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(Court of Appeal, Patten, Black, Gloster LJJ, 7 March 2014)
Care proceedings - Domestic violence - Evidence of change - Departure from recommendation of guardian
Care proceedings were initiated in relation to the child following a police referral of domestic violence. The mother had experienced a chaotic upbringing and then became involved in a violent relationship about which she had not been honest with professionals.
Although a number of positive findings were made about the mother including of her physical care of the child, she was also found to have not always acted appropriately and to give a consistent story. The child had suffered emotional harm from witnessing domestic violence.
The judge rejected criticisms levelled at the mother for not attending psychotherapy because she had undertaken 9 out of 12 sessions and had done a huge amount to work towards effecting a change.
Whilst recognising that he had to be slow to disagree with the guardian, he found the report had not been balanced due to a failure to attach weight to the relationship between the mother and child and the importance of the child living with her birth family. None of the positive aspects of the mother's capacity to care for the child had been recognised.
The judge declined to make care and placement orders and instead made a residence order in favour of the mother with a supervision order. The guardian appealed on the basis that the judge reached a decision that was not open to him on the findings of fact that had been made.
The appeal was dismissed. The judge had been well aware of the criticisms made against the mother and made a number of adverse findings but he nevertheless was entitled to reach the decision he did and provided adequate reasoning for doing so.
Neutral Citation Number:  EWCA Civ 226
Case No: B4/2013/2664
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
LADY JUSTICE GLOSTER
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RE M (A CHILD)
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Miss Kristina Brown (instructed by Carvers Solicitors) for the Appellant
Mr Dermot Casey (instructed by Birmingham City Council) for the 1st Respondent
Mr Nicholas Cole (instructed by Greens Solicitors Llp) for the 2nd Respondent
Miss Anna Warters (instructed by Ratcliffe & Bibby Solicitors) for the 3rd Respondent
Hearing dates: 17 January 2014
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 This appeal concerned S who was born on [a date in] 2008 and is now 5 years old. On 28 August 2013, Mr Recorder Farquhar refused an application by Birmingham City Council (LA1) for a care order in relation to S and also its ancillary application for a placement order. He granted instead a residence order to S's mother (M) with a supervision order to the local authority for the area where M and S would be living (LA2). S's guardian in the care proceedings (the guardian) appealed on the basis that the Recorder was wrong not to make care and placement orders.
 The parties to the proceedings were originally LA1, M, S's father (F), and S by her guardian. LA2 was joined later so that it could assist the judge in relation to the possibility of a supervision order.
 Entirely understandably, LA2 was not represented at the appeal hearing. Its contribution was limited to providing some helpful material about how it would assist in the rehabilitation of S to M's care if that were to be the outcome of the hearing. The other parties were represented and all opposed the guardian's appeal.
 The position of LA1 is perhaps worthy of particular note given that the Recorder's judgment was against it. At the conclusion of the hearing before the Recorder, he was told that despite its reservations, LA1 accepted the judgment. That has continued to be the position and LA1's response to the guardian's appeal was that the Recorder appropriately carried out the task of making threshold and other findings and exercised his discretion/evaluative judgment about which orders to make and that it could not be said that he was wrong to make the orders that he did.
 At the outset of the appeal hearing, we determined an application by the guardian to file further evidence (in the form of a statement from her) about what had occurred since the Recorder's decision. There were two possible roles for this evidence. There seemed to be general agreement that if the Recorder's decision were to be overturned, it would be relevant to whether this court itself determined what orders should be made in relation to S or remitted the matter to the county court and that it should be admitted for that purpose. Counsel for the guardian, Miss Brown, also sought to rely upon the new material for the purpose, as she put it in her skeleton argument, of providing "further evidence as to why the learned recorder was wrong in his decision". The other parties all opposed the use of the material for this purpose. It was plain that there were factual disputes about certain matters contained in the guardian's statement and that, if the court gave the guardian permission to rely upon it, other parties would wish to adduce further evidence as well.
