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Family Law

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07 JAN 2015

Re P (A Child) [2014] EWCA Civ 1648

Re P (A Child) [2014] EWCA Civ 1648
(Court of Appeal, Moore-Bick, Tomlinson, King LJJ, 18 December 2014)

Public law children – Care and placement orders – Appeal – Sufficiency of reasoning

The father’s appeal from care and placement order on the basis that the judgment was insufficiently reasoned was dismissed.

Case No: B4/2014/1985

Neutral Citation Number: [2014] EWCA Civ 1648
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Newcastle-Upon-Tyne County Court
Mr Recorder Bullock
UY13C00002

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/12/2014

Before :

LORD JUSTICE MOORE-BICK
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE TOMLINSON
and
LADY JUSTICE KING

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Between:

Re P (a child)

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John Hayes QC (instructed by Hindle Campbell) for the Appellant
Sarah Morgan QC and Carly Henley (instructed by North Tyneside Council) for the Respondent

Hearing date : 27th November 2014

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Judgment
Lady Justice King :

[1]  This is an appeal by JP (the father), from the making of care and placement orders by Mr Recorder Bullock on the 31st July 2013 in relation to his daughter S, who was born on the 2nd June 2011 and is now 3 years 5 months old.

[2]  The essential issue in the case is whether the accepted inadequacies in the judgment are such that, not withstanding the advantage the judge had in having seen and heard the parties, local authority witnesses and the guardian, this court should nevertheless allow the appeal.

[3]  The mother does not support the father’s appeal and has filed a short statement indicating that she accepts that S is now settled and happy with the prospective adopters, where she has lived for the last 14 months, and that she would not wish to see that placement now disrupted.

Background

[4]  The mother is a vulnerable young woman, with mild learning disabilities. The
father had a seriously disadvantaged childhood having been brought up in care.

[5]  Prior to her relationship with the father, the mother had two children born respectively in 2001 and 2003 by a man called MR. The children were removed from the mother’s care in January 2008 and final care orders were made in respect of each of those children in November 2009.

[6]  In the light of that background, when S was born to the mother and father on the 2 June 2011, care proceedings were commenced. S was accommodated in foster care from her birth on a voluntary basis pursuant to s20 of the Children Act 1989. On the 21 March 2012, an interim care order was made in respect of S “upon the court making findings” in accordance with a schedule which was dated 3 June 2011 and was uncontested by any party.

[7]  The findings set out in the schedule were those upon which the care orders were made in relation to the older children, and were as follows:

(i) M failed to parent her elder two children to a good enough standard, including neglecting their needs and exposing them to inappropriate adults, including adults who are known to have perpetrated sexual abuse.
(ii) M failed to set appropriate boundaries for the children and neglected their emotional and developmental needs.
(iii) M placed the children at risk of sexual abuse by leaving them in the care of inappropriate males who were linked to drugs, had mental health issues, were violent and posed a risk of sexual abuse to the children.

[8]  It was against this background that the parents were assessed during the course of the care proceedings. The various assessments were sufficiently encouraging to lead to a plan for the rehabilitation of S to the parents, albeit with the benefit of extensive support and assistance, including, unusually, S’s foster mother going into the house on a regular basis to provide support and assistance. S was placed in the full time care of her parents on the 12 April 2012 aged 10 months.

[9]  The care proceedings were concluded on the 31 August 2012 when by consent, Her Honour Judge Hudson at the Newcastle-Upon-Tyne County Court made a Supervision Order for 12 months. The threshold criteria were found to have been met in accordance with the same unopposed schedule of findings referred to above.

[10]  Unhappily, only 3 months after the making of the supervision order, following the serious deterioration in the relationship between the parents culminating in incidents necessitating the attendance of the police at the family home two nights running on the 29 and 30 November 2012, S was placed back with her original foster carers on a voluntary basis pursuant to s20 Children Act 1989.

[11]  A second set of care proceedings was issued on the 4 January 2013. The final hearing was heard by the Recorder between the 11 and 19 July 2013 with judgment being given on the 31 July 2013. Given the nature of the criticisms made in relation to the judgment of the Recorder, it is helpful to set out the recordings attached to the order and the basis of the threshold criteria as found:

“Recordings
i) The court considered the documents filed in the bundle and placed before the court.
ii) The court heard the oral evidence of the social workers, the parents and children’s guardian.
iii) The court heard the oral submissions of the parties at the conclusion of the evidence.
iv) The court determined that the threshold criteria pursuant to the Children Act 1989 s31(2) had been met in relation to the child in accordance with the matters set out in the schedule attached hereto.”

