Case No: B4/2007/2132(A)
Neutral Citation Number: [2008] EWCA Civ 131
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(HIS HONOUR JUDGE BARCLAY)
LOWER COURT No: BS06C00960
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 31st January 2008

Before:
LORD JUSTICE WILSON
and 
MRS JUSTICE BLACK DBE

- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF B (Children)

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Miss J Evans appeared on behalf of the Applicant, the father.

Miss C Wills-Goldingham (instructed by Bristol City Council Legal Services) appeared on behalf of the Respondent, the local authority.

Miss C Elford (instructed by Barcan Woodward Solicitors) appeared on behalf of the children, by their Children’s Guardian.
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Wilson:

1.	A father applies for permission to appeal against orders made in relation to his two children by His Honour Judge Barclay in the Bristol County Court on 16 August 2007.  The Appellant’s Notice was filed a few days out of time; and I am sure that we should grant an extension which would cure that delay.  The orders were made in relation to two boys, namely K who was born on 6 August 1996 and so is now aged 11, and R, who was born on 23 September 1998 and so is now aged nine.  The orders were that K should be subject to a full care order; that R should be subject to a further interim care order, which the judge intended should be renewed at least for several months; and that Bristol City Council (“the local authority”) should be authorised to terminate contact between the father on the one hand and the boys on the other.  

2.	The application for permission first came before Ward LJ on 29 November 2007.  He adjourned it to be heard on notice to the respondents to the proceedings and on the basis that, were permission granted, the substantive appeal should follow forthwith.  

3.	At the hearing before the judge, which had begun on 6 August 2007 in order that the judge might acquaint himself with the papers, and which had continued, apparently on and off, for the nine working days until 16 August 2007, the parties to the proceedings were the local authority, the father, the mother, from whom the father has been separated since about 2001, and, of course, the boys themselves by their Children’s Guardian, Miss Reader.  

4.	We have an approved transcript of the judge’s judgment; and this conscientious judge would be the first to accept that it does not purport to be a summation of the family problems which had led to the care proceedings or to contain any sophisticated analysis of the four personalities or of the advantages and disadvantages of possible future arrangements for the boys.  In this regard there is available for the defence of the judge a fairly good explanation, namely that by 16 August 2007 all parties were in broad agreement, or at any rate not in active disagreement, as to the way forward.  I will seek to explain that situation in due course.  In retrospect, however, as the judge would be the first to concede, it is unfortunate that he did not -- perhaps his pressure of other work precluded it -- take the opportunity, after having read so much written material and heard a degree of oral evidence and submission, to conduct the conventional summation of the situation, so that, from one single document, those who, like ourselves today, have to survey the case can see precisely how matters stood at the time when that judgment was given.  In that the arrangements made by the judge, certainly referable to K, have imploded; in that, arguably, the arrangements made by the judge referable to R have also failed; and in that, although of course I speak with the benefit of hindsight, it was clear at the time when the judge made the arrangements that, in particular in relation to K, they carried a risk of implosion; their the lack of an exposition on his part in greater detail becomes slightly unfortunate.

5.	It seems that following the separation of the parents in about 2001 the boys continued until about 2003 to live with the mother.  Then they moved to the home of the father, who, by consent, obtained a residence order in relation to them.  They remained living with him until October 2006.  The local authority developed grave concerns about the mental stability of the father and its impact upon the boys.  It has to be said that, as a matter of history, he has a number of criminal convictions but, to be fair, they are mostly now in the distant past and it may very well be, as the father contends, that it is right to say that, apart from misuse of street drugs on his part, at any rate up until about July 2007, his criminal activities are behind him.  What in particular came gravely to concern the local authority were continuing conflicts between the father on the one hand and the mother, who was having contact with the boys, and a number of unrelated third parties, on the other hand; and threats on the part of the father, often of a well-publicised character which found their way into the local newspaper, to the effect that for one reason or another he intended to kill himself and the boys.  He has protested, and still protests, that these were empty gestures and that he never had any intention of implementing these threats.  There were undoubtedly many positive aspects of the father’s parenting of the boys.  His profound love for them is not in issue and it is clear that he has always been concerned that, in school and otherwise, they should achieve as much as possible, perhaps more than on reflection he thinks that he has himself achieved, in order to give them a platform for a successful adult life.  Nevertheless the local authority eventually took the view that the father’s care of the boys was so unstable that they should be taken into care.  

