Case No: B4/2013/2406 
Neutral Citation Number: [2013] EWCA Civ 1614
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE LANG DBE)
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Tuesday, 29 October 2013
 
B E F O R E:

LORD JUSTICE LAWS 
 
LORD JUSTICE McFARLANE 
 
LADY JUSTICE GLOSTER 
 
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Re:
E (A CHILD) 
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 (DAR Transcript of 
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MS MAGGIE JONES (instructed by Miles & Partner) appeared on behalf of the Appellant
MR CHARLES GEEKIE QC (instructed by London Borough of Tower Hamlets) appeared on behalf of the Respondent
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J U D G M E N T
LORD JUSTICE McFARLANE:
1.	This is an appeal brought by the mother of three children whose welfare was before the family court, in particular before Her Honour Judge Cushing, at a number of hearings in 2012 and this year, 2013.  The mother, her husband, and indeed the father of the youngest of the three children, all originated from Bangladesh, but the time came when the mother and the two eldest children, a girl D, who is now eight, and a boy, N, now seven, moved to London to live with the mother's husband, a Mr A, who had already come over to this country for the purposes of study.
2.	Accommodation was found in a flat in a building in Whitechapel and, as it turns out, the landlord's agent, a Mr U, also lived in the property.  It is now apparent (but not apparent to the father or probably anyone else at the time) that the mother and Mr U formed a sexual relationship, and it was Mr U who was the biological father of the youngest child, a girl, S, born on [a date in] 2011 and therefore now still only 21 months of age.
3.	Following S's birth, she went to live with the small family in the flat with the mother, her husband and the two older children.  Mr A, the husband, would on most days leave in the early hours of the morning to start shift work at a local supermarket, and that left the mother and Mr U with the opportunity to be together during the daytime.  It is plain from the evidence before the judge that from time to time Mr U was left alone with the care of the children, and in particular the baby.
4.	On 5 July 2012, young S, then only seven months of age, was taken to the local hospital in a profoundly unwell state.  Tests were undertaken; she was transferred to Great Ormond Street Hospital and a scan showed that she had an acute right‑sided subdural haematoma on her brain.  She had sustained retinal haemorrhages and generally the state of her brain showed that she had encephalopathy.  Surgery was required immediately to remove the blood.  That was undertaken and, as I understand it, S has made largely, if not entirely, a full recovery from this appalling event.
5.	Immediately the social workers for the local authority sought to protect the children.  Care proceedings were issued on 19 July 2012.  S was placed in foster care on her discharge from hospital where she has remained ever since.  The relationship between the mother and Mr U was disclosed within a short time to the father, Mr A.  He separated from the mother in the sense that she then moved out of the flat with him but into a flat in the same block with Mr U.  One of the two older children went with her and one of them remained with the father.  However, the father issued an application to have both children living with him, and a residence order was made on an interim basis on 5 September 2012 providing for the two older children, D and N, to live with him.  That has since been consolidated into a final residence order made by Judge Cushing in the course of what became consolidated proceedings.
6.	Judge Cushing conducted three hearings.  The first on 23 November 2012 was to undertake the main fact‑finding process of determining what had happened to cause the collapse of S on 5 July and, if possible, to identify the person responsible for that and the circumstances around it.  Her second hearing was on 22 February 2013 where she considered more generally whether there were factors in addition to that event which met the threshold criteria in section 31 of the Children Act justifying the court considering whether care or supervision orders were required.
7.	In short terms, the fact finding process in November 2012 (which was a judgment handed down on 23 November but in fact the hearing had taken place the previous month in October) led to a clear conclusion that S had been assaulted by someone shaking her violently or imposing a shaking and impact assault on her, and the judge was clear that that person was Mr U.  The judge absolved the mother from any involvement in the process and absolved the mother from having any knowledge of what had happened, or might happen, to S at Mr U's hands.
8.	In referring to that fact‑finding judgment, it is right that I record that I regard Judge Cushing's judgment on that day to be a judgment which shows a clear and detailed grasp of the factual background of the case and in which she undertakes a detailed, indeed meticulous, analysis of the medical evidence and the factual evidence.  It is a good judgment.
