Case No: B4/2014/3232
Neutral Citation Number: [2015] EWCA Civ 119
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
HER HONOUR JUDGE LEVY
BT14C0049
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/02/2015
Before :

LADY JUSTICE MACUR DBE
LORD JUSTICE SALES
and
DAME JANET SMITH DBE
- - - - - - - - - - - - - - - - - - - - -

G (A Child)

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

Ms N Barrett (in person) the Appellant
Mr J Tughan (instructed by Legal Dept. Haringey Council) for the Respondent

Hearing dates : 13 January 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Macur DBE : 
1.	The mother appealed against an order made by HHJ Levy on 23 September 2014, refusing her application pursuant to section 24(2)(a) of the Adoption and Children Act 2002 for leave to apply for the revocation of the placement order made on 24 August 2012 in relation to the mother’s son, J. On 13 January 2015 this court allowed the appeal with reasons to follow. 

Background

2.	J is now 6 years 3 months old. He was made subject to a ‘child protection plan’ on 21 December 2010 and has been in foster care since August 2012. His mother unsuccessfully opposed the care and placement orders made by DDJ Johns in August 2012, and subsequently, in December 2013, his maternal grandmother unsuccessfully applied to revoke the placement order. Contact has been ongoing. The mother sees J once every eight weeks. 

3.	A document headed “Agreed Threshold Criteria – 17.7.12” gives some indication of the circumstances of J’s removal. In summary, J’s father has previous convictions for serious drugs and violence. In June 2009, the mother attempted to prevent his arrest for the offence of armed robbery. The father was subsequently jailed. The mother commenced a new relationship. Her new partner also had previous convictions and was a serial offender. Regrettably he was violent to the mother. She continued with the relationship and was said to prioritise her relationship with her partner over her own and J’s safety. The mother disagreed but there is objective evidence that she found it difficult to separate from her partner, refusing an injunction and visiting him in prison whilst he was serving a sentence for assaulting her. The mother was said to continue to “minimise and excuse the extent and impact of the domestic violence and conflict to which J had been exposed”. She herself smoked cannabis but denied that she had used class A drugs. It is clear that she was not co-operative with social services and would routinely deceive them about her home circumstances.

The proceedings before DDJ Johns.

4.	Reading this document I have no doubt that the so called threshold criteria imposed by section 31 of the Children’s Act 1989 were more than satisfied. What is considerably less clear is the basis upon which the judge in August 2012 went on to make the care and placement orders. Despite the single judge indicating the desirability of obtaining the same when granting the mother permission to appeal on 20 November 2014, a transcript of that August judgment was not available to us; significantly, in my view, neither was it available to HHJ Levy in September 2014, who had the added disadvantage of being without a copy of the “agreed threshold criteria”.  The only document that assists is Counsel’s “note of final hearing” prepared by Mr Hepher on 20 August 2012 for his Instructing Solicitor. It has not been approved by the DDJ Johns.

5.	Contrary to what HHJ Levy said in her judgment, the note does not pretend to be a note of the judgment; rather it is the subjective assessment of the hearing and its outcome, giving a potted version of the judge’s conclusions. Counsel who appeared for the Local Authority could have no idea or intention that it would be referred to in any future proceedings or appellate jurisdiction. However, HHJ Levy placed reliance upon it and, it seems to me, elevated Counsel’s written opinion that “the evidence did not go well for [the mother]. She became upset and gave loud, aggressive and frequent inconsistent and confrontational answers when challenged” into findings made by the first instance judge and thereafter cited Counsel’s summary of a part of the judgment in quotation marks, giving the appearance that  the same were spoken by the DDJ Johns. 

6.	The fact of its quotation by HHJ Levy leads me to conclude that it was instrumental in her decision and I therefore refer to it in full. HHJ Levy said that “[t]he judge had concluded by summing up the mother as: ‘...angry, resentful and accusatory of professionals...blaming of others, was unable to explain the impact of domestic violence and undesirability of drug use, and had a casual disregard to telling the truth. She had no insight into the magnitude of the risks the father might pose, nor the impact of her own behaviour. She was not able to sustain motivation for any meaningful change”.

7.	The note of the hearing contains more which is not referred to by HHJ Levy, but which does have some relevance. That is, DJ Johns was said to have “concluded with an analysis of the advantages and disadvantages of J staying with his mother. Giving the ongoing risks of significant emotional and physical harm presenting to J staying with his mother, and the lack of perception of these risks, the Judge...accepting the social worker and guardian’s analyses ...” There is no indication of what DJ Johns considered the advantages and disadvantages to be.

The proceedings before HHJ Levy

8.	The mother appeared as a litigant in person before HHJ Levy and the local authority was represented by counsel, Mr Tughan. No oral evidence was called and the judge dealt with the mother’s application on submissions.
 
