Case No: B4/2014/3763
Neutral Citation Number: [2015] EWCA Civ 489
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT sitting in MANCHESTER
HER HONOUR JUDGE NEWTON
Case No. MA14C00269
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/05/2015
Before :

LORD JUSTICE KITCHEN
LADY JUSTICE MACUR DBE
and
SIR BERNARD RIX
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S (A Child)

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Mr R Zentar (instructed by Temperley Taylor Solicitors) for the Appellant
Ms S R Donaldson (instructed by Legal Dept. Salford City Council) for the 1st Respondent
Mr A Moore (instructed by Wtb Solicitors) for the 2nd Respondent

Hearing dates : 22 April 2015
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Judgment
Lady Justice Macur DBE : 
1.	This is the mother’s appeal against the making of a placement order in respect of her son, D, who is now almost 2 years of age. D, the youngest of her ten children, was removed for a second time from the mother’s care on 4 July 2014. He has not returned but has had supervised and positive contact with his mother. His two oldest siblings are in long term foster care. His seven immediate elder siblings have all been adopted. 
2.	The single judge granted the mother permission to argue four of her self penned grounds of appeal. They are interconnected. The real issue in the appeal, acknowledged by Mr Zentar who now appears on her behalf, is whether the mother was wrongly deprived of an opportunity to demonstrate a sea change in her parenting abilities and her capacity to be a sole carer by the absence of a safe parenting assessment previously approved/directed by the judge and subsequently abandoned by the local authority, in order to establish that there was a viable and realistic alternative to adoption for this child. 
3.	The father did not give evidence in the hearing before HHJ Newton although he was warned that adverse inferences may be drawn against him. He does not participate in this appeal.
4.	This court announced that the appeal was dismissed at the conclusion of the hearing with reasons to follow. These are my reasons for joining with that unanimous decision.
5.	The mother commenced her relationship with the father when she was 15. He was 25. She had a troubled childhood and functions within the low average range of ability. All of her children have the same father. The oldest seven children were found to have been neglected and to have suffered serious physical and emotional harm whilst in their care. The likelihood of the same fate befalling the next two children and the parents’ domestic circumstances at the time was sufficient to result in the institution of care proceedings, their removal at birth and subsequent adoption. 
6.	In similar fashion, care proceedings were instituted immediately upon D’s birth on 18 May 2013 and he was removed from his mother. However, he was then placed in the care of his parents in December 2013. He thrived and apparently established a good attachment to them. His parents co-operated with, and were subject to close monitoring by, care professionals. Home standards were consistently acceptable. There were no reported concerns.
7.	In May 2014 serious allegations of sexual abuse were made against the father by three of his younger siblings said to have occurred during their childhood and adolescence in the 15 years up to 2001, and therefore covering the time when he was in a relationship with the mother and with her had at least two children of his own. He was subsequently charged in November 2014 and awaits trial on offences including vaginal and anal rape. He is remanded on bail with conditions prohibiting any contact with D unless it be professionally supervised.
8.	The father has a previous conviction for indecent assault of a 9 year old boy in circumstances that would now be indicted as oral rape. He has been accused of several serious sexual offences in the past by another sibling and two unrelated young women. No criminal proceedings followed. More recently, two of his older children have alleged that he has sexually abused them. 
9.	At the outset the mother certainly was frankly disbelieving and angry at what she perceived to be malicious lies. Nevertheless, she entered into a written agreement not to allow contact between D and his father unless supervised by the local authority. She soon breached that agreement to the knowledge of the local authority. Nevertheless, a second agreement was entered into on 20 June 2014. The mother was again warned of the likely consequences of breach.
10.	Subsequently the adoptive parent of one of D’s siblings contacted the local authority concerned by a letter sent by the parents to the relevant child to the effect that they, the parents, were living together and had a child. The local authority initiated care proceedings. An interim care order was made on 3 July and D removed to a foster placement. 
11.	So it was that the case came before HHJ Newton on 25 July 2014 for a case management hearing. The parties’ positions were recorded. Specifically it was noted in the order that:
“(a) The child is placed in local authority foster care. It is the local authority’s care plan for the child to remain in this placement pending the outcome of further assessment or conclusion of proceedings.
(b) The local authority have made a referral to the Edenfield Project at Prestwich Hospital for an assessment to be undertaken of the mother ...and for Safe Care work to be commenced.
(c) It is envisaged by the parties that within six weeks the safe care work identified for the mother will have commenced and consideration given as to whether it would be safe to return D to the mother’s care. The Edenfield Project shall be asked to confirm whether any further work beyond those timescales is required and if so whether the work would need to be completed prior to any rehabilitation plan being progressed.
(d) The mother informed the Court that she separated from the father four weeks ago and is not having contact with him...
...
(l) The local authority confirmed that the Greater Manchester Police have not yet disclosed any documentary evidence in respect of the mother and father....”
12.	Directions were given as to the filing of evidence from the Chief Constables of Greater Manchester and South Yorkshire Police and, amongst other documents, that the local authority serve an assessment of the mother from the Edenfield Project.
13.	Unfortunately, there had been no exercise of due diligence in respect of the   Edenfield Project. It transpired that the resource was not available to parents against whom proceedings had already been initiated. An alternative resource was in the process of being sought when sightings and other evidence of the couple continuing to see each other became known to the local authority.  Consequently the local authority abandoned its search and an application was issued to place D for adoption. 
14.	The order from the  hearing before HHJ Newton on 10 September 2014 summarises the evidence of the parent’s continuing relationship, the fact of the mother’s challenge to the evidence and records:
“The local authority are of the view they cannot progress or commission work to be undertaken when the mother is unwilling or unable to work openly and honestly with the local authority about her relationship with the father. On that basis, the local authority confirms they do not intend to conduct any further assessment of [the mother]...their care plan will be one of adoption.”

