14 OCT 2015
Re M (Children)  EWCA Civ 994
(Court of Appeal, Black, King LJJ, Sir David Keene, 22 July 2015)
Public law children – Care orders – Appeal – Weight given to views of the children
The parents’ appeal from care orders made in respect of three children was allowed and the case was remitted for rehearing.
Neutral Citation Number:  EWCA Civ 994
IN THE COURT OF APPEAL
ON APPEAL FROM CENTRAL FAMILY COURT
(HIS HONOUR JUDGE BRASSE)
Royal Courts of Justice
Wednesday, 22nd July 2015
B E F O R E:
LADY JUSTICE BLACK
LADY JUSTICE KING
SIR DAVID KEENE
IN THE MATTER OF M (CHILDREN)
Computer Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
Mr M Macdonald (instructed by GT Stewart Solicitors and Advocates) appeared on behalf of the Applicant Parents
Ms S Mirzai & Ms A Burstow (instructed by London Borough of Hammersmith and Fulham & Sternberg Reed Solicitors) appeared on behalf of the Respondent
J U D G M E N T
LADY JUSTICE BLACK:
 This is an appeal by the parents of three boys against an order made by His Honour Judge Brasse on 2nd April 2015 dismissing their application for the discharge of care orders made in relation to the children in October 2008. The children are "R", who is 16, born in March 1999, "SK", who is 14, and "SH", who is 13. The children all live in foster care. R and SH live together in a foster placement, to which they moved in August 2014. They moved there via a number of temporary placements following concerns arising in relation to their previous foster carer. SK has autistic traits and, because of his needs, has been placed separately from his brothers. He has been with his current foster carer since September 2011. The local authority say that all three children have settled well in their current foster placements. The arrangement is that the children see their parents on not less than four occasions each year. Contact is supervised but it takes place in the community and takes the form of some sort of activity.
 The father made an application for the discharge of the care orders in February 2015, supported by the mother. From this point on I will refer to that application as if it was their joint application. In the application they referred to concerns in relation to SK, whose behaviour they thought had been difficult, and they appear to have thought that he had been removed from his placement in September 2014, although that does not accord with the information supplied by the local authority. They said in the application that they understood that SK was finding it difficult to be separated from his siblings and that they believed that he wished to be with his brothers and to be returned to their care. They referred to R and SH having had to be moved from their original foster placement as a result of very serious concerns about it. They asserted that they had not been properly informed about matters in relation to the boys and said that they were extremely concerned about the treatment of their sons in care. They said they were uncertain about what plans there were for permanency for the children and they expressed the view that all three children should be returned to them to ensure that they were raised together and to prevent further disruption in their lives.
 The parents also sought an order in relation to their contact with the children, which they wanted to be regular and unsupervised. They said that in recent months difficulties had arisen over contact as the local authority had been unable to arrange suitable venues and they had had to spend part of the contact fetching food for the children, who had arrived hungry and demanding food.
 In his statement, the father described how, at a contact on 15th April 2014, SK had been very upset and told his mother that he wanted to return home and had tried to run away from his foster home the previous day. He was said to have been very distressed at the end of that contact and held onto his mother, saying that he did not want to leave. When she encouraged him to do so, he came running back again, saying that he had been insulted by the foster carer's daughter who had come to collect him.
 In preparation for the hearing in front of Judge Brasse on 2nd April 2015, which was listed as a case management hearing, the father applied for disclosure of the papers from the earlier proceedings, disclosure of social work documentation relevant to the care of the children in foster care, and the contact notes for the last two years of contact between the parents and the children. At the point of the hearing in front of Judge Brasse, we are told that the papers available to the court were confined to the bundle with which we have been provided. That bundle does not include the original care judgment, although it includes a later judgment on the subject of contact, nor does it include the original care papers for the most part.
 Judge Brasse was probably the person in court, apart from the parents themselves, who had the most knowledge of the case because, as the chronology provided this morning by the local authority shows, he had had almost continuous involvement in the case since it began and he had been the original judge making the care order.
