B1/2000/3755

Neutral Citation Number: [2001] EWCA Civ 892
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
(HHJ WYN RICHARDS)
 
                                      Royal Courts of Justice
                                      Strand
                                      London WC2
 
                            Wednesday, 16th May 2001

B e f o r e :

THE PRESIDENT

LORD JUSTICE THORPE

‑and‑

LORD JUSTICE WALLER
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CARMARTHENSHIRE COUNTY COUNCIL

AND

L EVANS AND W EVANS
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MS P SCRIVEN QC (instructed by Carmarthenshire County Council) appeared on behalf of the Appellant.
MS E LAWSON QC and MS L ROBLIN (instructed by Benson Watkins, Swansea SA1 5QP) appeared on behalf of the Respondent.
MR J TILLIARD (instructed by Messrs Hains and Lewis, Haverfordwest) appeared on behalf of the Guardian Ad Litem.
MS J WOOD (instructed by Messrs T R Harris Arnold & Co) appeared on behalf of Mr Evans.
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J U D G M E N T
Wednesday, 16th May 2001
1.	THE PRESIDENT:This is an extremely sad case in which a mother had been held responsible in the civil court for inflicting very serious injury on a previous child, as a result of which both her children were removed from her. Then she was acquitted by the Crown Court but found responsible for the injuries to her elder son by Hollis J in July 1997. On 15th January 1998, care orders were made in respect of these two elder children.
2.	Her present husband was not anything to do with any of these tragic circumstances. He married her on 13th June 1998, and on 6th July 1998 a little boy was born to this couple. Understandably, the local authority was extremely anxious about this mother and an emergency protection order was made. Immediately after the birth there was an interim care order and the baby was placed, at 18 days old, with the present foster parents.
3.	At that time an organisation called Calm Care Consulting Limited prepared a report on the parents and concluded that they were not suitable for a resolutions programme and, on 20th January 1999, HHJ Burr made a final care order, both parents accepting at that stage that they could not oppose. The care plan was that the baby would be adopted and he did not see his parents after 26th February 1999 until a few months ago. However, there was indirect contact by way of cards and presents. One has to bear in mind in this case that this is a blameless father but not a blameless mother.
4.	By the standards of adopters, the foster parents are elderly, not perhaps elderly by the standards of all, and they were turned down as prospective adopters. They reapplied and they were accepted by the same adoption panel as prospective adopters. The local authority made an application for a freeing for adoption order that came before HHJ Wyn Richards in Swansea and he gave judgment on 5th December 2000.
5.	The issues before him at that time were the application by the local authority to free for adoption and the application by the parents that there should be a discharge of the care order. They have, in the meantime, undergone a resolutions programme which has reached some way along the line. The man in charge of the programme, a Mr Luger, is pleased with the progress they have made. He gave evidence to HHJ Wyn Richards in which he said there was some way to go, but the progress was encouraging. Perhaps a disturbing factor is that the mother has not yet accepted that she was responsible for the injuries to her elder son, but nonetheless Mr Luger was reasonably confident that progress was being made; he had written two reports and he gave evidence, as I have said, to the judge.
6.	A complication in the case was not only that the adoption panel had changed its mind and had eventually decided that these foster parents in their late 50s should become the adopters, subject to of course the freeing order being made, but that was a view that was not supported before the judge by the guardian ad litem.
7.	The judge considered very carefully the issue as to whether or not there should be a discharge of the care order, which quite simply could not be made because the parents were not yet in a position, and still are not yet in a position, to be able to take over the care of the child and consequently the care order must continue. What the parents wanted was an adjournment for an indefinite period and, tied to that adjournment, the support of the local authority, and indeed the direction of the judge, that there should be continuing assessment of the parents to see whether they would match up to take over the care of this child.
8.	By the time the child came to be considered by HHJ Wyn Richards, he was two and a half years of age and had been, as I have said, with the foster parents since he was 18 days old. There was no psychiatric evidence before the judge. The judge came to the conclusion (he made it very clear) that the delay in the assessment was unacceptable. The parents' application was opposed, not surprisingly, both by the local authority and by the guardian who are united on this point. Although the reports from Mr Luger were satisfactory as far as they went, the court could not be reassured yet as to the success of the outcome and there were a considerable number of imponderables before such an assessment could be successful.
9.	The judge therefore came to the conclusion, having heard all the evidence, that the delay was too great for the sake of this child. The child needed to be settled very much quicker and therefore there should not be an adjournment. He also took the view that, since the child was in care and would remain in care whatever order he made, he was not in a position (by which I mean he did not have jurisdiction) to direct an assessment under section 38 of the Children Act.
10.	In that decision, that he could not direct an assessment, in my judgment he was plainly wrong. Indeed, not only Miss Lawson QC representing the mother, but also Miss Scriven QC representing the local authority, are agreed that he was wrong on that point.
11.	Nonetheless, I am satisfied on my reading of his judgment that although he was wrong on his decision about assessment, that was not the major part of his decision on the parents' application. The major part of his decision on the application was that it was too late and that there was not sufficient certainty as to the outcome for the child to be kept for a further period with uncertainty.
12.	Then the judge went on to consider the freeing for adoption. He did not agree with the local authority that the foster parents should be the adopters. He supported the guardian and he took the view that the child should be moved from the foster parents and placed with prospective adoptive parents and, since the purpose of the freeing for adoption was for the foster parents, he refused the freeing for adoption order and from that order there is no appeal.
13.	Consequently, the only appeal before this court is an appeal against the refusal of the judge to grant an adjournment. Also it is based upon the fact that the judge misunderstood his power to direct an assessment in a case where the child was in care.
14.	Between the hearing on 5th December and today (some five months), the local authority, with the consent of the judge, invited a child psychiatrist to give a report on the child based upon whether or not this child should be moved from the foster carers and placed with prospective adoptive parents who are different from the foster carers.
