Case No: B4/2010/1234
Neutral Citation Number: [2010] EWCA Civ 845
IN THE COURT OF APPEAL  (CIVIL DIVISION)
ON APPEAL FROM SUNDERLAND COUNTY COURT
(HER HONOUR JUDGE MOIR)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 22 June 2010

Before:

SIR NICHOLAS WALL, PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE THORPE
and
LADY JUSTICE BLACK
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IN THE MATTER OF M (Children)

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Mr Stephen Cobb QC and Miss Rachel Smith (instructed by Messrs Donnelly McArdle Adamson) appeared on behalf of the Appellant Mother.

Mr James Brown (instructed by Sunderland City Council) appeared on behalf of the First Respondent, the local authority.

THE REMAINING RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED.

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Judgment
The President:   

1.	This is an appeal by the mother of two small children, J and M, against a decision by Her Honour Judge Moir sitting in the Sunderland County Court following a reserved judgment which she gave on 20 May.  The case has been put into our list with the appeal to follow if permission is granted.  Speaking for myself, I would grant permission to appeal.  The case on mother's behalf has been most ably advocated by Mr Stephen Cobb QC, and the case is on any showing an unusual one.
 
2.	The unusual feature of the case is that the mother of the two children, who is herself still very young, was living in her parents' home and she was living there, as the judge found, with a number of her siblings and of course the two children.  It was apparent from all the evidence that there had been a very long family history; that the mother herself had been the subject of proceedings when she was a child; that social work involvement went back a very long way and it was equally apparent, and I think I can take this quite shortly, that, were the children with whom we are concerned to remain in that household, albeit physically well cared for by their mother in one sense, they would be likely in the future to suffer significant emotional harm.  Attached to the judge’s order are a number of threshold criteria findings which the judge made in relation to section 31 of the 1989 Act.  So it plainly was not an option, and I do not think Mr Cobb puts it forward as an option this afternoon, for the mother to remain with the children in her parents' home.
 
3.	The children’s maternal grandfather was a man of considerable violence and there had been regular episodes of domestic violence between the mother's parents up until relatively recently, indeed until very recently.  And the maternal grandmother of the children with whom we are concerned had a serious drink problem.  Thus, although there were children living in the family home, it was plain from the judge's findings and indeed from all the evidence in the case that the children could not remain in that home with their mother and be safely brought up.
 
4.	Mr Cobb makes the point delicately and swiftly that there appears to be an inconsistency in the local authority's case in that one of the mother's sisters was also living in the home with her two children, but it is equally plain that the local authority, although tolerating that position, was not in favour of it.  Indeed we are told in the skeleton argument produced by Mr Brown that the children have subsequently moved out with their mother and it was not, I think, the local authority's plan in the first place for those children to remain in the home.  They gravitated back to it with their mother.

5.	But be that as it may, the first option which was obviously the one favoured by the family, namely that things should go on as they were, that the maternal grandparents' household should remain the home of the mother and the two children, was not on option which was open to the court or to the local authority.  The local authority was thereby placed in a difficult position because it wanted to work with the family, and it appears until February this year its intention was to keep the family together if possible; for the mother to go on caring for the children if possible, but equally plainly the mother could not do so in the household in which she was living.

6.	The local authority therefore did not take steps in the proceedings to remove the children from the property.  They continued to try and work with the family, albeit that they were regularly rebuffed.  The maternal grandfather was regularly offensive to social workers and only permitted, I think, one female social worker to visit if then, but on his terms, and equally the maternal grandmother's drink problem did not abate.  So that was one option that was ruled out.

7.	As I have already said, until February of this year it appears that the local authority's attitude was to try and work with the family, to try and persuade the mother to leave, but otherwise to leave the children where they were.  That attitude changed in February 2010.  There was a meeting, which the judge records in some detail, at which the mother was told in terms that the situation could go on no longer, that it was not a viable proposition for her to have to bring up the two children in her parents’ home.  I quote from the minutes of the meeting which the judge records in paragraph 37 of her judgment:

^"It was stressed that if [the mother] is seeking to parent alone, she needed to take a proactive approach to matters to evidence her ability, support would be provided.  [The mother] must ensure that she engages with Children’s Services to enable assessments to be completed, and adhere to the protection plans currently in place.  Children’s Services stress that if [the mother] remained in her current home with the children, Children’s Services would have no alternative but to seek to remove the children.  The Local Authority plan was predicated on [the mother] being outside the influence of [her father], and to be in her own tenancy."