 We refused to permit the guardian to rely upon the evidence for the purposes of the appeal itself. Normally, of course, the focus of an appeal is confined to the material that was available to the first instance court. From time to time, in appeals concerning children, it is necessary to have regard to evidence about events following the first instance hearing, but it was not argued that in this case there were any matters which were of such significance that it would be inappropriate to evaluate the Recorder's decision without having regard to them. Furthermore, this court is not equipped to deal with disputed issues of fact such as those which arose here.
 At the conclusion of argument, in order to avoid further delay for S, we announced that we would dismiss the appeal. This judgment sets out the reasons for our decision.
Background, including domestic violence as established by the Recorder's findings
 M is still only in her mid-twenties. She had what the Recorder describes as "a fairly chaotic upbringing" and spent some time in care. Her first relationship which is of relevance to these proceedings was with F. It ended in 2008, the year in which S was born. M said that he was controlling and punched holes through the doors and the walls. However, he was not physically violent to her and as the relationship was over by the time S was born, there could be no suggestion that his behaviour affected her.
 M then commenced a relationship with Mr S. She had a son by him, E, in June 2009. Mr S and M separated towards the end of 2009. It appears there may have been verbal altercations around the time of the separation and arguments over Mr S having contact with E. In the course of the care proceedings, M said that Mr S had pushed her and rugby tackled her to the floor but by the time of the hearing before the Recorder both Mr S and M denied that had taken place. The Recorder considered the evidence and was not satisfied that there had been any actual violence (§90); his finding in that respect has not been appealed.
 It seems that following the separation of M and Mr S, E lived with M for a while but that in due course a residence order was made in Mr S's favour.
 After the relationship with Mr S finished, M commenced a relationship with Mr B. M claimed that that relationship ended in late 2010 but the Recorder found that they continued to associate thereafter. He found (§§102 and 103) that the boyfriend/girlfriend relationship continued for some time during 2011. Thereafter there was some sort of relationship but no longer in the boyfriend/girlfriend sense.
 The Recorder considered 3 allegations of domestic violence on the part of Mr B: a) causing a bruise on M's face in March 2010 b) grabbing M by the throat and pushing her up against a wall in the summer of 2010 and c) a quite extensive assault in November 2010 which included an attempt to strangle her. The source of the first allegation was Mr S who had seen the bruise. M was the source of the other two allegations. She very quickly retracted the November 2010 allegation as untruthful but, in the witness box during the care hearing, she accepted that that assault had in fact taken place. She denied she had been assaulted in March 2010 or in the summer of that year. The Recorder found that all three assaults had occurred. At §103, he said that he found that Mr B was violent to M on "at least three occasions" and that at least one of those occasions occurred in the presence of the children. However, he was satisfied that there was no domestic violence after November 2010 (§102).
 There was a curious incident concerning M's phone in May 2013. Either the phone itself or M's number fell into Mr B's hands and one consequence of this was that when the foster carer rang the number and put S on the phone to speak to M, Mr B answered. S is apprehensive about Mr B and the Recorder found that that must have been "an upsetting, if not frightening, moment for S". The Recorder rejected M's explanation for how this happened as unbelievable. He found that in some way M was still in contact with Mr B at that stage although by then the boyfriend/girlfriend relationship had ceased. He said he could not "understand the exact dynamics of how it took place that he had her phone" (§103).
 The Recorder summarised his findings as to domestic violence on the part of M's partners in this way at §104:
"So, that is the domestic violence; nothing directly physical to her from F, in the presence of the children; none at all with Mr S, but plenty with Mr B"
LA1's first involvement
 LA1 became involved in December 2010 following a referral from the police in connection with a domestic violence incident between M and Mr B. At the start of 2011, M entered into an agreement with LA1 that she would not have any involvement with Mr B and would not let her children do so. It was LA1's view that she had nevertheless remained in contact with Mr B that led to the issue of care proceedings, with S coming into foster care in September 2011.
The care proceedings: LA1's case and the threshold document
 According to the Recorder's judgment, the care proceedings were bedevilled by "[a]ll of the problems that could take place in a care case". In due course, agreement was reached about the threshold and the Recorder's task was to make welfare decisions. The threshold document was not in the appeal bundle and we asked to see it. A document was produced but it seemed to be common ground that it did not necessarily reflect the position accurately. We were told that a more reliable guide to the factual background was the Recorder's findings, which were detailed and in many respects covered similar ground.
