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Leave to revoke a Placement Order, successful appeal

 

Re G (a child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/119.html

 

The mother was appealing a refusal to grant her leave to apply to revoke a Placement Order (i.e to get her child back). She was in person in the Court of Appeal (and did a very good job) and won her appeal.

 

There are  few big points from this appeal which have wider application.

 

1. Change doesn’t have to be recent

(I think what the Court of Appeal say here rather destroys Mostyn J’s declaration that change has to be ‘unexpected’ because they are explicit that one shouldn’t read words into the statute that aren’t there)

I do not accept Mr Tughan’s submission that the nature and degree of the change of circumstances which a parent does successfully establish, is demoted by it being a recent change. This does add gloss to the words of the statute and should be resisted

 

2. Change doesn’t have to be change in the parent  – it can be change in the life of the child, or in the life of the child’s carers.

 

[This one interests me, because as far as I know, Mrs Suesspicious Minds was the first counsel to persuade a Court of that, so it is nice to see that she was right – as usual]

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

 

3. Take care in using a note of judgment as if it were a transcript

 

In this case, the Care Order and Placement Order had been made by a District Judge, and the leave to oppose hearing was heard by a Circuit Judge. The CJ had been given counsel’s note of the hearing / judgment, but read it into the judgment on leave to oppose as though quoting the District Judge directly.

The only document that assists is Counsel’s “note of final hearing” prepared by Mr Hepher on 20 August 2012 for his Instructing Solicitor. It has not been approved by the DDJ Johns.

Contrary to what HHJ Levy said in her judgment, the note does not pretend to be a note of the judgment; rather it is the subjective assessment of the hearing and its outcome, giving a potted version of the judge’s conclusions. Counsel who appeared for the Local Authority could have no idea or intention that it would be referred to in any future proceedings or appellate jurisdiction. However, HHJ Levy placed reliance upon it and, it seems to me, elevated Counsel’s written opinion that “the evidence did not go well for [the mother]. She became upset and gave loud, aggressive and frequent inconsistent and confrontational answers when challenged” into findings made by the first instance judge and thereafter cited Counsel’s summary of a part of the judgment in quotation marks, giving the appearance that the same were spoken by the DDJ Johns.

The fact of its quotation by HHJ Levy leads me to conclude that it was instrumental in her decision and I therefore refer to it in full. HHJ Levy said that “[t]he judge had concluded by summing up the mother as: ‘…angry, resentful and accusatory of professionals…blaming of others, was unable to explain the impact of domestic violence and undesirability of drug use, and had a casual disregard to telling the truth. She had no insight into the magnitude of the risks the father might pose, nor the impact of her own behaviour. She was not able to sustain motivation for any meaningful change”.

…Quite apart from the issues raised in the grounds of appeal, I would express my great concern at other aspects of the procedure that was adopted at first instance and which are capable of further infecting the outcome. That is, HHJ Levy was disadvantaged in the absence of DDJ John’s judgment and “agreed threshold criteria” and was wrong to accept counsel’s unapproved “note of the hearing” as a sufficient substitute, even though I am sure she was well intentioned in seeking to avoid delay. She could not possibly establish the true base line in the absence of the “agreed threshold criteria” document, which itself recorded some issues of fact and differing interpretation of others, without reconstructing the evidence that had been available in the court below. In doing so she appeared to rely entirely upon the reports submitted by the social worker and guardian.

 

4. You need to be quite careful about ruling that a parent had not satisfied the first limb of the two stage test (has there been a change in circumstances?)

The Court of Appeal here sent the case back for re-hearing, but were very plain that their view was that the first limb had been crossed and quite comfortably.

