Case No: B4/2008/0640
Neutral Citation Number: [2008] EWCA Civ 658
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT 
(HIS HONUR JUDGE SHAWCROSS)
(LOWER COURT No. PO05C00612)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 14th May 2008

Before:

LORD JUSTICE WARD
and
LORD JUSTICE WILSON
- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF S (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)

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

Ms Leslie Samuels (instructed by The Children’s Legal Practice Ltd) appeared on behalf of the Applicants, the children by their guardian.
Miss Lucinda Davis (instructed by Hampshire County Council Legal Services) appeared on behalf of the First Respondent, the local authority.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Wilson:

1.	Three children, by their Children’s Guardian, apply for permission to appeal against a decision made in care proceedings by His Honour Judge Shawcross in the Portsmouth County Court on 3 March 2008.  The decision under proposed challenge is the judge’s decision not to adjourn the hearing in order that Hampshire County Council (“the local authority”) might reconsider, or further reconsider as the case may be, their care plan for the three children. Instead the judge proceeded to make supervision orders referable to the children and provision for contact, under the supervision of family members, between them and Mr S, who is the father of the two youngest children and the stepfather of the oldest of them.  The guardian contends that the interests of the children are not served by the supervision order, and that they could adequately have been served only by the making of full care orders in favour of the local authority.
2.	When I considered the guardian’s application for permission on paper, I decided to adjourn it for oral hearing and on notice to the local authority. Thus, at today’s hearing, Mr Samuels appears for the children by their guardian, just as he did before the judge; and seeks to suggest that the judge exceeded the boundaries of his discretion by declining the application, which he had made to the judge, to adjourn for the purpose which I have identified; and today Miss Davis appears for the local authority, just as she did before the judge; and, by contrast, she contends that the judge’s decision lay within his discretion and she adds that any other decision on his part would have been a fruitless prolongation of the proceedings.
3.	The three children are SH, a girl, who was born on 30 April 1995 and so is now aged 13, K, a girl, who was born on 26 February 1998 and so is now aged ten, and J, a boy, who was on 3 March 2002 and so is now aged six.  There are two older siblings, or half-siblings, namely SA, a girl, who was born on 15 July 1991 and so is now aged 16, and D, a boy, who was born on 5 June 1993 and so is now aged 14.  Mr S is, as I have indicated, the father of the two youngest children and, in that he is married to the mother, is the stepfather of the three older children.  Although, as I understand it, the mother and Mr S would wish it were otherwise, they accept that he has to continue to live separately from her and is confined to having contact with the three youngest children on a supervised basis, albeit that, in the light of the local authority’s refusal, notwithstanding the general supervision order, to continue to supervise contact for more than one month following 3 March 2008, the supervision is now to be conducted by family members.
4.	In February 2007, at the end of a fact-finding hearing, Judge Shawcross made findings of great gravity against Mr S and the mother, namely that Mr S had sexually abused SA, the oldest child, in the most serious ways on numerous occasions between about 1997 and 2004 and that the mother had placed extreme pressure on SA to withdraw her allegations against Mr S.  The reaction of Mr S to the judge’s findings of fact is to continue to protest his innocence; and the reaction of the mother is to refuse to accept either that Mr S perpetrated any sexual abuse towards SA or, as I understand it, that her conduct towards SA has been other than perfectly appropriate.
5.	In January 2008 the judge conducted an extensive hearing of the outcome stage of the local authority’s application for care orders referable to the three younger children.  Their care plan was that, notwithstanding that the three children had been allowed to continue to reside with the mother under a series of interim care orders, they should be moved into long-term foster homes.  It was accepted on all sides, including by the local authority, that the prospect of the removal of the children from their mother was likely to be damaging to them at least in the short term; but, so the argument ran, there was no way in which they could be adequately protected from sexual abuse on the part of Mr S if they were to remain in the mother’s home, in the light of his sexual abuse of SA and of the attitude towards the findings referable to it which both Mr S and the mother had adopted.  The mother and Mr S, by their respective counsel, vehemently challenged the wisdom of the care plan.  The guardian, for her part, on balance concluded that the local authority’s plan for the children was preferable but made clear that, were the children instead to be allowed to remain in the home of the mother, such could only sensibly be allowed to continue under the auspices of a full care order and thus of an altered care plan.  There was, however, one professional voice raised against the proposed removal of the children, namely that of Dr Ronder, a child and adolescent consultant psychiatrist.  Although she favoured the children’s continued residence with the mother, she also indicated that such should be permitted under a full care order.
