Neutral Citation Number: [2017] EWCA Civ 1137
Case No: B4/2017/0191
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COMBINED COURT
HIS HONOUR JUDGE MELVILLE QC
EX16C00023
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2017
Before :

SIR JAMES MUNBY, PRESIDENT OF THE FAMILY DIVISION

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LORD JUSTICE McFARLANE
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Between :

	Re L (CHILDREN)	Appellant	

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Mr Edward Devereux QC and Ms Jane Smith (instructed by Daniells Family Law) for the Appellant
Mr Damian Garrido QC and Mr Hugh Cornford  (instructed by Devon County Council) for the First Respondent
Ms Anne Bell OBE (instructed by Gilbert Stephens Solicitors) for the Second Respondent
Mr Christopher Naish (instructed by Stephens Scown) for the Children’s Guardian

Hearing date : 4 July 2017
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Judgment Approved
Lord Justice McFarlane : 
1.	The present appeal, which relates to a boy, R, now aged 11, and a girl, A, now aged 7, arises from sad, but not uncommon, circumstances where, despite the undoubted love shown to both children by their parents, it is said that innate intellectual and personality deficits will cause the children to suffer significant harm if they remain in parental care.
2.	Despite the difficulties that she has, the children have remained living in their mother’s care throughout their lives. Progressively the mother has been supported by increasing amounts of care provided by social workers and an independent support agency known as “SAY” (Same As You) and her own mother, with whom she lives. The father lives separately from the mother but has regular contact with the children.
3.	On 23 January 2017 HHJ Melville QC made final care orders with respect to both children, the effect of which was that the children would be removed from their mother’s care and placed in a long-term foster placement. As a result of a stay placed on the order, the children remained living in their mother’s care pending the full hearing before this court.
4.	The grounds of appeal, in addition to a more conventional challenge to the judge’s judgment, asserted that both the local authority and the court were in breach of duties under the Equality Act 2010 in pursuing a plan for the removal of the children, rather than making “reasonable adjustments” to support this learning-disabled mother in the continued care of her children.
5.	As it was by no means clear from the judgment that any point under the Equality Act had been raised before the judge, on 2 March 2017 I directed that the permission for appeal application should be heard on notice before the full court with the appeal to follow at the same hearing if permission were granted. At the conclusion of that hearing, which took place on 4 July 2017, we announced our decision which was to grant permission to appeal, but dismiss the appeal. This judgment now seeks to explain the reasoning behind that decision.
Background
6.	As the focus of the appeal has been largely upon the adequacy of the judge’s reasons, it is not necessary to describe the background to the proceedings in any great detail. 
7.	Each of the two parents has a very significant learning disability. In addition, the father is a Schedule 1 offender, having been convicted of sexual offences against young girls; he is, however, thought to be at low risk of re-offending. The couple have never married and do not live together. The mother lives in her own mother’s home and she and the maternal grandmother share the task of caring for the children. The eldest child, R, unfortunately also suffers from learning disability. A younger child, L, was placed in foster care when only six days old and was, in May 2015, made the subject of a full care order and a placement for adoption order. Despite her undoubted love for the children and the sustained efforts that she has made, the social services have been concerned for a number of years that the children are, in a number of aspects, being neglected in their mother’s care and are failing to thrive. On 23 August 2014 both children were made the subject of a supervision order, which was, in September 2015, extended for a further period of one year. Throughout the life of the supervision order the mother’s care of the children has been supported by input from SAY at the rate of fifteen hours each week. Despite that level of support, and despite the mother’s cooperation and commitment, the level of concern as to the children’s care did not abate and, in February 2016, the local authority issued the present proceedings in which they sought a full care order on the basis that the children would be removed from the maternal grandmother’s home and placed in long term foster care.