6.	The family courts in Bristol agreed with the local authority.  The boys were taken into short-term foster care -- and placed together -- in October 2006 but then moved into separate short-term foster placements in about April 2007.  There is a complex relationship between the boys, with which the judge clearly felt that he had no need to grapple in the circumstances which I have outlined.  Their relationship has been punctuated by surface conflict between them from time to time but underneath there may well be a bond which it is profoundly important for both of them to keep alive and to cultivate.

7.	The relationship of the boys with the mother, who had exhibited profound inadequacies in caring for them prior to 2003, is also extremely complex.  There seems to have been no contact between K and the mother for some time.  But in the months prior to August 2007 there was successful contact between R and the mother; and it was this degree of success which formed the basis of the care plan then placed before the judge in relation to him.  It was that he should remain in short-term foster care, under a further series of interim care orders, while the possibility of his restoration into the home of the mother might be explored and tested.  Today’s proceedings do not directly relate to R.  It is true to say that, in his homemade Appellant’s Notice, the father included an attempt to appeal the disposal favoured by the judge in relation to R in addition to his challenge to the disposal in relation to K.  But Miss Evans, who now represents the father, accepts that it is not appropriate for her to continue to press the proposed appeal insofar as it relates to R.  And I will be proposing to my Lady that we should refuse the father permission to appeal insofar as his notice relates to an aspirant appeal against the orders referable to R.  

8.	I have nevertheless with great sadness to record that the care plan referable to R, as endorsed by the judge in August 2007 has, to some extent at least, failed.  For, as the prospect of a return to R into her home became closer, the mother encountered increasing difficulties in her handling of him during contact periods; and she began to harbour doubts as to whether she could cope with him were he to be restored into her home.  Thus it is that we are told that the mother (whose solicitor has sent a letter to the court but, we think correctly, has chosen not to arrange for her representation today) has abandoned her aspiration to secure the return of R to her home.  That leaves in relation to R possibilities for his future which are not the subject of agreement between the parties, at least as yet.  The father will be contending that, now that the mother’s candidacy for the care of R has ended, R should leave his short-term foster home and go back to live with him.  But both the mother and the guardian make clear to us that, although the local authority apparently endorse that proposal, they are not in a position, certainly not yet in a position, to endorse it; and so it may be that the judge in Bristol will be faced with conflict as to the optimum future arrangements for R.

9.	This judgment will therefore concentrate on K.  The evidence before the judge was that K passionately wished to return to the home of the father, to whom he is as deeply devoted as is the father to him.  The professional appraisals, however, were that there were no grounds for considering that the father’s resumed care of K would be any more stable than it had hitherto been.  Such was, in particular, the view of Dr Selfe, a chartered psychologist and Dr Wilcox, another chartered psychologist who had conducted assessments of the father as well as of the mother.  It appears in particular to have been their view, which, in a sense unsurprisingly, carried great weight with the Children’s Guardian, that the optimum result for K was a specialist foster placement away from Bristol and thus away from close proximity to the father’s home; indeed, not only that but also, at any rate for the foreseeable future, that there should be an entire cessation even of contact, thus even of supervised contact, between K and the father.  Indeed, the proposal was apparently also for a cessation of contact also between the two boys.  It is quite clear from the documents, in particular the notes of a professionals’ meeting on 13 August 2007, namely during a break in the proceedings before the judge, that the local authority had grave concerns about the viability of these proposals.  On the other hand, were there to be any contact between K and the father, there was thought to be a clear likelihood of destabilisation of K’s intended long-term foster placement.  Thus on balance the local authority resolved to amend their care plan for K in order to accord with the professional recommendations.  

