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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O-S (Children), Re [2001] EWCA Civ 2039 (17 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2039.html Cite as: [2002] 1 FCR 689, [2001] EWCA Civ 2039

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBOROUGH COUNTY COURT
(His Honour Judge Briggs)

		Royal Courts of Justice Strand London WC2 Monday, 17th December 2001

Monday, 17th December 2001

1. LORD JUSTICE THORPE: On 12th October His Honour Judge Briggs, sitting in the Middlesborough County Court, gave judgment at the end of a three-day hearing to determine the future of three little boys. They are, respectively, N, L and B, who are four and a half, two and a half and nine months of age. They are the children of P.S. and E.O. Those two commenced a relationship when P was only 15 years of age. Accordingly she was only 16 when N was born. Even now she is only 21 and he is only 25. They never cohabited, perhaps in part because E.O. was generally in prison for either offences of dishonesty or drug-related offences. He was certainly in prison for about two years between 1996 and 1998 and again between June 1999 and June 2000. The final sentence of which we have knowledge commenced on 23rd April 2001 and ended in late July.
2. The outstanding feature of the relationship between the young couple has been the violence inflicted on the mother by the father. Certainly as long ago as the middle of 1998, during the course of a fight between them, the mother's hand was cut severely, severing a tendon, and there have been many instances when she has been seen with either facial bruising or cuts to the face, which she has initially explained with some spurious account of accident leading to an eventual admission that the father was responsible for her injuries.
3. Of course all this has had its repercussion in the field of child protection, and on 10th March 2000 N and L were entered on the Child Protection Register under the category of neglect. Application for care orders in respect of those two children followed on 13th October 2000, and a separate application in respect of B was issued within days of his birth.
4. The mother sought refuge in Bishop Auckland Women's Refuge in September 2000, but was expelled in April 2001 as a result of her night absences without leave. At that stage the children were removed from her and put into foster placements, initially all three in separate houses, although by 11th June N and L were within the same family.
5. It seems, although there is no certain evidence, that the father left the north-east to take up employment in Portsmouth some time after his release from prison in July 2001. However it seems that he regularly returns to his roots at the weekends.
6. Another recent event has been an application in the Middlesborough County Court, presumably under the Family Law Act 1996, for an injunction against violent assault. That application was referred to an on notice hearing, which the father did not attend, and an order was made, effective until March 2002, supported with a power of arrest.
7. When the case came on before the judge in October the mother was represented, as was the applicant local authority and the guardian ad litem. The father was not before the court since his application to be joined had been refused on 3rd July 2001.
8. Miss De Haas QC, who has argued the mother's case in this court today, tells us with authority - because she leads Miss Tyler who represented the mother in the court below - that an adjournment was sought to enable the mother to obtain further assessment of her capacity to provide safely for the children's future and, no doubt, to give her further time to distance herself from her violent past. That application failed.
9. Thereafter, Miss De Haas says that one alternative urged on the judge was to direct concurrent planning so that the local authority would be free to pursue the option of adoption at the same time as the assessments of the mother were under way. By that route, at an adjourned hearing, the judge would have been able to determine the children's future without the price of yet further delay if the mother's bid for responsibility failed.
10. One possible criticism of the judgment is that there is no reference at all to that as an option considered and rejected. Indeed, what the judge says about delay seems to foretell his relatively draconian orders since he postulates that any acceptance of the mother's plea for further assessment would lead to delay upon delay - six months for the experts and then perhaps another six months whilst the case waited for a place in the county court lists. Of course, if the judge had been minded to accept a submission of concurrent planning, he could have ordered a fixture then and there to ensure that there would have been no delay at all beyond the completion of the assessments.
11. Miss De Haas filed a skeleton argument in support of an application for permission, which was received on 26th November and led to my order of the 9th December saying that there should be a hearing on notice today, with appeal to follow if permission granted and a time estimate of half to one day. That chronology demonstrates how quickly the system operates in public law cases where there is any possibility that the judge might have arrived at an unsustainable conclusion against a natural mother. Certainly the points taken in Miss De Haas's skeleton merited a review by this court, and certainly the application for permission deserves to succeed.
12. Miss De Haas has further distilled her written submissions by reducing her case today into five clear propositions that:

(1) the evidence demonstrates, and the judge found, that there was strong bonding between this mother and certainly the two older boys;

(2)she had demonstrated the capacity to provide good enough parenting;

(3)she had demonstrated a clear change in attitude in relation to the violence of the past and her understanding that it was extremely harmful to children;

(4)the evidence demonstrated that the dangerous relationship between the mother and E.O. had terminated; and

(5)there were effective measures in place to protect the mother. The first step had been the injunction granted in the county court, and there was no evidence of any breach or attempted breach and there were obviously remedies beyond the injunction, should that prove necessary.

