Case No: B4/2008/0093
Neutral Citation Number: [2008] EWCA Civ 123
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HER HONOUR JUDGE SHIPLEY)
(LOWER COURT No: SE06C00511)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 31st January 2008

Before:

LORD JUSTICE WILSON 
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IN THE MATTER OF H (A child)

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(DAR Transcript of 
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THE APPLICANT MOTHER APPEARED IN PERSON.

THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED.
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Judgment

Lord Justice Wilson:

1.	A mother applies in person for permission to appeal against orders made in relation to her daughter, C, who was born on 8 April 2001 and is thus now aged six, by Her Honour Judge Shipley in the Sheffield County Court on either 17 or 18 April 2007.  The approved transcript of the judge’s judgment bears the date 17 April but the mother tells me that the hearing began on 17 April and ended on 18 April.  The judge’s orders were to place C in the care of Sheffield City Council (“the local authority”) and to authorise them to place her for adoption (and this is a matter which gives rise to particular distress in the mother) without continuing face-to-face contact between them.  

2.	The local authority were, of course, applicants for the orders which in the event the judge made.  The mother was a respondent and was represented by solicitors and counsel; she now complains about the quality of their representation of her.  The non-marital father of C was a respondent but at some stage chose no longer to participate in the proceedings. The maternal grandparents of C were also apparently parties to the proceedings, probably interveners.  At one stage they applied for a residence order in respect of C but, by the time of the substantive hearing, they had withdrawn their application and had apparently, albeit no doubt reluctantly, accepted that the court should make the orders sought by the local authority.  The final respondent was, of course, C herself, acting by her Children’s Guardian; the guardian supported the local authority’s applications.

3.	In that the mother filed her Appellant’s Notice only on 7 January 2008, it is clear that she needs a vast extension of time for filing it as well as substantive permission to appeal.  She has done her best to include in the bundle for my use today what she regards as the relevant documents; but, unfortunately, apart from the approved transcript of the judge’s judgment, none of the written material which led the judge to make the orders, and which the mother claims to have been a flawed foundation for them, has been included in the bundle.  Instead a mass of material arising after the date of the judgment has been included, mainly letters passing since that date and, in particular, parts of letters.  They give an insight into how the mother has, clearly with great energy as well as with great indignation, sought to express her dissatisfaction with the judge’s determinations.  For it is clear that she has made professional complaints about the conduct of one or more of the social workers with carriage of the case on behalf of the local authority; of her former solicitors; of her barrister; of the CAFCASS guardian; of a health visitor who presumably gave written evidence; and of Dr Fong, who conducted a psychological assessment of her and made a report which, apparently, was adverse to her capacity to care for C and upon which, with other expert material, the judge relied.  Let me hasten to say that some of the mother’s complaints have been upheld:  an independent panel has upheld some of her complaints against the social workers and it appears that her former solicitors have paid her compensation of £250 in settlement of a complaint against them.  My enquiry, however, has to be not whether individual professionals can be criticised but whether there is a real prospect of persuading this court to conclude that the judge’s orders were made as a result of a flawed exercise on her part of her discretion or were otherwise plainly wrong.  

4.	The mother seeks to explain the delay in approaching this court on the basis that her counsel told her that it was extremely difficult to appeal against orders of this sort.  She says that since then she has sought advice in numerous quarters in respect of her possible challenge of these orders; and that she has been given different recommendations as to what she should do, and how she should complain, and to whom she should complain; and that only at a late stage did she realise that what she should do, and what she should have done as quickly as possible, was to try to mount an appeal here in the Court of Appeal against the judge’s orders.  She is, as is apparent this afternoon, an intelligent person and I am afraid that she must have been aware that, as the months passed, it would be even more difficult for her to set aside orders relating to a child long after they were made.  Indeed this feature is brought into sharp focus by the local authority’s intimation to the mother in November 2007 that on 9 November 2007 they had placed C with prospective adopters.  The mother will realise the vast difficulty in her seeking to persuade a court to reverse a programme for C’s future even after C has been placed in a home intended to be, and no doubt presented to her as being, her new and permanent home.  

