Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

21 AUG 2014

Re B (Children: Long-Term Foster Care) [2014] EWCA Civ 1172

Re B (Children: Long-Term Foster Care) [2014] EWCA Civ 1172
(Court of Appeal, Tomlinson, Black, McFarlane LJJ, 14 August 2014)

Care proceedings – Care orders – Evidence of mother’s relationship with a man who had criminal convictions – Evaluation of the evidence – Analysis of the mother’s response – Whether the judge’ analysis had been sufficient

The full judgment is available below

The local authority became involved and initiated care proceedings in respect of the two children, now 11 and 9, following a report that the father had been violent towards the mother. The social worker recommended a supervision order as it was not appropriate to seek care orders at that time. Meanwhile the mother had started a new relationship with a man who the local authority had mistakenly identified as having an extensive criminal record which included drug and firearm offences.

The social worker changed her recommendation to one of foster care under a care order as a result of further developments including reports of the mother’s new partner assaulting one of the children and of a disturbance at the family home. The mother subsequently ended the relationship.

At a final hearing the judge found that the mother had not been consistent in her care of the children regarding her relationships. Care orders were granted and the children would be removed into foster care. The mother appealed.

The appeal was allowed and the case was remitted for rehearing by a different judge. The judge’s approach was flawed in respect of the events which had led to the local authority’s change of stance and was lacking in sufficient detail to substantiate the decision being taken. The judge’s view of the mother’s relationship had been uncompromising. A criminal record did not, of itself, make someone unsuitable to have contact with children and it was incumbent on the judge to make it clear why he took that view. Furthermore, if the judge had explained his approach to the convictions he would have needed to evaluate the weight to be placed on the mother’s relationship with her partner, to consider whether she had subsequently ended it and whether she was able to put her child’s needs first. That evaluation had not been carried out and, therefore, the foundation of judge’s criticisms of the mother in this respect was shaky.

The findings made on the basis of the material available needed to be supported by a more detailed analysis of the evidence and of the mother’s response to her circumstances. In this case the judge had simply stated that he preferred the evidence of the authority to that of the mother.


The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.


Neutral Citation Number: [2014] EWCA Civ 1172

Case No: B4/2013/3390

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
HHJ Scarratt
CT13C00498

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday 14th August 2014

Before :

LORD JUSTICE TOMLINSON
LADY JUSTICE BLACK
and
LORD JUSTICE MCFARLANE

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

RE B (CHILDREN: LONG TERM FOSTER CARE)

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

Ms Leanne Targett-Parker (instructed by Robinsons Solicitors) for the Appellant
Mr Jeremy Hall (instructed by Kent County Council) for the Respondent

Hearing date : 16 July 2014

Judgment
As Approved by the Court

Crown copyright©

Lady Justice Black :

[1]  On 30 October 2013, HHJ Scarratt granted care orders in relation to two boys, A (who was born in December 2002 and is now 11 years old) and B (who was born in August 2004 and is now nearly 10). This appeal is brought by their mother (M) against those orders.

[2]  A and B are the youngest two children in the family. They have two older half-sisters who are not the subject of these proceedings. P is an adult. K is 17 years old and was also subject to public law proceedings but they ended on 5 September 2013 with a supervision order, made on the basis that K was to reside with her aunt.

[3]  The father of A and B (F) is in prison. He was provided with the appeal documentation by M’s solicitors and was contacted by this court to see whether he wished to be involved in the appeal proceedings; he did not.

[4]  The children have a children’s guardian in the proceedings and were represented by counsel before Judge Scarratt. Like the local authority (LA), the guardian opposes the appeal. As her reasons for doing so are the same as those advanced by the local authority which appeared before us by counsel, there was rightly no separate representation for the children before us.

[5]  At the conclusion of the appeal hearing, we announced that we had decided that the appeal would be allowed and the case returned to be reheard by a different judge. We said that we would provide reasons for this decision in writing. These are those reasons.

