Case No: B4/2008/2757; B4/2008/2755
Neutral Citation Number: [2008] EWCA Civ 1568
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT 
(HIS HONOUR JUDGE IBBOTSON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 11th December 2008

Before:

LORD JUSTICE THORPE
and
LORD JUSTICE JACKSON
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IN THE MATTER OF C (a Child)

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Ms J Elliot (instructed by Messrs Jepson & Co) appeared on behalf of the 1st Appellant “Mother”.

Ms E Callaghan (instructed by Messrs B & C) appeared on behalf of the 2nd Appellant “Father”

Mr A Hudson appeared on behalf of the 3rd Appellant Children’s Guardian.

Ms Armitage (instructed by Messrs Thorpe & Co) appeared on behalf of the 1st Respondent local authority.

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Judgment
Lord Justice Thorpe:

1.	There were contested care proceedings in the York County Court in relation to a child, D, a boy born on 8 February 2008, eight months old at the time of trial before HHJ Ibbotson in the early autumn of this year.  He heard evidence over five days beginning on 11 August 2008.  At the conclusion of those days of evidence there was not time for oral submissions so he adjourned, asking for written submissions.  Unfortunately, on behalf of the mother a challenge was made to the existence of findings made in earlier proceedings in 1999 before HHJ Hunt.  The judge very conscientiously investigated that challenge to discover that it was without any foundation, but it had the unfortunate effect of extending the period between trial and judgment, judgment being handed down on 20 October.  

2.	The case is unusual in that the local authority’s application for a care order was opposed not only by the parents but also by the child’s guardian.  The child’s guardian believed that a leap to the draconian care order to be swiftly followed by placement for adoption was unwarranted, and that these young parents deserved an opportunity for further assessment during a probationary placement.  So his case was that the judge should make an interim care order to enable a further assessment to be carried out by him whilst the baby was with his natural parents, closely monitored and fully supported by the local authority.  

3.	There were two experts in the case: Dr Quinn, the adult psychiatrist brought in to assess the father and Mr Wright, a clinical psychologist who was asked to assess the mother and the options generally.  They were jointly instructed and, as is not just customary but obligatory in these cases, they met or at least communicated to discuss their respective positions with a view to the production of a joint opinion.  The product of their collaboration was a substantial shift in Dr Quinn’s assessment of the father.  Before the discussion he had reached the opinion, based on reports made by colleagues at earlier stages in the father’s life and his own interview with the father, that he suffered from an anti‑social personality disorder.  However, having discussed the case with his co‑expert, he shared the more moderate opinion that the father did not suffer from such a personality disorder although he remained at risk of volatile emotional reaction to confrontation from authority.  

4.	The local authority were clearly unprepared for the guardian’s recommendation which emerged in his report some ten days before trial, and they endeavoured to deflect the judge from accepting that recommendation by a reply in which for the first time they raised five specific allegations of violent or threatening behaviour against the father.  So the case was fought on those battle lines.

5.	The judge’s order was the subject of an application for permission which he refused and each parent separately filed notices of appeal supported by full skeleton arguments, Ms Callaghan of 13 November for the father and Ms Elliott of 12 November for the mother.  Subsequently Ms Callaghan filed a second skeleton of 2 December, the local authority filed their skeleton in response on 9 December and the guardian filed not a skeleton but a position statement which is dated 8 December.  Mr Hudson, who represents the guardian, explains that the guardian elected to file a position statement rather than a skeleton argument because he has a continuing role and responsibility as D’s guardian within the placement proceedings.  Placement application has been the subject of directions given by HHJ Ibbotson in handing down judgment.  

6.	For the parents, Ms Elliott has made the running and has advanced seven specific criticisms of the judge.  Ms Callaghan, following, has adopted the seventh and added to it and herself advanced two further criticisms. Mr Hudson has adopted the submissions of both Ms Elliott and Ms Callaghan and has added an additional criticism of his own.  Ms Armitage has replied to all ten criticisms, and Ms Callaghan in reply has advanced two points and Ms Elliott a third, so we must make our assessment of these specific points.  