8.	So that was the position as at 17 February this year.  It goes to the first of the three points which Mr Cobb takes on the mother's behalf.  What he said essentially is this.  Here is a local authority on the one hand saying the mother should be in independent living and should be away from the baleful influence of her parents, and yet what happens?  As soon as she seeks to take steps to achieve independent living, the rug is pulled from underneath her feet and she is told the children will have to be adopted.

9.	That all behoves us to look at this period of time with some care, as indeed did the judge.  The judge appears to have found, although she puts the matter quite delicately, that the mother did not take immediate steps to find alternative accommodation for herself and did not seek an appointment until 1 March, but in the meantime had her attention drawn to an organisation known as LC, which is a residential facility for people in the mother's position, and the proposal was that she should go to LC with the children and live and be assessed there.  As it happened, the case came before the judge on 20 February, I think either for the IRH or for a pre‑trial review, but in any event the judge herself emphasised that she thought LC might be the answer for the mother and made it very clear to the mother that this was an option which she, the judge, thought was appropriate.  The judge expressed a view which I am sure is accurate that the mother, grandmother and grandfather had all  received casual advice and explanation about the results of non‑cooperation and the prospect that LC might not work.

10.	Most unfortunately, LC did not work and it did not work not because of any default, it seems to me, on the part of the local authority, but because the mother made it quite clear to the authorities at LC that she did not really want to move; she did not see any need to go to LC, she was fine at home, everything is all right at home and she was only going there because the local authority insisted that she should do so.  Unsurprisingly in those circumstances LC declined to admit her and the judge in her judgment comments adversely and in my judgment with some force that the mother knew that by rejecting the LC option she was really cutting off one very important avenue of escape.

11.	The alternatives that were then available were other properties, one in particular known as EH which offered a less rigorous service than LC, but the mother once again made it quite clear to EH that she did not want to go, she did not intend to go, she did not want to go to EH and again that is something apparently she repeated during the course of the hearing before the judge.

12.	So the other options, LC and EH having gone, and another property called TH also, I think, went; and by that stage of course the local authority had realised that the mother did not want to go to LC and was not going to go to either of the other properties.  Thus, with the advice which it had received and the evidence which was available to it, it came to the conclusion that the mother was not capable really of independent living because of her own personal difficulties, and that therefore the idea of a tenancy on her own, an independent tenancy either in private accommodation or in local authority accommodation, was simply not a practicable possibility.  Indeed, in relation to that aspect the judge found in terms that for the children to live with their mother in an unsupervised environment in an independent tenancy would be doomed to failure (a phrase used by the judge) and would be setting up the children to suffer serious harm.

13.	So really it seems the judge, having gone through these options very carefully in her judgment and in the chronology that she went through carefully in her judgment, the judge had run out of options, there was nothing left and all that is left for Mr Cobb is the fact that on the day or the day before judgment was finally handed down the mother did in fact go back, I think, to EH.  EH asked for further information and we have today a letter from EH from the senior project worker dated 14 June which makes it clear that it would seem, as it seems to EH, that the mother required substantial support and that if they were to consider offering her a place there would have to be an independent support worker assigned by the local authority to support the mother full‑time on a daily basis until a clearer picture of her needs could be established.

14.	Against this background the judge's findings were, as I have indicated, that placement in the household of the maternal grandparents was impossible and not really argued today at all; and that the other options were ruled out largely by the mother.  The judge thus came to the conclusion that really she had no confidence that the mother would survive either any assessment such as EH or LC, and made a finding in terms that care of the children on her own in an independent residential placement by tenancy with the local authority or otherwise would be doomed to failure.  So as I say, the judge had run out of options.

15.	What is there to put on the other side?  Well, there is quite a lot to put on the other side.  There is the fact, as the judge recognised, that the mother enjoyed a close bond with the children, a bond recognised by the psychologist who advised the judge, and that certainly on one level the mother was able to care for the children in the household of her parents.  She had no experience of caring for the children on her own and she had no experience of running her own household, but the judge had to balance on the one hand the loving relationship she plainly had with the children, the devastating effect on the children of removal from her care, against the likely long‑term harm that the children would suffer if they were left either in the household of the mother's parents or in any independent living on the mother's part.