 LA1 decided in March 2012 that S should be adopted and adhered to that view thereafter. LA1's case, as presented to the Recorder, was that M was not capable of meeting S's needs. This was based upon M's history and "concerns regarding her current presentation, her poor emotional health, disorganised attachments over a long period ... [and]...her ability to provide consistent parenting of a good enough standard to ensure that her child's needs are met and remain a priority". LA1 also relied upon what it asserted was M's failure to protect herself and S from her violent relationship with Mr B. It considered that M would require intensive support and education and that the prognosis for change was poor as M did not accept the facts or the risk and lacked motivation and insight. It said that she had failed to engage in any meaningful therapy and would be likely to continue to enter into abusive relationships in the future.
The evidence heard by the Recorder
 As well as considering the written evidence, the Recorder heard oral evidence from two recent social workers (whose contribution was limited by the fact that the central decisions had been taken before they became involved), from M and Mr S, from two psychologists (Miss Kaur-Kelly, who assessed M, and Dr Ballester, whose reports concern S), and from the guardian.
The positive features of M's situation
 The Recorder made a number of findings about M, some favourable to her and some adverse.
 On the plus side, there was no issue about M's ability to provide for S's physical needs; this was a case which revolved around her ability to meet S's emotional needs. Indeed, the Recorder referred (§69) to a number of "glowing" references in relation to M's care of S before she was removed in 2011 on an interim care order.
 The favourable evidence/findings in relation to S's relationship with M are particularly significant. The Recorder found (§56) that M had attended all contact and recorded that it had not been suggested that there was anything other than a good relationship between S and M. This was in line with the advice of Dr Ballester who had seen S on her own and with M and reported that S was well bonded and securely attached to M and that if she could live anywhere, would want to live with her. The Recorder found that S enjoyed contact with M (§70). His pithy summary (§71) was that she "enjoys seeing mother; expects to live with mum, and wants to live with mum". He also found, however, that she was "now in a highly confused state, and that is not surprising bearing in mind her age, her understanding, nil, and the incredible length of these proceedings" (§70). Her confusion had produced difficult behaviour before and after contact with M which had led to a reduction in the contact from twice weekly to once a week with a phone call in addition.
 The Recorder also made findings, to which I will come in due course, as to the respects in which he considered M had changed for the better since the intervention of LA1.
Adverse findings about M
 The Recorder's adverse findings included a finding that it was difficult to accept anything M said because she did not tell a consistent story (§§57 and 58). This led him to look at the peripheral evidence in relation to the issues that he had to determine.
 He found that S had suffered as a result of what she had witnessed during M's relationship with Mr B (§70).
 He also found that M had said entirely inappropriate things to S in contact such as telling her she was not coming home and that "they're thinking of adoption" (§59).
 LA1 criticised M for deliberately bringing E and S into contact with each other during M's weekly contact with S in May and June 2013. The Recorder endorsed this criticism and found that although in fact S and E were very happy to see each other, S would have been confused by being brought into contact with E (and with Mr S) without having been given an explanation for what was happening and would have been emotionally harmed as a result. However, he was also critical of LA1 in relation to its handling of contact between E and S (§40). The children had been seeing each other regularly until September 2012. The contact was beneficial for them and was going well and it only ceased because of a disagreement between LA1 and F about logistics, following which LA1 "did nothing to encourage it to happen again". In the circumstances, the Recorder found that "just as M and Mr S are at fault for reinstituting contact in the ad hoc way that they did, LA1 are very much at fault for allowing that contact to stop in the first place".
 M's failure to inform anyone of her pregnancy did not assist her case. It was addressed by the Recorder in his second judgment, given after it had come to light. The Recorder heard oral evidence on the subject, during which M explained that she was not confident that all would be well with the pregnancy and that she and Mr S had decided not to tell anyone until the end of the first trimester. The Recorder took the view that M should have known that her pregnancy would have an impact on the decision that the court was making and should have spoken of it at the previous hearing. He considered the guardian's evidence that this development underlined her previous concerns, revealing a lack of insight and a failure to prioritise S and giving rise also to a risk that M may have a recurrence of the depression that she had had before.