9.	In so far as the mother is concerned, it is at paragraph 118 of that judgment, the judge deals with the mother and the lies that she has told, but nevertheless concludes that the mother told the truth to Judge Cushing:
"[The mother] has told a number of lies in connection with this enquiry and it would be reasonable to be cautious about accepting the truth of any of her evidence.  She lied at the hospital to protect herself from the disclosure of her relationship with [Mr U] and of [S's] true paternity.  She lied about the circumstances in which [S] sustained a fall on 29 June 2012 for no reason that I have been given to understand.  Outside the confines of the enquiry she has also lied about the paternity of her child both on registering details of [S's] father, and to [Mr A] himself who has been led to believe he was the child's father for the first eight months of the child's life.  It is necessary to be very cautious about accepting the truth of what she says.  Nevertheless, I did believe she told the truth in this court and I do not believe that she was responsible for [S's] injuries nor that she was present when the injuries were inflicted."
10.	In terms of the wider threshold, the local authority had gained information from the older children, from Mr A and from other sources, that indicated further causes for concern.  The judge did not agree to all of the findings that the local authority sought.  The principal finding was obviously that made in relation to the assault on S, and Mr U as the perpetrator.  There was a finding numbered 2(a) in the threshold document that Mr U had in 2009 assaulted a female in the stairwell of the property, and a finding 2(b) that on 12 April 2012 Mr U was involved in an altercation in a branch of a betting shop in Whitechapel where he punched a customer and he was convicted of assault.
11.	Finally, at 3(b), the finding sought against Mr U was that one of the children, the eldest child of the three, had complained that he would shout at S.  The judge did not make a finding about that, but she was clear that Mr U's anger did at times become directed towards the two older children.  But the judge says this:
"In my judgment, the mother knew that her partner [Mr U] had little tolerance for babies crying but could have had no idea of the risk he presented.  Furthermore she took appropriate precautions by making up a bottle of milk, so that [Mr U] would be able to sooth and feed the baby if she had started to cry.  I find that there was no evidence that she had seen him ill‑treat the child so she was not neglectful in going out that fateful morning [5 July] and leaving [S] with him for the short time it would take her to deliver her older children to school."
12.	There was then a finding 3(c) that the mother had lied to various people, in particular the hospital staff, and the judge concludes thus:
"Certainly these lies that [the mother] told demonstrate that she has a propensity for telling lies but I do not find that it demonstrates a likelihood that the children will suffer harm attributable to the care she gives to them, not being what a reasonable person would be expected to give."
13.	There was then an allegation at 3 (d) that the mother had failed to protect S, and the judge specifically found that not proved.  She said:
"In my judgment [the mother] had no information at the time which would have led her to think that [Mr U] would be likely to cause harm to [S].  She took the precaution of making everything ready in case [S] got hungry while she was out.  I do not believe that she knowingly or carelessly exposed [S] to harm by leaving the child for that short time in the care of the father."
14.	So there were a number of consequences as a result of those various findings.  First of all, there was no finding that either of the two older children crossed the threshold criteria at all.  On that basis, they were excluded from the public law part of the proceedings from that point onwards.  But it also is the case that there was no adverse finding against the mother in relation to the threshold criteria.  However, Mr U was seen by the various findings that I have listed to have a propensity to display violence, at least to adults, on other occasions.
15.	In between the fact‑finding hearing in October/November and the threshold hearing in February, the mother had carried on living in Mr U's flat.  It is said on her behalf to the judge and to us now that she had no alternative as someone who was an overstayer in this country.  She was not apparently entitled to any public funding in her own right, and Mr A was not minded to afford her, any longer, the status of being his dependant given the relationship with Mr U.  The time came, however, in mid‑February when she was able to access funding and she moved into some form of hostel or refuge accommodation, and therefore from that time it is said lived physically separately from Mr U.  However, it became apparent at the threshold hearing that the mother (and she told the court this) had conceived a further pregnancy with Mr U which had resulted in a miscarriage in December and that that miscarriage was at a stage in the first two or three months of a pregnancy.  It was not clear, says Miss Jones, and that is confirmed by junior counsel for the local authority, whether or not the conception occurred before or after the hearing of evidence in the fact‑finding process.  
