Court of Appeal rejects appeal by mother over dismissal of application to discharge placement orders

The Court of Appeal has rejected a mother’s appeal against the dismissal of her application to discharge placement orders made in respect of her two children.

In N (Children: Revocation of Placement Orders) [2023] EWCA Civ 1352, Lord Justice Peter Jackson acknowledged the progress the mother had made since the children were removed from her care, but concluded they now “urgently require a permanent home”, which the mother accepted she could not provide “as matters stood”.

Outlining the background to the case, the Court of Appeal judge said proceedings began in October 2019 because of domestic abuse by the father from which the mother was not protecting the children.

In November 2019, interim care orders were made on a plan for the children to remain with the mother, with the father being excluded from the home.

In a substantial hearing before a deputy judge, it was found that the father had “repeatedly assaulted the mother” but that she had “lied about it or retracted complaints and had failed to separate from him or protect the children from being exposed to such incidents”.

Further, neither parent had engaged with the child protection plans and in July 2020, the father had breached the exclusion requirement.

The hearing, which took place in February 2021, ended with the removal of the children from the mother's care. Lord Justice Peter Jackson noted that the children, now aged 7 and 5, have been in foster care ever since.

In December 2021, placement orders were made by the deputy judge. Farewell contact with the mother took place in March 2022, and the prospective adopters were identified in October 2022.

The judge noted that after introductions began, the mother applied for leave to apply to revoke the placement orders, which was granted unopposed on 11 May.

“The children, who are unaware of the mother's application, are confused about why they have not yet moved to their adoptive home”, Lord Justice Peter Jackson said.

He added that permission to apply to discharge the orders was granted because the mother had made “significant changes” since the making of the placement orders, including distancing herself from the father.

When granting leave to the mother to apply for revocation on 11 May, HHJ Hughes gave directions leading to a two-day hearing on 19 July.

These included a direction for an assessment to be carried out by the children's previous social worker, Mr B, who the parties agreed was a “suitable choice”.

The matters covered included: an assessment of the mother's current circumstances including details of the changes she has made, if any, since the making of the Placement Order, the children's circumstances, the children's welfare in the context of the application, an analysis of the impact on the children of each potential outcome of the substantive application and an update as to any work that has been undertaken with the children.

Mr B's assessment was negative.

The mother considered that Mr B’s assessment was “deficient” and, on 26 June she applied under Part 25 for a fresh assessment to be undertaken by an identified independent social worker (ISW) on the basis that Mr B's work was “incomplete”.

The application came before HHJ Perusko on 5 July at the pre-trial review, at which he rescheduled the proceedings for a longer hearing in August and refused the mother's Part 25 application.

The hearing of the revocation application began on 29 August and ended with a judgment and order on 1 September.

During the hearing counsel made an oral application on behalf of the mother for the proceedings to be adjourned for an ISW assessment.

At paragraph 3, the recorder summarised the mother's case:

"She seeks the revocation of the placement orders that are in place or an adjournment of the application itself for further assessment, the latter of which became her primary position, as such, as the hearing developed. The mother accepts, as she did in oral evidence, that in the event of a revocation the children would not return to her care now and that an application to discharge the care order which is also in place would be needed."

Considering the application for an ISW first, the recorder concluded: “I accept the submissions about the likely impact of delay on the children. They need a decision now, whatever that decision might be.

“Given the nature of the assessments I have, and detailed evidence I have heard, I am not satisfied that further assessment is necessary. I therefore refuse the application to adjourn."

As to the substantive application for revocation, the recorder addressed the welfare checklist under the 2002 Act, then considered the competing options for the children's care. He noted that placement with mother “can only be described as a possibility at this stage”.

The recorder added: “There is also considerable risk of what the impact would be on the children if adoption is taken off the table only for the mother then to fail further assessment.”

The recorder concluded that he was satisfied that these are “exceptional circumstances that justify the permanent severing of ties between the children and the parents”.