[6]  As an important feature of the rehearing will be an examination of the history of this family, I must be careful about how I deal with the detail of that history, some of which may be contentious. It is important that the trial judge should make his or her own decisions about what happened and about the weight and significance of each aspect of the chronology. However, as the focus of the grounds of appeal was upon the way in which LA’s case evolved over time, I will need to set out something of the material that was presented to the court at each stage in the proceedings.

History up to the issue of care proceedings in March 2013

[7]  M and F had an on and off relationship from 2000. According to social work information, the relationship ended in March 2012. At that point M reported that F had been violent to her for approximately 10 years and that the children had repeatedly witnessed violent incidents. Social services became involved. At an initial child protection conference in August 2012, the children were made subject to a child protection plan under the categories of physical and emotional abuse. In due course, care proceedings were issued on 18 March 2013. LA was then seeking interim care orders in relation to A and B but in fact, as we shall see, it subsequently accepted that there should be interim supervision orders and the boys stayed at home during the proceedings.

[8]  A considerable history preceded social services’ involvement in 2012. Referrals had been coming in to LA in relation to the family at intervals from November 2000. The first referral concerned K having spoken of sexual abuse by a family friend. Thereafter, as the social work chronology shows, there were diverse problems. These included reports of trouble caused by family members and friends, poor home conditions, K being thin and unkempt, erratic school attendance and problem behaviour in school, A falling into a scalding bath, the children being out unsupervised in the street at night, and M being stabbed by a neighbour and having bricks thrown through her window. The chronology shows that the case was periodically closed but then reopened. Assessments were carried out 2003, 2007, 2008, 2009 and 2011.

[9]  The core assessment done in March 2011 ended on quite a positive note, having detailed the ways in which, with help, M had been addressing the children’s behavioural problems. The analysis section concluded:

“A brief period of intervention has been offered by SSD in order to support M and F in implementing boundaries within the family home, and to ensure that appropriate support services are in place. Both parents have responded positively to SSD, and have made changes which have impacted positively on the children’s behaviour. There are no ongoing support needs for K, A and B which cannot be met with community support services….” (C84)

[10]  There was also positive material in the further core assessment (completed 21 June 2012) which was done after social services resumed their involvement. The section entitled “Positive Factors” (C87) commenced as follows:

“M has contacted the police and informed them that she has suffered DV for 10 years, F, is in prison for that reason. (sic) M is a protective factor for both children and the relationship has improved between them since M is not feeling fearful all the time.” Also under the same heading, it was said that there was “a full engagement with school and support has been offered to the family”. Later there was mention of “a close, warmth and loyal relationship” (sic, C87) that the children had with M.

[11]  Risk factors were also set out however. The focus was particularly on the 10 years of domestic violence of which M had recently spoken and the effect of that on the children and the family generally. There was also reference (C92) to “historical concerns regarding parenting”, “concerns” about the parents’ ability to meet the children’s needs for “safety, stability and encouragement”, and difficulties with the children’s behaviour (see for example C90). Other features included M’s difficulty in controlling her emotions and in following professional advice (C91).

[12]  The conclusion of the assessment was that the family needed “a high level of support to be able to go through the crisis situation that it is [in] at the moment” (C93).

[13]  The social work chronology shows incidents continuing through the summer of 2012, including an anonymous call to the police to say that the children were walking around in possession of knives and a report of M threatening to set neighbours’ houses on fire and throwing garden furniture around.

[14]  From the social worker’s first statement (6 March 2013, §20), it emerges that it was believed M had begun a new relationship with a man called Mr DS who was thought not to be an appropriate adult to be around the children due to having “44 offences, with 17 convictions…..in relation to drugs, violence and domestic violence”.

[15]  In October 2012, the two boys had to be contained in part of their school because their challenging behaviour was putting themselves and their peers at risk (§22, social worker’s statement). They were permanently excluded from school in December 2012. By the time of the hearing before Judge Scarratt, they had not returned to school, receiving only limited education in the form of individual tuition.

[16]  At the end of January 2013, K was arrested for assault on M; A and B were present in the home during the assault.