16.	The local authority, partly because of their general concern but partly because of what the father of the older children, Mr A, had said, was concerned that the mother, despite moving out, was continuing to see Mr U.  So in the middle of July 2012, the social worker went on two occasions to the local neighbourhood to see if she could gain any evidence one way or the other about this.  On one occasion on 22 July, the social worker bumped into the mother and had a short conversation with her in the immediate environs in the street near to Mr U's flat.  The social worker also was of the view that she had seen the same woman (i.e. the mother) coming out of the door of the flat, but subsequently at the final hearing Judge Cushing did not accept that evidence.
17.	Prior to the final hearing which took place in late July/early August, Judge Cushing had the benefit of expert and professional input.  The expert evidence came from Dr Van Velsen, an adult psychiatrist, and a Dr Bailly, a child psychiatrist, and also from the children's social worker, Miss Locke.  Obviously also the children's guardian was a party to the proceedings and contributed to the material before the court.  At the hearing, the issue before the judge was stark: the local authority sought a care order for S and had put on an application for S to be placed for adoption.  They sought the furtherance of that application by the judge dispensing with the mother's consent to adoption.  The mother sought either the immediate or short‑term return of S to her care so that she could take up her role as full‑time mother once again.
18.	The expert evidence of Dr Van Velsen and Dr Bailly supported a return of S to the mother's care.  The guardian had been supportive of rehabilitation to the mother, but was concerned about the evidence of the potential for the mother still to be in touch with Mr U and so at the final hearing favoured the adoption plan.  The local authority social worker spoke in favour of the adoption plan. 
19.	At the conclusion of the process, Judge Cushing favoured the local authority's case.  She made a full care order, she dispensed with the mother's consent to adoption and she made an order authorising the local authority to place S for adoption.  She also sanctioned a reduction in contact so that that process of weaning the mother from S, and S from the mother, could begin.
20.	It is against those orders that the mother now seeks to appeal.  She does so with the benefit of permission to appeal granted by Macur LJ. 
21.	The principal grounds of appeal relied upon by Miss Jones on behalf of the mother can, I think, be reduced to three significant points.  The first is that the outcome chosen by the judge is not proportionate to the factual circumstances of the case and that the judge's favouring of an adoptive plan is simply "wrong" and should now be set aside by this court.  In making that submission, Miss Jones takes us to the Supreme Court decision of Re B [2013] UKSC 33, which not only highlights in Lord Neuberger's judgment the test that should be applied to this task, particularly at paragraph 93, but also more importantly underlines just how extreme an outcome adoption is, and in the phrases which are quoted by Sir James Mumby, the President of the Family Division, in the subsequent case of B‑S [2013] EWCA Civ 1146, indicates that the Supreme Court take the view that adoption is to be chosen by the court as the outcome only if "nothing else will do".  
22.	The second point made by Miss Jones is that, alongside the proportionality of the entire circumstances, has to fall the local authority's own role.  She points to, she would say, the fact that the local authority did not at any stage offer the mother any support or counselling or basic facilities to assist her from separating from Mr U.  The importance of that is that by the time the case came on for hearing before Judge Cushing, whether or not the mother was in a relationship with Mr U was really the only negative issue in the case indicating an outcome other than rehabilitation of young S to her mother's care.
23.	Finally, Miss Jones points to the fact that at no stage in the judgment does the judge make any express reference to the welfare checklists that are in play under the Children Act 1989, the Adoption and Children Act 2002, the Article 8 case law under the European Convention on Human Rights or, more generally, the need for a proportionate outcome to be the one that is followed by the court.