 The Recorder re-considered his previous decision in the light of the developments. His short further judgment shows that he was well aware that his decision involved risks. It can be seen that he ran through in his mind the impact that the new information had on his previous approach and concluded that, important and highly relevant as it was, it did not alter his conclusions. In so deciding, he expressly asked himself whether M's failure to disclose the pregnancy had implications for her ability to be open and frank with social services but observed that M's dishonesty was not a new development and that he had already proceeded on the basis that this would present a difficulty to social services in working with her.
 Both LA1 and LA2 had considered the question of Mr S caring for E and both had given Mr S what the Recorder described a "in parenting terms, a clean bill of health" (§67) albeit that he recognised that this was by way of a snapshot of the position rather than an in-depth report. It seems to have been felt that it would be helpful and conducive to greater stability if the relationship between M and Mr S endured. A relevant issue for the Recorder was therefore whether that resumed relationship was likely to continue. The Recorder evaluated the evidence about this in his main judgment and concluded that he "had no idea" (§65). His second judgment shows that when reviewing his conclusions in the light of M's pregnancy, he had it in mind that it appeared from Mr S's evidence at the resumed hearing that he and M had not discussed the continuation of M's association with Mr B as revealed in the main hearing.
Dr Ballester; Miss Kaur-Kelly; the question of psychotherapy etc
 The Recorder referred to Dr Ballester's opinion that S was confused but had a strong family identity and would want to live with M (§49) and that S currently believes that she will return to M's care some day (§51). He also referred to her view that S was frightened of Mr B in the past (§49). He set out that Dr Ballester's evidence was that S must be in her permanent placement as soon as possible and that "[i]f the risk factors for return to M were reduced, then ....it would be easier for S to return there rather than into an adoptive placement, but if that failed it would be difficult for her to make secure attachments thereafter" (§52) and that "the placement that is to take place now must succeed" (§53).
 Miss Kaur-Kelly's main report is dated November 2011. She provided an addendum dated June 2013 but that was prepared only on the basis of the papers and a brief telephone discussion with M. The Recorder set out the rather unfavourable tenor of the first report which said that M's insight was limited and that if there was no change, she was highly likely to engage in unhealthy relationships in future, although expressing the hope that "[w]ith services that can be provided.....insight and ability to protect will improve". Miss Kaur-Kelly advised on the sort of services that M might approach but her ability to comment on progress thereafter was limited because she did not see M again.
 M was criticised for not having psychotherapy but the Recorder rejected that criticism, finding that psychotherapy did not happen because she had improved with counselling and no longer met the criteria (§119). He acknowledged that she did not finish the Freedom project but she had done 9 out of 12 sessions and had done other work with her counsellor in relation to domestic violence as well as work on self-esteem and confidence and a mental health course. The Recorder said, in summary, that "she has done a huge amount, and much more than often is the case" (§121).
The Recorder's findings as to whether M had changed
 The Recorder's approach was to list the problems that had been causing concern when proceedings began and to look to see what had happened in the intervening period. He concluded (§135) that contrary to the view of the social worker and the guardian, there had been "considerable change in her lifestyle and in the way she reacts to people, and what has actually happened". Elsewhere (§159) he said that M had "changed hugely". His view was that if S had in fact been living with M during the currency of the proceedings, she would not have come to emotional or physical harm. He accepted that M had not had the psychotherapy it was said she needed to address her own upbringing and ability to parent but he listed many other areas where he found there had actually been change, including the following:
i) there had been no reports of domestic violence since November 2010;
ii) M had not been in any relationship after Mr B until her relationship with Mr S (which was not a violent relationship) restarted;
iii) M had not had any angry outbursts;
iv) there had been no allegations of violence or aggression in her dealings with social services and she had also got on with the guardian;
v) there were glowing reports of how she dealt with educational/therapeutic courses;
vi) her contact with S had been consistent;
vii) there was no evidence that she had reverted to cannabis use or the problems associated with it, which the Recorder saw as very different from the past;
viii) M's maladaptive coping style had not surfaced during the two years of the proceedings, nor had she engaged in impulsive behaviour save perhaps the setting up of the contact between E and S.