6.	There was a hearing before the judge on 1 February 2008, about 10 days after the end of the outcome hearing, at which stage he had reserved judgment.  Although by 1 February the judgment was not ready for dissemination, the judge then announced that, on balance, he had decided that, notwithstanding the risks of leaving the children in the mother’s home, a removal of the children from it would carry even greater risks, albeit of another character.  He indicated that he would circulate his written judgment prior to a further hearing which he fixed to take place on 3 March 2008. 
7.	Late on 18 February 2008 the judge duly caused his written judgment to be disseminated to the parties.  Neither the local authority nor the guardian seeks to challenge in this court the judge’s decision that the children should continue to reside with the mother.  Thus we have no need to look critically at that judgment.  I have, however, read it with care.  In it the judge clearly explains the profoundly uncomfortable dilemma which faced him; and I entirely understand why, by a narrow margin, he reached his decision.
8.	In a way curiously the judge did not conclude his written judgment with an express invitation to the local authority to amend their care plan so as to become a plan that the children should continue to reside with the mother and therefore a plan upon the basis of which it would be open to him to make full care orders.  Nevertheless it is clear that, particularly in the light of the evidence which the guardian and Dr Ronder had given to him about the need for care orders if the children were to continue to reside with the mother, it was implicit that the judge expected the local authority to consider amendment of their care plan in the light of his judgment and prior to the hearing on 3 March 2008.  The local authority certainly understood that such was expected of them; and on 20 February 2008 they duly held a meeting, attended by their team manager, by their district service manager and by the solicitor in their legal department, who had overall charge of the legal aspects of the case.  The purpose of the meeting was so they might consider whether to amend their plan.  Mr Samuels points out today that it was highly unfortunate that the allocated social worker was on leave on 20 February 2008, he alone having been a constant presence on behalf of the local authority throughout the outcome hearing, and was therefore unable to attend the meeting.  In the event the three officers of the local authority decided that the care plan should not be amended.  Thus, in effect, they disabled the judge from casting his preferred outcome into the context of full care orders.
9.	At the hearing on 3 March 2008 Miss Davis filed a skeleton argument in which she sought to explain in some detail to the judge why the local authority had reached their ostensibly obstructive and negative conclusion.  Both in that document and in her oral submission to the judge at that hearing Miss Davis sought to deflect criticism to the effect that, in reality, the local authority were intemperately washing their hands of the children because the judge had on balance rejected the outcome which they had advocated.  Miss Davis pointed out that, by virtue of the the various contentions, both of fact and as to outcome, which the local authority had made in the proceedings, their relations with the parents were extremely poor and that, in the light of the personalities of the mother and of Mr S and, in particular, of their joint refusal to accept the judge’s findings of fact, there would be likely to be nil cooperation on the part of the parents with all the attempts which, if invested with a care order, the local authority would be obliged to make in order to protect the children.  The contention of Miss Davis was that the local authority had decided that in the circumstances they would be unable to exercise the parental responsibility which a care order would give to them and thus that such an order, which the parents and the children would find highly objectionable, would serve no good purpose and would indeed engender further conflict. 
10.	The local authority did, however, accept that it would be appropriate for the judge to invest them with a supervision order over the children for a year and, pursuant to that, they offered to continue to actively to supervise their contact with Mr S but only for that one further month to which I have referred.