The judge’s judgment
8.	In the course of a full reserved judgment HHJ Melville conducted an extensive review of the relevant evidence. Prominence was rightly given to the evidence of Ms Carol Franzen, a chartered psychologist, who was an independent expert jointly instructed by the parties. Ms Franzen’s primary concern was for the children’s emotional needs which, in her opinion, were not adequately met in the full time care of their mother. Her recommendation was for the children to spend each week living in foster care, but returning home to their mother at weekends. In such a regime, she said, the children would benefit from the structure of life in the foster home with carers who were far more adept at what was called “emotional attunement” to the children’s developing emotional needs, whilst, at the weekends, maintaining full and regular contact with the family that they have known and loved all their lives.
9.	The guardian’s recommendation to the judge, which was revised during the course of the hearing, was for the children to remain living with their mother save for respite placement in foster care for the weekend once a fortnight. In the guardian’s opinion the care of the children at home had been “good enough”, in part because of the high level of support from the maternal grandmother and others. The guardian differed from the recommendation of Ms Franzen because, in the guardian’s view, Ms Franzen had not considered the impact on the children of removal from the maternal home which, in the guardian’s view, would be “devastating” for them.
10.	It having been conceded that the threshold criteria in the Children Act 1989, s.31 had been met, the focus of the judge’s decision was upon the choice of order, as between a care order, supervision order or no order that best met the welfare needs of each of these two children. The local authority contended for a care order on the basis of placement in long-term foster care with some overnight contact at the maternal home. The parents, supported by the children’s guardian, favoured the making of a further supervision order, but, in contrast to the present regime, with the provision of regular, alternate weekend, respite foster care.
11.	In the course of his analysis the judge identified three elements that were, he held, established on the balance of probability, which individually and collectively caused concern as to the children’s continued placement in their mother’s care. Those factors were, in summary:
a)	a continuing lack of basic physical care within a sufficiently structured home regime;
b)	a continued sexual risk to the children whereby from time to time the children might be exposed to contact with named individuals, despite express warnings given to the parents to avoid such contact;
c)	with regard to “emotional attunement” the judge held “it seems to me on a balance of probabilities that (mother) does not display any such attunement” (emphasis added).
12.	The judge concluded that each child was “being dragged and held back” by the parents’ own significant difficulties with the result that they had suffered and were likely to suffer significant harm.
13.	In reviewing the options, the judge readily rejected the prospect of making “no order”. Turning to the choice between supervision or care orders he expressed his conclusion firstly at paragraphs 53-55 as follows:
“53. … As to a supervision order, this has been tried twice, with no lasting benefit having been detected. True, with fifteen hours care per week, and much repetition, (mother) has been able to improve her basic care of the children, thanks to SAY. But deficits in such basic care remain, and SAY cannot be there all day every day. Further, with disguised compliance, there is not real acceptance of the sexual risk.” (details of sexual risk then given) 
“As for emotional attunement: she cannot attune to others’ emotions. This has been the situation during each of the last two years of supervision by (the local authority).
54. I am driven reluctantly but firmly to the conclusion that although a care order in respect of each child is a last resort (per Lord Neuberger at paragraph 74 of Re B), it is the only possible outcome.”
14.	At paragraphs 56 and 57 the judge explained why he did not accept that the children would be devastated by removal from their mother’s care to the degree described by the children’s guardian.
15.	Unusually, having already announced his conclusion, the judge then went on at paragraph 58 to address the welfare checklist in Children Act 1989, s.1(3), before repeating his conclusion at paragraphs 59-61 in the following terms:
“59. In my judgment it would not be feasible to make no order, or a supervision order. That would lead to a repetition of the situation which prompted these proceedings in February 2016. A supervision order was first made in autumn 2014, but has not achieved its intention, despite having been renewed in September 2015. Having borne in mind, which I have, the law as set out in Re B, Re D, and the additional remarks in the judgment by Gillen J, and the well-known remarks of Hedley J in Re L, YC v UK, Re O and re T, and the evidence which I have read, heard and summarised, I am driven to the conclusion that there is no other option than that each of R and A should be placed in the care of the local authority.
60. I do not consider that in the circumstances which I have addressed above, there has been any breach of Article 6 or 8 of the European Convention.