5. Fresh evidence

The Local Authority had brought to the Court of Appeal a statement that gave information about family finding – in effect, providing evidence that an adoptive placement was on the cards. The Court of Appeal deprecated this practice.  This was really a request to introduce fresh evidence to the appeal, and if so, a proper application needed to be made, with all of the Ladd v Marshall principles argued  (it is REALLY  hard to get fresh evidence in on appeal, other than in criminal proceedings where the fresh evidence is something like an alibi, or CCTV footage or some sort of CSI test which would undermine the conviction)

 

  1. Shortly before coming into court, a statement prepared by Ms Faith Connell, J’s social worker, unsigned but dated 9 January, 2015 was sent through uninvited. There is no application to admit fresh evidence. I am told by Mr Tughan that it is intended to update the court on ‘family finding’ for J. This practice is becoming increasingly common and I think it entirely inappropriate. If the statement contains fresh evidence which is pertinent to the appeal then leave should be sought in accordance with normal procedure to admit it. If it does not, it may appear as an attempt to influence the outcome of the appeal. Mr Tughan assures me that that is not intended, but that it was submitted with a view to assisting the court if it wished to substitute its own order for that of the court below.
  2. As it is, this is not a court of first instance and is not in a position to determine the disputed factual issues raised in the mother’s application before HHJ Levy, let alone fresh facts on the unilateral presentation of what may be challenged evidence and opinion going to inform the discretion stage. I have refused to read the statement in those circumstances and particularly since the mother is unrepresented.

 

6. You can only ‘shore up’ a judgment so far

In discussion, Mr Tughan was obliged to concede that he was attempting to “shore up” the judgment of HHJ Levy. He accepted the absence of any findings in the judgment that were directly relevant to the adverse findings apparently made against the mother by DDJ Johns and upon which HHJ Levy relied. He argued that some issues that were recorded in the judgment had been ‘resolved’ during the course of the proceedings – entirely, I observe, in favour of the mother’s contentions – and that it was unnecessary to make certain other findings, including whether the mother’s relationship with her previous partner had ended, the extent if any of her drug use, and whether she had threatened the current social worker with violence. He accepted that the Court would “struggle to piece together” HHJ Levy’s thought processes, but that they could be “pieced together” when analysed in the round. He argued that the bar had been set at a high level by reason of the findings made in the original care proceedings and that the self reported changes by a mother, whose credibility had been doubted in the past and, implicitly I think he was suggesting, was in any event so emotionally compromised in relation to an objective consideration of J’s best interests, had inevitably led the judge to conclude that she still had a “long way to go”.

 

The mother was of course appealing the judgment that was made, not the shored up version that counsel for the Local Authority was skilfully presenting. She won her case, and that was the right decision. Nobody knows how the re-hearing will go.

 

6. Threshold post Re A

 

The Court of Appeal here accepted that the threshold were ‘more than satisfied’ and that they had no doubt about that.

Let’s have a look at the threshold then.

A document headed “Agreed Threshold Criteria – 17.7.12” gives some indication of the circumstances of J’s removal. In summary, J’s father has previous convictions for serious drugs and violence. In June 2009, the mother attempted to prevent his arrest for the offence of armed robbery. The father was subsequently jailed. The mother commenced a new relationship. Her new partner also had previous convictions and was a serial offender. Regrettably he was violent to the mother. She continued with the relationship and was said to prioritise her relationship with her partner over her own and J’s safety. The mother disagreed but there is objective evidence that she found it difficult to separate from her partner, refusing an injunction and visiting him in prison whilst he was serving a sentence for assaulting her. The mother was said to continue to “minimise and excuse the extent and impact of the domestic violence and conflict to which J had been exposed”. She herself smoked cannabis but denied that she had used class A drugs. It is clear that she was not co-operative with social services and would routinely deceive them about her home circumstances.

 

Reading this document I have no doubt that the so called threshold criteria imposed by section 31 of the Children’s Act 1989 were more than satisfied.

A lot of this looks like the sort of thing that the President threw out on its ear last week. This isn’t a case where the mother herself posed a risk.  At best, or worst, her partner might have.  But he seemed to be in prison.  Cannabis – gone. Not co-operative with social services – gone.  Assisting father three years earlier to resist arrest – what’s the risk to the child? gone. . Violence from former partner – well, the President seemed to be suggesting that there are people who have had dv in their relationships who would not cross threshold – it would depend on the extent and nature of it.  Minimising dv – gone. Visiting former partner in prison – well, if he wasn’t established to be a risk of harm to the child, so be it.

