Case No: B4/2008/2986

Neutral Citation Number: [2009] EWCA Civ 959
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
(HIS HONOUR JUDGE RUNDELL)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 10th July 2009

Before:

LORD JUSTICE SEDLEY
LORD JUSTICE TOULSON
and
MR JUSTICE BODEY
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IN THE MATTER OF C (Children)

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Ms R Kirby (instructed by Gillian Radford & Co) appeared on behalf of the Appellant mother.

Mr P Lopez (instructed by Messrs Thursfields) appeared on behalf of the Respondent, the local authority.
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Judgment
Mr Justice Bodey:

1.	This is a mother’s appeal with the leave of a single Lord Justice against a care order in respect of her children, made by HHJ Rundell on 10 October 2008 with judgment being delivered on 16 October 2008.  By way of the court’s approval of the care plan, contact was to take place between the children and the mother four times a year.   That is also appealed, or perhaps I should say challenged.  There is a further appeal in respect of injunctions made by the judge sitting as a High Court Judge on the same day, when he restrained the mother from contacting the children except in accordance with agreed contact arrangements, or from approaching at any time the address where they lived with their foster carers, or from approaching them at school.  Those injunctions were to run until each child should respectively attain the age of 16 years.

2.	The appeal has been argued by Ms Kirby on behalf of the mother and opposed by Mr Lopez on behalf of the local authority.  The Children’s Guardian has put in a skeleton argument which supports the local authority in opposing the appeal.  But counsel for the Children’s Guardian has been excused attendance.

3.	The children concerned are V, who was born on 19 March 1998 and is now therefore 11, and E, who was born on 27 November 1999, who is now therefore 9.  The children lived with their mother, whom I shall call “the mother”, until 1 January 2008 when they were removed from her care for reasons to which I will come.  They have lived with the same foster carer since more or less that date.  The father of the children, whom I will call “the father”, does not feature in this appeal nor has he featured much in the lives of the children.

4.	The mother is now aged 38 and had one earlier child, D, who was born in 1989 and adopted in 1990.  She and the father (ie of V and E) were married in December 1995.  The marriage was not successful and the parents separated in May 1999 when the mother was about three months pregnant with E.  There followed private law proceedings between the parents as to residence and contact, which were resolved on 27 July 2001 by way of a residence order in favour of the mother and contact in favour of the father.  At some point the father, who is American, moved to the USA and for a large number of years did not see the children or have any contact with them.  The reasons for this are disputed as between the parents and are irrelevant for the purpose of this judgment.

5.	There was nothing to suggest that all was not well with the mother’s parenting of the children from the time of the parents’ separation until about the spring of 2007.  The children were apparently happy and well cared for by her.  They were not known to the local authority and their school attendance was good.  At or about the end of 2006, however, the mother met and commenced a relationship with a man, MH.  He had a criminal conviction dating from March 2006 for an offence of common assault on an ex-girlfriend for which he received a sentence of two years’ imprisonment, suspended for a year.  The mother accepts in one of her statements that the ex-girlfriend who had been the victim of that assault had spoken to her and warned her that MH had beaten her, the girlfriend, up.  

6.	At the end of April 2007 circumstances arose where the mother telephoned the police, saying that she had had an argument with MH and that he was refusing to leave the home where she and the children were living.  However, those particular problems which led to that particular situation must have been resolved, in that during May 2007 the mother herself visited the United States in order to chase up the father in court there over unpaid maintenance.  She left the two children at home in the care of MH.  On her return she found bruising to E which she reported appropriately and she later said in a statement to the police that this looked like a handprint.  She gave detailed commentary on what she had seen to give her that point of view.  She also told the police that both the children had told her that MH had hit them.  Interviewed separately by the police in ABE interviews, each of the children said that they had been smacked by MH.  E said that he was “smacked loads”.  V said that he had been thrown down on a bed.  One of the children said that they had been called “spoiled brats” by MH.

7.	On 31 May 2007 the mother telephoned the police complaining of harassment by MH and telling them that he had a record for beating up girlfriends, also alleging that he was a paedophile.  

