Case Nos: B4/2012/2834
Neutral Citation Number: [2013] EWCA Civ 54
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(HER HONOUR JUDGE BROWN) 

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 16th January 2013
Before:

LADY JUSTICE BLACK

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IN THE MATTER OF G (a Child)

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Mr Jamie Du Burgos (instructed by Garden City Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment
Lady Justice Black: 

1.	This is an application by a mother for permission to appeal against an order of HHJ Brown made on 16 October 2012 in relation to the mother’s daughter, who I will call simply HR, who is just over one year old.  The trial judge, HHJ Brown, determined that the mother would not be able to look after HR.  The mother seeks to overturn that decision, and she would like to achieve a new hearing on that issue.  The determination was made in the context of a series of Interim Care Orders.  It was a decision essentially on the way to the court making a final determination in care proceedings in relation to HR and to where she should be placed.  It effectively brings to an end the mother’s hopes of achieving a reunification with her daughter.  

2.	I was the judge who considered this matter on paper, and I refused the application for permission at that stage for the reasons that I set out in the order that I then made.  It has since been renewed orally, and I have had the benefit both of argument from Mr Du Burgos this morning, who represented the applicant also in the proceedings in front of HHJ Brown, and of a statement pursuant to the Practice Direction in which counsel takes issue with certain of the matters that I had (or had not in his submission) covered when refusing permission, and seeks to amplify the skeleton argument that has been provided in support originally of the application for permission.  

3.	In essence, the arguments that the mother wishes to advance on appeal are these.  First, that the judge failed to give sufficient weight to the benefits to the child of being brought up by her own mother, and the destruction that would be caused to this particular child if the relationship between mother and child -- which has been developed through contact, which has been of good quality -- were to be ended by the local authority’s plans, which as I understand it, certainly at the time of the hearing in front of the judge, were for HR to be adopted.  Secondly, it is argued that the judge failed to recognise the progress that the mother had made which was such as would enable her, with safeguards, to look after HR, in particular, the progress that the mother had made after the adverse psychological report which had been provided by Dr Blumenthal, to whose view it is said the judge gave too much weight, failing to give sufficient recognition to what had happened in the six months that had elapsed between Dr Blumenthal’s report and the hearing in October 2012.  Thirdly, it is argued that the judge failed to consider alternative strategies which would enable the unification of the child with her mother, for example a care order with a gradual reunification, a supervision order, the concept of assistance and support from the mother’s friends, and her written agreement being entered into to bolster that support.  That is just a summary; I do not purport, in giving it, to cover every aspect of the careful argument that has been advanced on the mother’s behalf.

4.	In order to give my view about those proposed arguments I need just to set out a little bit of history.  The mother has two older children.  K is aged five; K’s father is not the same as HR’s father.  K is not living with the mother.  Mother also has a child, R, who is three, who has the same father as HR.  When R was small he was taken to hospital in April 2010 with injuries, which included fractures which were found to be non-accidental.  In proceedings in relation to R, HHJ Rees found firstly that both parents were possible perpetrators of those injuries, and, secondly, that it was not credible that the person who did not cause the injuries was unaware that there had been serious injuries.  The local authority were considering rehabilitating R to the mother’s care, but that process was undone by, as it was later found out, the mother carrying on seeing the father and not being honest about that, deceiving amongst others the expert who was assessing the safety of rehabilitating R to her care and the guardian in those proceedings.  Even when the local authority learned that the mother was pregnant she asserted that the baby was not the father’s, and that went on up until July 2011.