History from the issue of care proceedings in March 2013

[17]  The social worker filed a further statement dated 3 July 2013. In contrast to her first statement which had supported the making of care orders, this one was in support of supervision orders in relation to K and the boys, with a plan for the boys to remain living with M and K to continue to live with her aunt, with whom she had been living since February 2013. In it, she said:

“64. A and B both suffer with their emotions and can appear emotionally unstable at times. Whilst M works with professionals and support[s] A and B in attending all services in relation to this, the stability of them remaining in the family home is most appropriate.
77. There have been previous concerns that M has not been able to put the children’s needs in front of her own. There have been improvements with regards to this and this is reflected in the children’s presentation and behaviour which is far more settled.
78. M needs to continue to work with professionals as well as LA in an open and honest way, to allow changes that have been made to continue and be sustained.
85. LA does not feel it appropriate or in the children’s best interests to be seeking Care Orders at this time. M appears to have made some positive changes in her parenting, and has shown that she is able to work with agencies. As a result, the children’s behaviour, engagement with [the social worker] and their presentation has improved, and LA no longer feels that a Care Order is required or justifiable at this time.”

[18]  The care plans for the children remained the same when the social worker filed her next statement dated 24 July 2013. However, the statement was not entirely positive. The social worker spoke of continuing concerns about M’s parenting capacity. She set out allegations which had been made to social services about M’s conduct. These fell into 3 categories: i) M bringing the boys into contact with F when the arrangement was that contact should be supervised; ii) M being aggressive and abusive towards F’s partner; iii) M committing crime and purchasing drugs whilst B was with her and B running around the estate unaccompanied at all times of the day and night.

[19]  Another source of concern identified in the statement was M’s relationship with a Mr SB, which M had told social services had been in existence since the start of the court proceedings. Social services were concerned about Mr SB’s lengthy criminal record and because his children were known to social services. There was concern too about a decline in the boys’ presentation and in their communication with the social worker.

[20]  Summarising the position (B122), the social worker said:

“It is felt that there has been some positive changes made for the children and these must be recognised, although not as significant as LA would have wanted.” (sic)

[21]  She stressed that M needed to work with all the services in an “open and honest way” to maintain the “minimal change” she had so far achieved.

[22]  The guardian too was concerned about recent developments as she set out in her report of 24 July 2013, in which she queried whether M’s engagement with social services was “tokenistic”. Amongst the matters picked up by the guardian was the question of Mr SB’s convictions which the guardian had been told included a firearms offence. She did not feel able to make final recommendations about the boys without further information.

[23]  The order made by Judge Scarratt on 26 July 2013 reflected the respective positions of LA and the guardian and included directions for the filing of further material in anticipation of the final hearing on 5 September 2013.

[24]  Before 5 September arrived, however, LA’s plan changed to one of foster care for the boys. This can be seen from the social worker’s statement of 14 August 2013 which said that “only minimal improvements” had been made despite support and guidance, that “[i]nformation that has been received and observations that have been made over the past two months are extremely concerning” (B128), and that a care order was recommended. In the preceding paragraphs, the social worker set out information received from various sources about the recent care of the children. It included allegations that A had been left unsupervised, that M had been arrested for harassing F’s partner, and that neighbours had reported that they had had trouble with the family’s behaviour. Reference was also made to what was said to be Mr SB’s “extensive criminal history including: 25 theft offences, 3 drug offences and one firearms/shotguns/offensive weapons offence” and to him having been convicted of theft twice since his release from prison in April 2013 (§15).

5 September 2013 hearing and the threshold criteria

[25]  The final hearing did not take place on 5 September 2013 in view of LA’s change of plan. The threshold criteria were agreed, however, and the matter was relisted for a contested hearing.

[26]  In the agreed threshold document dated 5 September 2013, the features of the case are grouped under two headings: “Risk of exposure to domestic violence and volatile behaviour” and “Poor Parenting and risk of neglect”. The details under each heading reflect concerns set out in the social services’ material but stopping, of course, at 18 March 2013. Accordingly, under the first heading, we find reference to: i) The 10 years of domestic violence by F reported by M, to some of which the children were exposed, including a particular incident of violence in 2009 when the police attended; ii) M’s continued engagement in inappropriate relationships, Mr DS being specifically named and Mr SB referred to obliquely; iii) K’s arrest for assaulting M.

