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The un-named baby appeal [2014] EWCA Civ 1524

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18th June 2015

On the 9^th October 2014, the Court of Appeal heard a number of applications for permission to appeal by the parents of two children, who had been the subject of care and placement orders.

Unusually, the applications arose from two different sets of proceedings – the decisions having been made by two different Judges. The younger child, although aged 11 months at the time of the hearing, still had no name!

The initial decision in respect of the elder child, P, (who, at the time of the appeal, was aged 2yrs. 7mths.) had been made by a District Judge, permission to appeal subsequently being refused by a Circuit Judge.

The care and placement order in respect of the – still unnamed – child B had been made by a High Court Judge.

B’s father had additionally applied for interim contact and a naming ceremony, although his conjoined appeal of a refusal of his application had been somewhat overtaken by the final order in B’s case.

The court therefore had to apply different tests for “permission” in relation to the applications by P and B. CPR 52.13 applied to the appeal in P, i.e. the appeal had to raise an important point of principle or practice, or there had to be some other compelling reason for the Court of Appeal to hear it. The application in respect of B was governed by CPR 52.3(6), in that the Court had to consider that the appeal would have a real prospect of success, or that there was some other compelling reason why the appeal should be heard.

There had already been one hearing of the application for permission to appeal, when Ryder LJ had adjourned the hearing for further documents to be made available to the parents in circumstances that he explained (reported as Re B and Re P (Children) [2014] EWCA Civ. 1133).

On that occasion Ryder LJ indicated (at § 4) that, had he known about the lack of papers in sufficient time before the case came on, the appellate court would have given directions for disclosure. This guidance may of course become particularly relevant where appellants are self-represented litigants, and do not have copies of all the documents to which they are entitled.

The issues in the appeal, as regards P, were as follows:

1. a) Whether the jurisdictional threshold in Section 31 of the Children Act 1989 could be said to be satisfied, and, b) if so, how, in light of the fact that a local authority residential assessment unit had concluded that the parents, when together, were capable of caring for P, and that there were no relevant mental health or other health care issues. Furthermore, P was said to be “thriving” in the care of his parents, and it was not suggested that either child had been harmed by either of their parents;
2. Whether the independent expert psychologist, upon whom the courts had relied in the case of P, was in fact ‘independent’, given that it transpired that she was being paid a retainer by the local authority.

The background to the case was that the mother of P, for whom I acted, had had another child by a different father in 2006. That child had been placed, initially, in the interim care of a local authority because of emotional and physical neglect, and exposure to domestic abuse. Ultimately that child had been placed with her paternal grandparents under the supervision of the local authority. Within those proceedings, there had been an influential assessment carried out by a psychologist. It had concluded, in 2006, that the mother had an intellectual impairment which prevented her from being capable of exercising her parental responsibilities unless she was provided with adequate support.

Reliance had been placed in these present proceedings upon this earlier conclusion about the mother.

The residential assessment unit had concluded that the parents, when together, were capable of caring for P, who was thriving in their care. At the conclusion of the residential assessment the parents and P had returned home without the need for a statutory order. However, given the determination of the court in the earlier proceedings relating to the mother’s previous child, and the conclusion that, on her own, she was incapable of providing for the care of her children, the court found that the local authority was fully justified in wanting to check on P, once he was back living with his parents.

Unfortunately, P’s father had been antagonistic to the local authority from the outset. He had responded to them with verbal abuse, including unfounded allegations of paedophilia and racism, with threats, and a lack of co-operation. On more than one occasion P’s father had denied social workers access to P in the family home. He had also assaulted a social worker at Court in 2013, leading to the intervention of the police.

It was submitted, on the parents’ behalf, that disagreement and lack of co-operation with the local authority could not be a sufficient reason for children to be removed from their care. The Court of Appeal accepted that there was, indeed, “no general duty on a citizen to co-operate with an agency of the state unless that duty is described in law”. However, the welfare issue that was held to have been legitimately pursued by the local authority was that the “father’s antagonistic and unco-operative behaviour was indulged in by him to the detriment of his children”: the father had not allowed the local authority to check that P was being safely looked-after in the home. He had been convicted of assaulting the social worker in the presence of P. He had subsequently also been convicted of, and imprisoned for, threats to kill. The court considered that he was unlikely to be able to manage his behaviour, even in the presence of his children, and that he prioritised his own needs above those of his children.

On that basis, the court found that the lower courts had been fully justified in finding that the threshold criteria had been met. The court took the opportunity to remind everybody that “It is a persistent misapprehension of the law that if a parent has not harmed a child, then there is no justification for the state in the guise of the local authority or the court to intervene in their family life”. In this instance, the local authority could be said to have had initial concerns arising from the assessment made in respect of the mother in the 2006 proceedings. Thereafter, the father’s conduct also contributed to the s31 threshold criteria being met.

The Court of Appeal found that “there was ample material before both Courts to justify the conclusion that the children’s father represented a greater risk to them than the benefit he provided by his capability to support their mother”. The father’s written submissions to the Court of Appeal continued to state that he would not deal with social workers.

Interestingly enough, Ryder LJ had some sympathy with B’s father in his efforts to have the baby named in a particular way, and, when not allowed to do so, his declining to give B a name. He said, “I am by no means clear that anyone understood the cultural significance of and the appropriate means by which a name is given to a child in the faith community to which the father belongs”. He therefore took the issue out of his consideration.

The other point of interest concerned the ‘independent’ psychologist on the local authority retainer in the case of P. I had sought to argue that there must, in such circumstances, be a question-mark as to whether the evidence of the psychologist could be regarded as being sufficiently independent.

In her further assessment of the mother, the psychologist had concluded that, despite the mother’s improvements, the underlying issue remained that the mother needed the support of another person to enable her to provide adequate care for a child.

Unfortunately, I was somewhat hidebound because the mother had agreed to the same psychologist carrying out the subsequent assessment for the proceedings in the lower courts.

However, the Court of Appeal ruled that “the funding arrangement of the psychologist should have been notified to the court and to the parties in the proceedings not just by way of a circular letter that may not have come to their attention”. Ryder LJ observed that the perception of fairness was very important in proceedings that could involve the permanent removal of a child from a parent’s care. There was “a hypothetical conflict of interest” that could be implied in the financial arrangement between the psychologist and the local authority, although no actual conflict of interest on these facts.

Permission to appeal was therefore refused in respect of each application, but it had been an interesting appeal to deal with on a number of levels.

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