8.	On 1 June 2007 the mother called the police complaining that MH had threatened to get her and to break into her house. When MH himself was interviewed by the police at around this time about what the children had said, he minimised his conviction in respect of his ex-girlfriend and stated that he had only given V and E a light tap on the hand when they had misbehaved.  It is fair to say that the police took no action in respect of the conduct which MH had been alleged to have committed towards the children, or about anything else which the mother is reported as having said about him.

9.	On 21 June 2007 social workers and the police visited the mother at home. They advised her that she must not allow MH to have any contact with the children.  The judgment under appeal states that she accepted this and agreed to comply with the advice.  

10.	However, on about 7 July 2007, when the police attended the house in relation to the mother’s above mentioned complaint of harassment by MH, she told them that she and MH were now back together again.  She said that he was living there with her and the children and that they were going to “make a go” of their relationship.  She also told them at around this time that the bruise to E which she had observed on her return from the USA had in fact happened when he had fallen off a bike.

11.	On 27 July 2007, when the police and children’s services met with the mother, she told them that her relationship with MH was now all over.  According to the judgment under appeal, she said that during this recent period MH had been seeking to control her by threatening to give false information to the local authority about her which might have resulted in the children being taken away from her.  One imagines that this was to explain her changing her story about the bruising to E.

12.	The local authority was obviously concerned for the welfare and safety of the two children.  They determined to place their names on the child protection register and to issue proceedings for care orders.  Such applications were filed on 20 August 2007.  That is the date (it is agreed) by reference to which the local authority had to satisfy the court that the section 31 “threshold” for state intervention was met namely (putting it very much in shorthand) that “… the child concerned is [ie was ] suffering or is [ie was] likely to suffer significant harm … etc etc”.  From then until the final hearing in October 2008, the legal status of the children was that they were the subject of successive interim care orders.  To start with they were living at home with the mother under those orders, which continued to be the case (without apparent further difficulties) until the events of 1 January 2008 to come. 

13.	On 25 August 2007 there was a first hearing before the Family Proceedings Court of the recently issued care proceedings.  On that day an interim care order was made without the matter being contested on the basis of an interim care plan for the children to continue living at home with their mother. She signed a working agreement with the children’s services of the local authority within the terms of which she accepted that MH was to have no contact with the two children.  However, as the judge found in the hearing under appeal, she did not comply with this.  MH continued to be in contact with her and the children and she complained to the police again of his harassing her.  On 6 September 2007, for example, when the social worker visited the mother’s home, the mother said that MH was in the garden, having come round to go with her to her solicitors to make a statement. 

14.	On 11 September 2007, the case having been transferred by the Family Proceedings Court to the County Court, there was a hearing before HHJ Rundell.  A further working agreement was signed, reinforcing the previous one, to the effect that MH was to have no contact with the children and no access to the family home.  The judge says in his October 2008 judgment under appeal that this agreement spelt out to the mother very clearly that if there was any breach, the children would be or would very likely be removed.  

15.	On 9 October 2007 HHJ Rundell heard a contested interim care order hearing, still on a care plan that the children would be living at home with their mother. The outcome was that an interim care order was made, and the mother’s application to discharge the Children’s Guardian and the children’s solicitor on the grounds that they were biased against her was refused.  The order contained a recital: 

“Upon the court having decided that [MH] should not be allowed in the home”

I do not for my part read that as being in the nature of any kind of injunction, but more as clear strong advice.  

16.	The judge says in his judgment that at that time in 2007 it was the hope of all concerned that the mother could safely bring up the children, who had by then never been out of her care, given the necessary support and help which the children’s services would provide.  

17.	On 27 December 2007, following earlier reports that MH was still on the scene, there was an unannounced social work visit to the family home.  The children told the social worker that the mother was in the caravan in the garden with MH.  MH was not actually seen by the social worker on that occasion, but the judge accepted as a fact that what the boys had said was correct, saying: 

“…I ask rhetorically why should they say that if it was not true.”

18.	On 1 January 2008 an anonymous telephone call was received by the children’s services to the effect that MH was again living in the house with the children, and also that the mother had a cousin of hers living in a caravan in the garden.  As a consequence, the manager of the emergency duty team decided that there should be visit to the property and that if MH was present then the children should be removed.  So the police and social services visited the family home.  They found MH there.  Also in the house was M’s cousin, who was on bail in respect of criminal allegations of violence.  The social workers had previously advised the mother that she should not let him stay at the house but she had done so, saying that he had nowhere else to go.  

