A local authority has failed to persuade the Court of Appeal that a judge’s refusal of its applications for placement orders in respect of children aged two and almost four was irrational.
The council’s appeal had been supported by the Children's Guardian. The children are currently in foster care.
HHJ Sharpe had held that, despite many severe difficulties, it was better for the children to be returned to their mother under care orders, with restrictions on their father's contact, than for them to be placed for adoption.
Lord Justice Peter Jackson said the key issue was whether there was any prospect of those restrictions being observed.
The background to the case of N (Children: Refusal of Placement Orders)  EWCA Civ 1652 was that the family first came to the attention of the local authority in June 2018 after a neighbour reported an incident between the parents. Subsquently:
4. In October 2018, the local authority began proceedings and the child was placed in foster care for the first time under an interim care order. Mother and child were then housed together in three successive foster placements. In April 2019, the Judge conducted a fact-finding hearing in which he detailed the father's aggression towards the mother on one occasion and towards a list of professionals and other individuals on other occasions, and noted the mother's complicity with the father's stance. He found that the father habitually uses the threat of aggression to get his own way.
5. The second child was born in July 2019. The state of affairs between the parents and local authority was so bad that both children were briefly placed in foster care before being returned to their mother under interim care orders on the basis that they lived with the maternal grandparents. That arrangement continued until about October 2020. During this time the parents continued to wage what the Judge described as a 'crusade' against the authorities, but the children appeared to be well cared-for. However, the situation remained unstable, with the parents refusing to disclose the father's whereabouts. In January 2020, the father was convicted of one or more offences relating to the then allocated social worker, and in September 2020, he was arrested after storming the Family Court in an attempt to confront the Judge. Staff had to barricade themselves in rooms and the father was eventually incapacitated by police with PAVA spray. The father was charged with assaulting an emergency worker.
6. The final hearing in the care proceedings took place in October 2020 by remote hearing. The father's behaviour, in interrupting and insulting witnesses and the court, was described by the Judge as the worst that he had ever seen and he was excluded from the hearing. The mother, who had deliberately attempted to sabotage the hearing by failing to take make sensible arrangements for the children's care, then absented herself by choice. However, the following day the parents returned and the hearing was completed. The Judge made a care order on the basis that the children would remain with the mother and that the father would have supervised contact. He ordered the father not to attend at any property where the mother and children were living or where the children were at school. In response, the parents, who were acting in person, stated that they would ensure that the father had unsupervised contact without involving the local authority and the father stated that he would breach every order made by the court. These statements were recorded on the court's order.
7. The next development was that, as had been anticipated, the mother and children moved away from the grandparents, but they refused to inform the local authority where they had gone. When they were located by means of a recovery order, the local authority commissioned a report on the children's situation from an independent social worker, who was subjected to a 45-minute tirade by the father on the telephone before he realised that she herself was black. She was allowed to visit on 30 November 2020, when she found the parents and children together and the children apparently doing well. However, the discovery that the father had been living in the home led the local authority to remove the children to foster care again. The parents sought to prevent this by applying to the court, but the Judge dismissed their application. They then set about undermining the foster placements, with the father intimating in a menacing way that he knew where the children were living. As a result, they had to move in February and again in March, with the result that instead of being close to their mother in London, they are now in Merseyside. The mother has had contact twice a week, while the father has excluded himself from any contact at all by refusing to engage with the local authority's proposals. The mother's contact has been positive except that she insists on telling the children that she is fighting for them.
8. In March 2021, after the children had to be moved to the third placement, the local authority issued its application for placement orders. That application came before the Judge in July 2021 at a remote three-day hearing. The mother again appeared in person, three firms of solicitors having previously applied to come off the record as acting on her behalf. The father also appeared in person from prison, following his arrest on multiple charges of racially aggravated assault arising from events when he and the mother went to demonstrate at the headquarters of the Metropolitan Police in June 2021.
9. The parents did not participate in meetings with professionals in preparation for the hearing in July 2021. The hearing otherwise passed off relatively normally. Evidence was given by the social worker, the father, the mother, the maternal and paternal grandmothers and the Guardian. All parties made written closing submissions in the days following the hearing and the Judge provided his judgment on 23 July and made his order on 19 August. In refusing to make placement orders, he indicated that the local authority would want to review its care plans, which were for adoption. Instead, the local authority applied for permission to appeal, which [was] granted on 29 September.
Lord Justice Peter Jackson said this summary highlighted the difficulties that had been created for the children over the past three years “as a result of the grossly unreasonable attitude taken by their parents towards professionals. The documentation is full of examples of the mother's obduracy and the father's bombast and aggression.”
