DAM (Children), Re, Court of Appeal - Civil Division, March 08, 2018, [2018] EWCA Civ 386

Issuing Organization:Civil Division
Actores:DAM (Children), Re
Resolution Date:March 08, 2018
 
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Case No: B4/2017/3178

Neutral Citation Number: [2018] EWCA Civ 386

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL FAMILY COURT

HHJ Tolson

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/03/2018

Before :

LORD JUSTICE MOYLAN

LORD JUSTICE PETER JACKSON

and

LADY JUSTICE ASPLIN

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Mark Twomey QC and David Boyd (instructed by Duncan Lewis Solicitors) for the Mother

Alison Ball QC and Nerys Wyn Rees (instructed by Legal Department) for the Local Authority

Catherine Piskolti (instructed by Matwala Vyas LLP) for the Father of M

Michael Bailey(instructed by Myra Pieri & Co Solicitors) for the Children's Guardian

Hearing date: 22 February 2018

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JudgmentLord Justice Peter Jackson:

Introduction

  1. This is an appeal from orders made by HHJ Tolson on 3 November 2017 at the Central Family Court in relation to three children: D (a boy aged 12), A (a girl aged 9) and M (a girl aged 5). The appellant is the children's mother. The other parties, who oppose the appeal, are the local authority, the father of M, and the Children's Guardian.

  2. In M's case, the order was a child arrangements order for her to live with her father, together with a supervision order. On the eve of the hearing, the mother decided not to pursue an appeal from that order, and that appeal will be dismissed by consent. The outcome for M however remains of some relevance to the position of D and A.

  3. The orders in relation to D and A were care orders on the basis of a plan for them to remain in foster care with fortnightly maternal and sibling contact. The mother maintains her appeal in relation to these children. On her behalf, Mr Mark Twomey QC and Mr David Boyd make fundamental criticisms of the judge's approach. They argue that he was wrong to find that the threshold for intervention had been crossed, that he did not carry out a proper welfare assessment, and that had he done so he could not (or at least should not) have concluded that care orders were appropriate. They seek to make good these arguments by referring to the way in which the judgment is structured. They rely on both limbs of CPR 52.11(3), submitting that the decision was wrong and that it was unjust because of a serious procedural irregularity.

  4. On 21 December 2017, Lord Justice Moylan granted permission to appeal, saying: ``I have decided to grant permission to appeal because the structure of the judgment and the absence of any statement from the local Authority (or the Guardian) in response (pursuant to PD52C paragraph 19) mean that I consider that I am regrettably unable at present properly to assess the prospects of the proposed appeal succeeding.''

    The decision-making process

  5. Judges hearing care cases in the Family Court are engaged in one of the most difficult of all judicial tasks. The decisions are of huge significance for children and their families. The evidence is often difficult and distressing, and the level of emotion high. Achieving good case management and timely decision-making, not just for the children in the individual case but for all the children who are awaiting decisions, is a demanding challenge for the specialist judges who undertake this work.

  6. In every care case, the Children Act 1989 and the Human Rights Act 1998 require the court to address a series of questions. What are the facts? Has the threshold been crossed? If so, what order is in the child's best interests? Is that outcome necessary and proportionate to the problem? There is much authority from the appeal courts about each of these questions but at its simplest every valid decision will answer them.

  7. It is in the judgment that the judge's reasoning is found. There is no one correct form of judgment. Every judge has his or her own means of expression. Different cases may call for different types of judgment. Some judgments will be given at the time and others will be reserved. What is necessary in every case is that the judgment should be adequately reasoned: Re B-S [2013] EWCA Civ 1146 at [46]. That is a matter of substance, not of structure or form: Re R [2014] EWCA Civ 1625 at [18]. The judgment must enable the reader, and above all the family itself, to know that the judge asked and answered the right questions.

  8. This is not to say that the structure of a judgment is irrelevant. A judgment that lacks structure or is structured in a confusing way makes the judge's reasoning harder to follow and may raise the possibility that the process by which the decision was reached was faulty. Inevitably, that increases the possibility of an appeal.

  9. Against that background I come to the facts of the case, the judgment, and the grounds of appeal.

    The facts

  10. The mother, now aged 40, had an unsettled childhood. She was adopted as a baby and was herself the subject of care proceedings at the age of 13. She has had six children, the first born when she was 17 and the second the following year. She experienced mental health difficulties and was using drugs. When she was aged 22, she had a third child and at that point all three children were removed from her care. The older two were adopted and the third placed with his father.

  11. By 2006, when D was born, the mother's position had somewhat improved. The local authority remained concerned about her mental health and issues of domestic abuse, but intervention seemed to have worked and a residence order was made in her favour. D's father, whose identity is not clear, has had no involvement in his life.

  12. In 2008, A was born. Her father is a Brazilian, now living in Brazil. He was represented at the hearing before the judge, but has not been involved in the proceedings since.

  13. In 2010, the health visiting service made a referral to social services. They were concerned that A had never been seen by health visitors and that D had not been seen by professionals since late 2008. The children had not been immunised. An initial assessment was closed incomplete because the mother would not participate. The concerns of the health visiting service continued into 2011.

  14. In 2012, M was born. At the time, the mother was living with M's father (to whom I will from now on refer as the father), but they separated in 2014, with the father continuing to see M when the mother allowed it.

  15. After the birth of M, the mother continued to decline health visiting and assessment but no further action was taken.

  16. In January 2014, the mother withdrew D (8) and A (5) from school, and for the next 3½ years they remained out of school, only returning when they moved to foster care.

  17. In March 2014, a referral was made by a children's hospital who were worried that the children may have inherited HIV or another a blood-borne condition from the mother. She was unwilling for the children to be tested and again declined to take part in a social services assessment.

  18. In July 2016, the education department referred the children's absence from school to social services. Again, the mother refused to accept a home visit or an assessment.

  19. Matters came to a head as a result of the mother preventing the father from seeing M (then 4), leading to him issuing an application for a child arrangements order in December 2016. The Cafcass safeguarding report flagged up the problematic history, and the court directed a welfare report under s.7. Again, the mother refused to cooperate with the assessment and she...

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