B1/2001/0690

Neutral Citation Number: [2001] EWCA Civ 1392
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORSMOUTH COUNTY COURT
(HER HONOUR JUDGE DAVIS)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                             Tuesday, 4th September 2001
B e f o r e :

LADY JUSTICE HALE

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P (Children)

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(Computer Aided Transcript of the Stenograph Notes of
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Applicant appeared in person.
MS J HABEL (instructed by Legal Services, Isle of Wight County Council PO30 1UD) appeared on behalf of the Respondent

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J U D G M E N T
Tuesday, 4th September 2001
1.	LADY JUSTICE HALE: This is an adjourned application for permission to appeal brought by the parents of two young children, JE, who is now nearly three and three‑quarters, and JO who is now nearly 21 months old. On 2nd March 2001 in the Portsmouth County Court Her Honour Judge Davies made care orders, permitted the local authority to refuse contact with both parents, dispensed with their agreement to the adoption of these children and freed the children for adoption.
2.	The application first came before me on 10th July 2001. I adjourned it because the court did not have the trial bundles or all the previous judgments given in the case and thus had only the limited information supplied by the parents who were acting in person. Because they were acting in person I gave them an indulgence that would not have been given to a professional representative. I now believe that I have all the information required and also the assistance of Ms Habel, counsel for the local authority.
3.	Since the adjournment in July the parents have consulted Dr William Thompson, a lecturer in human sexuality at Reading University and a forensic criminologist, who has produced a report, and they apply for permission to adduce that report as further evidence should permission to appeal be granted.
4.	The background to the case is set out in my judgment of 10th July and need not be repeated. In essence the die was cast in relation to the two youngest children during the hearing which took place in October 2000 over some days. On 13th October the judge made care orders relating to two older children of the family, A and S, and an order that a third child, M, should live with his father. There has been no appeal against those orders. A and S had made allegations of severe physical chastisement and also of neglect, in interviews which had been conducted and video taped in accordance with the memorandum of good practice. The third child, M, had also made statements which were consistent with those allegations.
5.	The judge heard the evidence, the views of the other witnesses about those allegations, the evidence of the parents and saw the videos and she found those allegations proved. She said this:
“I have no hesitation in rejecting the evidence of the parents where it conflicts with the evidence of others. The evidence of A and S is compelling despite there being no medical evidence or evidence of bruising other than one mentioned by Mr Henley [M's father]. I find that A and S were giving a truthful account of what had happened to them.” 
6.	There was also in the background a history of rejection of the mother's oldest child when he became a difficult teenager, which appeared to be being repeated in relation to A, if not also S. The judge had, as she put it, “no difficulty” in finding the threshold criteria proved on the basis of actual harm to the three older children and the likelihood of harm to these two youngest children with whom I am concerned.
7.	The original care plan for the two youngest children was that they should stay at home. There would be work done with the parents on their parenting skills and in acknowledging responsibility for the ill‑treatment of the others. However, the psychologist, Jenny Linden, instructed by the guardian ad litem, was so concerned that she wrote early in 2000 before her assessment report had been filed, suggesting that the plan should be to remove the two youngest children. This was not, however, done. The local authority with the support of the guardian maintained their initial plan and work was done with the parents by the local Child and Adolescent Mental Health Service. This work clearly went well in its own terms. Nevertheless, Miss Linden maintained her view. At the final hearing in October her view clearly prevailed. Unusually in care cases, the hearing of the evidence produced a dramatic change of view on the part of the local authority and the guardian. This was partly because the work done by the Mental Health Service was flawed and shown to be flawed, and partly because of the extreme levels of denial exhibited by the parents. The plan therefore changed. The younger children were removed on interim care orders with a clearly time‑limited and goal‑focused last chance for the parents to engage in more helpful work with the NSPCC and for the mother to embark upon therapy for her mental health problems.
8.	This did not happen. By the hearing in March nothing had changed. The judge put it this way:
