England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT   (Sitting at Reading)

No.  RG16C00150

 

 

160-163 Friar Street

Reading, RG1 1HE

Tuesday, 13^th September 2016

 

Before:

 

HIS HONOUR JUDGE MORADIFAR

(In Private)

 

 

B E T W E E N :

 

 

 

Re J and A

 

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J U D G M E N T

 

 

A P P E A R A N C E S

 

MISS S. HAWORTH  (instructed by Slough Children’s Services Trust)  appeared on behalf of the Applicant.

 

MISS A. EPHGRAVE  (instructed by Martin Murray Associates, West Drayton)  appeared on behalf of the First Respondent.

 

MR. A. PERRY  (instructed by Barrett & Thomson, Slough)  appeared on behalf of the Second Respondent.

 

MISS V. BURGESS  (instructed by Children & Families Law Firm)  appeared on behalf of the Third Respondent.

 

MISS G. MORE O’FERRALL  (instructed by Griffiths Robertson, Reading)  appeared on behalf of the children by their Guardian (Miss S. Dudman)

 

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HIS HONOUR JUDGE MORADIFAR:

 

1                   I am concerned with the welfare of two children who I will identify as “J” and “A”.  J will be three years old in November, having been born on 9^th November 2013; and A one and a half years old, having been born on 24^th February 2015.  They are the subject of public and private law applications that were until recently dealt with by District Judge Jones.

 

2                   The matter has been transferred to me to consider the following issues:

 

a.     Should the applicant local authority be given permission to withdraw its public law applications?

b.     Does S, the children’s current carer, require leave of the court to apply for child arrangements and special guardianship orders?  If she does, should she be granted leave?

c.      Should the children remain in the care of S; return to the mother’s care; or remain with the paternal grandparents, who currently have the care of the children, having taken them on holiday?

 

All parties agree that all of the above issues must be decided as a matter of urgency, and it can and should be done so on submissions. 

 

3.    The parties are all represented, and each have filed very detailed skeleton arguments or position statements in which they have set out their respective positions, the applicable law and the interpretation of the said law. 

 

BACKGROUND

 

4.    The relevant background to this case may be summarised as follows. On 8^th January 2016 the father collected the children from the mother and notice a circular mark on A’s hand and a lesion to her buttock.  He was immediately concerned and sought medical advice for A.  The treating clinician raised concerns that the mark was consistent with a cigarette burn.  The mother’s explanation was one of an accident.

 

5.                Unsurprisingly, social services became involved and on 3^rd February 2016 the local authority issued its applications for care and supervision orders.  In the meantime, the father placed the children with S.  S is a former partner of the father, and they have a child together.

 

6.                In order to secure the children’s placement with S, the father delegated the exercise of his parental responsibility to S.  This was done without the mother formally consenting, although she has somewhat acquiesced to the placement in the currency of these proceedings.

 

7.                The local authority sought to remove the children under the terms of interim care orders but it did not succeed in this endeavour.  The matter was then timetabled and proceeded to an Issues Resolution Hearing on 19^th July 2016.  By now, the court had the benefit of assessment by the local authority, an independent social worker and expert evidence. 

 

8.                However, at this stage the role of S in the children’s future was not clear.  She attended the Issues Resolution Hearing unrepresented.  The court took the view that the matter needed to be listed for a contested hearing which was listed for two days, beginning 3^rd August 2016.  At this hearing the court was to consider a finding of fact hearing as to the cause of the mark on A’s hand, and to clarify S’s position. 

 

9.                At the Issues Resolution Hearing, the court also made a living child arrangements order in respect of both children in favour of S, as by now it was clear that neither parent wished for S to look after the children.  The father appears to have made some ill-defined allegations of mistreatment of the children at the hands of S.

 

10.           On the first day of the finding of fact hearing, the local authority disclosed an expert report that the police had commissioned, in which the expert supported an account of an accidental injury.  The expert in this case also deferred to the opinion of the police expert.  Consequently the local authority made an oral application for permission to withdraw its applications by accepting that the conditions pursuant to s.31(2) of The Children Act (1989) were not met.

 

11.           The children remain the subject of a resident child arrangements order until this evening.  In the currency of the said child arrangements orders, S has applied for full child arrangements orders and special guardianship orders in respect of both children.

 

THE PARTIES’ POSITIONS

 

12.           I will summarise the parties’ positions as follows:

 

a.     The local authority continues to seek the court’s permission to withdraw and does not make any recommendation as to the children’s interim placement, but suggests that the paternal grandparents may be a neutral holding position.

b.    The mother, with admirable clarity, agrees with the local authority that it should be permitted to withdraw its applications and that the children must be returned to her care immediately.  She further states that S must first obtain the court’s leave to make her applications, and that such leave cannot and should not be given.

c.     The father adopts largely the same position as the mother, save that he says that the local authority should not be given permission to withdraw.

d.    S states that the children should remain in her care – the best evidence before the court would support that – and that she does not need the court’s permission to make any of the aforementioned applications; but, in the event that she does, she manifestly qualifies under the stringent test that is to be applied, and she must be given permission.

e.     The guardian has refined her position to state that the local authority must not be given permission to withdraw its applications in that this is one of the very few “exceptional cases”. The guardian would like to undertake further investigations of the mother’s circumstances before the children are returned to her care.  To this end she will have completed her work by about mid to late September and suggests that the children should remain with the paternal grandparents as a neutral holding position.