7.	The first advanced by Ms Elliott in my judgment does not run.  She has said that the judge fell into error in rejecting her written submission to be seen at tab E, paragraphs 8 to 10, in which she specifically asserted the need for a reassessment of the cause of injury to an earlier born child, R, when the findings in relation to that, the judicial findings, were made in January 2003 and were then followed by a confession from the male joint-perpetrator that he alone was responsible.  I conclude that the judge was entitled to take the line that he did for the reason advanced by Ms Armitage,  namely that there had been an intervening re‑assessment in a judgment by HHJ Walsh of February 2004, in which he had considered the effect of Mr Mitchell’s confession and for a number of well articulated reasons rejected it as exonerating the mother from responsibility.  Ms Elliott in reply has sought to say well there were further confessions by Mr Mitchell to the guardian in 2005, but that seems to me to come too late and not to be properly advanced as a reply point.  

8.	I see much more force in Ms Elliott’s second complaint: that the judge, when faced with expert evidence that broadly supported the parents rather than the local authority, broadly supported the guardian’s recommendation, finessed it by placing unwarranted emphasis on the fact that Dr Quinn had shifted his position radically in his oral evidence only four months after his written report.  That seems to me not a principled way of rejecting the tenor of the expert evidence.  It is commonplace for expert A to shift his opinion as a consequence of attending an expert meeting and as a consequence of the measured professional debate that invariably takes place at such a meeting, and so I conclude that there is a flaw in the judge’s rationalisation.  It does not seem to me that it was open to him to depart from the evidence of the experts or to diminish the force of the expert’s opinion in the way that he did.  

9.	An allied point advanced by Ms Elliott is that the judge too crudely summarised Mr Wright’s contribution by saying that he had contradicted the mother’s assertion that she had changed.  Read in its totality, says Ms Elliott, Mr Wright was overall supportive of the recommendation for cautious rehabilitation.  It seems to me that there is force in that criticism, although we are handicapped by having not a transcript of the oral evidence but a very poor note.  

10.	I am uneasy again about the judge’s rejection of the contribution made by the mother’s counsellor.  The counsellor had been interviewed by the guardian, who had carefully reported her views.  Her views were supportive of the mother.  The judge disposed of that by saying: 

“…Mrs Tapsell was not however called and I am therefore unable to form a first hand view of this important aspect of the case.”

11.	Whilst that is factually accurate, in fairness to the parents the judge might and perhaps should have said that the mother’s solicitor had made every effort to get a statement from Mrs Tapsell  but had been unable to do so because she was tied up with the grandparental responsibilities, and in those circumstances surely the judge was bound to place weight upon the guardian’s report of the professional work done by the counsellor.

12.	Similarly I have some anxieties as a result of the way in which the judge dealt with the potential of the grandparents on both sides.  The grandparents had initially advanced the offer to care themselves -- the maternal grandparents were already caring for three prior-born children of the mother -- but they had been rejected and accordingly they had become part of the support package that the guardian identified for the purposes of future assessment.  The judge dealt with that by saying:

“None of the grandparents gave evidence and I therefore had no opportunity to form my own impression”

13.	Ms Elliott says of that that they were only not called by either parent because they had been carefully assessed by the guardian and he had fully reported their position.  If the judge was not satisfied with that, he could have and should have given an indication which would have allowed the parents the opportunity  of calling them to the witness box.

14.	Then both parents’ counsel are very critical of a passage in the judgment at page 8 in which the judge:

“In the end, the central issue on the evidence as it stands is whether rehabilitation can be safely managed and it seems to me that, regardless of what I decide, the [local authority] decision that it cannot is a decision well within the range of reasonable responses”

15.	The criticism is of course that that, being as the judge rightly said the central issue, was a question for the judge to decide, and, in deciding it, whether or not it was within the range of reasonable local authority responses was irrelevant.  I am not founding myself on that criticism because I believe that the judge may well have intended the cited passage as no more than part of his review of the conduct of the local authority, which had been much criticised for a premature conclusion that adoption was the only course.  

16.	Perhaps of greater weight is Ms Callaghan’s criticism that the judge at page 4 of his judgment recorded the local authority’s case as extending to legitimate grounds for concern as to the stability of the future relationship between the parents.  Ms Callaghan makes the telling point that the local authority had never criticised or impugned the future security of the relationship, and that much is plain from their written submissions, paragraph 2 at page E45.

17.	Finally it seems to me that there is force in the observation that the local authority’s late production of the five allegations of threats or violence on the part of the father during the interlocutory period should not have been accepted by the judge as he did, given the fact that there had been no contemporaneous recording of these incidents in any of the child protection case conferences, particularly the case conference record of 9 January 2008, which recorded the incident of 18 December but without any criticism of the father whatsoever; and it is further said that the case conference report  of 17 June made no criticism of either parent, despite the fact that the fifth episode advanced belatedly by the local authority was said to have occurred in April.  