“Despite the concerns that I have expressed about some aspects of the Local Authority's organisation in this matter, the nub of this case is at this stage these parents have not changed their position at all since the last hearing, or the hearing in October, despite having had ample opportunity, as I find, to do so. They have not demonstrated any recognition of a need to change. Even giving credit ‑ and I do ‑ for their ability to provide positive contact, their lack of movement, particularly having been given the opportunity to carry out further work in the time that there has been since last October is at the least very surprising.” 
9.	A further reason to endorse the care plan, which had by now become that the two younger children should be placed together for adoption, was the considerable change which had taken place in JE and to a lesser extent in JO since leaving home.
10.	The parents make a variety of criticisms of the way in which the case was conducted. The father very fairly acknowledges that some of these criticisms may not have had an impact upon the eventual result, but they have had an impact upon his perception of the justice of what has taken place, and of course that perception will be reinforced by the dramatic way in which things changed last October.
11.	First, they complain of a denial of a fair trial because of their concerns about Miss Linden's instructions and report. Clearly it was contemplated by the court's orders that this be a joint instruction but, as is usually the case, orchestrated through the guardian ad litem. Although the father complains that they never instructed their solicitor to agree to her being instructed, the reality is that that is now water under the bridge. She clearly was instructed with the cooperation of all parties. I have seen the instruction letter. No objection was taken on the parents' behalf to her identity or to the content of those instructions until after the report was received and its contents of course so unfavourable to the parents.
12.	The parents then applied to the district judge for permission to instruct their own expert. That permission was refused by District Judge Jolly on 3rd April 2000. The parents appealed to Her Honour Judge Davies and she heard that shortly before the final hearing. She too refused that permission but she did allow them to put specific questions to Miss Linden. I have not seen the reasons for her refusal but I am told that she said that it would be disproportionate, and there has been no appeal against that.
13.	All of this is in accordance with common practice in family cases. There is nothing unfair about a joint instruction to a suitably qualified expert. There is nothing wrong that I can find with the instructions given by Miss Linden. There is nothing wrong that I can detect in her qualifications as disclosed in the curriculum vitae which I have seen. That in particular demonstrates that she does have expertise in child psychology, while originally there was a concern that she did not. Although her conclusions are unfavourable to the parents there is no reason to suppose that she started her inquiries biased against them. The court does not allow any party to shop around for a further expert in such circumstances simply because they do not like the outcome of the inquiry. The court would have to weigh the likely benefits of a fresh investigation at a late stage against the damage from delay which would be caused to the children and especially to the youngest children which is where the real dispute in this case lay. Any difference between her views and those of the Mental Health Service team is explained by the difference in their roles. She was conducting an independent assessment and report; they should have been conducting a defined piece of therapeutic work with the parents. But in any event the judge heard them all and drew conclusions about them with which this court would be slow indeed to disagree, unless they could be shown to be perverse.
14.	The parents also complain about Miss Linden's and the local authority's access to the mother's medical records, and in particular to what she had said to psychiatrists and psychiatric services in the past. This is relevant to an issue about whether the mother did or did not say to Miss Linden that she had herself been the victim of some quite limited sexual abuse by her own father. It is clear that access to the mother's medical records had been obtained by the local authority at an early stage in these proceedings because a summary of them is annexed to the report of Miss Bartlett, the social worker in the case. I do not know and have not been told how that access was acquired. No doubt as a result of that Miss Linden had access to at least that same information. The parents feel that she should not have done. But the reality is that such information is often obtained in the course of making child care inquiries. It is given such weight as seems appropriate in relation to the welfare of the children. Whether the mother had or had not been sexually abused in any way by her own father was of comparatively minor importance. What was of importance was the combination of unhappy circumstances in her childhood, and in particular the experience of rejection by her own mother and ill‑treatment by her father, which would have affected her own ability and perception of her parenting role. Although I understand, but have not got to the bottom of, a possible grievance in relation to these records, had there been proper applications made, there is little doubt that the mother would have been asked to agree to the disclosure of those records, and had she not been prepared so to agree appropriate inferences which would not have been favourable to her might have been drawn.