 The Recorder also found that the change in M included that she had an increased awareness of the need to protect herself and S from domestic violence (§152).
The Recorder's view of the guardian's contribution
 The guardian considered that there was little evidence of change on the part of M and that she had not learned from the courses and counselling which she had undertaken and was not able to provide adequate or protective parenting for S. The Recorder was clear (§160) that he should be "slow to go against the guardian".
 However, the Recorder was critical of the guardian whose report he felt lacked balance. The essence of his criticism was that she had failed to give any weight to S's relationship with M or her wish to resume living with her or to the importance of a child living with its birth family. He thought she had neither mentioned in her report nor taken into account the positive things which could be said about M, although she acknowledged some in evidence, and nor had she mentioned the risks of an adoptive placement. Indeed, he felt that the guardian had failed to give any real consideration to the possibility of S being placed with M.
Principal grounds of appeal
 The guardian did not challenge the Recorder's findings of fact. The essence of her complaint was that, in her submission, the Recorder had failed to weigh up properly the factors which were relevant to his welfare decision and had reached a decision which was not open to him on the findings of fact that he had made. His order would leave S at risk, she said. The features of the case which were said to be of particular significance in this regard were as follows:
i) M had caused S emotional harm in the past, both by her own actions and by failing to protect S from those of others, and this had continued even during the proceedings, see for example M's involvement in the meetings of E and S during contact, things she said to S during contact, and her failure to distance herself from Mr B resulting in harmful incidents such as Mr B's answering S's call to M's telephone in May 2013;
ii) S did not feel safe with M, the guardian said, relying upon S's unwillingness to be drawn into speaking about life with M and her failure to choose M to live with her on her island during an exercise carried out with her by the guardian in July 2013;
iii) Contrary to the Recorder's view (§152), there was no evidence, in the guardian's submission, that M had learned anything about her problems or changed so as to give rise to any expectations that things would be different for S in future, see matters such as her failure to complete her sessions with the Freedom Project, her continuing association with Mr B and the telephone incident (which the guardian said could not have happened if she had learned anything);
iv) M's continued lack of openness and honesty meant that there was no basis for a supervision order to work, see for example her lying in evidence and her failure to speak of her pregnancy;
v) There had not been the required analysis of the evidence about the resumed relationship with Mr S and there was a significant question mark over the relationship's stability, given that the couple had been separated and in dispute over contact with E until quite recently and had started to live together again precipitately, and given that the potential impact of M's continued association with Mr B was not known.
 It was submitted that the Recorder placed too much emphasis on Dr Ballester's evidence about S being well-bonded and securely attached to M and that if the risk factors were reduced, it would be easier for S to return to M than to be placed for adoption, failing to recognise that this assessment of the options did not apply because, in fact, the risk factors were not reduced. Furthermore, it was submitted, he failed to take account of Dr Ballester's advice that if S returned to M and that failed, it would be difficult for S to make secure attachments thereafter.
 It was also argued that the Recorder wrongly disregarded the guardian's evidence.
 I will start with the complaint about the Recorder's approach to the guardian's evidence. In my view this is without foundation. I have no doubt that the Recorder was entitled to decline to rely upon the guardian's advice. His criticisms of her were well-founded as a reading of her report reveals. There is a passing reference in the report to S "appearing to have a bond and secure attachment with M" but that is in the context of what would help a successful placement for adoption, not as part of an evaluation of the pros and cons of a placement with M. There is an oblique reference to S's wishes and feelings which are simply said to be "well documented within the report of Dr Ballester" when what was required was a clear and explicit recognition of what those wishes and feelings were (see above at §30). The reference later to S caring for, expressing love for and being loyal to each of her parents is not sufficient. Any mention of S's relationship with M is notably absent from the section on emotional needs although there is, in contrast, reference to S having "experienced stability and loving care within her foster placement". Contact with M is mentioned but again without acknowledgment of its positive qualities. Furthermore, as the Recorder said, there is virtually no reference to the positive things that could be said about M to set against the liberal criticism. In short, the report proceeds on the basis that placement back home with M is not really in question and it is not unfair to say that it lacks balance.