9.	HHJ Levy’s own judgment has been transcribed and is before us. She adequately summarises the law applicable to the application for leave to apply to revoke a placement order as a two stage test; first to consider whether there has been a sufficient change of circumstances and if so, thereafter to consider whether to exercise her discretion to grant leave. In the result, she determined that the first stage was not met and did not go on to articulate whether, but for that, she would have exercised her discretion to grant leave. If she had done so she would need to bear in mind  that the child’s welfare was not the paramount consideration and that in considering whether the mother had “a real prospect of success” that this related to the revocation of the placement order and not necessarily the return of J to his mother’s care. 

10.	HHJ Levy refers to the previous proceedings making clear that she did not have the “agreed threshold criteria” or information about DJ Johns’ judgment other than Counsel’s note. She makes some reference to J’s circumstances and records, in some detail, the mother’s and the local authority’s cases, thereby identifying several potentially significant areas of dispute. Unfortunately, she makes no findings on the disputed issues of fact, some of which founded the basis of the local authority’s opposition to the mother’s application, and neither does she indicate that, for the purpose of the application, she accepts the factual basis of the mother’s submissions. It is obviously difficult in these circumstances to adjudicate upon whether HHJ Levy’s decision, which is to be found in the final three paragraphs of her judgment, is soundly based.

11.	At paragraphs 37 – 39 she said this: “The young woman, (still only 24), I have seen in court today is eloquent, composed, and apologetic for her earlier position and approach to these proceedings, and those involved in them. Both in what she has said and what she has written, she has shown a degree of understanding, and she is clearly doing her utmost to show the parties and the court that she has made material changes. I note that the care order and the placement order were made just over two years ago, and that it is in the past six months that [the mother] has sought help and made use of the help available to her, and the reports are very encouraging. I do not think, from what I have read and heard, that she could have made the submissions she made today two years ago. However the concerns of the Local Authority ...the guardian and DJ Johns, at the time when the orders were made were very serious, and they were largely unacknowledged. They dated back then to late 2010 and through 2011. As a result [the mother] has a long way to go to make and demonstrate a material change, a process which she began in  March 2014...having considered all the evidence, and the submissions, I find that [the mother] has not established a change of the order required by the change of circumstances test, not at this stage. There are promising signs but they are no more than that at this stage. I am not satisfied that there has been a change of circumstances as defined in Re P. As a result, I have not gone on to consider stage 2 of the test, the welfare test...”

12.	In Re P (Adoption: Leave Provisions) [2007] 2 FLR 1069, Wall LJ (as he then was) identified the nature of the change of circumstances since the order was made necessary to provide a gateway to the judge’s exercise of discretion in the context of an application for leave to defend adoption proceedings. The relevant part of section 47 and section 24 of the Children and Adoption Act 2002 are identical in terms in so far as they relate to a change of circumstances. The relevant part of the judgment bears repeating in full here. 

Wall LJ:-
30.	“We do not think it permissible to put any gloss on the statute, or to read into it words which are not there. The change of circumstances since the placement order was made must, self evidently and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to judicial discretion... 
31.	.....the importation of the word ‘significant’ puts the test too high. Self –evidently, a change in circumstances can embrace a wide range of different factual situations. Section 47(7) of the 2002 Act does not relate the change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances ‘since the placement order was made’, Against this background, we do not think that any further definition of the change in circumstances involved is either possible or sensible.
32.	We do, however, take the view that the test should not be set too high...parents should not be discouraged from either bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable. We therefore take the view that whether or not there has been a relevant change of circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application.”  

13.	This interpretation has been approved without deviation by successive and different constitutions of the Court of Appeal to date and Re P remains the leading authority on this point.  

The Appeal

14.	The mother’s oral application for permission to appeal was listed before Black LJ on 20 November 2014. The mother was not eligible for legal aid funding and was not represented.  From the mother’s documentation Black LJ identified three arguable points, making clear that this should not be taken as an endorsement of them. Those grounds may be summarised as follows : (1) the judge set the bar too high and was wrong on the facts to find  there had been no relevant change of circumstances in this case; (2) the judge was wrong to proceed on the basis that the local authority’s disputed allegations in relation to the mother’s conduct were true; (3) in assessing whether there had been a change of circumstances within the meaning of the section the judge should have taken J’s circumstances into account and in particular the fact that the adoption panel had refused to approve the match between J and  his identified prospective adopters. Black LJ encouraged the mother to seek legal representation.

15.	The mother appeared before us as a litigant in person. She would have wished to have been represented if possible. Mr Tughan appeared on behalf of the Respondent Local Authority. 

16.	In making her submissions, it was inevitable that the mother should refer to her present circumstances and address the facts rather than the law. However, I consider we were assisted greatly by her and had the benefit of placing what she said in the context of the concisely framed grounds of appeal, which she adopted at the outset. All members of this Court considered that HHJ Levy’s description of her as eloquent and composed was amply borne out. It was clear that she wishes the best for J and recognises that even the successful outcome of this appeal and application to revoke the care order will not necessarily dictate his return to her care. In the circumstances it is unnecessary for us to make adjudication upon her claims of successful counselling and access to ongoing effective support, even if we had the base materials upon which to do so before us. 