15.	Second, it is complained that they were denied a fair trial in relation to the older children. The complaint, as initially put to me, was that the videos had been received in evidence and they were not allowed to put questions to the children. Of course this is again common practice. One would not get reliable information from many children without the ability to interview them in a professional manner away from those who might otherwise be in a position to stop them saying that which they wished to say. The important thing is that interviews are properly conducted. I am told that no objections were taken at the time or at the hearing in October, when the parents were legally represented, and of course from which there has been no appeal. It is also of some interest that the report of Dr Thompson which the parents wish to adduce comments upon those interviews, without having had the benefit of Her Honour Judge Davies' judgment so far as I can tell. Although he makes some minor criticisms he does not cast doubt upon their reliability as a whole.
16.	Clearly the judge's findings about that ill‑treatment are important in relation to the younger children. The father makes the point that each child must be treated separately and of course that is right. There are cases in which allegations made by, and found proved, in respect of one child or two children or even three children, are of comparatively little relevance in relation to other children in the family. I think of the case in which allegations of sexual abuse in relation to much older girls, made ten years ago, were not thought of much assistance in deciding upon the level of risk to a baby born in a stable relationship with a completely different partner after the parent has been diagnosed and in receipt of treatment for mental illness (that is the case of Re O to which the father has referred me).
17.	But in this particular case the findings about the older children were clearly relevant to whether there was a likelihood of harm to the younger children and what was necessary in order to protect those younger children from the risk of harm that the judge found they were likely to suffer. The view that unless there was some degree of acknowledgment of some abuse and some acceptance of the need for change, then it was unlikely that these two children would be safely parented in the future was clearly a tenable view which it was open to the experts, the social workers and the court to take. This court does not try cases a second time.
18.	There is, however, a third factor which was not initially emphasised by the parents but did give me some cause for concern. A very important decision was taken about the younger children in January 2001. JE was by all accounts doing well in foster care. She was becoming more chatty and more cheerful. She began to say things to her foster carer which were interpreted by the carer as allegations of abuse by her father. The local authority applied to suspend contact and on 24th January 2001 the judge granted that application. This meant, in effect, that further work pending the hearing on 2nd March was unlikely to take place. The report by Dr Thompson upon which the parents wish to rely make some very cogent points about the way in which JE's remarks had been reported by the foster mother, the questions that were put to her by the foster mother, the inexperience of the foster mother in responding to situations of this kind, and the well known risks of misinterpretation or overinterpretation of such remarks in any event.
19.	If this case had been decided on the basis of allegations particularly of sexual abuse of JE by the father, there would certainly have been grounds to give permission to appeal. But it was not. As I have already made clear, the threshold had already been decided by the judge on other grounds back in October. The only question now is whether the local authority, the guardian and the court would have taken the view that they did in March without those reported remarks. Despite my initial concerns about this matter, it seems to me quite clear that they would indeed have done so. This is reinforced by the report which I have seen for the first time today from Mr Camm, a senior practitioner with the NSPCC who undertook to do the further work with the parents and spent some considerable amount of time with them in October, November and in January. His report (and I am told he also gave oral evidence in March) is ample support for the factual conclusion reached by the judge, which I have already quoted, that the parents had not changed their position at all since the last hearing. That being the case it is now clear to me that an appeal would have no prospect of success and that this application must be refused.
20.	I also refuse the application to adduce the further evidence, although, as is plain from this judgment, I have in fact read it. I will direct that a transcript of this judgment be prepared and copied to the parties at public expense. I will give the father permission to disclose it (although it is indeed a public document) to Dr Thompson, because it may be helpful to Dr Thompson in understanding how his report has being received by this court and why I have made the decisions I have.
(Application refused; no order for costs).