[12]  The “schedule of basis of threshold criteria” appended to the order recorded the following findings: 

“i) At the relevant date of the 30 November 2012, S (a girl born 2 June 2011) was likely to suffer significant harm attributable to the care given to her by her parents JM and JP.
ii) The basis of the finding of the likelihood of significant harm is as follows:

a) JM and JP exposed S to their volatile relationship.
b) The relationship included JM making allegations of domestic violence and rape, subsequently retracted and revived, which gave rise to fears of emotional abuse if true, or instability and further volatility if fabricated.
c) JM placed her elder daughters at risk of sexual abuse by leaving them in the care of inappropriate males who were linked to drug use, had mental health issues, were violent and posed a risk of sexual abuse to these children. This led to her daughters being permanently removed from JM’s care.
d) Further S was suffering significant harm at the relevant date attributable to the care given to her by her parents, as S exhibited some developmental delay after the care given to her by her parents between April and November 2012, and this delay became more apparent once S became accommodated after the 30 November 2012.”

[13]  The placement order dated the 31 July 2013 records that the court heard counsel and the local authority on behalf of each parent and the solicitor for the child. It further records that the court approved the care plan in respect of the care proceedings:

“Upon the court dispensing within the consent of JM and JP to the child being placed for adoption, pursuant to the Adoption and Children Act 2002, section 52, on the ground that the welfare of the child requires their consent to be dispensed with”.

[14]  It is against these orders that the father now appeals.

Procedural History

[15]  The father, it would seem, had been told by his legal team that he had no basis for appeal; it was only when he went to see his solicitors on the 12 September 2013 to collect some photographs of S prior to her placement with the prospective adopters, that he understood that he could in fact, appeal the orders made by Mr Recorder Bullock. On the 20 September 2013, the father lodged a handwritten notice of appeal at the Newcastle-Upon-Tyne County Court.

[16]  This case yet again puts into sharp relief the difficulties which arise for the courts, the litigants and most of all the children, where unrepresented parents seek to navigate their way through a system which necessarily operates on the basis of detailed procedural rules, without which there would be chaos but which inevitably present the layman with significant difficulties. Had the father been represented, the mistakes that followed, would have been picked up by his solicitors.

[17]  The Newcastle-Upon-Tyne County Court, in common with all County Courts, had a notice on display to the effect that the counter staff are unable to give legal advice and will not do so. The father was not therefore told that the notice of appeal should be served on either the local authority or the guardian or that the route of appeal was to the Court of Appeal and his Notice of Appeal should never have been filed at the County Court. As a consequence, on 23 September 2013, three days after the father had filed his Notice of Appeal, the local authority understandably and properly, time having elapsed for the filing of a notice of appeal, placed S with prospective adopters where she has lived ever since.

[18]  To compound these difficulties, despite the notice of appeal filed by the father referring to the trial judge as “Recorder Bullock,” the case was thereafter treated as if Recorder Bullock had heard the case, not as a Recorder, but in his former full time capacity as a District Judge based at Newcastle, where the appeal would have lain to a Circuit Judge rather than to the Court of Appeal. The court has been provided with an agreed chronology setting out in detail why it was not until the 6 May 2014 that it was appreciated for the first time that the appeal lay to the Court of Appeal. As soon as this was realised, the case was transferred to the Court of Appeal and a letter sent to the father apologising for “the series of errors in the handling of the appeal and the appeal process”.

[19]  Fortunately the father was able to obtain legal advice enabling the appellant’s notice to be re-drafted in the form now before the court. Meanwhile, notwithstanding that the county court had asserted that a transcript of judgment had been sent to the parties in December 2013, it was not until the 11 July 2014 that the local authority received a copy, and even then they obtained it only because counsel for the father sent it to them. Unhappily, whatever defect in the system for the obtaining and distribution of transcripts had been responsible for the delay in the onward transmission of the Recorder’s judgment did not lead to a revision of those systems as there were further significant difficulties with regard to obtaining transcripts. It is not being suggested that the resulting delays were the result of indifference on the part of the court staff. No doubt the problems stem from a lack resources leading to a shortage of appropriately trained and experienced court staff able to identify the problem and put in place a system for ensuring the prompt and efficient ordering and distribution of transcripts of judgments and evidence.