24.	Mr Charles Geekie QC for the local authority opposes the appeal.  In his attractive and realistic skeleton argument, he accepts that there is "slender reference" by name to any of the legal principles involved that would underpin a judge's consideration of a case such as this, but he says that we should judge the judge's judgment not by what she says in terms of the labels pointing to particular legal resources or structures, but by the approach that she actually took to the factual material before her.  He says if we do that then we will see that this was a proportionate and an appropriate and balanced evaluation.  He makes further ground in that submission by saying that we should look at, as we have done, the previous two judgments of the judge where she particularly shows a balanced view of the mother, avoiding making the adverse findings at every turn that I have indicated the local authority might have sought, and concluding that the mother was not at fault in terms of what befell young S in July 2012.
25.	Mr Geekie also says that we should pay full respect to the position of the judge.  Typically in a fact‑finding case this court is urged, and really needs no encouragement, to give a wide margin of respect to the fact that the judge sits in the courtroom, sees the witnesses and forms a factual conclusion from a perspective which is simply not available to those who sit in this court.  Mr Geekie rightly, in my view, widens that and points to the fact that this judge has sat in a courtroom with this mother over the course of three substantial hearings and has had the benefit of the face‑to‑face, judge‑to‑witness perspective that again is denied to us.  That submission is made and it is readily understood and entirely accepted by me.
26.	This is not an easy case to consider at appellate level partly because the judge, with respect, has not helped herself or this court by identifying the legal structure that she has applied to the analysis that she has brought to bear on this difficult and all‑important question.  There is no reference to the welfare checklist in the Adoption and Children Act 2002.  In making that observation, I would not associate myself with the observations of Baron J in EH v X London Borough Council [2010] EWCA Civ 344 where the judge indicated that it was a requirement in every case for there to be explicit reference to the welfare checklist that was relevant, and to Article 8.  To make that requirement, in my view, states the matter too highly.  What is important is for the judge to demonstrate that he or she has the relevant factors in mind, and the crucial thing obviously is the analysis itself and whether that shows that there is an approach which is compatible with the law.
27.	But in making that observation I have in mind that the judge (and I am not going to rehearse all of the detail) found in virtually every aspect of her parenting, other than her relationship with Mr U, that the mother had much to offer as a loving, kind, caring, sensible parent and there was no criticism of the care that she had given to the older two children.  So in a case such as this, where there is a real balance to be struck, it does seem to me unwise for a judge to avoid grounding her conclusions by reference to the factors in the welfare checklist, and in particular I would stress in the adoption welfare checklist at s 1(4)(c)and (f) which indicate the choice to be made between severing the relationships with the natural family and the child going on to form a new life as an adoptive child in a totally different family setting.
28.	More particularly in a case such as this, I do think it would have been helpful for the judge, and indeed wise for the judge, to make express reference to the test required for dispensing with parental consent which is set out in section 52 of the Adoption and Children Act 2002.  The test is well known and it is that the court can only dispense with parental consent in respect of a child if "the court is satisfied that...(b) the welfare of the child requires the consent to be dispensed with".  
29.	In stressing that aspect, I have in mind the well‑known decision of this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 where Lord Justice Wall considers in detail quite what the word "requires" implicates for the judge's decision and he bases that analysis in part on the Strasbourg case law.  That approach has since been taken up by the Supreme Court in Re B and by this court in Re B‑S.  The test for dispensing with consent, in my view, pinpoints the tipping point at which it is justified for the state to intervene in a family to the extent of removing a child and sending that child off for adoption.  A judge who is making a decision such as this who expressly refers to Re P and the wording of section 52 will more readily be able to identify quite why a case does or does not move past that tipping point so as to justify the order that is made by the judge on each particular occasion.
30.	Judge Cushing simply did not engage in that process at all in this case.  The only reference to the law at all in this regard is in paragraph 57 of her judgment, and she simply quotes the effect of section 52 being that parental consent could not be dispensed with unless the child's welfare requires it.  Then in justifying that, she simply quotes what the children's guardian says in a small passage in the guardian's report and then the judge comes to her conclusion based upon the risk of harm to S from Mr U.