 I do not accept the guardian's criticisms of the Recorder's reasoning either. A reading of his two judgments as a whole shows that he took all the relevant factors into account in reaching his decision that S should return to live with M. He was rightly conscious that care and placement for adoption was a solution restricted to those cases in which nothing else would do and he did not consider that that was so here; that is what he meant in §172 when he said the case did not step into the public law sector. Indeed, although there were risks involved, he considered that there was a better prospect of a successful placement of S with M than under LA1's plan (§171). His balancing of the various factors appears towards the end of his judgment when he went through the welfare checklist and in the section headed "Conclusions" but these passages must be read in the light of what he said earlier in the judgment as well and are reinforced in his second judgment.
 In going through the welfare checklist, the Recorder identified the emotional harm that M had caused to S in the past (§145) including arranging the contact with E and the incident when Mr B answered the telephone. He properly put that into the context of the emotional harm that S would suffer if she were to be adopted concluding that "[t]here are emotional difficulties either way one goes" (§146). He also put into the balance a consideration which he thought the social worker and the guardian had "glossed over", that is S's wish to live with M, albeit properly recognising that this necessarily had limited weight.
 The Recorder found that M had changed. He disagreed with the guardian and LA1 about this but he was entitled to do so and he set out sound reasons for his view, not least the comparative lack of incidents in the two years since the proceedings began. He was clearly well aware of the continued association with Mr B leading to the telephone incident and of the fact that M had not finished her Freedom Project sessions or had psychotherapy. He expressed himself uncertain as to what would happen to the relationship with Mr S. However these were not matters which led inexorably to the conclusion that M had learned nothing and/or that there had been no change. On the contrary, the Recorder had to look at the whole picture in reaching his conclusions about change and that is what he did. He certainly did not ignore the risks for the future to which he referred repeatedly including, for example, in short form in the welfare checklist (§151 et seq) and in his second judgment, see particularly §13 and §15.
 The Recorder referred regularly in his first judgment to the fact that one could not believe what M said and reverted to this in his second judgment, acknowledging that it would make it difficult for social services in their work with her. He made the order which would result in S returning to M with a supervision order with this fully in mind. It could not be said that the risks that he had identified for the future were of such nature or magnitude that no reasonable judge could have taken this option in these circumstances.
 As for the evidence about S and the inferences the guardian wished the judge to draw about her feelings about M from her unwillingness to speak about her pre-proceedings life and from the island exercise, the judge was entitled to rely on the evidence of Dr Ballester which ran counter to this. It seemed to me that the guardian's inferences were, in any event, by no means the only inferences that could be drawn from S's response, given her young age when she left M, her long residence with foster parents, her reduced contact with M etc.. Who knows whether she did not remember much about everyday life at home or felt it would be unpopular to speak about M or was merely concentrating on the here and now when she chose the people for her island?
 In addition to her central attack on the Recorder's judgment, Miss Brown made a number of other submissions. For instance, she submitted that it was wrong of the Recorder, having concluded at §172 of his judgment that the case did not step into the public law sector, to have made a public law order. I have already referred to this comment of the Recorder's in §172. A reading of the judgment as a whole demonstrates quite clearly what he meant by it and there is no inconsistency with his ultimate decision. I am similarly unpersuaded by the argument that the Recorder erred in some way in making a supervision order without there being a care plan for that or that he failed to give adequate reasons for making a supervision order or should have taken the view that he could not do so in the light of the views of LA1 and LA2 on the subject.
 It is always important to recognise and respect the function of the trial judge. He is the one who hears the evidence and decides upon the weight that should be attributed to the various factors that are in play in the case. Here, the Recorder considered all that was relevant, made findings of fact where necessary, and determined how the various factors in the case should feature in his conclusions. I have not been persuaded that he went wrong in this exercise and that was why I formed the view that the appeal should be dismissed.
 I agree.
 I also agree.
Covers the law, practice and procedure in respect of FGM and also includes wider contextual...