[20]  So it was that the application for permission to appeal did not come on before Black LJ until the 8 July 2014. She gave permission to appeal on six grounds attached to the amended notice of appeal. In her judgment, she noted her difficulty in following the Recorder’s judgment and concluded that the appeal had a “real” in the sense of “not fanciful” prospect of success.

[21]  On the 22 July 2014, the local authority filed a respondent’s notice seeking to argue that the care and placement order should be upheld.

Threshold Criteria

[22]  The first task in any care proceedings is for the court to be satisfied that the threshold criteria have been satisfied, either by way of an agreement between the parties and put before the judge for his or her approval, or absent agreement, having heard evidence or made findings. The threshold is the gateway to the making of public law orders; unless the court is satisfied that the threshold has been crossed, the court has no jurisdiction to make orders.

[23]  The Recorder found the threshold satisfied on a number of bases; put shortly they are:

i) Exposure to the volatile relationship of the mother and father including serious allegations including of rape made by the mother and subsequently retracted;
ii) The care given by the mother to her older children which had resulted in their permanent removal;
iii) That S suffered developmental delay whilst in the care of her parents between April and November 2012.

[24]  Ground 1 of the appeal is that:

“The Recorder failed to make any or any adequate findings of fact, particularly in relation to the allegations made by the mother that the father had been violent to her.”

[25]  What is undoubtedly true is that, as Black LJ found, the judgment is not structured in such a way that the reader can readily identify the Recorder’s findings in relation to the allegations of violence. It must be remembered however that the threshold finding made by the court was not ultimately based on a finding that the father had in fact been violent to the mother, but that S had been exposed to their volatile relationship which included the making and retraction of very serious allegations which, whether or not true, put S at risk of significant emotional harm.

[26]  In order to reach such a finding the Recorder did not need to find that the father had been violent to the mother; what he needed to find was that there was adequate evidence of the volatility of the relationship and of the mother making and retracting serious allegations, such that S was either caused or at risk of significant harm whether emotional or physical. There was ample evidence to support such a finding, not least the very fact that the police had been called out to the house due to domestic incidents on both 29 and 30 November, immediately prior to S’s re-admittance into care.

[27]  The Recorder set out, in paragraphs [26]-[31], details of the parent’s complaints about violence and controlling behaviour. Other examples drawn from the judgment were the father’s acceptance that he was “over the top at times” and that in relation to being controlling he said “I know I can be like Hitler”. The Recorder, whilst expressing his scepticism of the truth of the mother’s retractions of the allegations of violence made against the father, was not ultimately in a position to reach any firm conclusion about their veracity, finding that “where the truth lies is absolutely impossible to determine”.

[28]  The Recorder on this basis was able to, and did, find for the purposes of the threshold criteria that there was a volatile relationship between the parents, and that the mother made and retracted allegations of domestic violence and rape, exposure to which put S at risk of significant harm.

[29]  Given the facts of the case and the manner in which S returned into care on 30 November 2012, it was hardly surprising that the father’s counsel submitted to the Recorder in making her closing submissions that, whilst the allegation of developmental delay could not be made out, nevertheless the threshold was crossed: “this case is more about disposal”, she said, “because clearly the parents would accept that the volatility exhibited in terms of the arguments over the timeframe of October and November was crossed”. She went on to emphasise that the “harm in this case” is about is “emotional harm because of the friction and volatility between the parents” and that “her job” was to convince the court that it could be dealt with and ameliorated.

[30]  It follows that the finding the Recorder made of exposure to the volatile relationship was, as was conceded at the court below, sufficient (even without the other two findings of threshold), to satisfy the threshold criteria and allow the court to conduct a welfare evaluation with a view to determining what, if any orders to make regardless of any findings he might or might not make in relation to developmental delay or actual physical violence.

Developmental delay

[31]  Whilst not specifically conceding the ground that the Recorder had no evidence on which he could make findings that S had suffered developmental delay attributable to the care given to her by the parents, Miss Morgan QC on behalf of the local authority, rightly limited her submission to saying that there was “some evidence” to support the finding. She emphasised that her primary submission was that in any event, the court was able properly to conclude that the threshold criterion was made out on the basis of the volatile relationship of the parents.

