IN THE IPSWICH COUNTY COURT	Claim No. IP13C01062 	
                       
Sitting at Chelmsford County Court
Priory Place
New London Road
Chelmsford
Monday, 24th February 2014

IMPORTANT NOTICE
This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved.   All persons, including representatives of the media,  must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Before:

HER HONOUR JUDGE ROBERTS

IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF BABY H (d.o.b. 6.7.2013)
AND IN THE MATTER OF AN APPEAL FROM IPSWICH COUNTY COURT 

B E T W E E N :

		THE MOTHER	Appellant

-  and  -

		SUFFOLK COUNTY COUNCIL	First Respondent

-  and  -

		THE FATHER   	Second Respondent 

-  and  -

		BABY H (by her Children’s Guardian)  	Third Respondent

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J U D G M E N T
(As approved by the Judge)

A P P E A R A N C E S

MISS D. FOTTRELL (instructed by Philcox Gray) appeared on behalf of the Appellant.

MR. G. JENKINS (instructed by the Legal Department, Suffolk County Council) appeared on behalf of the First Respondent.

MS. K. MILLER (instructed by Sparlings Solicitors, Colchester) appeared on behalf of the Children’s Guardian.
 
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JUDGE ROBERTS:

1	(At this point the recording machine was switched on):  … Ipswich County Court on the 8th November 2014 in the case of baby H, a little girl born on the 6th July 2013.  Hallet DJ made a care order and a placement order for baby H and her Mother, appeals against both of these orders.  I have read Hallet DJ’s judgment and much of the transcript of the oral evidence which he heard.  I have read the transcript of the hearing and the judgment before Holt HHJ where permission was given for this appeal.  I have read skeleton arguments by Miss Fottrell, who represents the Mother, by Mr. Jenkins for Suffolk County Council, and from Ms. Miller for the Guardian, and I have heard submissions from each of these advocates.  I gave permission for the Mother to file and serve a further statement which was mainly important for the exhibits, and I have read that statement with exhibits.  The Mother had asked for permission to appeal in person and was granted that permission by Holt HHJ on the 19th December last year.  Today the local authority opposes the appeal.  The Guardian opposed the appeal until she had heard Miss Fottrell’s submissions, at which point she withdrew her opposition.  Baby H’s Father plays no part in the appeal - he is in prison - but I note that he was supportive of the Mother’s case at the final hearing.

2	The context of the appeal is that baby H was made the subject of an interim care order within a few days of her birth, and she has therefore been in foster care for virtually her whole life.  The local authority had become involved, as I understand it, because baby H’s Father was being investigated for a serious sexual offence, and indeed he pleaded guilty to that charge shortly before baby H was born.  The local authority considered that the Mother’s reaction to these matters was inadequate and during their pre-birth assessment Suffolk arranged for the Mother to be assessed by a psychologist, Bisbey, and that assessment and their own at led to the issue of proceedings and a threshold document which referred to the Mother as being vulnerable to being controlled within relationships and her having mental health issues, including one or more suicide attempts.  The local authority’s case was that baby H would be at risk of emotional harm from her Mother if the Mother was under stress in the future, either from relationships or otherwise.  The local authority criticise the Mother for failing to engage with any mental health services in the past and submitted that her family did not consider that she currently had any issues.

3	I note that the local authority’s final evidence, other than a cursory addendum to deal with the factors raised in the case of Re BS, was dated the 31st August last year.  I have to say that although we are all working towards a 26-week timetable it seems to me that this case has been dealt with unreasonably fast by the local authority, therefore not allowing the Mother proper time to adjust to her new circumstances of being a mother and to react to the local authority’s evidence and to reflect on what steps she might need to take or sufficient time to show what steps she was taking to allay the local authority’s concerns.  The final hearing was at the four month point.  I have to be a critical of a process which meant that this case was dealt with at such speed.

4	The law I have to apply when dealing with an appeal is that I must allow the appeal if I find that the decision of the District Judge was either wrong or unjust because of a serious procedural or other irregularity, and in this case it is submitted that the decision was wrong.  Miss Fottrell has rightly referred me to various recent cases emanating from the Court of Appeal, starting with Re BS and culminating in Re BS, and indeed the later decision in the matter of W.  I have reminded myself of the most relevant paragraphs in all these cases and I note that of course there is no disagreement at the bar as to what the law is.

5	I shall allow the appeal as I consider that the decision of Hallet DJ was wrong.  There has been very little time for me to prepare this judgment because I have been reading up to the last possible minute, but I shall set out the key points where I have found the District Judge to be wrong, and if I fail to deal with some of the matters in Miss Fottrell’s skeleton argument it does not mean that I do not find them also to be good points.  I should preface my remarks by saying that I will know that it is easier to pick holes in a judgment than to prepare it at the end of a hard fought case, but in this case, in summary, I do not think that the Judge had sufficient material to find that the only option for baby H was adoption away from her family.