18.	That absence is also to be weighed with the positive evidence advanced by the local authority that the parents had acted in full partnership and cooperation during the interlocutory period.  If the local authority had genuinely had fears as to the father’s intimidation, threats, potential violence to individual social workers, that would not have been their stated positive case.  It does seem to me that there is considerable force in those two points and, assuming that they were advanced to the judge below as they have been advanced to us, they should surely have led to a less critical acceptance of that aspect of the local authority’s case.

19.	But in the end it seems to me that the judgment is open to criticism on two other and very fundamental grounds.  First this was not a case in which the judge was being asked to consider the stark alternative between care order and no care order.  He was being asked to consider the choice between an order which would direct this child into some non-biological family without further ado save the completion of placement proceedings.  The alternative was to give this young couple a measured trial, a period of probation.  At the end of it they might well fail, in which case of course the only alternative would be placement for adoption.  But if they succeeded, the advantage to this child was overwhelmingly obvious: the chance to be brought up by biological parents. The guardian was only asking for four months, at the end of which the child would only have been twelve months of age.  It is not a case in which there would have been such delay as to prejudice adoption if the experiment failed, and that categorisation of the issue is simply not to be spelt out plainly from the judgment handed down. 

20.	The second criticism which seems to me to be additional and fundamental is that the judge’s reasons for rejecting the guardian’s recommendation are not to me sufficiently either apt or convincing.  He advances seven.  Point 1: the lack of significant change in mother’s attitude to the injuries.  Well, that was a point considered by the experts and the guardian and not thought to be sufficient in itself to stand in her path.  2 and 3 relate to the father’s medical history, and particularly the judge’s reservations, as he said, about Dr Quinn’s change of heart.  Well I have already covered that point.  It does not seem to me that it was open to the judge to finesse the evidence of Dr Quinn in that way.  The 4th reason: his doubts concerning the ability of the parents to work with social services over a sustained period.  Well, judges are free to entertain doubts but in the end must decide cases on evidence, and of course in a case where the evidence was full cooperation and partnership during the interlocutory period there must be questions as to the evidential foundation for the judicial doubt.  Reasons 5, 6 and 7 all go  to the grandparents’ capacity to deliver the monitoring and support role that the guardian had identified.  Each of those three paragraphs commences with an expression of judicial doubt. Again the same point holds good: what was the evidence upon which the judicial doubts were found, given that the guardian had made the essential assessment and was satisfied of their capacity?  

21.	So, for all those reasons, I reach the conclusion that the draconian conclusion and order rests on reasoning which is either inadequate or flawed, and I say that with no disrespect to a most experienced circuit judge who had prior knowledge of the family, having given a judgment in relation to a prior-born child of the mother’s.  I think that he was at a disadvantage in that the writing of his judgment was unnecessarily delayed, and he was at a disadvantage in that he had been unable to conclude the case in August with oral submissions from counsel.  

22.	I differ from him only in respect to the immediate future management.  It may well be that in the passage of the next few months the conclusion which the judge reached in October will emerge as the only realistic conclusion or alternatively a conclusion that will best advance the welfare of the child, but as we sit here today I am persuaded that the judge fell into error.  Accordingly I am persuaded that we should exercise a discretion afresh, and I am  persuaded that, given our responsibility to have regard to the welfare of the child as the paramount consideration, we should give the child at least the chance of being brought up by his natural parents.  Whether that will mature into a childhood  in his parents’ home or whether it will be but a brief experiment remains to be seen.  The guardian has given a lot of attention to the management of a short-term probationary assessment.  His detailed recommendations cover both a period prior to rehabilitation and a period thereafter: one month prior and then three months of following assessment.  Unfortunately the document has only gone to the local authority very recently, and I would therefore propose to allow the appeal; to set aside the care order; to write in its place an interim care order to the local authority; to give the local authority ample time to reflect on the consequences; to remit the case to either the York County Court or Leeds County Court for the attention either of HHJ Cliffe in York or HHJ Hunt in Leeds and, lest they be precluded from dealing with the case with the speed that it requires, I would say or such other section 9 judge as either of them may designate.

23.	That is the disposal that I would propose.

Lord Justice Jackson:

24.	I agree

Order: Appeal allowed