61. Whilst I hesitate to disagree with the guardian, who has been involved in this family for a number of years, the fact remains that the supervision orders have not achieved what it was intended and expected they would achieve. These children have failed to thrive, they have been neglected, and without addressing this harm, it will continue, with ever more disastrous consequences as the children grow up. The children may be upset by their move, but it will bring for them care by attuned and competent foster carers, which care they would never receive at home: on the contrary at home their decline in care will continue, as mother becomes ever more incapable of dealing with them as they grow up. I am very concerned that the latent vulnerability of each child will become manifest if the current position is allowed to continue. In my judgment, on balance, I prefer by a considerable margin the appreciation by Ms Franzen of the dangers of the current position, to that of the Guardian.”
The appeal
16.	At the commencement of the oral hearing before this court Mr Edward Devereux QC, who did not appear below, leading Jane Smith, who did, made it plain that, after due consideration, the proposed grounds of appeal under the Equality Act (which had not, in any event, been raised at first instance) were no longer being pursued. The appeal was therefore presented upon the following three core submissions:
i)	The judge failed properly to consider and evaluate the children’s guardian’s recommendations;
ii)	The judge undertook a deficient analysis of the Children Act 1989, s.1(3) Welfare Checklist, which was, ultimately, fundamentally wrong;
iii)	The judge failed to carry out a sufficient analysis of whether the removal of the children from their mother’s care was both necessary and proportionate.
17.	Mr Devereux submitted that each of his three core submissions were but single aspects of the appellant’s overall case which was that the orders made were disproportionate.
18.	Mr Devereux does not challenge the three central findings made by the judge as to the parents’ deficits in basic care, sexual risk and lack of sufficient emotional attunement. He does, however, question what evidence there was to support the degree of finding made by the judge as to the lack of “any” emotional attunement.
19.	Relying upon the well-known cases of Re B [2013] UKSC 33 and Re BS [2013] EWCA Civ 1146 Mr Devereux submits that the judge failed to undertake the required analysis by comparing the two options of supervision or care orders, the one against the other, in terms of their substance. This, submits Mr Devereux, is in stark contrast to the analysis conducted by the guardian which sought to do precisely that.
20.	The appellant’s case is that the judge has evaluated the options by simply comparing the two distinct categories of order, ‘supervision’ or ‘care’, rather than drilling down to compare the care plan for the children under each option. The importance of this point, it is submitted, is that the regime under any future supervision order would be materially different from that which had gone before because of the introduction of regular weekend respite care, whereas the judge, he submits, has approached the supervision option as simply a continuation of the current regime. This error, submits Mr Devereux, is demonstrated by the judge’s words at paragraphs 53, 59 and 61.
21.	In support of the second element of his appeal, Mr Devereux submits that the judge’s purported analysis under the CA 1989 s1(3) Welfare Checklist is, at best, superficial. For example, with respect to the children’s “wishes and feelings” the judge has simply inserted his own perception of what the child may need. There is no reference to the age and understanding of the two children. As a result, submits Mr Devereux, the judge has failed to “hear” the central actors in this case, whose lives were to be profoundly affected by his decision. Again, so far as the effect of any “change in circumstances” the judge simply says that the eldest child has “not given any indication that it will be harmful”. Mr Devereux categorises that description as simplistic and one which ignores a range of information from a variety of different sources.
22.	Overall, in the context of a case in which these two children had been in the care of their family with support, it is submitted that the judge’s decision to remove them to foster care at this stage was not justified on the evidence and was, therefore, disproportionate.
23.	The appeal is supported by Mr Naish, on behalf of the children’s guardian. He relied upon and endorsed the formulation of the central grounds that had been presented in more detail by Mr Devereux. Mr Naish pointed out that the detailed recommendation of Ms Franzen was materially different from either of the regimes advocated by, on the one hand, the parents and guardian and, on the other, the local authority. Whilst the judge indicates that he preferred the evidence of Ms Franzen, he does not, in his judgment, analyse her recommendation of weekly foster care with a weekend return to the maternal home. For the guardian, the impact of separation from the mother was a particularly important feature to which the judge has, it is submitted, failed to afford appropriate weight.