19.	In a judgment of March 2008, to which I shall come, the judge heard evidence about this incident (of 1 January 2008) from the mother and from a social worker, Sue Bokaian.  He preferred Ms Bokaian’s evidence to that of the mother where there were differences, a decision which is unassailable in this court.  What Ms Bokaian said in her statement before the judge was that she had gone round to the property with a police officer from the Child Protection Unit as well as two uniformed officers, who initially remained in a police car parked outside the back of the property.  When she and the police knocked on the door, the mother became verbally aggressive, and she did not let them in.  She continued being both rude and aggressive and was quite impossible to reason with.  Ms Bokaian was concerned that the children who were behind the door were clearly hearing what was going on and were becoming involved in the altercation, because they were themselves being verbally abusive, copying their mother’s language.  They were, for example, saying things like “fuck off” and then giving the name of the officer from the Child Protection Unit, which the social worker says was similar to what the mother was saying. Accordingly Miss Bokaian she went round the corner to get the police in the car to come to help.  When those police officers arrived, she says that they tried to calm the mother down but she did not cooperate and more police were requested to attend.  By this time the police decided that they needed to handcuff the mother because she was so volatile.  

20.	When Miss Bokaian succeeded in entering the property, both children were very rude and aggressive to the police.  They did not appear to have any respect for authority.  V was particularly aggressive, lashing out at one of the police officers and throwing something at him.  It was after this, when the police searched upstairs, that they found MH and the mother’s cousin.  In view of the volatile and highly charged situation, Miss Bokaian had significant cause for concern for the welfare of the two children.  She found herself quite unable to explain the situation or discuss it with the mother, in view of the mother’s heated demeanour, and accordingly the children were removed and placed very temporarily with foster carers.  Following that, they shortly went (within a few days) to their present foster carers where they have lived ever since.

21.	Complaint is made on this appeal about the decision to remove the children on that day.  It is said to have been a gross overreaction and a breach of the mother’s Article 6 and Article 8 rights.  It is put that the local authority had an interim care order in its favour, but on a care plan of the children’s living at home: therefore they should not have removed the children without first obtaining a court order permitting them to do so in variation of their interim care plan.  I am afraid I do not agree with that submission.  The mother had been found to have allowed a man in the house who presented a risk, a risk which was all the greater for reasons to which I shall shortly come.  She knew of his ability to be argumentative and violent and she had agreed to keep him away.  Her response to a reasonable social work check was a gross overreaction, which took place in front of the children and had the effect of hyping them up and involving them in an unpleasant scene.  It was clearly an overheated, volatile and risk-laden atmosphere for two young children: actually, emotionally abusive.  In my view, the social worker cannot be criticised for taking the view that the children’s interests demanded that they be in a place of safety and calm, whilst everything had time to settle down and arrangements were made about the two men.

22.	In any event the matter was in court on 2 January 2008, the next day, when there was thus an opportunity for the local authority’s decisions and actions to be criticised and, if appropriate, ordered to be reversed.  In fact, interim care orders were continued on that day without opposition and ultimately until a contested interim care hearing on 14 March 2008.

23.	The mother was understandably very distressed about the removal of the children.  Unhappily she reacted in ways which were quite inappropriate, including making threats to the social workers.  She was seen near the school and it was said near the foster carer’s home.  She and MH stopped taxis which were transporting the children to and from school, upon the basis that they had no child seats.  At contact, she handed across to the children mobile phones disguised within bars of chocolate.  

24.	On 8 February 2008 at a further hearing before HHJ Rundell, both the mother and MH gave undertakings not to approach the foster home nor the school between the hours of 8am and 4pm, nor to approach the children whilst they were being transported to and from school.  

25.	On 6 March 2008 at about 12.20am the mother phoned the police to say that she had been involved in an argument with MH and beaten up by him.  She said that MH had pushed her to the floor and that, when she tried to get up, he had elbowed her in the cheek.  The police came and arrested MH.  Therein, surely, lay supportive evidence as regards the sort of risk which the children were exposed to with MH being on and off the scene in the run up to 20 August 2007, being the threshold date.