 

13.                        In coming to my decision, I have read the case papers and the parties’ detailed written submissions, for which I am extremely grateful.  I have also carefully considered those together with the oral submissions that I heard in the course of yesterday.  This includes the authorities to which I have been referred to.  For sake of brevity I do not propose to repeat them in my judgment. 

 

14.           I will deal with S’s position first.  Section 10 of The Children Act concerns the powers of the court to make s.8 orders.  Section 10(1) says as follows:

 

“(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if—

 

(a) An application for the order has been made by a person who—

 

(i) is entitled to apply for a section 8 order with respect to the child; or

 

(ii) has obtained the leave of the court to make the application; or ….

 

(b) the court considers that the order should be made even though no such application has been made”.

 

15.           Subsection (4) of the same section states as follows:

 

“(4) The following persons are entitled to apply to the court for any section 8 order with respect to a child—

 

(a) any parent guardian or special guardian of the child;

 

(aa) any person who by virtue of section 4A has parental responsibility for the child;

 

(b) any person who is named, in a child arrangements order that is in force with respect to the child, as a person with whom the child is to live.

 

16.           I am told that District Judge Jones when making child arrangements order in favour of S did not intend to circumvent the provisions of the Act and give her permission by the “back door”. Whatever the learned District Judge’s intentions,  I am bound by statute. The terms of subsection (4) are, in my judgment entirely clear and unambiguous.  S has properly made her applications during the currency of the said child arrangements orders in her favour, and I am forced to conclude that she is entitled to make the applications that she has, and she need not gain the court’s permission.

 

17.           I turn to the local authority’s application to withdraw.  I have been referred to a number of authorities, but in particular an authority known as Herefordshire County Council v H [2013] EWHC 4049 (Fam)in which Mrs. Justice Parker provides an invaluable summary of the applicable law.  In particular, in paras.21, 22 and 23, she sets out the analysis of two cases which distinguish the normal rules where the local authority ordinarily is given permission to withdraw its application.

 

18.           In para.23, she says this:

 

“In S (a Child) v Nottingham City Council and Others [2013] EWCA Civ 771, the local authority was not permitted to withdraw.  However, that case was different from this, because in this case I have formed the view that there is no prospect of the local authority being able to establish section 31 on the evidence before the court.  In Re S the Court of Appeal set aside permission to withdraw because the judge found that the child had suffered non-accidental injury, but had not recognised that although the pool of perpetrators was unknown, this gave rise to a welfare question of how the child was to be protected from the risk of further non-accidental injury from a person or persons unknown.  I accept that that is an important and significant difference”.

 

19.           Applying that analysis, as I must, it seems to me there is nothing exceptional about this case and, though the background might be unusual, I am entirely clear in my judgment that the local authority must be given permission to withdraw from these proceedings, and I do so.

 

20.           Local authorities are stretched, under-resourced and where there is no prospect of a local authority establishing the conditions under s.31(2) of The Children Act (1989), it seems to me wholly unreasonable to insist on a local authority remaining involved. 

 

THE CHILDREN

 

21.           I now turn to the children and where they should live. Any decision about the children’s arrangements and the requirement of where they should live must be made in accordance with the principles that are set out in s.1(3) of The Children Act which we have all come to call “the welfare principles”. I have come to my decision in applying those principles.

 

22.           It is a significant factor in cases such as this that any parent must be able to rely upon and give consideration to any interim arrangements without the threat or worry that those interim arrangements may, but for any other reason other than the passage of time, become full time arrangements.  That, in my judgment, is a wholly and contrary approach to the welfare principles of a child or children.  I know that there are a number of factual disputes between the parents and S.  I know that this needs to be resolved in due course should S persist with her applications. It seems to me that, but for the local authority’s application and but for the allegations and the concerns that have been raised, these children should be returned to the care of their mother immediately.

 

23.           It is said that the best evidence currently before the court would point and support the children remaining with S.  I do not agree with that.  The current evidence in terms of the assessment of an independent social worker seems to me wholly inadequate.  The assessor undertook the assessment entirely on the premise that the injury to A was caused and inflicted by the mother.  That has proven to be entirely inaccurate.  I am also told that she spent an inadequate amount of time preparing her report.  I do not take that into my consideration in coming to my decision, because that is a matter that has not been put to the assessor. However it is fundamentally obvious to me that the premise of her assessment is now proved to be wrong.

 

24.           Therefore, I order that the local authority is permitted to withdraw immediately.  The children must be returned to the mother’s care forthwith upon their return from Scotland.

 

25.           I invite the parties to discuss the directions going forward.  I am also inviting the local authority to consider how it is going to undertake its assessment of S in terms of special guardianship assessment and child arrangements.

 

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