15.	The case was heard over three days commencing 27 October. The judge heard evidence including that concerning the mother’s alleged contact with the father, which she had denied. Whilst the judge recognised that the mother was “probably able to provide for D’s needs on a practical basis” she made whole scale findings against her in relation to the reported times that she and the father had been together, satisfied that these were the “ ‘tip of the iceberg’ and that the parents have been meeting regularly and their relationship has continued.” 
16.	Ultimately, and as a result the judge determined that:
“...the risks inherent in returning D to the care of his mother are very high indeed. History is the best predictor for the future and, in my judgment, it is unlikely to be long, if D was in her care, before she was going behind the backs of professionals, and permitting the father contact and exposing D to the risk of sexual abuse. If I am mistaken and the mother can indeed put into practice her express determination to separate from the father...she cannot put herself in the position where she could be considered as a safe carer within any timescale which could remotely meet D’s needs.”
            A placement order was made.
17.       Mr Zentar argued this appeal, in which he was briefed less than 48 hours before, with commendable focus. He did not suggest that the judge made findings that were not open to her on the evidence, nor did he suggest that she made an error of law. His argument has at its premise two key matters: (a) the parents had shown a remarkable turnaround in parenting capacity. They had been responsible for chronic neglect of their elder children but had been “impressive” in their care of D. They were loving and attentive towards him. (b) The fact of the mother’s breach of the May agreement was known to the local authority and the court at a time when a referral to the Edenfield Project was sanctioned. In those circumstances, regardless of the findings against her, the court should not have denied her the opportunity which “may well have made [the mother] aware of the importance of ending completely her relationship with [the father] as an essential condition for D’s return to her sole care.” Until this assessment and work had taken place it could not be said that ‘nothing but adoption would do.’
18.      The local authority and D’s children’s guardian oppose the appeal. They rely upon the fact that the proposed assessment, which they both agreed as a way forward, was based on a completely false foundation. Whilst the local authority had been prepared to give the mother the benefit of the doubt initially, the full extent of her ongoing relationship with the father had not been known to them, nor would it have been tolerated in respect of D. They submit that the court below could not reasonably be criticised for failing to accept the mother’s claim of a late acceptance and realisation of the risk presented by the father. In this respect, Miss Donaldson and Mr Moore, who represent the local authority and child respectively, each refer to the mother’s skeleton argument in support of her grounds of appeal, composed and submitted by her after the judgment, which still denies her continuing involvement with him.
19.     Three key issues throughout the proceedings instituted in July 2014 were clearly identified and recorded on the face of successive court orders. These were:
“(a) Whether the child has suffered or is at risk of suffering significant harm in the care of his mother and father as a result of sexual abuse;
(b) Whether the mother is able to demonstrate sufficient insight in to the concerns identified and risks posed by the father to adequately safeguard the child in the future within his time scales  (my emphasis);
(c) Whether any support or services could be provided to the family to enable the mother to meet the child’s needs;”
20.     The judge at first instance was satisfied that there was a risk and no appropriate services were available that would minimise it sufficiently in light of the mother’s lack of insight and attendant dishonesty. She clearly articulated her reasons for so concluding; none of which are remotely perverse.
21.      Mr Zetnar’s submission that the balance has to be in favour of giving D a chance to be raised by his mother by allowing her the opportunity of completing the assessment must be seen in the context of HHJ Newton’s findings  and the decision in Re R (A Child) [2014] EWCA Civ 1625 which lays to rest any misconceptions that did exist since the reporting of Re B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146, that only once every possible option has been investigated, regardless of prospects of success or realistic application to the known facts, can an interference with respect for the family life  of the subject child and his/her parents be justified by the making of a placement order. D’s future welfare required the judge to make a realistic appraisal of the mother’s prospect of acquiring sufficient and genuine insight into the risk the father presented in the short and medium term and being amenable to support throughout and thereafter to sustain her separation from him. HHJ Newton made significant adverse findings against the mother in this regard and in a manner that simply cannot be categorised as wrong; I would go so far as to say she was plainly right.
Sir Bernard Rix:
22.	I agree.
Lord Justice Kitchin:
23.	I also agree.