26.	On 14 March 2008 there was another contested interim care order renewal hearing before HHJ Rundell when the interim care order was extended and various directions were given, including that the final hearing be set down for 6-10 October 2008.  That hearing (on 14 March 2008) was a full interim care hearing, which took two days and involved oral evidence.  In his judgment the judge recorded that the mother now accepted that MH presented a serious risk of harm to the children and he noted her saying that she had now permanently separated from him.  He said (a) that the mother needed to show for a period of at least three months that she had the fortitude to remain apart from MH, and (b) that she must cooperate with the local authority in their reasonable requirements.  He made clear that without such cooperation there could not be proper monitoring of the children were they to be in her care, and that professionals and the court would not then be able to conclude with confidence that it would be safe for her to have the children home.  He stated that if the mother was true to her word in severing all association with MH and engaging in a psychiatric assessment (which he felt was clearly necessary in the light of her presentation and the evidence then available) then after about three months, it could be possible to return the children to her care.  That was plainly by inference the judge’s hope and wish.  His subsequent finding at the October 2008 hearing in this respect was, however, that the mother continued to associate with MH and that: 

“… yet again, having for the third time agreed to the necessary psychiatric assessment, she subsequently refused.”

27.	On 4 April 2008 E and V ran off from school.  V was quickly found and returned, but E ran to the mother’s home.  A few days later the social worker gave evidence that V had told him that his mother had previously told him during contact to run away from the school taxi.  The mother did not return E to school, but instead barricaded herself and E upstairs at home.  She told the police when they arrived that, in order to let E go, she would want reassurance that the children would be moved from their foster carer, with whom (on the basis of things that the children were saying during contact about the foster carer) she was not satisfied.  Eventually after a scene, the mother was persuaded to let E leave the house.  By this time V had been brought by taxi and observed what was going on.  The mother was arrested on coming out and charged under Section 49 of the Children Act 1989, which creates the offence of “abducting a child in care”.  She was bailed to MH’s address.  Later on in this sequence, she was acquitted of that Section 49 offence.

28.	In the aftermath of this incident the local authority suspended contact so as to give time for everything to settle down again.  The mother was told a few days later that contact would recommence on 15 April 2008, that is to say, eleven days after the children’s running away from school.  But she said that she was not prepared to see the children until they were returned to her care.  Later, when the local authority said that they would require contact to be with each child separately, so as to make it easier for the local authority to guard against any possible further undermining of the children’s placement, the mother said she was not prepared to see them on those terms.  In the event she did not see the children again until 29 April 2008.  In the meantime, a working contact agreement had been sent to the mother; but she declined to enter into it.

29.	In June 2008 the father returned from the USA to this country.  Thereafter he saw the children on about 13 occasions, having not seen them, as I have said, for very many years.  He had of course been served at some point with notice of these care proceedings.  He was assessed as to whether he might be a possible carer for the children; but this assessment was not positive and in addition there were one or two concerning incidents during his contact, the precise details of which do not matter.  He returned to the USA in July 2008.

30.	In early June 2008, during contact, the mother got V, then aged ten and a quarter, to sign an application form in his own name for the discharge of the then current interim care order.  He later told the social worker that he had not wanted to do this.  It does not appear that anything more came of it, but the unsettling message which it must have given to V is patent.  E was by now saying that he did not want to see the mother.  In all the circumstances, the local authority decided that in the interests of the children’s welfare, it was necessary to suspend contact.  

31.	On 13 June 2008 the mother made an application in person to HHJ Rundell for contact.  But that application was dismissed, with an interim order being made under Section 34(4) of the Children Act 1989, permitting the local authority to withhold contact.  The mother attended that hearing in the company of MH. The guardian told the judge that she had quite recently received a telephone call from the mother giving her, the guardian, a substantial list of the children’s possessions which the mother said she wanted removed from the children as a punishment for recently having said that they did not wish to see her.  