[27]  Under the second heading, there is reference to the boys’ school problems and to the anonymous report of the boys being in possession of knives, in relation to which it is recorded that M said she had asked A to cut down string from a tree and accepted he (but not B) was in possession of a knife although she was not aware of that.

The final hearing before Judge Scarratt

[28]  There were further developments between the September hearing and the final hearing before Judge Scarratt. K had returned to live at home despite the terms on which the supervision order in relation to her had been made. Furthermore it was alleged that there had been a number of incidents. One was said to have taken place on 12 September 2013 when a social worker said she had seen the boys in the street in the care of Mr SB, who she had seen assault A. A neighbour had contacted the police on 13 September 2013 to report that a man and a woman were arguing outside the family home and when the police attended, M and Mr SB were there but refused to speak to them; the boys were present. There was also a report from a neighbour on 17 September 2013 that she had been threatened with a knife by the boys.

[29]  The guardian and LA were by now in agreement that care orders were required.

[30]  Judge Scarratt summarised LA’s case as follows:

“16. Put simply, it is LA’s case that despite best efforts to engage M and offer her support in relation to the children, she has failed to take on advice and this has led to deteriorating behaviour of all of her children. Her engagement with professionals has been limited. Her relationships with inappropriate men are also a cause of concern, LA alleges. M was, until very recently and in the course of these proceedings, in a relationship with one Mr SB who has [around] 17 convictions. The offences are, inter alia, in relation to drugs and threatening/violent behaviour.”

[31]  The judge noted at §29 that, earlier in the proceedings, the plan had been for the children to remain at home under a supervision order and commented that:

“The only reason that this case as far as the two boys are concerned has reached a final hearing (and the care plans changed) is because of the concerns that have arisen latterly….”

[32]  It can be seen, therefore, that recent events were of considerable significance to the outcome of the final hearing. The judge noted (§39) that M denied any knowledge of the alleged assault by Mr SB on 12 September (although she accepted she had asked Mr SB to take the children to school on that day as she was ill, §53) and of the altercation on 13 September and that she denied harassing F’s partner as the partner alleged.

[33]  Oral evidence was given only by M, F, the social worker and the guardian. F gave evidence of M having brought the children to his house for contact but otherwise there was no direct evidence by statement or orally from any witness of any of the central incidents upon which reliance was placed. The material available was reported by others and/or to be found in documentation such as police reports.

[34]  From this material, the judge found, inter alia, that: i) M brought the children to F’s home for contact on at least one occasion and possibly more in contravention of what was expected of her (§56); ii) Mr SB did assault A on 12 September (§54); iii) M was involved in the fracas on 13 September which was witnessed by the children (§54).

[35]  He said (§55):

“Other incidents I have been referred to in the police reports (July 2013) do suggest that there may have been incidents at M’s home and nearby, witnessed by the children or in which they were involved. I accept that the evidence is not as compelling as that referable to the 12th and 13th September incidents but I do attach some weight to these police reports.”

[36]  He dealt also with the evidence about M’s engagement with counselling services and with social services and the guardian, and about the presentation of the boys.

[37]  He concluded that (§58):

“M has not been consistent in her care of the children (her relationship with Mr SB, whom she knew to be a criminal, during the course of the proceedings and bringing him into contact with her children almost defies belief) – I have found that on 12th and 13th September her care of the children fell well short of what might be considered reasonable. All the evidence, in my judgment, points to a mother – whilst having made some improvements – unable to address her children’s needs in a consistent and focused fashion.”

[38]  Acknowledging the progress that M had made, he found that the negatives of living with M outweighed the positives for the boys and that their welfare required that they be removed into foster care (§60 et seq).