 As the local authority had not been willing to assess the parents in response to the application for the discharge of the care order, the father also sought permission to instruct an independent social worker to undertake a parenting assessment.
 On the morning of the hearing, or perhaps the night before in relation to the guardian's position statement, the parents were provided with position statements from the local authority and the guardian. There was no social work or other statement filed by the local authority and the guardian had not prepared a report of any kind, nor was she at court because of a pre existing court commitment, although she had provided full instructions to the children's solicitor.
 The local authority's position statement said that it was the local authority's view that it remained in the children's best interests to stay in local authority care in their present placements. It was said that all three children had "expressed a view to remain in current placements on a long term basis" and that they "have all individually expressed to the allocated social worker during the week ending 20th March 2015 that they wished to remain in their respective placements and away from the family home". This was the limit of the information provided by the local authority about the children's views, there being no detail of what they were asked, what precisely they said, in what circumstances the conversations took place and so on. The local authority's view was said to be that the parents had not fully engaged with the local authority's care planning for the boys and had attempted to undermine it on occasions.
 The guardian's position statement set out that she had visited R and SH's foster placement on 1st April 2015, the day before the hearing. R had declined to speak to her or the children's solicitor and it was intended that further efforts would be made by the solicitor to communicate with him to ascertain whether he wanted to engage with the solicitor. SH, the younger child, did speak to the guardian and the solicitor and was said to be clear in his view that he did not wish to return to his parents' care whilst he was in education. He indicated that he would like a little more contact however, suggesting that this should be every two months. He said that R held similar views to his. SK had not yet been seen by the guardian, who was intending to arrange to visit him shortly. The guardian said that it seemed that neither R nor SH wished to return home at present. She said that she did not support an application for a parenting assessment and said she was concerned as to "the potential destabilising impact this would have upon the children, particularly if it were undertaken at a time when [R] is about to embark upon his GCSE examinations". It is not entirely clear whether that passage in the position statement was an indication of concern on the part of the guardian if the children were to be returned home or a concern that they would be destabilised by the mere fact of an assessment. In any event, the guardian proposed that the discharge application should be timetabled for a hearing to determine it, with the local authority filing updating information about the children.
 It will be seen from that resumé of the parties' positions that there was no mention by either the guardian or the local authority of the matter being brought to a summary end on 2nd April. It was the judge who raised that matter and decided that he could and should deal with the parents' application finally there and then. He heard submissions from all parties. He decided that the children's wishes were determinative and that to ignore them would be very detrimental to their welfare: that can be seen from paragraph 29 of his judgment. He proceeded upon the basis that it was established that the children did not want to return to their parents. He could not conceive, he said, of any court discharging the care order in relation to any of the children "in the teeth of their wishes" (paragraph 31). Therefore he dismissed the application.
 It seems that he must have been asked by counsel to think again about this, although there is a gap in the transcript at this point. He responded that cross examination of the guardian and the social worker as to the children's wishes and how genuine they were was not justified because it was so unlikely that the children's wishes were anything other than their own genuine wishes, given their ages and their degree of understanding. He thought it unnecessary for the guardian to produce a formal analysis of the case or for the social worker to produce a witness statement setting out what had already been summarised. He was asked by counsel to deal specifically with the welfare check list, but he said that he had taken the factors in section 1(3) of the Children Act 1989 into consideration in reaching his decision and had even contemplated the possibility of an expert's report showing that the parents had now got sufficient capacity to meet the needs of a child but had reached his decision nonetheless. He concluded his judgment with a reference to the effect on the children of a change of circumstances and of subjecting them to delay whilst the case proceeded to what he considered to be an inevitable outcome with the resulting risk of harm, a point to which he had also referred earlier in his judgment at paragraph 24, where he had described the potential "attritional effect" of delay on the children because of the resulting uncertainty and the feeling that the decision may go against their wishes.