32.	A review hearing took place on 26 June 2008 (being three months after the judge’s observations in his judgment of 14 March 2008 about seeing how the mother would get on as regards (a) keeping apart from MH and (b) cooperating with the local authority’s wish for her to have a psychiatric assessment).  The mother did not attend this hearing.  HHJ Rundell recorded a further incident which was said to have taken place three days earlier on 23 June 2008.  He said, referring back to the hearing on 14 March 2008: 

“It was made clear that, were the mother prepared to engage in various respects which I set out in the judgment that I gave, the matter would be reconsidered [in other words, the question of where the children should live].  This hearing was fixed for such reconsideration.  Regrettably, not only has the mother not engaged as we hoped she would, but her behaviour has deteriorated, so much so that now I am told that earlier this week she was selling the children’s toys off in the street along their route to school.”

33.	Subsequently in his judgment at the final hearing on 16 October 2008, he recorded that during that hearing the mother denied selling any of the children’s toys.  But he went on: 

“Maybe she has not [sold any of their toys] but she clearly threatened to do so and the children were aware of that threat.”

That was seemingly based on the children’s telling the social worker that they wanted to see the mother so as to ask her not to sell their toys and for the toys to be given to them back.

34.	HHJ Rundell also recorded during the final hearing the mother’s accepting that she had on occasions threatened to snatch the children.  His judgment says: 

“She still holds to that view and when pressed she said, and I quote, ‘I have little respect for people who break my human rights’ …”

35.	On 10 September 2008 the mother was referred to the Crisis Resolution Team over concerns about her mental health and possible suicidal thoughts.  By now there had regrettably been no contact from early June 2008, which had been sanctioned by the court in the light of the mother’s non-cooperation with a contact agreement, even if it did contain a (probably negotiable) provision about her not taking photographs during contact.  However, arrangements were made for contact to take place in September 2008, when the children were pleased to see their mother and the contact went well.

36.	The final hearing took place, as I have said, before HHJ Rundell over five days between 6 and 10 October 2008.  The mother represented herself, which she has done at times during the proceedings.  At other times she has been represented by solicitors and counsel.  She had apparently parted company with her lawyers, or they with her, in the early part of September 2008.  The transcript of the pre-trial review makes it clear that she could have had legal representation for the hearing; but she wanted one particular solicitor to represent her and one only.  Why he did not represent her is not revealed in the case papers; but the fact is that she represented herself.  The outcome of the hearing is set out in the first paragraph of this judgment.

37.	It was sometime thereafter on a date in late October or early November 2008, that the mother was acquitted by the magistrate’s court of the offence under Section 49 of the Children Act 1989 relating to the incident on 4 April 2008.  One does not know how or why the magistrates came to the decision they did, but they of course have to apply a different standard of proof, namely the criminal standard and not civil standard.  But there it is.  The mother was acquitted.

38.	That is all I need to say about the background.  Ms Kirby, who has argued her client’s case valiantly before us, raises a number of points of complaint and criticism in a long series of extended Grounds of Appeal supported by a substantial Skeleton Argument.  

39.	First and foremost, she argues that as a matter of law the “threshold” in this case was not met.  I am not sure that it is a matter of law, but certainly she can submit that as a matter of judgment it was not met.  She says the judge got that judgment “plainly wrong”, failing to take on board the good parenting by the mother before the arrival on the scene of MH.  He got the balance skewed between the “positives” and the “negatives” as they existed as at 20 August 2007, the key date, being the date of the issue of the proceedings.

40.	Pausing there for a moment, Ms Kirby supports that argument by a sub-argument (which was not in her Grounds of Appeal nor in her Skeleton Argument) to the effect that the judge had been “drip-fed” false information during the case from early stages, which effectively poisoned his mind in an insidious way against the mother.  She took us to the social worker’s affidavit dated 21 August 2007, which had a number of inaccurate statements and errors in it. Those were, for example, that the local authority had been involved with the mother since 2003; that the mother had a propensity to move addresses; that the mother had a criminal record, including for violence; and that the children had poor attendance records at school for unjustified health reasons.

41.	Mr Lopez for the local authority realistically accepts that for some reason those items of information, save for the fact that the mother does have a criminal record, were in error.  I should add that the criminal record which the mother does have, to which we were taken, was very old by the time this case was being considered.