Grounds of appeal

[39]  When she launched her appeal, M was acting in person and she sought to advance 7 grounds of appeal. Laws LJ gave limited permission to appeal. I doubt very much that the order that resulted from the hearing before him records precisely what he had in mind but in broad terms it conveys the ambit of the appeal. It reads:

“AND UPON the Judge indicating that [the grounds of appeal] are to be recast on the basis that the proposition that the trial Judge did not have sufficient evidence to justify the order that he made with regards to the change of circumstances and that there was inadequate material to justify the weight attached to the incidents of 12 September 2013.” (sic)

[40]  Laws LJ required the reformulated grounds of appeal to be filed and served. The document that resulted runs to 30 paragraphs over 5 pages and takes a narrative form which is regrettably becoming increasingly common but which is neither the proper form for grounds of appeal nor helpful in distilling the issues for the court. However, I isolated from it the following propositions which counsel for M, Ms Targett-Parker, accepted reflected her case:

“1. The judge failed properly to scrutinise the local authority’s change of position from a recommendation in July 2013 that the children remain at home under a supervision order to a recommendation in August 2013 that they be removed to a foster home under a care order, and made care orders when there was insufficient evidence so to do, and in particular in the absence of evidence that the mother’s care of the children had deteriorated following the July recommendation to an extent which justified such an order.
2. The Judge wrongly accepted the local authority’s evidence about the incidents on 12 and 13 September 2013 when the relevant witnesses had neither made a statement nor given oral evidence and wrongly relied upon the incidents in determining what order to make.”

Discussion

[41]  Ms Targett-Parker rightly took us to the detail of the case in order to make good the grounds. She emphasised that although, by the end of July, LA had concerns which were set out in the social worker’s statement of 24 July 2013, they maintained the view that a supervision order was appropriate. What, she asked, caused the radical turnaround in the three weeks between then and the social worker’s statement of 14 August? She submitted that there was insufficient justification for it.

[42]  She submitted that the 14 August statement exemplified what was a running theme of allegations which were not properly substantiated. I accept there is force in that submission in that direct evidence of events is conspicuous by its absence in this case.

[43]  The “significant events since last statement” which the social worker described in the August statement were none of them matters upon which she was able to give direct evidence. They were:

i) A had been left unsupervised (based on what Mr SB told the social worker)
ii) M had been arrested for harassing F’s partner (based on what F told the social worker, with police reports becoming available later in the proceedings)
iii) M had been evasive when discussing the children’s behaviours (based on what the Youth Inclusion and Support Panel Project Co-ordinator told the social worker)
iv) there was shouting and swearing in the street and arguments, the children were out late and had damaged neighbours’ flower beds, and M and Mr SB had been seen to drag the children down the road (based on what neighbours said to the police).

[44]  I do not know whether F was asked in oral evidence about the issue of M’s arrest for harassment of his partner but apart from the possibility that there was some direct evidence from him about that, and apart of course from M’s own account of matters, there was no first hand evidence available to the judge about any of these allegations.

[45]  It is difficult to know what the judge made of them because, although they were influential in LA abandoning the idea of supervision orders and seeking care orders instead, he did not make findings about them specifically. He listed them at §26 of the judgment whilst going through the development of LA’s case so he was fully aware of the reliance it placed on them but his own view of them can only be gleaned obliquely. This can be seen clearly in relation to items (ii) (“M’s behaviour towards F’s partner”) and (iv) (“anti-social behaviour in the street”).

[46]  In relation to M’s behaviour towards F’s partner, the judge noted at §56 that the partner was not called to give evidence, said that he had the police reports for reference, then said that he must treat her evidence with some caution as it had not been tested in court. He noted that M submitted she was vindictive in making the reports to the police. He then went on to conclude that M had taken the children to F’s address but was silent on the question of whether she had harassed his partner.

[47]  The anti-social behaviour in the street might be within the ambit of what the judge said at §55, see my §35 above. However, I struggle to view this passage in the judgment as a finding that any particular conduct had occurred and, in those circumstances, it is difficult to know what weight the judge could properly put on the police reports in question. Certainly, he needed to spell out what he drew from them.