31.	Moving on from the structure of the judgment, this is undoubtedly a troubling case because the one solid fact that the judge had was the awful and serious injury that resulted from the assault on S by Mr U.  That basic fact was supported by the other evidence as to Mr U's past violence and compounded by the fact that Mr U before the judge, at every subsequent hearing after the fact finding, totally refused to accept the validity of her finding.  He still denies that he is responsible.  That is important as a fact in itself, but it was very important for the judge because the earlier evidence was that this mother was very much in the thrall of Mr U, very much siding with him in terms of her relationship with Mr U at the expense of the relationship with her husband, and that the mother carried on living with Mr U, and plainly having a sexual relationship with him throughout the autumn of 2012 and, as I understand the evidence, up until the time that she moved out in the middle of February 2013.
32.	So the question that was the focus of the judge's consideration in the case was whether or not this mother could be regarded as a safe parent with the care of S in the future given her past relationship with Mr U.  Much time was spent no doubt in the evidence, and certainly in the judgment, with the judge hearing factual material and expert opinion as to quite where the mother was on the road to achieving effective separation from Mr U.  
33.	The judge's conclusion on that, I am afraid, is not consistently expressed through the judgment.  At an early stage in paragraph 10, the judge said:  "I do not believe that she has yet completed" the separation.  The judge reports in paragraph 11 that the mother had said to Mr Bailly, the child psychiatrist, in June words to the effect that she did not want to believe that Mr U was responsible for the injury but that she had to accept the facts.  At paragraph 34 of the judgment, the judge says this:
"If [the mother] is still in a relationship with Mr U, about which the question is still open, the children need to be protected from him because he is capable of violent conduct." 
34.	When she comes to her conclusions, the judge is more precise as to where she thinks the relationship has got to.  She concludes that the mother has a continuing "emotional involvement" with Mr U, and that whilst she might have accepted with her head what the factual conclusions of the fact finding had been, emotionally she cannot.  The judge also observed at paragraph 49:
"She does not demonstrate that degree of identification with [S's] suffering that would be the protective factor." 
35.	Despite rehearsing a number of positives about the mother, some of which I have already mentioned but in addition particularly the fact that there was clear evidence from Dr Bailly's report and his oral evidence that S had an attachment to the mother and the foster parent and that that attachment was now secure, despite those factors the judge concluded, as I have indicated, adversely to the mother's case.
36.	Looking at this case afresh as I do, and with the benefit of the submissions that have been made, I have to undertake the task described by the Supreme Court in Re B and look at the proportionality of the outcome here against the evidence in the case.  My conclusion on that point is that this outcome ‑ adoption for this young child away from the care of a mother who is otherwise seen as a loving and capable mother to whom the child is securely attached and away from a mother against whom there are no adverse findings in the threshold criteria ‑ is not a proportionate outcome.  I consider that the judge's choice of this outcome was, in the context of Re B, "wrong".  
37.	In terms of how the judge has got to that position, in my view, and allowing for the fact that the judge does identify the positives here, she became (and this I consider is made out by a number of observations that the judge makes, in particular at paragraphs 45, 48 and 50) focused on the single issue of whether or not the mother had separated from Mr U and the single potential for S in the future to suffer physical harm as a result.  That was an important factor in the case, but it was one of a range of factors.  The judge said she had chosen adoption because S "will not be safe from further significant harm unless she is adopted".  Adoption, however, comes with a price tag: the price tag is permanent separation from the natural family, and all of the case law to which we have been taken indicates that courts should not pay that price for a child and make an order authorising adoption unless "nothing else will do" and unless that is the only way that the child's welfare, looked at in the round, can be satisfactorily met.
38.	This case had a number of protective features arising from the positive findings of the mother as a parent.  The judge herself was prepared to trust the mother to the extent that staying contact was arranged for the older children under the residence order every other weekend and for a week or so at a time during the school holidays, on condition that the mother did not bring the children into contact with Mr U.  Whilst part of the judge's reasoning was that these older children were able to communicate for themselves and would be likely to tell if Mr U was in touch with them or did anything to them when they were with him, part of the judge's judgment in relation to the older children was that the mother, also, was to be trusted with this condition that Mr U should not be exposed to them.