15.	Dr Westman has given a long and careful report, received on 12th March. Miss Lawson quite rightly reminds us that Dr Westman has not been cross‑examined to her report and she has not given oral evidence, but I have to say it is an impressive report and it is very fair in its conclusions. Dr Westman says that he had been removed from the care of his natural mother within a couple of days of birth, a very early disruption of the biologically based parent/child relationship and no bond, the only parental figures known to the child had been the foster carers taking him through the process of bonding and the establishment of an attachment relationship; they are clearly his primary carers. They believed they were going to adopt and have permitted themselves to bond very closely with this child and this will have further enhanced the quality of the secure attachment as developed by the child with them. Within the attachment relationship, the confidence and curiosity which enable him to explore his world and facilitate his cognitive development has been promoted.
16.	He is now approaching his third birthday which is in July. Another child in the foster placement has moved, exposing him to the first experience that it is possible for children removed from the family. His understanding of his place within the family, his expressed wish, was current.
17.	Then she said:
“I am unable to view the disruption of established and well functioning attachment relationships, particularly in a little boy who shows some evidence of anxiety, with anything other than great concern. It is my view that to disrupt his attachments at this stage of his development would be harmful. This would not only be through the short‑term distress caused but also the impact of the emotional turmoil caused upon his developmental pathway in the short and longer term. I do not think that it is possible to quantify the degree of harm which will be caused but such harm would be likely to have a long lasting and significant impact in terms of this child's emotional development, his capacity to engage in relationships during his childhood and later in life and upon his developmental pathway ... I do not believe that a decision to remove him based purely upon [the foster carers'] age could justify the risk to his future progress.” 
18.	Her final conclusions or recommendations were:
“It is not my opinion that it would be possible to successfully remove [the child] to alternative permanent carers.
There is no timescale which could support that process without causing [him] harm ...” 
19.	Then she said there might be benefits to low frequency direct contact, and it is perhaps a hopeful part of this extremely sad case that this little boy has been reintroduced to his natural parents for infrequent contact.
20.	Without the advantage of this report from Dr Westman, the judge assessed the case and the prospects of success of the parents against the timescale of the child. He had sections 1(1) and 1(2) very well in mind, that is to say, the welfare the child is paramount and that delay is detrimental to children.
21.	The effect of the application to adjourn and for the assessment would be, of course, further to delay any longterm plans for this child. Although the initial efforts of Mr Luger have been very successful and this couple have made progress, they have to make further progress, according to Miss Lawson's own assessment, of at least another six months and then beyond that period. If they have made that progress then the child's interests would have to be considered. This, of course, is a parent orientated assessment. The assessment of the child would have to include an assessment of the ability of the child to settle back with the natural family.
22.	We have an assessment from a child psychiatrist. A child psychiatrist, as I said, would be a crucial part of any longterm assessment of whether the parents could now take over. There is no doubt that these parents, if they had gone through a successful parenting three or even two years ago, would have serious contenders to take their child back; but three years on, it is a very different matter.
23.	This little boy has put down roots. There is no certainty that this family will now be suitable for him. There is no certainty that having got through stages one and two, they would get successfully through stage three of their part of the bargain and then they would have to meet the last stage which would be the child's ability to go to them and that would be extremely difficult. The judge considered it was not appropriate to discharge the care order, nor could he have done so, nor does Miss Lawson ask us to do so today. The best that could be done would be an adjournment.
24.	Unlike the judge, we have no doubt that we could order and direct such an assessment, but in order to do so one has to have very high prospects of success. At this stage of this child's development, bearing in mind the formidable obstacle of Dr Westman's report although it has not been cross‑examined to, I cannot believe that she would be likely to be moved to a degree which would cast serious doubt upon the strength of this formidable obstacle to the parent's taking over. It is because their process is uncertain, it is because the process for the child would be uncertain, it is because this child has now bonded so well with this couple, that it is not in my view possible, as the judge, for this family to come back at this stage.
25.	This is not choosing between parents and foster parents. The choice was made nearly three years ago. The question is now, can this family come back in and be serious contenders?
26.	I am extremely sad that this is the situation but children have to come first. At this stage of his development this child, according to Dr Westman, cannot be moved. This is not to say that the resolution programme work has not been extremely valuable to these parents. This couple are quite young. They may well want other children and I would have thought this resolution programme would be of enormous assistance to them and to the local authority wondering whether steps would need now to be taken in respect of any other child born to them. But for this child, the subject of these proceedings, it is quite simply too late.
27.	Dr Westman's report is the final point of a decision in which, although the judge was wrong to say he could not direct an assessment, in the exercise of his discretion he came independently to the conclusion that the delay would be unacceptable.
28.	I see no reason in this court, even on the evidence before the judge, to say that he was wrong, but in the event that the child cannot be moved from the foster parents and cannot be placed with prospective adopters who are new to the child, and the guardian ad litem having opposed the local authority's freeing for adoption application and having argued strenuously that this child should be moved, the guardian has now come to the conclusion in the light of Dr Westman's report that she cannot support that argument in this court and she now supports the local authority's view that the child should remain with the foster parents.
29.	Consequently, in my view, the judge was right at the time, but his decision at the time is strongly reinforced by the additional evidence that we have allowed in and I therefore dismiss this appeal.
30.	LORD JUSTICE THORPE: I agree.
31.	LORD JUSTICE WALLER: I agree.
32.	The application to adduce further evidence is granted. The appeal is dismissed. The cross‑appeal of the father is dismissed. No order for costs. Legal Aid assessment on all parties except the Local Authority.