[48]  In my view, therefore, the judge failed to carry out sufficient analysis of the these “significant events” contained in the social worker’s August statement and to make findings about what had occurred as was required in light of the central role this material had played in LA’s thinking

[49]  Matters were not assisted by the error made by LA in relation to Mr SB’s criminal convictions. In her statement of 14 August, the social worker placed reliance on M’s relationship with Mr SB, saying that it was “highly concerning” that, despite being aware of Mr SB’s “extensive criminal history”, M remained in a relationship with him and allowed him to move into the home. But, said Ms Targett-Parker, the antecedents of Mr SB which the social worker gave in the 14 August statement (see §25 above) were wrong because he had been confused with his brother, Mr RB.

[50]  The criminal records of both brothers are available and there does appear to have been confusion, although, in mitigation, the fact that Mr RB adopts his brother’s name as an alias, as we can see from the first page of his antecedents, has no doubt complicated matters. Mr SB’s record shows predominantly dishonesty offences between 2002 and 2011 (when he was sentenced to a total of 18 months imprisonment) and does not include any drug or firearms offences. There is one public disorder conviction in 2003 and nothing else which even approaches violence.

[51]  Again it is difficult to be sure what the judge made of this. He recited at §16 of his judgment (set out at my §30 above) LA’s case that Mr SB had about 17 convictions including offences relating to drugs and threatening/violent behaviour which was, of course, inaccurate. When he referred to Mr SB’s criminal record at §53, he said that it was “extensive” and then he observed that “M points to the fact that there are no convictions for violence per se” (my italics). As the judge had the records of the two brothers before him, it may well be that this shows that he had accepted there was an error in LA’s information but given the importance of the issue, in my view he needed to deal with it more explicitly. He took an uncompromising view of M’s association with Mr SB during the course of the proceedings which, as we have seen, he said “almost defies belief” (§58). He also used M’s relationship with Mr SB as an example of M being unable to prioritise the children’s needs above her own (§60). A criminal record does not, of itself, make someone unsuitable to be in contact with children and it was incumbent on the judge to make clear why it was that he took this view here, particularly as the social worker herself had continued to support supervision orders in her 24 July statement notwithstanding her knowledge of the new relationship with Mr SB who she already knew to have a record. If the judge’s view was based upon Mr SB having convictions for drugs and firearms offences and/or violent offences, it was not tenable. If it was based upon Mr SB’s extensive and persistent dishonest behaviour, an explanation was needed as to why it was inappropriate in the circumstances of this case for him to be brought into contact with the boys, whether it be in terms of him being an undesirable role model or liable to be sent back to prison thus destabilising the family unit or something else. This was not only of importance in evaluating M’s conduct vis-à-vis Mr SB generally but also in approaching the significance of her having allowed him to look after A on 12 September.

[52]  Mr Hall for LA accepted that the judge’s reasoning about Mr SB was not spelled out but submitted that M herself had accepted that she should not associate with him and had ended the relationship. I think he would suggest that this shows that the unsuitability of a relationship with Mr SB spoke for itself. However, the passage in M’s statement (B155) to which he referred us in making this point set out M’s initial assumption that Mr SB would not be a risk to the children because he had no violence or drugs convictions, followed by her ending the relationship because of what the social worker and guardian said. The furthest she went in conceding unsuitability was at §27 where she said, “I now realise that I was perhaps naïve in my initial perceptions of Mr SB and did not fully consider the manner in which our relationship would be viewed”. I do not think, therefore, that it greatly assists Mr Hall.

[53]  Even if the judge had explained his approach to Mr SB’s convictions, he would have needed, in considering the weight to be placed on M’s relationship with him, to have considered explicitly whether she had subsequently ended it and, if so, why she had done so and what this said of her ability to put the children’s needs first. This he did not do. All in all, therefore, the foundations for criticising M for her association with Mr SB were decidedly shaky.

[54]  In short, I accept Ms Targett-Parker’s submission that the judgment is lacking in proper analysis of LA’s change of mind in August.