[32]  Having been taken carefully through the evidence and invited to see updating evidence about S’s development, it is clear that a finding that any developmental delay exhibited by S was attributable to the care these parents gave to S was not one he could properly have reached applying the proper burden and standard of proof.

Welfare Decisions

[33]  The balance of the grounds of appeal relate to the conduct of what is often called the “welfare hearing”, that discrete hearing which follows a separate finding of fact hearing, at which the court has found the threshold criteria to be satisfied and turns its attention to a consideration of what order, or orders, should be made in the best interests of the child in question. In this case the care plan was for adoption; in those circumstances consideration is first given as to whether the court should make a care order or whether the conditions for the making of a care order are met (Adoption and Children Act 2002 s21(2)(a) and (b) (ACA 2002). If so, in a case where there is an application for a placement order the court then to moves on to consider whether such an order should be made having given paramount consideration to the child’s welfare throughout its life and having regard to the matters set out in ACA 2002, s1(4) (the welfare factors).

[34]  If the parents do not consent to the making of the order, the court decides whether the welfare of the child requires the consent of the parents to be dispensed with under s52(1)(a) ACA 2002 which includes a consideration as to whether the making of an adoption order is a proportionate interference with the Article 8 rights of the parties.

[35]  Grounds 3, 5 and 6 relate to the Recorder’s failure to set out in terms in his judgment that he was taking into account certain statutory requirements and carrying out his decision making process by the recognised steps:

i) Ground 3 states that the Recorder made no reference to the welfare checklist (s1(3) Children Act 1989) or to the welfare factors (s1(4) ACA 2002). That is undoubtedly the case.
ii) Ground 5 records that the Recorder failed to consider the placement application separately from the care application; Miss Morgan QC on behalf of the local authority rightly concedes that that was the case.
iii) Ground 6 is that the Recorder failed to consider ACA s52(1)(b) and give reasons for dispensing with the consent of the parents; again Miss Morgan accepts that in his judgment the Recorder did not give reasons as to why he was dispensing with the consent of the parents, although she points out that the order itself does set out that the consent of the parents was dispensed with pursuant to s52 ACA 2002 on the ground that the child’s welfare required that the their consent be dispensed with.

[36]  The question is whether such omissions, whilst obviously significant, are fatal. Miss Morgan QC submits that they are not for the reasons set out in her Respondent’s notice and asks that the care and placement orders should be confirmed. Miss Morgan argues that by careful analysis, it can be extracted from the judgment that the threshold is properly crossed; a welfare analysis she submits, was conducted on adequate evidence and the proportionality assessment carried out prior to the placement order being made. In order to determine whether she is right there needs to be some consideration of the evidence and findings in relation to the father as a single carer and how those findings were applied to the welfare decision to be made.

[37]  For his part, Mr Hayes QC argues on behalf of the father that the judgment is wholly inadequate and fairness demands that, notwithstanding the fact that S has been settled in her adoptive home for 14 months, a retrial should be ordered. He says there must be a new finding of fact hearing relating to the causes of the breakdown of S’s placement with her parents in November 2012, and for there to be fresh assessments of the father as a single carer. The father seeks the gradual return of S to his care and would want the adoptive parents to facilitate a rehabilitation programme.

The Father

[38]  Ground 4 is the ground of appeal which focuses specifically on the father; in this ground it is suggested that “the Recorder failed to give adequate consideration to the pros and cons, the strengths and weaknesses of F’s application to care for S, and the support that the LA should and could provide to him to assist with this and to facilitate contact with the mother”

[39]  Again it is incontrovertible that the judgment lacks a structure which exhibits in a cohesive way the strengths and weakness of the father’s case that given adequate support he should care for S alone and whether in the interests of S he would facilitate contact with the mother.

[40]  S was originally rehabilitated to her parents on the basis that it was intended that the mother and father would act together as co-parents. Following S’s readmission to care the father was initially ambivalent about his ability/desire to care for S full time and proposed that he and the foster carer should share her care. Once the father was told that this was not possible he asked to be, and was, assessed as a sole carer.