16.	That therefore leads to the second limb of Mr Cobb's argument because he said, really, here, if you balance the likelihood of harm which the children would undoubtedly suffer by being removed from their mother and you are placing the children for adoption, you are making perhaps the most draconian order which the court can make, and in these circumstances it behoves the judge to make sure the process is transparent and that the judge has carefully considered both Article 8 and, in relation to the third point (but it can be brought in here as well), the welfare checklist under section 1(3) of the Children Act.  In my judgment there is some force in that submission.

17.	It is a serious order, and the function of the court if possible is to keep children being cared for by their natural parents, in this case by their mother, if possible, provided that care does not cause the children significant harm.  But here the judge, in my view, and I have read through her judgment several times, carefully balanced precisely those factors.  She had to consider the welfare of the children, on the one hand, in the sense that they were clearly going to be devastated by their separation from their mother.  They clearly had a very good relationship with her.  On the other hand, her continuing care was likely to cause them significant harm.  And her inherent belief, which the judge stressed, that she really saw no reason why she should move from where she was; that she was managing perfectly well at home with her parents and the family's view that the social services should mind their own business and leave them alone, all were balanced carefully by the judge, and the judge having balanced them carefully came down to the conclusion that the children were likely to suffer significant harm in the future if left in their mother's care and therefore the only relevant alternative option for them was adoption.

18.	In these circumstances, given that the judgment is a very long one and a very careful one, given that it reviews the history carefully, reviews the evidence carefully and looks at all the issues which the judge was asked to discuss, running in total, I think, to some 50‑odd paragraphs over 26 pages, it seems to me that the fact the judge did not expressly mention Article 8 does not carry the weight which it might in other circumstances.  It seems to me this judge, who is very experienced, was acutely aware of the respect which she had to pay to the family and private lives of the children, the mother and all the parties to the proceeding, and it seems to me that she balanced those carefully in reaching the conclusion which she ultimately did.

19.	It seems to me, with respect to Mr Cobb, that similar considerations apply to the welfare checklist.  I do not think the judge was over‑influenced by the chronic nature of the maternal family's household.  Clearly there was, as Mr Cobb recognises, a long and difficult family history, but it can hardly be said in my view that the judge lost focus when it is common ground that really the children cannot be brought up in that household.  It is a critical factor in the equation and if the mother sets her face against alternatives, the judge in my view is going to be left with no alternative but to reach the conclusion which she did.

20.	 I bear in mind very strongly, as Mr Cobb rightly emphasised, that the mother herself has had a very disadvantaged upbringing and that she suffers from learning difficulties.  We were taken to a passage in the report which indicates her deficiencies and I do not wish to emphasise them too much, but I take all that into account, as did the judge, and having taken that into account it seems to me that the judge reached a conclusion which was eminently permissible.

21.	It was a hard conclusion and it was not an easy case.  In an ideal world one would like to see infinite resources put into propping up this mother and seeing if she could not care for her children, but in the circumstances which I have outlined and on the facts that I have outlined it seems to me that the mother has been her own worse enemy, and in my judgment the judge is perfectly entitled, indeed bound, to come to the conclusion which she did.

22.	Unfortunately there is no support from the children's father.  He is even younger than the mother and he is no longer living with her.  The judge carefully considered his position and rightly, in my view, came to the view that he could play no real part in the children's future lives.

23.	So in my judgment this case, unusual as it is on the facts, comes down to a conventional analysis by the judge who has found the threshold criteria satisfied under section 31 as she was bound to do, and having examined all the facts and having looked carefully at the children's welfare, having balanced the various factors has come to the conclusion regrettably that adoption is the only order which will safely meet these children's needs.  In my judgment, as I say, that was a conclusion to which she was entitled to come.  It was a careful, thoughtful, anxious judgment.  She had given the mother every warning and opportunity on an earlier occasion and ‑‑ as has been pointed out to us, she case-managed the case throughout so she knew it well ‑‑ she had given the mother every opportunity and unfortunately that had not been taken.

24.	In those circumstances, speaking for myself, although I would take the view that this case crosses the permission threshold, I would dismiss the subsequent appeal.

Lord Justice Thorpe:   

25.	I agree and can add nothing.

Lady Justice Black:   

26.	I also agree.

Order: Application granted; appeal dismissed