B1/2002/1857

Neutral Citation Number: [2002] EWCA Civ 1483                                              
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT AT NORWICH
FAMILY DIVISION
(HER HONOUR JUDGE PLUMSTEAD)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 10th October 2002
 
B E F O R E:

LADY JUSTICE HALE 

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D (A CHILD) 

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J U D G M E N T
1.	LADY JUSTICE HALE: This is a mother's application for permission to appeal against orders made by HHJ Plumstead, sitting as a deputy judge of the High Court at Norwich, made on 15th August 2002. She dismissed the mother's application to revoke a care order relating to her son K, and made various ancillary orders associated with that. 
2.	K was born in May 1989 and so he is now 13. His parents were then a probation officer and a prison officer, and they had married the previous year. At or shortly after K's birth the mother suffered a brainstem lesion, which left her with a speech impediment and, as the President found when making the care order, emotional lability. The President also described the consequences of that, directly or indirectly, as traumatic, leading to the loss of her chosen career, the breakdown of her marriage, and the loss of day‑to‑day care of her son. 
3.	The mother left the family home in September 1993. Thereafter K lived with his father, and later his father's new partner and their two daughters, until September 1999. The mother never meant to leave K behind and effectively has been fighting for him ever since. So over most of that time there has been litigation between the parents about where K should live and how much time he should spend with his mother. Very fairly, she and her brother, who have appeared before me today, say that it all goes back to the first decision, where the judge preferred the case put forward on behalf of the father to that put forward on behalf of the mother, and she has been fighting to correct what she sees as that mistake ever since. 
4.	There were several referrals to the Social Services, and in August 1998 K was placed on the Child Protection Register under the category of emotional abuse. The position in 1999 was that there was a residence order that he should live with his father but have considerable contact with his mother, which was defined in detail, and a review was fixed for November. 
5.	At the beginning of September K was not returned to his father after a period of contact. The mother had abducted him to northern Cyprus. He was made a ward of court and returned to England in November. Instead of being returned to his father, however, he was placed with foster parents and care proceedings were begun. Again, the mother points out that she had been trying for years to have the authorities take her concerns about K's living with his father seriously. She felt that she had to take him abroad because of her concerns for his safety. When she returned him, the authorities, instead of letting him go back to the situation about which she had been expressing concern, did indeed take steps to remove him. It is also her case, no doubt, that those months in Cyprus demonstrated that she was perfectly capable of looking after her son properly. 
6.	Those care proceedings resulted in a hearing before the President of the Family Division in May 2000. There were applications by both the mother and the father for residence orders and by the local authority for a care order. The President heard evidence from experts about the mother's physical and psychological health, about the father's psychological health, and from a consultant child psychiatrist and a child psychologist about K, and of course also from the child's guardian and the social workers involved. 
7.	The President found the threshold criteria proved. It is important to remember that those criteria do not refer to abuse. They refer to harm suffered by the child. The President found that there had been significant harm to K's emotional health and development. She found that both parents had played a part in this through the attitudes that they had taken, and she found that there was a risk of harm in the future from the proposals of either parent. 
8.	The care plan, which had been recommended by the child psychiatrist, was that K should be placed in a boarding school, sharing his holidays between his parents, but also continuing to spend time with his foster parents, who had provided him with an ordinary home and family life free of the complex emotional pressures of his parents. Neither parent wanted this solution, and K at that time was saying that he wanted to live with his father, but all the professionals supported it. It is noteworthy that the President saw this as a way of retaining K within his family. Obviously, that was the way in which the child psychiatrist had seen it, and she said: 
“If, for the reasons which I have already set out, the boy cannot live with either parent, a boarding school, which is an accepted voluntary style of education for a significant minority of children in England, is a sensible alternative, which gives K the chance to flourish in a neutral environment and enjoy the company of each parent on a equal footing.” 
9.	Hence the care order was made, and in September 2000 K started at his boarding school. Each parent accepts that this is a good school where he is doing well and making good progress, but they are both opposed to boarding. His father has shown this by taking little part in communication with the school or in K's life there. Both put pressure on the social worker to increase their contact, while reducing that of the foster parents. The result was that K became, in effect, a weekly boarder alternating his weekends between his parents, and, from the beginning of this year, not seeing the foster parents at all. 
10.	In October 2001 the mother applied for a residence order with a view to discharging the care order. She has since moved to live only a short distance from the school. She wants K to stay there as a dayboy and live with her. The father has played little part in these proceedings. He told the child psychiatrist that he accepted the need for a care order. The mother and father are now able to communicate with one another much better than they were doing before, but the father's view was that K should continue as a weekly boarder, with a view to progressing towards sharing the care equally between them as a dayboy. That is the view which K himself has expressed to the professionals involved. 
11.	The child psychiatrist noticed a great change for the better in K since starting at boarding school. His view was that a shared residence order would not work because of the risk of a recurrence of the parental disagreements, and would not be in K's interest because he still needs to be protected from the parental emotional pressurising. 
12.	I interpose that this is not a moral judgment. It is a judgment about the needs of children. Parents all love their children very dearly, and cannot avoid putting some pressure upon them. But it may be that the circumstances are such that that pressure is detrimental. 