42.	We heard that argument about the wrong information in that affidavit, although it was not in the Grounds of Appeal.  But on a perusal of the various judgments and the overall history of the case, I am totally unable to find that those items of wrong information acted in any significant way whatever on the judge’s mind or influenced any of the process against the mother.  I should not leave this point, however, without deprecating those various inaccuracies and errors concerned. Although the affidavit was apparently prepared urgently, it is essential that local authorities get basic background information right.  There was no excuse for saying, for example, that the mother had been known to the local authority since 2003, when she had not.  Errors of this type create the mischief that they fuel some parents’ perception that the local authority is “out to get them” by fair means or foul and to foster a “them and us” dynamic, which is extremely harmful in these cases. 

43.	Reverting to the question of the threshold, it seems quite impossible to me to say that HHJ Rundell was wrong (ie stepping outside the broad ambit of his judicial discretion) in coming to the view that the threshold was met.  He had seen this case on innumerable occasions and had had conduct of the substantial fact-finding hearing leading to the interim care order made in March 2008.  He was in my judgment quite entitled to incorporate those fact-findings from March 2008 into his final decision and judgment.  Nothing had happened in the meantime to put them in doubt.  Any re-run of those factual issues at the final hearing, absent some good reason, would have been unnecessary and wasteful of scarce resources.  Here was a situation, put simply, of a man who was in and out of contact at the material time with the mother and the children, in a relationship which was waxing and waning, who had a record for violence and had hurt the children in the past.  If the mother had taken up with him again, as she had done before, the children could well have suffered significant harm before sufficient protective measures could have been put in place.  If nothing else, there was a likelihood of significant harm in August 2007, in the sense of “likely” being used as “a real possibility, a possibility that could not sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”: Re H and R [1996] AC 563.

44.	Second, Ms Kirby says that the local authority overreacted in taking the children away from the mother on 1 January 2008, and that this breached the mother’s Article 6 and Article 8 rights.  I have dealt with this earlier.  It was not outside the judge’s discretion to form the view on all that he had seen and heard that the removal was a reasonable response, even though the care plan was at the time for the children to be living at home.  All decisions like this are fact-specific.  Thereafter the matter was in court the following day and under court review from then on until a full interim care hearing on evidence in March 2008.  At that hearing no possible complaint could in my view have been taken about a continuing interim care order being put in place.

45.	It is said in particular that the local authority should never have taken its decision to remove the children on 1 January 2008 without undertaking a risk assessment of MH.  It is submitted that local authority staff were superficial in saying simply that he should not be in touch with the children, without finding out more about him.  I am not persuaded by that argument.  It is not every situation even these days which requires a risk assessment.  There has to be a decision taken on a common-sense basis on the ground as to what is needful in the interests of the welfare of the children and of the family as a whole.  Here was a mother agreeing in August and September of 2007 that MH would not be brought into contact with the children.  She was warned, as the judge found, that a breach would or would be likely to lead to the children’s removal.  When MH was seen by the police, he denied hitting the children.  He put one bruise down to an accident on a bicycle and the other one down to his tapping the children when they were naughty.  If the mother’s case had been that she and MH wanted to live together, as distinct from her being prepared to say that she would not have him in her home, then a risk assessment might have been reasonable; but that was not the situation as presented to the local authority.

46.	Third, Ms Kirby says that the absence of contact between June and September 2008 was a gross breach of the mother’s and the children’s Article 8 rights, which effectively broke their relationship and led to the near inevitability of the final order.  Of course there should have been contact between the mother and the children, that is a given.  The judge was trying to achieve it.  He spoke in sorrow rather than in anger.  But he formed the view, as he was entitled to do, that a contact agreement should be entered into first and the mother would not co-operatively respond to this.  Then on 26 June 2008, when progress might have been made as regards contact, she did not attend the hearing.  There were the threats in August 2008 to remove the children from foster care, and on 8 September 2008 she told the advocates at the hearing of the pre-trial review that she would snatch the children.  I cannot for my part see any Article 8 breach in the particular circumstances with which the court and the professionals involved were faced on the ground.  It was sad for the mother and sad for the children that there was not contact over that period; but decisions had to be taken by those with a far, far greater feel for the case than this court could ever have; and those decisions were within the discretion of those professionals and that judge.  They were certainly not in my view plainly wrong, being in effect the only basis upon which this court could interfere.

47.	If only the mother had agreed to undergo a psychiatric report, which agreement the professionals and the judge failed to achieve, it may be that she would have achieved the return of her children.  But she did not and has not and I reject Ms Kirby’s submission that the requiring of a psychiatric report from the mother was all part of the “drip-drip process” to try to show that the mother was mad.