[55]  However, that was, of course, not the end of the story. By the time the judge came to deal with the case in October, more had happened and that too had to be taken into account in determining whether care orders were now required, along with the more general evidence about M’s care of the children, her engagement with professionals and the presentation of the children.

[56]  Turning to the more general evidence first, the thrust of Ms Targett-Parker’s submissions was that adverse conclusions had been drawn by both LA and the guardian that were not borne out by the evidence looked at as a whole which also disclosed positive steps taken by M, such as helping to address the educational concerns in relation to the boys and engaging with the Rising Sun project. Furthermore, she said, it was surprising that the judge accepted the guardian’s evidence in its totality, as he said that he did, when the guardian herself was contradictory. It is not desirable for me to go into these matters when there will have to be a careful examination of all the evidence about these aspects of the case at the rehearing and a delicate balancing exercise will have to be carried out. It is not necessary to do so, as it will suffice for present purposes to concentrate on the judge’s treatment of the September incidents.

[57]  Ms Targett-Parker submitted that the 12 September incident (the alleged assault by Mr SB) played a significant part in the judge’s decision, indeed that it was the reason he made the order he did. I would not go that far but it is clear that it was important in his evaluation. The judge said himself that he placed “some weight” on this incident and the incident on 13 September as “they are recent and occurred in the course of (and in the glare of) these proceedings” and the children were involved (§55). Ms Targett-Parker criticised the judge for finding these two events proved on the basis of the evidence available to him.

[58]  The position seems to have been that M accepted that A was in the care of Mr SB on 12 September but she did not accept that he was assaulted. When the social worker informed her of it on 16 September 2013, she said they must have been “play fighting” as A had not spoken to her of being hit by Mr SB or anyone else (B132). In her October 2013 statement, M said that she was not aware of the incident, that A did not raise it with her, that she suspected that “the people seen may not have been A and Mr SB” (B160) and that in any event the court should be reassured that she was no longer in a relationship with Mr SB.

[59]  The social worker who had seen the incident did not give direct evidence and nor did Mr SB but the judge still found there had been an assault. Supporting this finding, Mr Hall stressed that M accepted that the boys were being looked after by Mr SB that day and suggested that M’s position with regard to the alleged assault could be described as “non-acceptance” rather than denial. He pointed out that no request had been made on M’s behalf for the relevant social worker to give evidence and he submitted that in these circumstances it would be inappropriate for an appeal to be allowed on the basis that a finding had been made without direct evidence being produced by LA. I am sympathetic to that submission and I am certainly not saying that the judge was not entitled to make a finding on the basis of the material that he had. However, given the importance of the issue to the outcome of the proceedings, to be sustainable the finding needed to be supported, in my view, by a more detailed analysis of the evidence that was available and of M’s take on the incident, and accompanied by an express recognition of the hearsay nature of the evidence upon which reliance was placed.

[60]  Mr Hall submitted that even if the judge was wrong to have made a finding that there was an assault, the mischief behind the incident remained, namely that M allowed the boys to be looked after by a man who was unsuitable. That is a superficially attractive point but, in the particular circumstances of this case, it does not entirely withstand probing. It may be that it could be said validly that M’s actions that day flew in the face of an agreement with LA not to bring the children into contact with Mr SB but the judge did not mention that in the judgment. As to Mr SB being intrinsically unsuitable, I dealt earlier with the confusion over the nature of his convictions and the failure to identify what it was about him that made him unsuitable and I have already commented that that has implications for the evaluation of M’s conduct in relation to 12 September.

[61]  As to the 13 September incident (the fracas in the street to which the police were called by a neighbour), M’s case was that she had no recollection of the incident and could only suggest that it took place at a different address (B161). The judge simply said that he preferred the evidence of LA to that of M where it conflicted and that he found the incident proved (§54). The reference to LA’s evidence must, in this context, be a reference to the police report as there was no LA witness to the event.