5.	HR was removed to foster care at birth, but the mother, as I have already said, kept up contact with her, and she has formed a relationship with HR.  I understand HR calls her “mama” -- it may have advanced by now, but that was the position.  The mother’s case is that she has demonstrated that she is now separated from the father, and the only risk to HR is of her forming another inappropriate association.  If that were to happen, and she says it would not, it would be something which would develop over time and would allow the local authority to intervene and to look after the safety of HR.  Her evidence was that she had parted from the father in March 2011 and she had not formed another relationship since, but she has formed beneficial connections with people who can now support her, and she has, on her initiative and I think at her own expense, done work with organisations such as the Freedom Project to assist her with the difficulties that she has had in the past.  She criticised the local authority in the proceedings for failing to explore the up-to-date position by, for example, not observing contact and by not interviewing her supporters, if I might so call them in shorthand form.  She also criticised them for failing to supply Dr Blumenthal with accurate information for the assessment that he carried out, which she says was therefore seriously undermined.  Her case for rehabilitation was supported by the child’s guardian, who recommended that HR should be reunified with her mother in the context of a supervision order.

6.	The judge, HHJ Brown, produced a long and careful judgment.  It is conceded by counsel in the documents that were provided originally in support of the application for permission to appeal that this is a case where the mother had in the past behaved in a way that would cause great concern.  The judge was rightly influenced by that history.  She explained in her judgment just how troubling it was, and she exposed what she called “the level of deceit and dishonesty perpetrated by the mother”.  She remarked that the mother’s failings during that period were “profound and disturbing, and lasted for a period of over two-and-a-half years”.  The judge rightly said in her judgment: 

“This is the context into which all assessments and judgments about the mother must be put.”

7.	The judge, however, did look carefully at the progress which the mother had made, recognising that she had had high-quality contact with her child and that they had a positive relationship.  She asked herself whether the risk factors identified by the local authority and Dr Blumenthal, in the light of the history, remained sufficiently grave to prevent HR being rehabilitated.  In that formulation, she recognised that there was a powerful need to place HR back with her mother, if that was possible and safe, and that she needed to look very carefully at the evidence to see whether it was or it was not.  She recognised that the guardian and the social worker were taking different approaches to the matter.  She explained why she did not rely on the guardian’s recommendation.  Amongst the reasons were that it was the guardian’s first serious non-accidental injury case, her investigations had limitations, which the judge identified at some length, and there were errors in her report.  It is said by the judge that the guardian ultimately conceded that her report was “fundamentally flawed”.  
8.	Mr Du Burgos has assisted me in understanding what the guardian meant by that in his submissions today.  I am told that she adhered to the recommendation that she made, but she accepted that there were flaws in the way in which she had gone about the case.  Nonetheless, it was clear that there were a considerable number of good reasons identified by the judge why she was entitled to take the view that the guardian’s evidence did not assist her particularly in this case.  However, in contrast she found the evidence of Dr Blumenthal to be particularly helpful, and she accepted his assessment of the risk to HR.  He is an experienced psychotherapist, I think attached at least at that time to the Tavistock and Portman Trust.  He had been jointly instructed by the parties, and he saw the mother in March 2012, and had I think a lengthy interview with her.  He looked into her history, and he reported for example on her relationships with her parents, which he described as deeply unresolved, and reported that in his view she had gone on to form problematic adult relationships.

9.	The judge refers to Dr Blumenthal’s evidence of “a habitual pattern over many years since the age of 15 in which the mother has chosen situations which have placed herself and her children at risk”.  He also said that there was “a significant risk of future problematic choices in relationships”.  Dr Blumenthal identified the need for very robust social support and/or treatment to address the problem.  He thought that the mother’s social support network was rather inadequate, but it is fair to say that he had not met either of the supporters and his information no doubt came from matters that were put to him in the course of cross-examination.  He thought that mother may well be able to make use of psychological therapies and had made a good start, but that that on its own would not be enough, and that in any event therapy for the well-established personality traits which he had identified would probably, he thought, require a long-term therapeutic strategy, possibly lasting over about two years.