48.	Fourth, there is the submission that the final hearing was Article 6 unfair, particularly in respect of the calling of witnesses, the supply of a full set of documents to the mother and in respect of the judge putting alleged pressure on the mother in her conduct of her cross-examinations.  Indeed, the mother asserts that the judge was “nodding off”.  I have carefully read those transcripts of the hearing which have been obtained and put in our bundles.  In my view there is nothing in these points.  The judge “nodding off” is rightly not now pursued.  I say “rightly” because the transcripts show that he was throughout completely on the ball, intervening appropriately to try and help and guide the mother as a litigant in person; but at the same time ensuring that questions did not become speeches or debates, so that witnesses who had time pressure could get away and that the hearing would be completed in the one week which had been allotted.  No one could say in my view that the hearing was unfair from the point of view of the manner of the judge’s conduct of it.  Indeed, I would go further and say that it that was a model way of dealing with a litigant in person in these very difficult and emotive circumstances.  

49.	The fact that the mother was short of a few documents (recent assessment reports and others) emerged, as often happens, only during the course of the hearing.  The judge expressed himself completely unaware that she had not had all the documents, and it transpired on investigation that they had been sent to her former solicitors and not forwarded on to her.  But to rectify this, the judge ensured that the relevant documents were photocopied overnight and he checked with the mother in the morning that she was ready to proceed with her cross-examination.  He made an observation about the possible need to re-call the psychologist, which indicated that re-calling was a possibility if it should seem to be necessary in the light of the documents which the mother had not had from the outset.  In my judgment that was one of those things which inevitably with the best will in the world can accidentally happen in litigation and did not create an unfair hearing.

50.	There is a particular complaint that the local authority called a witness called Alison Barker when that person had not made a statement.  However, a reading of the transcript reveals that the local authority called that witness because the mother asked them to do so, and I find nothing in that criticism.  

51.	It is clear from the pre-trial review that the mother was indicating that she wanted to cross-examine any person who had made a statement against her and that she wanted to cross-examine the police officers.  It should be said that when the interim hearing took place in March 2008 (when the mother was represented by counsel and fact-finding took place) the police officers had been warned to attend court, but had then been stood down on behalf of the mother by the mother’s counsel.  In any event the evidence of Ms Bokaian, whom I mentioned, covered the evidence which the police officers would have had to deal with.  The police evidence added nothing to the facts which were known through that witness, and in case management terms the judge was entitled to leave it that.  If nevertheless the mother wished to call the police, whose evidence was repetitive of Ms Bokaian’s evidence, then he told her that that was something which she would need to arrange.  

52.	It is true that the judge said in the pre-trial review that if the local authority did not call a witness then they would not be relying on that witness’s evidence and that may have been unfortunate (although the judge would not have had the transcript of the pre-trial review when he embarked on the final hearing).  He did in fact put some weight on the foster carer as a witness of fact when the foster carer was not actually called, although recordings of things that she had said were in the bundle.  However, one has to look at the effect of that on the overall outcome.  In my judgment there is no conceivable justifiable suggestion that the hearing would or could have gone any other way as to disposal than it did.  The foster carer’s evidence as to fact went to alleged sightings of the mother at or around the foster carer’s home; but then there was no dispute anyway that the mother had been waiting around near the school in order to see the children; so the fact that she had a propensity to put herself near to the children was not a matter of any dispute.  As to the aspect of the foster carer’s capabilities as a carer about which the mother was complaining (based on things that the children had told her) I am clear that the foster carer was not a necessary witness.  The other professional evidence which the judge heard and accepted was that her (the foster carer’s) care of the two children was exemplary.

53.	In my judgment there is nothing in criticism that the final hearing in October 2008 was an unfair hearing.

54.	Fifth and last, Ms Kirby says that the whole process in this case from start to finish breached the mother’s Article 6 and Article 8 rights; that she did not have fair hearings generally and that decisions were taken which were overreactions, riding roughshod over those rights.  Thus it is put that the entire process is tainted and should be set aside.  I do not agree with this submission.  At every stage there was objective judicial control of the decisions taken by the local authority, with numerous hearings in the context of judicial continuity and with a Children’s Guardian in place.  As regards any alleged failures of due process or of substance, there could have been appeals to the Court of Appeal and there were not.  In my judgment the process, looked at overall, was a fair one as to procedure, substance and as to the discretions vested in the trial judge.  

