Neutral Citation Number: [2014] EWCA Civ 420
Case No: B4 2014 0481 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT  
Royal Courts of Justice 
Strand, London, WC2A 2LL 

Date: Tuesday, 18 March 2014
 
B E F O R E:

LORD JUSTICE TOMLINSON 
 
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IN THE MATTER OF M (A CHILD) 
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THE APPLICANT'S MOTHER APPEARED IN PERSON 
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J U D G M E N T 
1.	LORD JUSTICE TOMLINSON:  This is an application for permission to appeal which is made by Mrs M, acting on her own behalf.  She seeks permission to appeal against an order made on [a date in] 2013 by HHJ Hallam in the Middlesbrough County Court.  That order comprised both a final care order and a placement order in respect of Mrs M's fourth child, a little girl called "LM".  I should of course stress that any report of this case or of my judgment should not contain any material from which that child could be identified.
2.	The final care and placement order was made by the judge following a hearing which occupied eight days in October 2013.  The judge heard oral evidence and submissions on behalf of the Local Authority, the child's guardian, the mother and the father.  The mother was as I understand it unrepresented throughout those proceedings but she attended the first eight days and cross‑examined the witnesses and she filed written submissions, as did the other parties.
3.	One of her grounds of appeal is that the judge should not have proceeded to give her judgment as she did on [a date in] 2013 because Mrs M was unable to be present on that occasion.  She was unable to be present because only three days previously, on [a date], she had given birth to her fifth child, XY, who, unhappily, suffered some medical complications, as a result of which he was on [the date] in intensive care at Alderhey Hospital on the other side of the Pennines.  Naturally, Mrs M was there with him and was therefore unable to be before the judge in Middlesbrough.  
4.	The judge referred to that at paragraph 5 of her judgment.  Nonetheless, the position is that she had received submissions from the mother and the judge evidently felt that she was in a position to proceed to give judgment without any unfairness to the mother.  
5.	There is a considerable history to this case which I do not need to go into.  It is summarised to some extent in a judgment given by MacFarlane LJ on [a date] of last year.  In that, he points out that the mother was at that stage the mother of four children.  There are three older children.  As I understand it, each of the children has a different father.  So far as concerns the three older children, they were placed variously each with members of the maternal or paternal family, two of them under supervision orders.  Judge Hallam herself had concluded in [a date in] 2012 that it was not in the interests of any of those three children to be placed in the mother's care.  
6.	The matter came before MacFarlane LJ in [a date] last year because the mother, Mrs M, wished to appeal against the refusal of Judge Hallam to sanction a residential assessment so far as concerned the mother's ability to care for her fourth child, LM.  MacFarlane LJ refused permission to appeal because Judge Hallam had concluded, and MacFarlane LJ agreed that a residential assessment was not necessary because enough was known about the mother's practical day‑to‑day parenting and that that was not a fundamental issue in the case.  As MacFarlane LJ pointed out at paragraph 2 of his judgment, the removal of the three older children was regarded as justified not on the basis of any shortfall in the mother's ability to provide practical day‑to‑day parenting to her children but rather as a result of concerns over the mother's personality and her ability to act in a way which would cause the children significant harm to their emotional and social development.  MacFarlane LJ returned to this later in his judgment, and I quote what he said at paragraphs 10 and 11:
"Happily, on one basis, this case is not about a mother who is incompetent or unable to provide ordinary, good enough or even good physical and practical care for her children.  Unhappily, and frustratingly for all involved, I dare say, particularly the mother and the children, the concern about the mother's ability to parent is more subtle and harder to pinpoint, but it arises from her personality and the potential for the children to be upset by unpredictable actions or words that she may from time to time exhibit.Judge Hallam concluded in the note that we have, that is the note of her judgment, that a residential assessment was not necessary because enough was known about the mother's practical day‑to‑day parenting and that that was not a fundamental issue in the case.  She said:"The fundamental issues in this case are psychological and psychiatric.”  On that basis, reading the note as best I can, the judge concluded that a residential assessment, which is as we all know focused upon practical parenting, was not going to provide more evidence that would have been of use to the court.  It therefore seems to me entirely understandable that Judge Hallam said it was not necessary to conduct a residential assessment and the Court of Appeal would not hold that she was wrong in that determination."
7.	That approach of MacFarlane LJ is important to the resolution of this application because, really, the bedrock of the submissions which Mrs M has made to me today are that she is perfectly capable of providing good, practical, day‑to‑day parenting.  She points to the fact that, at any rate for the first few weeks of his life, no attempt was made by the Local Authority to remove XY, her fifth child, from her care.  That, as it seems to me, unfortunately misses the point which MacFarlane LJ was seeking to emphasize.  The judge, Judge Hallam, in her judgment, concluded at paragraphs 331 that neither parent was going to be in a position to care for a child safely in the sort of timescale which this child needed.  The judge also found that neither parent was going to be able to improve their situation within the timescale that is involved in the search for adoptive parents, even if the present foster parents do not successfully complete the process.  
8.	It was for that reason that the judge concluded that there was no merit in postponing the placement application.  And, of course, the judge had already stressed at paragraph 274 of her judgment that, given the age of the child ‑ and I would interpose to say that she is now about 19 months old ‑ the need for a prompt decision as to her long‑term future is very pressing indeed.  This is a child who has never save fleetingly been in the care of her mother, and, as the mother has herself pointed out, has had a variety of foster placements, including I think, during the first year of her life.  It was therefore understandable that the judge was very concerned that a long‑term decision needed to be made and she concluded that there was no prospect of the mother's situation improving within the sort of timescale with which she plainly had to be concerned having regard to the long‑term welfare of the child.
