Case No: B4/2013/2134
Neutral Citation Number: [2013] EWCA Civ 1337
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
(HIS HONOUR JUDGE BROMILOW)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 3 October 2013

Before:

LADY JUSTICE ARDEN
LORD JUSTICE RYDER
and
LADY JUSTICE MACUR
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IN THE MATTER OF Y (A Child)

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Mr Christopher Naish (instructed by Battens Solicitors) appeared on behalf of the Appellant Mother

Miss Melissa Barlow (instructed by the Local Authority) appeared on behalf of the First Respondent, the Local Authority

The Second Respondent, the Father, did not appear and was not represented

Mr Christian Gape (instructed by Porter Dodson) appeared on behalf of the Third and Fourth Respondents, the children by their Children’s Guardian

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Judgment
Lady Justice Arden: 

1.	We seem to have reached a consensus.  I am very grateful to counsel and those sitting behind them and indeed those who they have communicated with to enable this matter to be dealt with today in this constructive way.  Speaking for myself, and my Lord and my Lady will speak for themselves, I am content with the order proposed.  There were some questions outstanding about which I will rule in a moment, and my Lord raised a point also about the direction for a section 31 care plan, which will need to be incorporated into the recitals to the order, but I am content that this appeal should be disposed of in the way counsel have agreed.  

2.	The one outstanding point was trial in London.  I am not as familiar with the circuit as my Lord and my Lady, but I would prefer to make an order whereby this matter is considered by a High Court judge of the Family Division, a liaison judge, to see whether a judge can be found appropriate to the case and if so where.  If necessary it will come to London, but if not it will be heard somewhere appropriately on the circuit.  

3.	I think those were the only outstanding issues.  I too share the view that the reintroduction should take place, in a measured way obviously, as soon as possible and the matter should proceed in the way that counsel propose.  I would also wish to add that I am aware that Macur LJ will give a short judgment which I have read in draft and with which I agree. 

Lady Justice Macur:

4.	This is the mother’s appeal against care and placement orders made in relation to TR and LL, twin girls now aged 16 months.

5.	Counsel for the respondent local authority and the Children’s Guardian, Ms Barlow and Mr Gape, concede that they cannot resist the appeal other than in respect of Ground 1, which principally avers that the judge was wrong to find the so-called threshold criteria to have been met.  They are realistic to do so in the light of the recently reported case of Re B-S (Children) [2013] EWCA Civ 1146 and in particular paragraphs 33 to 46 of the same.

6.	Counsel for the appellant mother, Mr Naish, concedes that he cannot hope to sustain the appeal on Ground 1.  He is realistic to do so in the light of the recently reported case of Re B (A Child) [2013] UKSC 33.

7.	The need for a full judgment is therefore obviated, but it is appropriate to record the following:
(1)	The judge was entitled to find on the evidence that the threshold criteria had been met for statutory intervention. Nevertheless, the precise identification of risk and evaluation of its likelihood are pertinent factors in adjudication of outcome. This is absent.
(2)	The case of B-S above; Re V (Children) [2013] EWCA Civ 913; Re K v London Borough of Brent [2013] EWCA Civ 926; Re P (A Child) [2013] EWCA Civ 963 and Re G (A Child) [2013] EWCA Civ 965 have not been reported at the time of the hearing in the court below.
(3)	In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority.  Relevant evidence in this respect is not and should not be restricted to that supportive of the Local Authority’s preferred outcome.
(4)	I regret that quite apart from a lamentable lack of evidence which would have enabled the judge to conduct a rigorous analysis of options objectively compliant with the twins’ Convention rights, whether favoured by the local authority and/or Children’s Guardian or not, I consider the case appears to have been hijacked by the issue of the mother’s dishonesty. Much of the local authority’s evidence is devoted to it.  The Children’s Guardian adopts much the same perspective.  It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case.  No analysis appears to have been made by any of the professionals as to why the mother’s particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance.
(5)	This is not a case which is remitted for re-hearing merely to correct a procedural defect. The existing evidence plainly is inadequate for the purpose of the task of the judge who will re-hear the case at first instance in the light of recent authorities.
(6)	The twins’ relationship with the mother has been terminated in the interim. Fortunately the interval is not too great to render the parent/child relationship irreparable.  The Mother should not be allowed to consider the outcome of this appeal to be determinative of the re-hearing. Neither should the local authority or Children’s Guardian assume that the outcome of the court below will be mirrored afresh.

8.	I too, like Arden LJ, am content with the proposed order that has been created by the joint efforts of all counsel and those who instruct them.  It is obviously necessary that this case should be given some urgent reconsideration. It is quite clear that the assistance of the Family Division Liaison Judge for the Western Circuit should be obtained and will no doubt be gladly given.

Lord Justice Ryder:
9.	I have had the opportunity of reading the judgment of Macur LJ in draft and I agree with the same.  I agree with the submissions that have been made to this court about the directions that the court should make in dismissing this appeal and remitting the matter to a new judge to be allocated by the Family Division Liaison Judge for the Western Circuit.
Order: Application remitted with costs