11.	Mr Samuels made clear to the judge that in the guardian’s view the local authority’s apparent decision was little short of disgraceful; that, in favouring a programme under which the children continued to reside with the mother, the judge had surely wished, as indeed in response to Mr Samuels the judge duly confirmed, that their residence with her should be under the auspices of full care orders; and that, without the protection of such orders, the children would be at unacceptable risk of abuse at the hands of Mr S.  So it was the submission of Mr Samuels to the judge that he should decline to take the local authority’s “no” for an answer and should adjourn so that within the local authority, following more mature consideration, wiser counsel should prevail.  Mr Samuels cited to the judge the decision of this court in Re S and W (Care Proceedings) [2007] EWCA Civ 232, [2007] 2FLR 275, in which another local authority had been gravely criticised for not having given proper consideration to a judge’s judgment which had been otherwise than in accordance with their own views and had thus failed to address whether it would be appropriate for them to amend their care plan accordingly.
12.	We have a transcript of all that was said before the judge on 3 March 2008; and it is clear that Judge Shawcross carefully considered the submissions and, at any rate for a time, very actively considered whether to take the route commended by Mr Samuels.  In the event, however, he declined to do so.  By his judgment he stated that it had been plain from his substantive judgment that he intended the local authority to reconsider their care plan in the light of it, but that they had done so; that they had reached a conclusion which he considered to be “quite deplorable”; but that, unlike the local authority in Re S and W, the local authority had considered the judgment; and that, were they to be invited to do so again, it was almost inevitable that they would reach exactly the same conclusion; and that accordingly yet further adjournment was pointless.  
13.	At the hearing which we have conducted today we have one piece of further evidence in relation to this matter which was not before the judge.   Before the judge there was discussion as to whether there were any minutes of the meeting held on 20 February 2008.  Miss Davis told the judge that no minutes were then in existence; and that, no doubt, was accurate.  There were, however, notes taken by the solicitor who had been at the meeting and perhaps also by one or other or both of the social workers.  Miss Davis also submitted to the judge, however, that the meeting had been described as a “legal strategy meeting” and that therefore its content would attract legal professional privilege.  The transcript of the proceedings shows that the judge was extremely sceptical as to whether any legal privilege could attach to the meeting, the purpose of which was to discuss not the law but amendment of the care plan; and he was very dismissive of the reliance placed by Miss Davis upon the title of the meeting, namely that it was a “legal strategy meeting”.   There, however, the matter had to be left.
14.	When I directed that this application be heard on notice to the local authority, I also directed that, in that by her appellant’s notice the guardian was seeking disclosure of the minutes, which presumably by then had been drawn, both parties should come ready and able to address this court on any issue as to whether the minutes did attract legal professional privilege and, if not, whether they should be disclosed to this court, certainly if the matter was to go forward for full appeal.  In fact, so we are told by counsel, some ten minutes prior to the start of today’s hearing Miss Davis disclosed to Mr Samuels minutes of the meeting which, at some stage, since 3 March 2008, had been drawn, probably by the solicitor who had been in attendance there and indicated to him, just as she shortly thereafter indicated to us, that the local authority would have no objection to our considering them.  Thus, pressed as we have been by Mr Samuels to consider the minutes, we have done so.  It would be appropriate for me to simply quote the first two paragraphs of the minutes:
“[The team manager] opened the meeting by explaining that there was a need to reconsider the Local Authority Care Plan for these children.  That the Judge had invited us to do this when he made his Judgment.  It was clear that he intended there should be care orders at home for the three younger children.  
The Judgment had been received late on Monday but had been read.  [The solicitor] had highlighted points that she felt needed to be considered from the Judgment.  The views of all the parties had been covered.”
Then, according to the minutes, the three officers discussed the pros and cons of amending the care plan and reached the conclusion that it should not be amended.  It was, apparently, the district service manager to whom the actual decision fell; but there was no dissent by either of the other two officers present.  