10.	In the papers it is submitted by counsel on behalf of the mother that it is suggested that the only risk that Dr Blumenthal saw was that of exposure of HR to problematic relationships formed by the mother and the mother’s failure to protect her in that context.  That is not, I think, and I think Mr Du Burgos now accepts this, a fair categorisation of Dr Blumenthal’s evidence.  Mr Du Burgos therefore reformulated the argument, and it became that the concentration of the hearing was on that type of risk.  But it remains the case that Dr Blumenthal included in the risks, albeit as less important, that if the mother had in fact injured R herself, there was a small risk of repetition of that with HR.  In Dr Blumenthal’s oral evidence the question of social support available to the mother was explored, as I have said, and also the therapy which the mother had undertaken, of which Dr Blumenthal was supportive but which he felt did not really address the real issue of the mother’s deficiencies as a protective parent.  He said that it would be, in his words, a “big risk” to place HR with her mother, and the question he saw for the court was how much trust could be placed in the support network to ensure that the mother provided safe and consistent care for her daughter.  

11.	Accordingly, it was very important that the judge heard from Ms Wright and Ms Samuel, who were the two key figures in the mother’s proposed support network.  Ms Wright, the judge records, felt that the mother had changed and that the subsequent changes invalidated Dr Blumenthal’s assessment.  Ms Samuel, a social worker and acquainted with mother for two years or so, more now, also thought the mother had changed significantly and said that she trusted her.  She challenged the risk that Dr Blumenthal thought there was, and felt that the mother had changed significantly since his assessment.

12.	There is a careful analysis section of the judgment, in which the judge said that she found this a difficult case.  It is important that in that section the judge records her view that the mother was not just a victim of history, but that she had been an actor in it as well.  The judge puts it this way, that there was “real agency in her actions”.  The judge accepted that the risks were too high without a strong and robust support network for at least two years.  In so doing, she fully acknowledged the changes that the mother had made.  Those changes had been put to Dr Blumenthal, and I cannot accept that there is merit in the proposed appeal ground that his view had become outdated because he only saw the mother in March, and she had continued to make progress since then.  He was giving a professional opinion which was based on a number of things.  One aspect of it was the history, one aspect was the interview, and, as often happens in cases such as this, he also had to consider the changes that were reported to him as having been made since he saw the mother in interview.  He dealt with the changes in a way which the judge found convincing, and there is no real prospect of success, in my view, of persuading this court that the judge was wrong to accept what he said.

13.	Accordingly, she was entitled to continue to rely on Dr Blumenthal, and she was right to look into the changes that it was said the mother had made, and particularly to look critically at the mother’s proposed support network.  She could do that because she saw two of the principal actors in the support network, and that gave her a particular advantage over a Court of Appeal considering whether her judgment was flawed or not.  It is extremely difficult to appeal successfully against a judge’s assessment of a witness, when the judge has seen that person giving evidence and considered their evidence against the background of the rest of the material in the case.  This judge gave a picture of her impression of those witnesses and she explained why she felt that their kind offers were unfortunately insufficient to make the situation secure for HR, not least because they did not accept that the mother posed any risk to her daughter, and because there was a significant risk, looking at the history as an indicator of the future, that the mother would not be honest or forthright with her supporters.  It is not fair to say that the judge did not consider alternative strategies to bolster the potential contribution of those supporters.  She looked at the strategy of a tight-written agreement with them but she felt that would potentially be ineffective.  

14.	By a cogent process of reasoning which, it seems, to me started from the correct position of giving great weight to the need to place a child with their own parent if that is at all possible, the judge reached a conclusion that was not possible in this case, and she did so upon a proper basis of the evidence that she had seen.  The conclusion was one which was well within the reasonable bound of her decisions on the evidence presented to her.  I have looked at both the proposed grounds as they were originally drafted and reviewed them again carefully prior to the hearing today and also in the light of the new material presented to me by way of argument by Mr Du Burgos, but I am afraid that I have again reached the same conclusions as I did having considered the matter on paper.

15.	I must, therefore, refuse permission to appeal.

Order:  Application refused.