10.	During the hearing, even though he was represented by solicitors and counsel, namely counsel other than Miss Evans, the father adopted a curious stance; and, although it is no part of my wish today unduly to criticise the father -- indeed there is much to praise about him -- I am driven to say that he adopted a juvenile stance.  He announced that he would be withdrawing from participation at the hearing.  He was passionately opposed to the care plan for K which the local authority were then putting forward; and the only responsible position for him to have taken was surely to express his passionate opposition to the judge in court, including the fullest possible testing on his behalf of the local authority’s proposals and articulation of detailed criticism of them.  The father’s thinking was apparently that, the sooner the care order referable to K was made on the basis of the amended care plan, the sooner it would break down; and the sooner he would be able to apply for discharge of the care order.  As the judge said in judgment, in sentences which contain an obvious paradox:

“[The father] believes that the sooner the care order is made the sooner he can apply to discharge it.  But I do commend him for accepting that there needs to be an end to litigation for [K].”

In the light of, so far as I can understand, an absence of active representations to him about K on the part of the mother, the judge at the end of the hearing thus found himself in the position of not needing to resolve conflicting submissions.  Thus he endorsed the amended care plan.  He did address the previously articulated concern that, if placed out of Bristol and in particular if unable to attend the school in Bristol at which he wished to resume attendance, K might simply start to run away from the foster home.  In that regard the judge said as follows:

“[The father] is convinced, [his counsel] was submitting on his behalf, it was inevitable that [K] would run away if placed out of county.  I am not by any means convinced that that is the case.  I believe that if [K] is properly explained to that this is an opportunity for him to have a nurturing home on a long term basis and given the chance to settle, as [the father] says he will allow him to do, then [K]’s perspective on life may be wholly different from how it appears at the moment, which will not mean that he loses his affection for his father -- far from it -- but he may come to understand his father in a better light, I would think.”

11.	In explaining his decision to authorise the local authority to terminate contact between the father and not only R but also, and in particular, K, the judge said, in a passage which again at first sight carries contradictions, as follows:

“..the sooner that order [authorising the local authority to cease contact] is put in place the sooner there is a prospect in due course of K having a more productive relationship with his father as well as his mother, I would think.”

12.	What led Ward LJ to adjourn the application for permission to appeal was not concern that, on the evidence before him, Judge Barclay had erred in making his orders but, rather, concern at what the father told him at the hearing about events since the judgment was given.  The father told him in broad terms that, without (so the father said) incitement on his part, K was frequently running away from his foster placements in Devon to Bristol.  The directions of Ward LJ have led to the provision to this court of a considerably greater amount of material referable to events concerning K during these last five months.  

13.	It has to be said that the care plan endorsed by the judge referable to K has entirely failed.  Whether it was worth trying is an idle question.  The fact is that, apparently on about 15 occasions since August, K has run away from the foster homes chosen for him in Devon (being first a foster home in Plymouth, then, upon the failure of that foster home, one in Barnstaple and now I believe one in South Molton) and on a number of occasions he has managed, without being intercepted, to get back to his father’s home in Bristol.  On other occasions the police have intercepted him before he has managed to arrive there.  He has also been conducting numerous illicit telephone calls with the father and with R.  This is certainly not the moment for any attempt to assess whether the father has or has not been culpable in relation to the breakdown of these arrangements for K.  But, apart from his frequent absconsions, there has been on K’s part a general refusal to engage with his respective foster carers; a complete refusal to attend school in Devon, with the result that he has had no school education since May 2007; and the foster carers and the local authority have been concerned for example about his substantial eating of inappropriate food, with a resultant gain in weight of a significant kind as, presumably, a reaction to his profound distress at being placed in an environment unacceptable to him and in a situation in which all contact with his father and his brother was supposed to be banned.  Thus it is that the local authority and the guardian now accept, no doubt hesitantly, that the arrangements made for K on 16 August have failed and now consider, again no doubt hesitantly that there is no viable alternative for him other than to return to the home of the father in the course of the next few weeks.  Fortunately, the school which both K and the father have wanted him to attend in Bristol is prepared, so we are told, to offer him a place with immediate effect, notwithstanding that this is the middle of the academic year.