5.	The mother has been beset by mental health problems for many years in the past, in particular intermittent bouts of clinical depression; and she and her children have been known to social services for many years.  Her oldest child, N, a girl now aged 19 or 20, who has been kind enough to come to court with the mother this afternoon in order to support her and to show, by her presence, that she regards her mother as a good mother, was a child whom, according to the evidence, the mother did at times have difficulty in bringing up.  The mother’s second child, a boy, L, was described by the judge as living with his father; the mother complains that that description is erroneous but the real point is that he does not live with her.  This afternoon the mother has been very frank in saying that she never bonded with L in the way in which she bonded at birth with N and with C.  Although, following C’s birth, there were periods of adequate or even good parenting of her by the mother, there were also great difficulties, not apparently alleviated by the level of support given to her by the maternal grandparents, the extent of which was in issue between the mother and the local authority, and by the local authority themselves.  The mother admits, or certainly admitted, that, when things overwhelmed her, she slapped C and felt like rejecting her.  Matters came to a head in December 2005 when there was, most unusually, a fight between the mother and N; but both the mother and, for that matter, N have told me in terms this afternoon that the judge was wrong to conclude that C had seen or heard any part of that altercation.  At all events the mother agreed at that time that C should be voluntarily accommodated by the local authority; and C has never lived with the mother after that time.

6.	In the care proceedings there were a number of assessments beyond the core assessment conducted by the local authority which led to the initiation of proceedings.  In particular there were psychological assessments of the mother by Dr Fong and a psychiatric assessment of her by Dr Pilgrim, the result of which was a diagnosis of a personality disorder, as well as a psychological assessment of C herself by Ms Savage.  Against that evidence in relation to the mother was evidence from her GP, which the judge did in her judgment notice, to the effect that, in the GP’s view, the mother was much more emotionally stable than she had been in previous years.  Unfortunately for the mother, however, all the experts, including the local authority and the guardian, apart from the GP whose overview was limited, were of the opinion that, notwithstanding the strenuous efforts on the mother’s part to develop greater emotional stability, she would be likely, at times of stress, to inflict further physical and emotional harm upon C, were she to be restored into her care.  

7.	It had been conceded on behalf of the mother at a hearing prior to the substantive hearing that the threshold set by s.31(2) of the Children Act 1989 to the making of a care order had been crossed on the basis that, in the mother’s care, C had suffered emotional harm as a result of the mother’s inconsistent parenting of her.  In her grounds of appeal the mother complains that she never agreed -- or intended to agree -- that the threshold was crossed; but she is a lady able to make her views clear and, with respect to her, it is far too late for her to withdraw that concession.  Nor does she provide for my use any material which could lead me to consider that, had she not made that concession, the judge would, by reference to the evidence, not have determined for herself that the threshold was crossed.

8.	At the substantive hearing the only oral evidence was given by the mother.  The mother would complain to this court about the conduct of the hearing; about the allegedly half-hearted way in which her counsel presented her case; about his failure to require the experts to attend for cross-examination; and about the fact that, to use my phrase rather than hers, the court seemed at the hearing to be going through the motions rather than actively to be conducting an enquiry into the viability of her case for C’s return to her.  The trouble is that, in her handwritten but legible grounds for appeal, set out in a letter to this court dated 9 January 2008, the mother, while making relatively minor criticism of some of the experts, in no way lays before this court material which leads me to think that, even arguably, the unanimous professional view adverse to the mother’s case for rehabilitation might have been displaced to the judge’s satisfaction, whatever the line taken on her behalf had been.  

9.	The judge clearly accepted the strides which the mother had made towards greater stability in her life.  As I have said, the judge referred to the evidence from the GP about those positive changes and about the mother’s apparent control, at that time, over her propensity towards depression.  The judge also referred to a letter written directly to her by the mother in, apparently, very moving terms.  The judge expressly accepted that the mother had love and affection for C and desperately wanted her to return to her care.  With some --surely justifiable -- concern, the judge referred to a violent incident which had occurred during the previous week between the mother and a man with whom she had been in a relationship, as a result of which the police had been called.  But the judge noted that the mother presented that incident as a “blip”; and the judge cannot be said to have placed too much weight on the incident, as a result of which, so the mother assured the judge, her relationship with that man was at an end.

10.	Required, as the judge was, to have regard to the mother’s long history of bouts of depression and (according to the expert evidence) to her personality disorder, the judge also needed to, and did, focus upon the needs of C herself.  In that regard she had to note that for the first four years of her life C had suffered, to put it at its lowest, an inconsistent upbringing and that she had more recently presented with attention-seeking and behavioural difficulties, which led the judge to adopt the conclusion of Ms Savage that she was a child who would need firm boundaries and guidance, patience and understanding, as well, of course, as love and security.

11.	The judge’s conclusion was that the demands which C would make upon her carer were such, and the underlying fragilities of the mother were such, that, were C restored into her care, the mother would within a few months be yet again overwhelmed; and the emotional harm to C would be likely to re-arise.  Nothing in the mother’s very articulate and moving presentation to me this afternoon, supported by N, leads me to the view that this court could regard that crucial finding as not having been open to the judge to make.  

12.	I must refuse permission to appeal.  In any event, however, as I have said, the appeal is brought far too late and I also refuse an extension of time for bringing it.  

Order: Applications refused.