24.	Mr Damian Garrido QC, who did not appear below, leading Mr Hugh Cornford, who did, opposed the appeal on behalf of the local authority. He submits that the judge’s judgment is both clear as to findings of fact and as to the basis of the welfare decision. Mr Garrido submits that this court should not be seduced by the effectiveness of a QC’s post-mortem dissection of the judge’s judgment so as to make a range of points which were simply not run before the lower court and about which no challenge was made during the hearing. For example, he submits that no attempt was made on behalf of the mother to raise any question as to the adequacy of information concerning the children’s wishes and feelings during the hearing.
25.	On the wider points in the case Mr Garrido submits that, in reality, the regime under the proposed supervision order was essentially a continuation of the present care arrangements which the judge found were badly failing; the only addition being two nights of respite care each fortnight. No additional weekday support was being suggested. Such a regime, submits Mr Garrido, would have had no measurable impact upon the three areas of concern that had been identified by the judge as sources of continuing significant harm for the children. The new supervision order regime when compared to the old was, he submits, a distinction without a difference.
26.	Mr Garrido cast the essential question for the judge as being “Who was to provide the predominant care for these two children?”. On that basis, given the judge’s adverse findings as to failure to meet basic needs, sexual risk and lack of emotional attunement, there could, he submitted, really be only one answer – someone other than the maternal family. Put another way, Mr Garrido argued that, once the judge had found that the three core deficits continued, the outcome supported by the guardian could not possibly protect the two children from the significant harm identified by the judge.
Discussion
27.	It is, at this stage, helpful to recall that the application for permission to appeal in this case was primarily set down for hearing before the full court for consideration of the points raised with respect to the Equality Act 2010. On my review of the application on paper I identified a need to clarify the uncertainty concerning the validity of the arguments based upon the 2010 Act, but I was not otherwise persuaded that permission to appeal should be granted. Despite that fact that the EA 2010 points were subsequently abandoned, the engaging and well developed submissions of Mr Devereux made it plain that the appeal on issues other than equality was plainly arguable with the result that permission to appeal was granted. 
28.	As Mr Devereux demonstrated, the judge’s judgment is open to some criticism. That is particularly so with regard to his approach to the CA 1989, s 1(3) welfare checklist, which is both cursory and, so far as the topic of ‘wishes and feelings’ is concerned, is not based upon any firm evidence. It is also of concern that, certainly in terms of the layout of the judgment, the judge appears to have arrived at this conclusion before undertaking the checklist exercise, with the result that this has the air of a list of features that are set out to confirm his decision, rather than, as should be the case, the judge using the checklist as an important set of preliminary signposts on the road towards that decision. It is also the case that Mr Naish is correct in pointing out that the judgment does not consider the care plan proposed by Ms Franzen.
29.	Mr Garrido’s clear and well-grounded submissions are, however, plainly correct in demonstrating that the outcome of the case had to turn upon the judge’s finding (summarised at paragraph 11 above) that the two children continued to be exposed to significant harm in three different respects, namely lack of basic care, risk of sexual harm and a lack of emotional attunement. In the light of those findings, it is not possible to understand how the children could have been protected from future harm if they were to continue to reside in their mother’s home, albeit with respite care for two nights in every fourteen. I agree with Mr Garrido that any variant of the current regime which left the children in the primary care of their mother would fail to meet their welfare needs because it could continue to expose them to the significantly harmful parenting that the judge had found was manifest in the maternal home. Despite the deficits in the content and structure of the judgment that have been identified by Mr Devereux and Mr Naish, it is clear to me that, on the judge’s findings, which are not challenged, there could have been only one outcome to these proceedings. It is for that reason that I held that the appeal must be dismissed.
Sir James Munby, President of the Family Division:
30.	I agree.