[62]  Ms Targett-Parker did not go so far as to suggest that findings could never be made on the basis of a police report alone but she submitted that there are problems in doing so and particularly in doing so here. Mr Hall was in difficulty responding to this submission which had not been advertised in advance. Neither he nor Ms Targett-Parker were counsel before Judge Scarratt and there was no transcript of M’s oral evidence so, as Mr Hall rightly pointed out, we do not know what emerged during cross examination on this incident to support the judge’s finding. He nonetheless submitted that the judge was entitled to make the finding he did.

[63]  Given that we do not have all the material required to reach a secure determination about this issue, and given that the case is to be reheard in any event, I do not propose to say more about this incident. Whatever evidence is produced to the new trial judge about it will be scrutinised and he or she will decide what findings to make. No doubt if the judge proceeds upon the basis of hearsay evidence, whether contained in the police reports or from elsewhere, he or she will explain and justify that course and set out how he or she took into account the various strands of the evidence.

[64]  I need to step back from the detail of the judgment and consider the case as a whole, lest it be thought that I have engaged in nit-picking criticism of the judge’s approach.

[65]  Mr Hall submitted in his skeleton argument that when the new concerns arose in the summer of 2013, the case was finely balanced, and in oral submissions, he acknowledged that there was a mixed picture including extreme concern at times and at other times positive involvement and engagement by M. That is, in my view, an accurate description of the situation. Mr Hall’s submission was that the judge scrutinised the evidence sufficiently, made the required findings, took into account the positives in relation to M as well as the negatives, and carried out the necessary balancing exercise so was entitled to find that care orders should be made. Indeed, he said, proceedings could have been taken earlier. It was notable, however, that in seeking to support the judgment, Mr Hall was obliged to have regular recourse to the underlying reports and statements from which he sought to draw further material to justify the care orders. That this was necessary reinforced my overall conclusion that the judgement did not contain a sufficient review of the evidence that was available to the judge.

[66]  As I hope we made clear at the end of the hearing, we did not allow the appeal on the basis that there was insufficient evidence to justify care orders. We did not take a view about that; it will be entirely a matter for the trial judge considering not only the evidence we have seen but also any further evidence that is adduced either to supplement the original material or to inform him or her of events since the hearing before Judge Scarratt. The basis on which we allowed the appeal was that the judgment was flawed in its approach to the events which led to LA’s change of mind and was lacking in the detail that was required to substantiate the decision taken. The more finely balanced the decision in a case, the more exacting must be the judge’s approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination.

[67]  Here, the judge’s treatment of the background history compounded the problems with his treatment of more recent events. Mr Hall submitted that the social work chronology revealed pervasive profound concerns about the children. For my part, I have no doubt that a study of the history had the capacity to contribute valuable material to the judge’s decision but, in my view, there was no alternative but to look at it in some detail because it was a mixed picture. There were significant problems but we also know that the case was periodically closed by social services following short interventions and that at times, assessments were complimentary about M and sympathetic to her as a victim of prolonged domestic violence. The threshold criteria agreed were far from detailed and could not be relied upon as sufficiently informative of the history. Accordingly, it was not sufficient for the judge to deal with that history (apart from domestic violence from F) in a single short paragraph (§7) summarising the themes and concluding with the observation, “I need not descend into detail”. In summarising things shortly in this way, the positives and negatives were lost and there was no picture of what was actually happening to the children.

[68]  In short, this was a case which could only be resolved by a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment. I have great sympathy with the judge who was trying to reach a determination for the children with reasonable promptness, within the confines of a two day time estimate, and without much offered to him by way of direct evidence. I am conscious that he took trouble to reflect on his decision before giving judgment. However, I am afraid that, for the reasons I have set out, his determination cannot stand.

Lord Justice McFarlane

[69]  I agree.

Lord Justice Tomlinson

[70]  I also agree 

Family Law

journal

"the principal (monthly) periodical dealing with contemporary issues" Sir Mark Potter P

More Info from £49.00
Available in Family Law Online
Family Law Online

Family Law Online

Get a FREE trial today! The fastest way to access the latest law reports, case law, commentary,...

Available in Family Law Online
Subscribe to our newsletters