HHJ Sharpe decided not to make placement orders on the basis of a change in tone exhibited by the mother at the conclusion of her evidence, when she said she would accept any terms imposed upon her in order to achieve reunification with her children, “that whether she believed in the need for a care order or even an injunction she would abide by them both and for any such period as they continued to be in place”.
The local authority however was not persuaded by this possible “sea-change”, saying it was a statement borne of desperation, without any intent to abide by it.
HHJ Sharpe disagreed. “This mother does do exactly what she wants, irrespective of the costs to her. But, as I have said, she is consistent in that. Like both herself and her mother I also believe that she is not a liar. If she tells me that she will abide by the terms of the existing injunction then I am prepared to accept that is a change to which this mother will commit, not because she wishes suddenly to impress anyone, certainly not me, but because her commitment to her children overrules any other single factor in her mindset or in her life. Even if it puts her apart from the father.”
Lord Justice Peter Jackson said the challenge to HHJ Sharpe’s order had two strands.
The first was that the judge's decision was irrational in the light of the evidence as a whole, and the second was that the resulting position was not a workable basis for the children's future.
Lord Justice Peter Jackson disagreed with the first proposition but agreed with the second.
The Court of Appeal judge said that for the local authority to succeed in its main contention, it would have to show that HHJ Sharpe had no alternative but to grant its application.
“In my view it cannot do that,” he found. “The arguments in favour of placement orders were powerful ones that many judges might have accepted. In particular, without a true change of behaviour by the parents, there must be a high risk of a placement with the mother foundering on the same shoals as before, and next time the stakes are likely to be even higher, with the chances of the children finding a suitable adoptive home being further reduced and the dire prospect of long-term foster care re-emerging. However, there were also strong arguments in favour of the parents being given a final chance, not for their own undeserving sakes, but for the sake of the children.”
The Court of Appeal judge said cases where parents decided to take on the system were always difficult. “The attempt to shift the agenda away from legitimate child protection concerns creates levels of extraneous noise that pose exceptional challenges for social work and legal professionals, who often face relentless, unfair attacks on their integrity and judgement that are calculated to distract attention from matters truly affecting the child's welfare.”
He added: “This was just such a case, and the Judge was in my view to be permitted the widest latitude in deciding how to approach this very profound decision. He saw a change in the crucial matter of the mother's willingness to offer some level of formal co-operation and he was entitled to factor that into his analysis. To that point, his decision may have been a brave one, but it was not irrational in the sense that would entitle an appeal court to interfere.”
Lord Justice Peter Jackson said, however, that the conclusion that the mother might be capable of being trusted was not sufficient in itself. “It should have been seen as the starting point for identifying ground rules to underpin the children's return.”
He added: “Having taken the view that this might be possible, the Judge needed to press the parties for their detailed proposals: only by doing that could he know whether his chosen solution was realistic. As matters stand, there is no credible rehabilitation plan. It was not in my view enough for him to rely upon a limited negative concession by one parent and a message to the local authority that it needed to reconsider its care plan.”
Lord Justice Peter Jackson said HHJ Sharpe should have adjourned and required both sides to make positive proposals and, in the absence of agreement, to have adjudicated upon the situation so far as possible. “If he reached the conclusion that the parties remained too far apart, he might, depending upon where the fault lay, have to revisit the application for placement orders.”
The Court of Appeal judge said that, accordingly, he would allow the appeal and remit the application for placement orders to HHJ Sharpe to complete his decision-making.
“It is to be hoped that the parents will now engage in discussions to identify arrangements that can be accepted by the other parties and approved by the court so that the prospect of adoption can recede. However, if they are incapable of taking what is surely the children's last chance of growing up within their family of birth, all options must remain open.”
Lord Justice Arnold and Lord Justice Dingemans agreed.
Dingemans LJ said: “As Mr O'Donovan, on behalf of the mother, fairly identified there were important finding of facts made in this case….. Those findings, however, would not have led to the stark choice of a placement order on the one hand or continuing disruption to the children's lives caused by parents preventing the local authority from protecting the children in accordance with their statutory duties on the other hand, which confronted the judge if there had not been what Peter Jackson LJ has called, in paragraph 10 of his judgment, ‘the grossly unreasonable attitude taken by their parents towards professionals’.
“The result of this appeal means that the judge can now seek to case manage the mother's return from the brink of a placement order, for the good of the children. I agree with the hope expressed in paragraph 29 of the judgment Peter Jackson LJ that both parents might see the damage caused by their previous approach to the professionals and these proceedings, so that the prospect of a placement order can recede.”