[41]  The Guardian was not content with the quality of the assessment of the father carried out by the social worker and she herself therefore conducted an extended assessment of the father with a view to making a recommendation to the court on behalf of S as to whether it was in her best interests to be rehabilitated to him alone. That the Guardian did this is to her great credit, carried out as it was against the Cafcass Operating Framework which sets out the model of “proportionate working”, a model described by Cafcass as being based on a “simple and unavoidable” premise that “Resources are scarce and finite, and have to be used proportionately” as a consequence the number of hours a Guardian is permitted to spend on each case is strictly circumscribed. This case is an example of a Children’s Guardian going well beyond that which she is required to do, no doubt in her own time, in order to be confident that she has a complete assessment of a parent, and was in a position to give the appropriate recommendation to the court in the interests of the child whom she represented.

[42]  The social worker and the Guardian, having assessed the father as a single carer, concluded that adoption was in the best interests of S.

[43]  The court had before it all the material and appropriate assessments it needed in order to make long term decisions as to where, in her best interests, S’s future lay (all of which I have read). It is accepted that on the facts of this case, due to the mother’s particular problems and S’s very young age, realistically the choice came down to rehabilitation to the father or adoption.

[44]  Miss Morgan QC highlighted from the judgment, those matters which she submitted the judge drew upon entitling him to make a welfare decision as to whether there could be rehabilitation to the father. It is not necessary to set out each factor in detail but they included the isolation of the father and lack of any support from his family, the father’s controlling and manipulative behaviour towards the mother, his withdrawal from both the mother and S between the making of the Supervision Order and the separation and his dogmatic refusal to accept the findings in the proceedings in relation to the mother’s older children.

[45]  Findings were also made that the father did not work openly and honestly with child care professionals. This was an area which gave the Guardian particular concern and in relation to which she gave a number of examples in her report. Inevitably this impacted upon an assessment as to the likely acceptance by the father of any support offered to him by the local authority in the event that S was rehabilitated to his sole care.

[46]  In relation to the future contact to the mother, the judge stated, “I cannot see any contact scenario between these two that would be capable of being coped with”.

[47]  The Guardian’s evidence, properly tested in cross-examination, was unequivocal that she would not favour any plan for the rehabilitation to the care of either parent and that the care plan needed to be one for adoption.

[48]  The judge, having heard the parents as well as the social worker and Guardian give evidence, made a number of important findings in reaching his conclusion that rehabilitation to the father was not in the best interests of S:

i) “[67] One reiterates that this relationship broke down within weeks of the court ceasing to have any involvement. In my view I agree with the Guardian that the potential for parental conflict is so high and is of such a magnitude that there is every indication that S will suffer emotional harm if looked after by her parents”
ii) “[70] they have shown that they are not capable of living together and caring for this child and in my view neither of them as a single parent has the capacity to fully parent this child and the likelihood for parental conflict is just so high.”
iii) “[68].. the other possibility is placement with the father, but again what he did when he managed to get the child’s mother evicted at 8 o’clock at night, he put her on the street, he told lies for weeks to everybody. He is controlling, I find his explanation about his withdrawal from S’s care in September, October, and November i.e. that he wanted to give the mother more time unbelievable. He is aware and I have read copious references to all this, he was aware that the mother was struggling, but really sought to absent himself from the house. And the social worker believes this was because he was tiring of the care of the child and he did nothing to dissuade anyone that this was not the case. He has no realistic proposals about contact to the mother, he’s never had the care of any child at all, he would need massive support and in my view that support is simply not there. And again I repeat in respect of what was said about the mother, he has basic parenting skills but bringing up a young child is much more than that.

[49]  The judge noted the father’s strengths, that is to say that he had basic parenting skills, that the contact had been good and that he had made a great effort to improve his child care skills. Notwithstanding these positives in relation to the father, in paragraph [71], the judge identified that what S needs is stability and not to return to an area of “huge parental conflict”. The Recorder noted that it was the view of all professionals that an adoption order should be made and that S was young enough to benefit from an adoption order.

[50]  Before deciding to make the orders the Recorder directed himself in relation to Re B [2013] UKSC 33, then recently decided by the Supreme Court, in which Baroness Hale coined the phrase now routinely used in all placement/adoption hearings, that adoption should only be ordered where “nothing else will do”, a phrase which must, as Baroness Hale did, be put into the welfare context. Baroness Hale said:

“[198] the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will make do”.

