paul Froud (instructed by Bastian Lloyd Morris Solicitor Advocates) for the 1st Appellant father

Darren Howe QC and Hannah Mettam (instructed by Towcester Family Law Practice) for the 2nd Appellant mother

Hannah Markham QC and Kate Grieve (instructed by Northamptonshire County Council) for the 1st Respondent local authority

Kate Branigan QC and Lianne Murphy(instructed by Borneo Martell Turner Coulson) for the 2nd Respondent child

Hearing dates: 22 March 2018

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JudgmentLORD JUSTICE MCFARLANE :

  1. This appeal arises from childcare proceedings in which all parties now accept the Family Justice system has manifestly failed to provide a sound resolution of the serious factual allegations that underpinned the application for a care order. Although the appeal proceeded by consent and, as a result, this judgment can be short, it is, nevertheless, necessary to explain something of the background before dealing with the basis of the appeal and, thereafter, offering some modest guidance in the hope that these highly unfortunate circumstances may be avoided in future cases.

    Background

  2. The child at the centre of the proceedings, a girl, T, was born in 2000 and was aged over 16 years at the time of the fact-finding hearing before Mrs Justice Parker which took place over the course of 12 days in the autumn of 2016.

  3. By the time her circumstances came to be before the court, T had become a most troubled and vulnerable teenager. At the time of the fact-finding hearing she was accommodated in a secure mental health facility for treatment under the Mental Health Act 1983.

  4. T had been born into a family where, from the very early days, there were significant problems with the capacity of both her birth mother and father to provide safe and adequate parenting. Her family circumstances have been described as ``chaotic''. T's home oscillated between time spent with her mother and, alternatively, her grandmother. The birth parents' relationship was apparently characterised by problems with alcohol abuse and domestic violence. Eventually, but only when T was over 6 years old, she and her young sister X were removed from parental care and made the subject of care proceedings. In due course care orders and placement for adoption orders were made in October 2006. Thereafter both siblings came to be placed for adoption and final adoption orders were made in October 2008.

  5. After an initial honeymoon period, it is plain that T's behaviour in the adoptive home progressively deteriorated. By the time of the hearing before Parker J, T had been diagnosed as suffering, principally, from an Attachment Disorder. She also suffered from depression and Post Traumatic Stress Disorder. More recently she had been diagnosed with Autism Spectrum Disorder. Irrespective of the allegations of sexual abuse, which are the focus of this appeal, by the close of the oral hearing before Parker J all parties accepted that the complex mental health difficulties of this vulnerable teenager were such as to render her ``beyond parental control'' with respect to her home with her adoptive parents sufficient to cross the threshold criteria in that respect under s 31(2)(b)(ii) of the Children Act 1989 [`CA 1989'].

  6. The Judge's findings that the threshold criteria were met, at least, on the basis of T being ``beyond parental control'' is not subject to challenge. At the end of January 2017 the Judge made a final care order with respect to T and her welfare is now provided for under the umbrella of that order until she reaches the age of 18 later this year. It follows that, whatever the outcome of this appeal with respect to the allegations of sexual abuse that T came to make with respect to her adoptive father (``the father''), the care order that was made with respect to T will stand and there will be no alteration in the current arrangements for her welfare.

    The sexual abuse allegations

  7. In the course of the family's deteriorating ability to maintain T within their fold, she left the family home in May 2014 for a short period of respite foster care. She then returned to the family home in late May and remained there until she was removed, with the agreement of her adoptive parents, to local authority accommodation under CA 1989, s.20 on 25 August 2014. The reason for her removal was that on that day T made allegations that ``my dad sexually abuses me'' to a mental health practitioner from the local CAMHS team who had been her key worker for some time. In the course of her discussion with the CAMHS worker on that day T gave more detail of her allegations both orally and in short written notes.

  8. As a result, T was removed from the family home. She underwent an Achieving Best Evidence (``ABE'') interview on 9 September 2014. The interview was of significance in the sense that T again made allegations of sexual abuse against her father both orally and by writing notes on paper provided for her during the interview.

  9. Some months later, in March 2015, T made further allegations which were, after referral to the police, repeated to a police officer. She declined, however, to undergo a second ABE interview. On the next day, in conversation with her then social worker, T purported to retract, initially fully and then partially, her sexual abuse allegations.

  10. The allegations made by T all relate to the 3 month period between May and August 2014 when she was back in the family home following the short period of respite care. Whilst the detail of her accounts changed, markedly, over time, in essence she asserted that she had experienced some form of overt sexual behaviour from her father two or three times per week during this period amounting to some 20 or 30 separate occasions. Whilst some, if not many, of these encounters had been limited to lifting of clothing and inappropriate touching, she asserted that on at least one occasion the father had attempted to penetrate her vagina with his penis.

  11. From first to last the father has denied behaving in any inappropriate way towards T. For her part, the adoptive mother (``the mother'') has not believed T's allegations and has supported the father's denial.

    The fact-finding process

  12. Unfortunately, and to my mind inexplicably, the state of affairs whereby T was accommodated under CA 1989, s.20 was maintained from August 2014 until the institution of care proceedings in April 2016, notwithstanding the clear and stark issue of fact created by T's allegations and the father's wholesale denial. Irrespective of the fact that T's mental health and presenting behaviour may have rendered it impossible for her placement in the family home to be maintained, the need to protect and have regard to the welfare of the younger sibling, X, who remained in the family home, required this significant factual issue to be determined.

  13. In July 2016 the local authority filed a Schedule of the ``threshold findings'' that it sought within the care proceedings. These were limited to the allegations made by T on 27 August and in the ABE interview on 9 September. They were limited in time to the period between the end of May and 25 August 2014 and set out five short specific descriptions of the type of abusive behaviour alleged. It was pleaded that the father had behaved in this way ``twice a week most weeks'' throughout the...

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