9.	I should add that the position so far as XY, the fifth child was concerned, has altered as of yesterday.  This application was listed to be heard last Tuesday before me but the mother was unable to be present on that occasion because she was given notice the night before of an application by the Local Authority to remove from her care her child XY.  She has told me that yesterday at the Teeside Court, Judge Taylor did indeed direct that XY should go into foster care for two weeks, after which there would be a further hearing to determine what is to be done so far as he is concerned.  Mrs M has told me that that unfortunate outcome was a result of a domestic violence incident about which she has been completely forthcoming and which she assures me is not something that will recur.  Nonetheless, the fact remains that the basis upon which Mrs M has put forward this application has been somewhat undermined by the circumstance that the Local Authority has indeed intervened on the basis that even the day‑to‑day care of the four month old child is, for the time being, compromised by the matters to which I have referred.
10.	Mrs M has sent to me, and I have read with care, a psychological assessment by Mrs Clare Bradley, who is a chartered clinical psychologist.  Her report is dated [a date in] 2014.  It is a short report.  Mrs Bradley refers to earlier reports, in particular a report by Dr Thorpe, a consultant forensic psychiatrist in 2011 and by a Ms Bienkowska in [a date in] 2012.
11.	Mrs Bradley points out at paragraph 7 of her report, after citing key findings in those early reports, that a full historical review has not been carried out by her, as those reports reviewed that information in detail.  The assessment by Mrs Bradley focused on the issues or difficulties that Mrs M was experiencing and reviewed the way in which she, Mrs M, believes she has changed over the past two years.
12.	In her conclusions, Mrs Bradley pointed out that Mrs M has co‑operated fully with the assessment and she had also at an earlier paragraph, paragraph 14, pointed out that on the second occasion on which an interview was conducted, Mrs M was caring for two very young children, that is to say XY and apparently her Goddaughter who I think is probably the daughter of a cousin.  Mrs Bradley remarked, to the credit of Mrs M, that Mrs M coped well with the demands of these two very young children.
13.	That notwithstanding, Mrs Bradley concluded in paragraph 18 that Mrs M's issues concerning trust, in particular of other people and of the Local Authority, and her insight into how her functioning has been influenced by and has had an influence on past events, is incomplete and that these underlying difficulties are likely to affect her future well‑being.  She mentioned that Mrs M had reported that she had learnt to control her drinking and her aggression but it was the conclusion of Mrs Bradley that whilst her underlying difficulties remained unresolved there remained a risk that she might revert to those behaviours.
14.	At paragraph, 19 Mrs Bradley said this:
"Mrs M was described by Dr Thorpe as having personality disorders.  The nature of a personality disorder is that a person has fixed and static ways of reacting to events and people which cause difficulties to themselves in managing their own emotions and their relationships with other people.  These difficulties are typically slow to change, and require long periods of therapeutic intervention before change occurs and is maintained.  That intervention can take several years to achieve.  As Dr Thorpe points out, the process of change can be intermittent, and the individual can revert to former unhelpful ways of interacting in times of stress."
Then at paragraph 21, Mrs Bradley says this:
"Mrs M has sought therapeutic help.  The C.B.T. [Cognitive Behavioural Therapy] offered is unlikely to meet her needs.  The Talking Changes and the PCP service both offer short‑term interventions aiming to help people with specific psychological difficulties.  Mrs M needs to have a long term input in which the therapist can offer multiple forms of help, including coping strategies for anxiety, as well as offering help focusing on longer term issues, such as post‑traumatic symptoms, issues of trust and unhelpful relationship patterns.  This is likely to require at least 30 session of therapy over a period of 18 months to 2 years.  Mrs M's determination to prove her worth will help her in this process.  However, the process of change will be hindered by changes in therapist, and unpleasant life events.  As it is a specialized, long term intervention, the waiting list for this form of therapy is long.  Mrs M has reported that she has some funding for therapy herself ..." 
Finally this at paragraph 22: 
"The stress of caring for a large family would be likely to impede the progress of therapy.  Mrs M would need to attend therapy regularly and would not be able to have the care of her child(ren) during the therapy sessions.  Mrs M is likely to need to attend appointments in a central facility, not her local GP surgery.  Therefore some time will be spent travelling to and from therapy sessions.  An issue for therapy would be building trust in social services.  Therefore the therapist would need to be clearly separate from that service."
I should record that Mrs M told me that Mrs Bradley has since indicated that the timescale might not be as long as is there indicated but of course I have only seen what she has written in the report itself.  Plainly what is involved is a long and uncertain process.
15.	I have referred to that report in some detail because it does not in my judgment assist Mrs M in the application which she makes.  The underlying concern, as MacFarlane LJ pointed out back in June last year, is not about her day‑to‑day ability to provide practical parenting, but rather her personality and the impact upon her children's, or in this case LM's, well‑being over the longer term, having regard to her personality and character difficulties.
16.	The judgment of the learned judge is long, careful and thorough.  It runs to 333 paragraphs.  The judge plainly gave the most anxious consideration to this case, as one would hope any judge would, and she plainly took into account all of the relevant recent jurisprudence.  She had well in mind that a placement order was something which must be absolutely the last resort.  The judge referred to that at both paragraph 70 and at paragraph 323.  The judge referred as I have said to all of the relevant recent authorities.  She did not pay mere lip service to the learning which is contained in them, but directed herself carefully, and at paragraph 324 reached, reluctantly as she said, the conclusion that there is an overriding necessity for LM to be adopted, explaining in the subsequent paragraphs to which I have already referred, that there was no prospect of either parent making sufficient improvement in the conditions which affected them within a timescale consistent with the welfare of the child.  
17.	In my judgment there is no realistic prospect of the Court of Appeal differing from that very careful assessment of the judge and, accordingly, also with reluctance, but having regard to the realities of the situation, without hesitation, I must refuse permission to appeal.