13. On those five foundations Miss De Haas has submitted that the judge was plainly wrong to have granted a care order there and then approving a care plan for adoption and giving the local authority leave to terminate contact.
14. Before examining the judgment, it is, in my opinion, highly relevant to record the developments of the last few weeks. The local authority have not exercised their power to terminate contact. They have merely reduced the pre-trial arrangement for three visits a week to two weekly visits. Between the judgment in the court below and today there have been fifteen possible meetings only nine of which the mother has attended. Of the remainder there have been at least five missed, three with due notice but two without. Significantly, the tally of failure is all during the most recent period. The five failures have been respectively on 11th and 26th October, but the record in the first half of December shows failure on 5th, 10th and 12th. It is true that on 5th December there was advance notice, but there was no notice at all on 10th December; and even on 12th December there was very late notice, only 15 minutes before the foster parents were due to leave home. This, of course, is not in itself decisive or fatal to the mother's case, but it does raise anxiety as to the extent of her responsibility and commitment, and it does seem in a way to justify some of the anxieties held by the trial judge.
15. Turning to his judgment, he clearly accepted that the mother had a strong bond with the children. He equally accepted the evidence of the one professional who had, shortly before trial, swung from supporting the local authority's case to supporting the mother's cause. That individual was Fiona Nichol, who was a social worker of eighteen years qualification, the last nine of which she had spent at the refuge. She was a witness who clearly gained the judge's respect, for he described her as being not only very experienced but also an impressive witness. Certainly she spoke favourably of the mother, both in relation to her parenting capacity and also as to her change in attitude and perhaps the growth of understanding and responsibility in relation to child protection issues. But an element of her evidence that is, in my opinion, extremely damaging to the mother's cause is the evidence that she gave in relation to the termination of the dangerous relationship between the mother and EO. Let it be remembered that Miss Nichol was the one professional most inclined to be supportive of the mother and to speak for her wherever she properly could. The judge heard her on this issue (see at page 262 of the transcript) when asked to comment during her cross-examination on a file note taken by the social worker of a conversation that the two ladies had had on 11th September. The note reads thus:

"P had attended a wedding reception in Shildon on Saturday the 25th August. Fiona feels P is still seeing E, but has no proof. E is ringing her at the refuge."

16. The cross-examiner having referred to that file note said, "Is that right?" Miss Nichol might have said, "Good heavens, that is not what I said. Nor is that what I think." But she did not. She said,

"Well, I think P herself would."

17. Then, after referring to the wedding, she said,

"P has admitted that she had, up to that point, been phoned, but was adamant that she had not seen him",

18. All that she said on the following page was simply a recital of the mother's case. So I am left with the clear impression that Mrs Nichol was by no means satisfied that this dangerous relationship had terminated. As the guardian in her evidence emphasised, the mere taking of an injunction was in itself equivocal. It could indicate a mother who had come to realise the need to invoke the powers of the court to protect herself, or it could, in the alternative, be a bit of window-dressing in preparation for a contested hearing.
19. Of course, it was for the judge to make an assessment of where the reality lay. It is quite clear to me what his assessment was, for at paragraph 54 of his judgment he said:

"[The mother] did go back and Fiona Nichol certainly, and she is an experienced lady, I thought an impressive witness, thinks there has been a change. Well, she knows the young lady and she is entitled to that view. I regret I cannot be so sanguine about it. I think there are very considerable difficulties here. Violence has been concealed on a regular basis and I do not propose to deal with that again. There have been two previous serious assaults. I am satisfied that they are still in contact and indeed according to Fiona Nichol it was her view and I think a perfectly correct and justified one. There was certainly at least telephone contact during the course of her time at the hostel and, as I understand it, afterwards."

20. That was really the key to the future. If the judge had been satisfied that the relationship was truly at an end, then he could look at the violence as being historic and its effect upon the children only the embedded effect. But if he saw this relationship as being concealed beneath a surface of litigation presentation and likely to re-erupt once the pressure of the case had terminated, then obviously it was his responsibility to intervene for the protection of the children. In my view the appeal is as simple as that.
21. The judge reached a conclusion on the evidence with which we are not entitled to interfere. I have considerable sympathy for this young mother, who has been asked to bear very great responsibilities from a very young age. She is a low scorer in IQ terms, and it is for her a tragedy that things have ended in this way. But the responsibility of the judge is to the welfare of the children as the paramount consideration and, despite all Ms De Haas's very skilful efforts, I am very far from persuaded that the judge was plainly wrong. Indeed, I am quite satisfied that the conclusion which he reached was within the discretionary ambit and I would dismiss the application.
22. LORD JUSTICE LAWS: I agree entirely.
23. MR JUSTICE MORLAND: I agree.
Order: Application dismissed. Public funding assessment of the Applicant's costs and the guardian's costs.