55.	That completes all I need to say about the threshold and about the decision to make care orders.  As the judge said, the expert and other evidence for such care orders and the children’s need for consistent, calm parenting was overwhelming.  For them to remain with the current foster carer was consistent with the evidence of the social worker and the independent social worker and in accordance with the children’s strong wishes.  In any event, the mother had not and still has not undergone the psychiatric assessment which the judge regarded as necessary.

56.	As to contact, the judge approved the care plan which said that it would occur four times a year.  That was entirely structured on the basis of the expert evidence in the case and had the full approval of the Children’s Guardian.  It was accepted that this was very modest contact in the context of the background of these children having been brought up by the mother for all their lives until they were removed from her care, as indicated above.  But it was justified by the professionals on various grounds, which it would be superfluous to go into in this judgment, particularly the need for the children to be settled in their present environment and not in any way undermined by too-frequent visits with their mother.

57.	It would be impossible in those circumstances to say that the judge’s decision on contact was outside the ambit of his discretion.  In any event that issue is perhaps overtaken by the way things have gone.  The local authority has stated (through Mr Lopez) its support for the whole notion of contact as one would expect, but it says that the children are currently saying they do not want to go to see their mother.  It is very difficult with children of this age, but local authority staff will use their very best endeavours.

58.	It seems to me that that is where the matter will have to rest.  There is technically nothing which could be dealt with by way of appeal because everything was left as part of the care plan and if the stated contact is not made available, then the mother will need to apply for a contact order under the Children Act (with which jurisdictionally there is no problem) and the court will then decide as a matter of merit what should happen about contact in the light of the up-to-date situation.

59.	So far as the injunction is concerned (see paragraph 1) it is said that the sort of injunction which was imposed was unnecessary and excessive.  It may be that the judge could have taken a different view about the need for a very tight injunction, or a different view as to the duration of it, but as I have said he had greatly better acquaintance with this case than this court has and I do not find it possible to say that he was wrong.  The mother can always apply to have the injunction discharged when some time has passed and she is able to say to the court that there have been absolutely no problems. 

60.	Last, as regards the local authority’s pending committal application against the mother for breaking HHJ Rundell’s orders about contacting the children, as I understand it the alleged breach (and there may be others) took the form of her driving past the children’s school with a banner wishing one of the children a “happy birthday” and proclaiming that she loved the children.  Mr Lopez has accepted that this was some considerable time ago.  I would add my weight to that of my Lord, Sedley LJ in suggesting very strongly to the local authority that such committal proceedings would be over the top and are not now necessary.

Lord Justice Toulson:

61.	I agree both generally and specifically with the final comments of my Lord.

Lord Justice Sedley:  

62.	For all the reasons given by Bodey J, I too agree that this appeal fails in its primary object of oversetting the care orders.  These were properly made on adequate, indeed in many respects compelling, evidence and without procedural unfairness.  The proceedings before us have, however, not been entirely fruitless for the mother.  With the responsible help of Mr Lopez for the local authority, it has been accepted that to pursue the proceedings due to be heard in September for committal of the mother for contempt would be, to put it at its lowest, unhelpful.  It is to be hoped that the hearing date will be vacated at the first opportunity.  

63.	Secondly, although not constituting a ground of appeal, a disturbing tally of damaging inaccuracies identified by Ms Kirby was initially put before the court below in a social worker’s affidavit.  Although none of these found its way into HHJ Rundell’s careful judgment, they indicate a deplorably casual and inappropriately hostile approach to a sensitive and responsible task on which the fate of families can depend.  Mr Lopez has accepted that this ought not to have happened and ought never to happen again. 

64.	Thirdly, the hearing has highlighted the near-collapse of the present contact arrangements.  Why this is so and whether it is remediable is not a question for this court, as Bodey J has explained.  It may be that a return visit to the County Court for a formal order made on up-to-date evidence will be needed.  If so, it will not be forgotten that Mrs C is still the boys’ mother and that they are still her children.  

Order: Appeal dismissed