13.	I revert: the child psychiatrist considered that it could not be right for K to move from his boarding school to live with his mother alone, and that the present weekly boarding arrangement was unsustainable. It was not the eventual outcome that anyone wanted, and it had led to an increase in the pressures on K. So his view was that K should revert to full boarding, spending his holidays shared between his parents, and some exeats with his parents, but also reverting to spending some time with his previous foster parents. That plan was supported both by the local authority and by the child's guardian, and the school noted that K himself had become more settled there, once that recommendation had been made. 
14.	In August HHJ Plumstead heard a great deal of evidence, and read more. She delivered a very full and careful judgment, explaining the history, giving her impression of each of the witnesses, explaining what had happened since the care order was made, and in particular the pressures that had been placed upon the social worker and on K to support the competing parental views. She correctly directed herself that under the Children Act the welfare of the child is the paramount consideration, but that under article 8 of the European Convention on Human Rights the court must be satisfied that the continuation of the care order is necessary and proportionate in order to protect the welfare of the child. 
15.	She then went carefully through the list of factors relevant to the welfare of a child, which are set out in section 1(3) of the Children Act 1989. She concluded that K wanted responsible adults to decide upon his future, that it was too painful for him to make decisions which would inevitably upset one or both of his parents. He was still most strongly attached to his father, but he also loves his mother, and is beset by worry about her. 
16.	Again, I interpolate that is a common adolescent view. Adolescents have so much to worry about in their own lives in coming to terms with their developing physical maturity and with the need to develop into autonomous, independent adults. Their living arrangements, and the disputes among adults about their living arrangements, are quite low down for many of them and they would prefer others to make those arrangements while they get on with their more pressing concerns. 
17.	As far as K's needs were concerned, HHJ Plumstead concluded that the school was meeting his physical, social and educational needs. She considered the effect of change, that a change to live with the mother would be detrimental: he would be exposed to the parents' inability to agree; he would feel it was unfair to his father; any trip abroad would rekindle his fear of abduction; and he would lose the emotional sanctuary of his school. She concluded too that he had suffered harm in the past and more recently, in moving too quickly from the original arrangements. The President's views about the parents' ability to meet K's needs were confirmed. She expressed the view that the mother was unable to distinguish between her own needs and those of her son, and unwilling to consider opinions or interpretations which did not accord with her own, and was capable of misinterpreting advice or the findings of the court. So the discharge of the care order would expose K to the likelihood of emotional harm. 
18.	It was for those reasons that she made orders designed to revert to the previous care plan, including adjourning the question of defining contact and prohibiting further applications to the court by either parent without leave.
19.	The mother understands that decisions such as these are very difficult for the Court of Appeal to interfere with. They are based upon a mixture of findings of fact, impressions of the character and personalities of the witnesses whom the judge who has heard the case has seen and heard in the witness box, and of the exercise of a difficult balancing of the various factors and arguments involved. Unless the court below has erred in principle, or has been plainly wrong in the exercise of the discretion, this court cannot disturb the outcome. In this case the mother faces a further problem: that now two judges have considered the case at considerable length over a considerable period of time, they are both of them very experienced family judges, and they have both reached essentially the same conclusion. 
20.	The mother's basic case is one which I completely understand. She sees herself as having been obliged to separate from her husband for good reasons, not to have intended thereby to lose the care of her son, to have been fighting to regain that care ever since, to have been fighting to get the authorities to take her concerns seriously. Lo and behold, when those concerns are taken seriously, the outcome is not that she regains the care of her son, but that her son is placed in a boarding school, which is not what any of the three of them want.
21.	However, there was, as I hope this brief resumé has made plain, ample evidence before both of these judges to justify the conclusion that they have reached, which was that a boarding school was the best way of bringing this boy's emotional development up to his intellectual and physical development, and enabling him to retain a good relationship with both of his parents: in other words, to retain him within the family of his birth rather than having to make arrangements which might have meant a much greater severance from his parents than has in fact taken place._
22.	She complains that there have been breaches of the European Convention on Human Rights backing up the basic case that she makes. She complains that she was not given a fair hearing, but it is clear that she was given a fair hearing. The problem is that the judges disagreed with the evidence that she presented and the view of the case that she took. She complains that there has been a violation of her and K's rights under article 8, but HHJ Plumstead correctly directed herself as to the law about that, and was, for the reasons I have given, entitled to reach the view that she did, that this was a necessary and proportionate interference, as I have emphasised more than once, aimed at keeping K's relationship with his family rather than the reverse. The mother complains that she has been discriminated against contrary to article 14 because of her disability. But in relation to that, the President had a good deal of evidence about that disability, and made findings which were on the favourable side to the mother, rather than the other way about. The other evidence, of course, has been more focused upon K and his needs. 
23.	For all of those reasons I cannot see that this court could interfere with the decisions which have been made. Despite, as I hope I have made plain, my understanding of how the mother feels about it, I cannot give permission to appeal. I am sorry. 
ORDER: Permission to appeal refused