 The father submits that the judge erred in adopting the summary approach that he did and that this was unjust for a number of reasons. It is not part of the grounds of appeal that the judge did not have power to bring family proceedings such as this to a summary end in an appropriate case; the argument is that this was not such a case. It is said that there was not sufficient notice that the directions hearing would be used as a final hearing, that the father was not given a proper opportunity to respond to the case put by the other parties, that there was insufficient evidence for the judge properly to exercise his discretion, that he failed to undertake a proper analysis and applied the wrong test when assessing the merits of the application, and that he placed too much weight on the children's wishes and feelings.
 The guardian has no public funding to attend this appeal. The children's solicitor has, however, helpfully written to the court to say that the guardian does not oppose the appeal. It was the local authority therefore who sought to defend the judge's decision. They argue that this judge was very experienced in this case and was able to call upon his previous knowledge of matters, as shown in the chronology provided today. They argue that he was entitled to take the view that the only issue that required full investigation in relation to this family was that of the parents' contact with the children. They stress that the burden of establishing that a care order should be discharged is on the applicant, who must show that such a course is in the best interests of the children. They point out that neither the application form nor the parents' statements contain any information about the changes they have made in their circumstances so as to overcome the difficulties that led to the children being in care in the first place. They point also to the breadth of the judge's case management discretion and submit that he applied the correct approach in deciding whether a summary end should be brought to the proceedings. They submit that the judge was entitled to place the weight that he did on the children's wishes and that he also put into the balance the risk of harm to the children if the proceedings continued.
 Despite the attractive and careful submissions made on behalf of the local authority, I would allow this appeal. The judge's decision was based entirely on the children's wishes. He expressly allowed in his judgment for the possibility that an expert report may show that the parents' capacity had improved to the point of being able to look after the children. He was not therefore making any presumption that the problems that the parents had had before were still extant; nor was he proceeding upon the basis that, even without the children's wishes, the application was doomed. The problem with the judge's approach, in my view, is that the evidence about the children's wishes was not yet sufficiently complete for him to reach conclusions based upon it. The guardian and the children's solicitor had not been able to speak to the oldest child and the intention, as they said in the position statement, was that the children's solicitor would try again to do so. It could not be assumed, in my view, that it was safe to rely upon his younger brother's view of what R thought. That is particularly the case given that R is 16 years old and his wishes and feelings may be very important in the matter. True it is that the social worker said that all three boys had said that they did not want to go home, but it was important that the guardian and the children's solicitor, coming to matters as they did from a slightly different angle, also had the opportunity to explore the question with all of the children.
 Furthermore, it was possible that the children's views were complex. This case has some special features which make that particularly possible here. SK has autistic traits and it may not have been straightforward to establish exactly how he felt. The father recounted an occasion in contact when he wanted to come home. That was in the spring of 2014, but if it happened as the parents said, it may still be relevant to the evaluation of SK's wishes. There had so far been no disclosure of the contact notes so it was impossible to know whether they would substantiate the parents' account of that particular contact visit, or indeed might provide further information that would assist in evaluating the children's wishes generally. What was known was that the children had said that they would like more contact with their parents, even though apparently not wishing to go home.
 Also missing from the information available to the court was information about the context in which the children had been asked about what they wanted and what precisely they said. That would be important in evaluating, amongst other things, the strength of their feelings and whether they might change their minds or could be persuaded to return home if that was otherwise thought to be in their best interests.
 There was nothing in the evidence to show that the children were going to suffer particular harm unless the proceedings were brought to an end straight away, and in my view, in the circumstances of this case, the only proper course was for directions to be given to collect more evidence. I would envisage that there would need, in this particular case, to be a statement from the social worker, a report from the guardian and detailed statements from the parents about their current circumstances. I should not, however, be taken to be prescribing what needs to be available in all cases because each will depend on its particular facts.
 I would ultimately conclude that it was not open to the judge simply to dismiss the discharge application without more, as he did, and therefore, as I have said, I would allow this appeal, setting aside his decision and returning the matter to recommence from where it was before the decision of 2nd April.
LADY JUSTICE KING:
 I agree.
SIR DAVID KEENE:
 I also agree.