[51]  The Recorder also referred to the exceptional nature of adoption orders and to a European case YC v UK ECHR 13 Mar 2012, setting out a passage which emphasises that not only must adoption be in the best interests of a child but that the family tie should be only severed in exceptional circumstances and that everything should be done to preserve personal relations between the parties. The Recorder reminded himself that it is not enough to say that it would be better for the child to be adopted than to live with his natural parents.

[52]  The judge said, in terms, that it must be “necessary” to make an adoption order and that the child must not be separated from its parents unless it is “necessary and proportionate”. He thereafter found that in the present case it was necessary and proportionate and therefore that a care order together with a placement order should be made.

Discussion

[53]  In Re B [2013] UKSC 33 Lord Wilson considered the issue of “Appellate review of determinations made in care proceedings”. Having set out the well known passage of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372 in relation to the advantage a first instance judge has in having seen the parties and other witnesses he went on to say:

“[42] Lord Hoffmann's remarks apply all the more strongly to an appeal against a decision about the future of a child. …….The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask "are the local authority's concerns about the future parenting of the child by this witness justified?" The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge's decision about the future arrangements for a child. In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258, Lord Nicholls said:

16. …….
19...Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge's decision.”

[54]  In his judgment in Re B, Lord Neuberger considered those challenges to conclusions made by judges which relate to proportionality saying: (para [93])

“There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).”

[55]  In Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, sub nom Re B-S (Adoption: Application of s 47(5) [2014] 1FLR 1266 (Re B-S), Sir James Munby P gave what is now the widely known authoritative guidance as to how judges must approach applications for leave to oppose under s 47(5) of the Adoption and Children Act (ACA 2002). Whilst that case concerned an application to oppose the making of an adoption order where a placement order had already been made, (s47(5) ACA 202), the guidance is of equal application to applications for placement orders of the type which was before the Recorder.

[56]  The guidance now shapes both assessments and judgments alike in placement/adoption cases but the basic test in relation to the appellate court’s approach to a review of a child care case remains unchanged and is as set out in Re B. This was reinforced by Sir James Munby P himself in Re B-S when he said in concluding his review of the law (para [81]), that the “simple test” is whether the trial judge was “wrong”.

[57]  The judgment in Re B-S was handed down on 17 September 2013, (a number of weeks after the judgment of Mr Recorder Bullock); inevitably the Court of Appeal were faced with a number of “pre Re B-S” appeals where it was argued on behalf of parents that appeals should be allowed on the ground that a particular judgment did not comply with the guidance in Re B-S. In the main those cases have long since been disposed of, as would this case, had there not been the delay to which I have already referred.

[58]  Sir James Munby P considered the proper approach to be taken in the Court of Appeal in pre Re B-S cases in Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2013] EWCA Civ 1177 saying:

“[16] Plainly, in the case of judgments given before the decision in Re B-S the Court of Appeal must have regard to and make appropriate allowance for that fact. The focus must be on substance rather than form. Does the judge's approach as it appears from the judgment engage with the essence? Can it be said, on a fair reading of the judgment taken as a whole – a fair and sensible reading, not a pedantic or nit-picking reading – that the judge has directed his mind to and has provided answers to the key questions?
[17] Thus, for example, the mere fact that the judgment recites passages from the earlier authorities in which the phrases ‘exceptionally rare' or ‘stringent' appear will not, without more, mean that an appeal is likely to succeed. Nor, to take another example, will the mere fact that the judgment does not engage with matters referred to in para [74] of Re B-S. What is crucial is the effect of the judgment read as a whole.”

[59]  In considering the judgment of the Recorder in this case, the appellate court is therefore looking in particular at the substance not the form of the judgment and is seeking to ascertain whether or not it engages with the essence of the case.

[60]  In Re F (a child) [2011] EWCA 273 Black LJ made the following observation in relation to a case where a judge had applied the wrong test:

“[28] I agree that this appeal should be dismissed. In giving written directions for the listing of this matter, I observed that although it was arguable that the judge had misstated the test to be applied in determining the application before him, there remained the difficulty for M that he may have been right in saying, as he did when refusing permission to appeal, that the result was "obvious", in which case any misstatement of the test would be immaterial. This difficulty has proved insuperable for M who has not been able to persuade us that the judge was anything other than plainly right to dismiss her application.”