17.	Mr Tughan, in opposing the appeal, prepared a skeleton argument which  argued that the judgment was sufficiently articulated to enable us to be satisfied that HHJ Levy: (i)  had not set the bar too high when she concluded that the mother “had a long way to go”, since she had based her consideration on the facts established in the earlier proceedings; (ii) had implicitly made some findings on the disputed issues in recording each party’s case; (iii) had not disregarded J’s situation, which remained one of a child whose welfare had previously been judged to require his adoption and no contact with his mother thereafter.

18.	In discussion, Mr Tughan was obliged to concede that he was attempting to “shore up” the judgment of HHJ Levy. He accepted the absence of any findings in the judgment that were directly relevant to the adverse findings apparently made against the mother by DDJ Johns and upon which HHJ Levy relied.  He argued that some issues that were recorded in the judgment had been ‘resolved’ during the course of the proceedings – entirely, I observe, in favour of the mother’s contentions – and that it was unnecessary to make certain other findings, including whether the mother’s relationship with her previous partner had ended, the extent if any of her drug use, and whether she had threatened the current social worker with violence. He accepted that the Court would “struggle to piece together” HHJ Levy’s thought processes, but that they could be “pieced together” when analysed in the round. He argued that the bar had been set at a high level by reason of the findings made in the original care proceedings and that the self reported changes by a mother, whose credibility had been doubted in the past and, implicitly I think he was suggesting, was in any event so emotionally compromised in relation to an objective consideration of J’s best interests, had inevitably led the judge to conclude that she still had a “long way to go”. 

19.	Quite apart from the issues raised in the grounds of appeal, I would express my great concern at other aspects of the procedure that was adopted at first instance and which are capable of further infecting the outcome. That is, HHJ Levy was disadvantaged in the absence of DDJ John’s judgment and “agreed threshold criteria” and was wrong to accept counsel’s unapproved “note of the hearing” as a sufficient substitute, even though I am sure she was well intentioned in seeking to avoid delay. She could not possibly establish the true base line in the absence of the “agreed threshold criteria” document, which  itself  recorded some issues of fact and differing interpretation of others, without reconstructing the evidence that had been available in the court below. In doing so she appeared to rely entirely upon the reports submitted by the social worker and guardian.

20.	Even accepting, for the point of argument, that HHJ Levy was able to satisfactorily reconstruct the situation at the time the placement order was made, in this case she would be incapable of forming a valid judgment about the change in the mother’s circumstances without making findings on the disputed facts before her, for they were all pertinent to the criticisms voiced against the mother in the August hearing. That she has implicitly found against the mother appears to be confirmed by the decision she made. If not, I think it is difficult to argue on the basis of the earlier reports and the part of counsel’s note from which she quoted that the  mother’s written evidence, if accepted,  did not demonstrate a  change in her circumstances to the required degree to provide the gateway for her application.  

21.	I do not accept Mr Tughan’s submission that the nature and degree of the change of circumstances which a parent does successfully establish, is demoted by it being a recent change. This does add gloss to the words of the statute and should be resisted. HHJ Levy did not do so and thereby did set the bar too high at this first stage.  Obviously, the sustainability of the relevant change in circumstances and the impact that would have on the welfare of the child is open for consideration at the discretion stage.

22.	For these reasons alone, I would allow the appeal on the basis of my decision on the first and second interconnected grounds of appeal. The mother’s change of circumstances appears to me, on paper, to pass the first stage without any reference to J’s position being necessary. My comments hereafter are therefore obiter.

23.	It seems to me that the issue raised in the third ground is explicitly determined by Wall LJ in Re P. The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad,  if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances. 

Postscript

24.	Shortly before coming into court, a statement prepared by Ms Faith Connell, J’s social worker, unsigned but dated 9 January, 2015 was sent through uninvited. There is no application to admit fresh evidence. I am told by Mr Tughan that it is intended to update the court on ‘family finding’ for J. This practice is becoming increasingly common and I think it entirely inappropriate. If the statement contains fresh evidence which is pertinent to the appeal then leave should be sought in accordance with normal procedure to admit it. If it does not, it may appear as an attempt to influence the outcome of the appeal. Mr Tughan assures me that that is not intended, but that it was submitted with a view to assisting the court if it wished to substitute its own order for that of the court below.

25.	 As it is, this is not a court of first instance and is not in a position to determine the disputed factual issues raised in the mother’s application before HHJ Levy, let alone fresh facts on the unilateral presentation of what may be challenged evidence and opinion going to inform the discretion stage. I have refused to read the statement in those circumstances and particularly since the mother is unrepresented.
 
Outcome

26.	I would set aside HHJ Levy’s order and direct the mother’s application be heard by a different court without reference to the judgment of HHJ Levy. I do not intend to impugn the professional integrity of the judge in doing so but seek to reassure the mother that her application will be considered completely afresh.

Lord Justice Sales :
27.	  I agree.
Dame Janet Smith DBE :
28.	        I agree.