14.	The local authority also suggest that the grave concerns which justified the launch of the care proceedings must be the subject of attempted minimisation by a package of professional support for the father and K and, if he is to be living in that home, then also R.  The father, for his part, says that he is amenable to receipt of such a package.  He has instructed Miss Evans this morning to tell us in some detail about the attempts which he has made in the course of the last few months to be able to put himself forward to the court and to the local authority as likely to be a more stable and satisfactory parent than he managed to be between 2003 and 2006.  There is no other reaction to the list put before us by Miss Evans today than one of applause for, on the face of it, his having gone to therapeutic sessions with an organisation called CAD, his having sought with professional help to address his problematic life experiences, his having undertaken, I believe, some 20 sessions of cognitive behavioural therapy, his having attended sessions at the Bristol Drugs Project (with the result that, so he tells us, he has been free of all illicit drugs since prior to the hearing in August 2007) and his having undertaken voluntary work with other troubled adults and children.  Indeed he aspires, subject to his parenting duties -- certainly referable to K, perhaps also referable to R -- to undergo a training course to be an adviser for the Citizens’ Advice Bureau.

15.	Reactive to all those attempts on his part to improve his capacity to parent K and, as he would hope, R is a package of support which the local authority offer to him and which he, through Miss Evans, says that he will accept.  So, for example, it is proposed that the local authority’s Family Intervention Service will offer a 12 week programme of rehabilitative work to both the father and K; that family support workers will visit the home at least weekly and, initially, more frequently than that; that CAMHS will be approached in order to see what it can offer to K in terms of psychological support and therapy in relation to his grave recent emotional difficulties and their physical indicia.  

16.	Such, broadly, are the circumstances in which this court today is invited on all sides to grant the father permission to appeal in relation to the orders referable to K, to allow the appeal and to set aside the full care order referable to him made by the judge.  In writing, prior to today, the invitation to this court was to go further and to provide that these future proposals referable to K should proceed under the umbrella of a residence order with which we might invest the father and a supervision order for a year which we might cast upon the local authority.  

17.	In fact, as the dialogue has proceeded in court today, the court has questioned whether such would necessarily be the optimum framework under which the proposed arrangements for K’s return to the father should be cast.  In particular, we have raised whether it would be better for K that, rather than that he should at once move back to the father’s home under a residence order and a supervision order, he should be the subject of interim care orders in favour of the local authority under which the local authority would place him with the father.  All counsel appearing before us today have been helpful and realistic in that regard and have accepted that, on the face of it, there might be much to be said for a temporary retention by the local authority of control over K’s placement back with the father which would be secured by the making of a series of interim care orders referable to him.  No-one would want the local authority to have a care order referable to K while he was living in the father’s home on a long term basis.  The father would object to that.  The local authority would not want it but, perhaps subject to a query as to whether the conditions for a local authority placement of K with his father can be achieved under the relevant regulations, all counsel are agreed that the framework of interim care orders over K for the short term while he goes back to the father’s home might be preferable to a residence and supervision order.  We have asked them for their views.  They have given us their views.  But to be fair to counsel, and to be fair to their professional and other clients, they have not had much time to consider these important matters.  So in the event, the disposal which I would favour would be that we should grant permission to the father to appeal in respect of the orders made in relation to K; should allow the appeal; should set aside the full care order made by the judge; and, for it, should substitute an interim care order, effective from today, referable to K to endure until the end of Tuesday next, 5 February 2008.  That is a day when Judge Barclay is due to conduct a two-hour hearing referable to R.  In my view, although the situation in relation to R is urgent, he may think it even more urgent to consider the proper resolution of matters referable to K.  So I would remit to him for consideration on 5 February what are the optimum orders to be made, perhaps again only in the short term, referable to K.

Mrs Justice Black DBE:

18.	: I agree with all that my Lord has said with regard to K and I also agree that permission to appeal the order in relation to R should be refused.

Order: Application granted in part