[61]  One of the difficulties where a judgment lacks structure and fails to present the reader with a clear analysis of the evidence, its application to the law and thereafter of its cross check with Convention rights, is that a reviewing court is not only presented with a formidable task in determining whether the decision reached by the judge was wrong, but it potentially leaves a litigant, (often a parent destined as a consequence of that judgment to have their parental tie severed), with a sense of unfairness, even where there is no question of his or her Article 6 rights having been compromised.

[62]  At first blush it appeared that the deficiencies in the judgment with which this court is concerned were such that, no matter what further delay was occasioned in determining S’s future, the appeal must be allowed and the matter remitted for rehearing. The process of determining whether the essentials can in fact be found within the judgment and the evidence has been immeasurably assisted by the careful analysis of Miss Morgan QC, through which it has become clear to the court that notwithstanding the difficulties inherent in the judgment:

i) All the material necessary for a proper determination of the case was before the judge and tested in cross examination.
ii) That, whilst the finding in relation to developmental delay cannot stand, there were nevertheless more than adequate findings to allow the threshold criteria to be satisfied and therefore the court to proceed to consider what, if any order, should be made.
iii) The father was assessed by both the Guardian and the social worker as to his ability to care for S. The judge was entitled, having heard the evidence, which included oral evidence from the father, to accept the recommendation of the Guardian and indeed, if a court decides not to follow the recommendation of the Guardian, it should give its reasons for failing to do so. (Re J [2001] 2 FCR 44)
iv) The evidence before the judge addressed the available options and the judge took into account the father’s strengths as well as weaknesses. The Recorder gave his reasons for concluding that it was not in the best interests of S to be rehabilitated to her father.
v) Whilst the judge failed to state in terms that he made a care order before moving on to consider the placement order application, it was implicit that, having determined that the child could not return to the only parent who was a realistic option, a care order would follow. The conditions necessary for the making of a care order were undoubtedly made out.
vi) The care plan was for adoption. The necessary information was available to the judge for the welfare analysis within the extended assessment of the Children’s Guardian. The Recorder noted the exceptionality of the order sought and said that the making of such an order was ‘necessary’. Even though the case was heard before Re B-S the Recorder took into account the importance of the order for adoption being ‘proportionate’ and importantly, that it is not enough to say that “it would be better for the child to be adopted than to live with his natural parents”
vii) This was a little girl who had just turned 2 at the time the orders were made in circumstances where there was no one within the extended family who could appropriately offer her a home. Once the court had concluded that it was not in her best interests to be returned to the care of either parent then, given her age and need for a secure, stable and permanent home, it could not be regarded as wrong for the judge who had heard the case to conclude that her welfare required an adoption order to be made.

[63]  Pieced together in this way, I conclude that the Recorder did engage with the essence of the case and that his judgment contained the essential ingredients necessary for there to be a proper determination of the issues which determination also respected the Convention rights of all the parties.

[64]  Unlike Re F, It would be wrong to say the outcome of this case was ‘obvious’; it was however on a proper analysis ‘inevitable’ and it cannot be said that the judge was wrong in reaching the conclusions he did. I am satisfied that based on those findings which were properly made and the welfare evidence before the court, the outcome would have been the same even had the judgment been a model post Re B-S judgment.

[65]  I would accordingly dismiss the appeal.

Postscript

[66]  As I understand it the father has received two letters of apology from the County Court for the mistakes which led to the wholly unacceptable delay in this matter coming before the court; a delay unacceptable for the father, but also for the prospective adopters. Whilst the father was obviously distressed during the course of the hearing, he behaved with dignity and composure throughout. It will inevitably be hard for him to accept that the outcome of this appeal, and the making of the adoption order which will in due course be made in respect of S, are not a direct result of an inadequate judgment and delay within the family justice system. I can only assure him that it is not so; Mr Hayes put forward every possible argument to convince the court that the case should be remitted, but even his skill and tenacity could not undermine the fact that upon close analysis of the findings and assessments available to the court at the time of the hearing, the making of a care order and placement order in respect of S was the inevitable outcome.

Lord Justice Tomlinson:

[67]  I agree

Lord Justice Moore-Bick:


[68]
 I also agree.

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