6	This is a case in which the local authority submitted, and the District Judge found, that the child was likely to suffer emotional harm in the future.  The District Judge discounted the risk of physical harm on the evidence but found that there was a risk of emotional harm.  It has been very difficult for me to identify what that risk exactly was;  it certainly is not clear from the judgment.  Although there was material before the District Judge to find that the Mother had difficulties I could find little analysis of how these difficulties would affect baby H if the Mother had care of baby H, and no analysis of how such difficulties could be managed if baby H was at home with her Mother.  The key issue is whether the Mother was doing enough to deal with her difficulties and whether the court should either return baby H to her care or keep baby H in foster care until there could be a further assessment of how the Mother was doing.  

7	Unlike most cases where therapy is advised, in this case Bisbey advised it pre-birth, in this case the Mother was fortunate enough to have begun therapy in July 2013.  This is because her father was in a position to pay for it and because the Mother and her father considered it was something she should do.  This fact led Bisbey to change her prognosis about whether the Mother could parent from poor to moderate at the final hearing.  Bisbey said that by March, by which time the Mother would have been in therapy for some nine months, an assessment could be done to see if the Mother would be in a position to have baby H in her care whilst completing her therapy.  The circumstances were therefore quite unusual.  I cannot think of a case I have done where at final hearing a Mother has already completed four months of intense therapy where that requirement is the main issue remaining in the case.  In my judgment that fact and the evidence from the Mother, her father and Bisbey, who had spoken to the therapist, was enough for the District Judge to have to conclude that the risk to baby H of being placed back with her Mother was not made out, or at least not sufficiently made out, to justify the draconian step of a care order and a placement order.  

8	That of course leads me on to the other main deficiencies of the judgment.  There is no proper analysis of the disadvantages to baby H of being removed permanently from her Mother, and certainly no consideration of the advantages and disadvantages of the various options available to the court.  The local authority had not properly analysed this either to assist the court, and although in August they may have been unaware of what BS was saying, as Miss Fottrell has pointed out, Re B had already appeared and contained much of the same guidance.  The addendum statement which Mr. Jenkins has referred me to failed to do a proper analysis of what either would be gained or lost by the various options.  The other main deficiency is that there is no consideration of the proportionality of the decision to remove baby H permanently from her family.  The word “proportionate” appears at the very end of the judgment but not in the context of any consideration of the evidence or the options.  

9	But this is a clear case where it was necessary for the Judge to stand back and consider all the evidence in what McFarlane LJ had described as a global holistic valuation.  If he had done so I do not think he would have concluded that it was proportionate to sever baby H’s connection with her birth family.

10	As I have said, there is a great deal of pressure on courts to complete care cases in a timely manner.  However, the system does allow for the case which does not fit in the timescale.  In this case when the issue was risk of future emotional harm and there was evidence of the Mother not only doing all that anyone could expect of her to improve herself but of doing so with success it was necessary for the court to conclude that delaying the final decision was in baby H’s interests, especially bearing in mind that for a baby born in July it was thought that a proper assessment could be done in March.

11	So I shall set aside the care order and the placement order and I shall make an interim care order.  It seems to me right that Bisbey is asked to assess how the Mother is doing in her therapy on the same basis as before, which will involve Bisbey speaking to the therapist and to advise on whether baby H can be returned to the Mother’s care at this point or, if not, at which point, if at all.  That work must be carried out within, I would hope, the next three weeks, so I will hear any submissions on that.  I would then propose that a hearing takes place before Newton HHJ at Ipswich County Court before the expiry of the interim care order, if at all possible, to consider either a rehabilitation plan or otherwise how the case should proceed.

12	In the meantime clearly contact must be reintroduced.  I cannot see why the Mother should have the support of one of her parents during the contact, but I will leave that to be considered with the input of the Guardian.  Clearly any contact must be set at a level to prepare for rehabilitation but not at too high a level in case that does not happen.

13	As for costs, I shall order the local authority to pay a contribution towards the Mother’s costs.  It is the case that the Mother’s original grounds did not make too much sense.  However, once the local authority had heard the views of Holt HHJ they should have given very serious consideration to conceding the appeal.  It is the case that they would only have received the skeleton argument of Miss Fottrell last week and perhaps, being generous, only then realised the weight of the Mother’s case.  I have also pointed out the failure to address BS guidelines sufficiently in the addendum.  In such circumstances, it seems to me that the local authority should pay 50 percent of the Mother’s costs of the appeal.

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