39.	  In my view, the judge nowhere draws all of these matters together into one overall balancing exercise to decide whether or not the outcome that she favoured was proportionate.
40.	I also accept (and this is not, as it were, the deciding factor in the case) the submissions that Miss Jones makes about the local authority's lack of input in terms of assistance to the mother.  If, as it seems to have been, the one issue in the case that would determine whether this child would live with her mother in the future or go to be placed with others was the mother's ability to separate from Mr U, then it seems to me that the local authority had a role and an opportunity to help her do that, and despite Mr Geekie QC taking us to one rather short and arid observation in the core assessment, there is absolutely no evidence that the social workers did anything positive to assist the mother.  It is said that the mother never asked for assistance.  But this is a woman who has come to this country in the relatively recent past, who seems to have no real command of English and is unlikely to have a sophisticated understanding of just what could or could not be available to her were she to ask the local authority for assistance.  Part of the overall proportionality of the state's involvement in this family involves looking at not just what the court has done but what the local authority have been able to do, and in this case I find did not do, to help keep the child and the mother together or to rehabilitate them.
41.	Finally, I mention a matter which I think is now clear after submissions but certainly was not clear on reading the judgment.  Paragraph 50 of the judgment shows that the judge considered that the mother required at least six months of appropriate therapy before she could be assessed with a view to S returning to her care at some time after that if the therapy was seen to have achieved a positive outcome.  Nowhere in the earlier parts of the judgment does the judge allude to evidence to that effect, and both counsel before us today have confirmed that really the expert evidence was not to that effect.  Dr Bailly did indicate that the mother might benefit from therapy and that it might take something of the order of six months to undertake, but he was not saying that S should not return to the mother whilst that process was undertaken.  Dr Van Velsen indicated a lower level of intervention, merely counselling, so as to avoid the mother becoming "medicalised", and both Dr Van Velsen and Dr Bailly were favouring rehabilitation of S to her mother at the hearing, rather than postponing it to see how any therapy would be implemented.  So in that specific respect, and it does seem to have been an important respect for the judge in paragraph 50, it seems that the judge had an erroneous understanding of the evidence.
42.	I would therefore allow the appeal, with the consequence that the placement for adoption order should be set aside.  The question of what happens in the future therefore arises.  I hope it is plain from the judgment I have given that on the facts as they were before the judge, and absent any significant change of circumstances, it is not proportionate to consider adoption for the future welfare needs of young S.  An alternative plan has to be considered.  The determination of that plan (and, if there is a dispute about it, the determination of that dispute) has to be undertaken back at the Principal Registry.  I would therefore reopen the care proceedings by setting aside the care order that has been made and replacing it with an interim care order.  
43.	I would direct that the case should be returned at the first instance to Judge Cushing who, after taking regard to the decision of this court, can decide for herself whether it is appropriate for her to undertake the further task of replanning this child's future.  For my part, I have been impressed with Judge Cushing's ability to undertake the earlier stages of these hearings and she undoubtedly has a good and close knowledge of the factual background, and no party before this court is indicating that it would be inappropriate for Judge Cushing to take the matter on from here.
44.	The only other matter that we have not heard submissions upon, and if my Lady and my Lord take the same view that I do about the outcome of the appeal we need to hear submissions about, is contact in the short term, it having been reduced to once a month at the moment from a rate of something like two times a week.
45.	What is imperative, after this unfortunate period of time of limbo with the appeal pending, is that matters now proceed promptly before the lower court and a final care plan is decided upon and then put into action.  That is my decision.
46.		LADY JUSTICE GLOSTER:  I agree.
47.	LORD JUSTICE LAWS:  I have had more difficulty with this case than have my Lord and my Lady, but I do not think it right or necessary to press my misgivings to the point of dissent.  I too would allow the appeal and grant the relief proposed by my Lord, McFarlane LJ, subject as he has indicated to counsel's submissions in relation to contact.