Too early to say whether the Court of Appeal are going to take a different view to the President on Re A, but if you apply the Re A principles the threshold here is either not crossed or it just limps over the line. Yet the Court of Appeal consider that there is no doubt that it was more than satisfied. Hmmm.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

7 responses

  1. From reading this case judgment I am thinking out a loud here that “Threshold” must now be made out of diamond coated reinforced concrete,

    Or maybe Threshold Criteria could be a new element to put on the periodic table as the strongest substance known to man, diamond is so yesterday, have to buy the missus a new ring made entirely out of threshold

  2. Pingback: Placement and Adoption Orders | Child Protection Resource

  3. I think the threshold was met in this case because the mother showed a pattern of seeking relationships with violent men, both of whom served prison sentences, and she was in denial about the risks posed by her continuing the relationship. However, in the other recent case, the President was right to say the threshold had not been crossed – the father’s offences were less serious, he had not been to prison and he was not currently in a relationship where domestic violence was an issue. Besides, he had never been given the opportunity to show that he was fit person to care for his child – so there was no evidence he had failed to safeguard him.

  4. I ought to be jumping up and down with excitement however but it feels like such a lottery.whether you get the right judge/judges on the right day. On another point
    I am afraid I have to disagree with you Hilary , a woman does not seek violence in a relationship, they are vulnerable to relationships with such men.It hellishly difficult to leave such relationships due to lack of self esteem. I don’t know if anyone remembers the men who effectively worked as slaves for gypsies ,I think the case was a couple of years ago, but I believe there was a similarity between what happened there and domestic violence victims. In that people from the outside can not see that if you are that downtrodden, you accept any situation as better than nothing, as you are told and feel completely undeserving of anything better.

    • I disagree with you. I believe a woman must accept personal responsibility for the choices she makes in life. In this case the mother must recognise her own responsibility for getting pregnant and having a child with the first man and, when this relationship broke down, choosing to live with another violent man. The Care and Placement orders were made in August 2012 and this was when the threshold was met.

      She is a young woman who acted in person at the Court of Appeal AND was successful! She is described as eloquent and composed. So, I’ve not thought of her as lacking self-esteem. If she was a victim in the past, she does not seem like one now.

      In recent years she has apparently sought help and made use of help. There are promising signs that she is changing – and it is good that she has maintained contact with her child. Now she will need to demonstrate at the re-hearing that she really has changed and is emotionally equipped to care for this child (who at the age of six should be able to express his own wishes and feelings about where he wants to live).

      • stella aka toni macleod

        im afraid im disagreeing with you as well here hun

        being confident well spoken and determined when it comes to your kids and your innate desire to achieve their return doesnt make you less likely to fail victim to domestic violence

        speaking personally here iv fallen short to domestic violence i dont accept nor tolerate it i regularly speak publicly to audiences im articulate determined and competent in court that doesnt suddenly mean i have a buffer to safeguard from violent partners that repels them on sight

        my relationship was text book perfect for over 18 months not even so much as an argument let alone any violence until one day he blew up its difficult to predict that incident from that back drop of the rest of the relationship

        its difficult and traumatic going through proceedings it chips away at your inner self despite what pretense you put on to the outside world so this also leaves people at more of a risk due to the stresses of proceedings which impose greatly on relationships where tensions flare

        then of course you have….

        1 domestic violence incident is reported to the police every minute in the UK thats not to say that one person every minute deserves to get their kids removed ….

        just contemplate the reasons why people continue their relationships most of the time its because its the Jekyll and Hyde behaviour that leaves the victim feeling like its out of the ordinary and wont be repeated its only until the pattern actually emerges clearly they realize it is exactly that a pattern that isnt going to change by that time they are that deflated defeated and depressed its hard to leave and accept they were right you were wrong and you couldnt see the wood for the trees

        its very easy for someone to sit on the outside and pick faults but as the saying goes people in glass houses shouldnt chuck stones not a direct criticism to you in that but its right its really easy to see faults from the outside however when your actually living through it its bloody hard and thats not even taking into consideration the emotions of love fear etc that are tied up into it

        although i must say one couple that had dv present ignored the la’s demands to split they buggered off to france are still together nearly ten years later no dv despite her being hospitalized and him being incarcerated from those incidents in the past happily living with my gorgeous god daughter with support from the french authorities

        just goes to show where theres a will theres a way just depends if your willing to work at it

        xx

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