15.	How does Mr Samuels suggest to us today that, any rate arguably, the judge exceeded his discretion by declining to adjourn further in order to enable the local authority again to consider their position?  He contends, just as he contended to the judge, that the evidence about the local authority’s meeting on 20 February was profoundly unsatisfactory.  One criticism which he made before the judge was upheld by the judge, namely that the local authority had not invited the guardian to attend it.  He now also contends, in the light of the minute, which he has had a short opportunity to digest, that it is now clearer than ever that there was nobody present at the meeting who had been present during, less still throughout, the outcome hearing.  He complains, with justification, that Miss Davis’ reference to legal professional privilege -- made to the judge on 3 March and today abandoned by her -- was, no doubt unintentionally from her point of view, a smokescreen.  And he asks whether it is clear that, prior to reaching their crucial decision, the local authority properly considered the views of the guardian and of Dr Ronder, in particular to the effect that, were the children to be allowed to continue to reside with the mother, such should be under the auspices of full care orders.  In that regard, however, it is clear from the two paragraphs of the minutes which I have read that all three members who attended the meeting had read the long substantive judgment disseminated by the judge on 18 February, in which, of course, he had addressed at length the views of the guardian and of Dr Ronder and had addressed, at length, the risks which would be attendant on leaving the children with the mother, albeit that, in the judge’s view, the other course raised even greater risks for them.  Indeed, from the passage which I have quoted, we see that the solicitor had highlighted points in the judgment which she regarded as particularly important for the meeting to consider. 
16.	I do not think that Mr Samuels can properly complain that, with that long comprehensive document before them, the officers at the meeting did not have all the material relevant to their reaching a decision.  He also alleges, in my view unconvincingly, that this was a case analogous to that in Re S and W.  There, having listened to an oral judgment from a judge which did not accord with their views, the local authority did not wait for any transcript of the judgment before deciding, apparently in very brisk and peremptory manner, that they would go forward without further reference to the contrary views of the judge and would not amend their care plan accordingly.  It seems to me that there is a chasm between the facts of Re S and W and the full consideration apparently given to the transcript of Judge Shawcross’ judgment by the local authority in this case.
17.	Mr Samuels also suggests that where the judge fell into error was in not having given the local authority the opportunity to consider his views after he had made them clear.  Mr Samuels says that, experienced counsel though he is, he, for his part, had not understood in January that the judge agreed with the guardian and Dr Ronder that, were the children to continue to reside with the mother, such should preferably be under the auspices of care orders.  Mr Samuels says that in that regard the judge only made his position plain at the hearing on 3 March and that it was only thereafter that his views could properly be weighed by the local authority.  But the difficulty for Mr Samuels is that the judge himself rejected that analysis of how the matter had been left.  On 3 March the judge himself said that it had been perfectly obvious that it was his view that, were the children to remain with the mother, it would be preferable, indeed proper, for them to remain there under the auspices of care orders.  Moreover that it was the local authority’s understanding that such were his views is apparent from the first paragraph of the minutes of the meeting which I have read.  
18.	Basically the guardian’s line today is that the prospect for these children if continuing to reside with the mother otherwise than under care orders is so fraught with risk that it was improper for the judge to do other than to strain every nerve, in particular by directing an adjournment, in order to give the local authority the maximum chance to discern how their general duties to children in need in their locality were properly to be translated in relation to these particular children.
19.	I entirely respect the guardian’s grave concern; she could have done no more than to bring this proposed appeal before us today.  In that the judge described the local authority’s conduct as “quite deplorable”, I consider that we should adopt that view ourselves.  Had he not thus expressed himself, I would not have so expressed myself because matters of this sort are seldom black and white and because there may indeed be very considerable difficulties surrounding the cooperative implementation of full care orders while the children remain living with the mother.  But of one thing I am clear, namely that there is no arguable case that, by refusing the adjournment, the judge exceeded his wide powers of case management.  By referring to it in that way, I do not wish to understate the importance of the issue debated in front of him.  But how can it possibly be argued in this court that it was not open to the judge, with his protracted knowledge of the case, to accept, even without reference to the minutes, the submission of Miss Davis that at their meeting on 20 February, postponed in order to await receipt of his substantive judgment, the local authority (whose bona fides, as opposed to whose judgment, are not in doubt) had not properly addressed it and reached a considered decision? 
20.	I would refuse permission to appeal.
Lord Justice Ward:
21.	I agree.

Order:  Application refused