Permission to appeal was granted by Lord Justice Baker on 16 October.

Lord Justice Peter Jackson set out the mother’s grounds of appeal as follows:

1. The Judge was wrong in law to determine that there is a difference between the quality of the local authority evidence required to support an application for care and placement orders and the quality of the evidence required to resist an application to revoke a placement order once leave has been granted. The Judge should have applied the same 'proper evidence' test.

2. The Judge was wrong to conclude that the deficits in the local authority evidence could be corrected by the social worker's oral evidence and that there were no gaps in the assessment evidence.

3. The Judge was wrong to accept the Guardian's conclusions when her analysis was flawed and/or based on the flawed assessment of the local authority.

4. The Judge was wrong not to adjourn the proceedings for a fair and proper assessment to be obtained. Such evidence was necessary for the just and fair determination of the proceedings.

On Ground 1, counsel for the mother submitted that it was an “error of law” for the recorder to say that "the evidence required in this type of case and directed by the court is different to care proceedings."

He suggested that the recorder was “allowing that the evidence on a revocation application might need less stringent assessment than the evidence during the original proceedings”.

Considering this argument, Lord Justice Peter Jackson said: “Having read the judgment and heard submissions about the context in which the recorder's observation arose, I am satisfied that there was no error of law in his approach and that he was making the same point as I make above at paragraph 12, namely that the evidence before the court at a revocation hearing will differ in quantity and focus (but not quality) from the evidence that is given in the placement proceedings”.

He added: “For example, a full parenting assessment in the form that would be conventional in care proceedings was understandably not directed in a case with this history. It is in any case clear that the recorder directed himself correctly with reference to Re C and that he made a full welfare assessment and an evaluation and comparison of each realistic option for the children.”

Further, Lord Justice Peter Jackson found there was not any “lack of rigour” in the recorder's assessment of the mother's capacity to meet the children's needs. He noted that the recorder “squarely identified the nature of the risk from the father and the probability that it would arise if the children were with her”.

He dismissed ground 1.

Turning to the remaining grounds the judge said: “Grounds 2, 3 and 4 spring from the overall submission that a fuller assessment of the mother's circumstances would have allowed the court to reach an even more positive view of the mother's transformation and to investigate supports that could be put in place around her, both from family and friends […] and from the local authority.

“Ground 2 points towards Mr B, Ground 3 towards the Guardian, and Ground 4 towards the recorder.”

The Court of Appeal judge noted that the recorder gave his impressions of the evidence of Mr B and the Guardian, in which he said:

“Miss Julien described Mr B as an honest witness and Mr Littlewood said that we would not find a more focused or dedicated social worker. I agree. Mr B's oral evidence was entirely consistent with how counsel describe him. He is plainly an experienced social worker who has gone above and beyond when the children require it.”

“I found the guardian to be a clear and compelling witness. I accept her reasoning for not seeing the children at such a delicate stage of proceedings. I was assisted by her evidence about the risks of trauma that may come with each option and how even now the guardian has given clear thought to what else the mother could or would need to do if there is delay.”

Considering the recorder’s impressions, Lord Justice Peter Jackson said: “These are all plainly assessments that could not be, and are not, challenged.”

On ground 4, counsel for the mother submitted that the recorder “misunderstood” the position reached by HHJ Perusko in July, when he treated the application as if it had been dismissed:

"170 … No parenting assessment was ordered, and a previous court has refused the instruction of an independent social worker. That cannot have been deemed necessary as of 5 July 2023 and the decision was not appealed."

Considering the submission, the Court of Appeal judge said: “This is a point without substance. The recorder was correct in what he said, but in fact he looked squarely at the possibility of adjourning for further evidence and rejected it for the full reasons cited at paragraph 20. He made a decision on the merits.”

Rejecting grounds 2, 3, and 4, Lord Justice Peter Jackson concluded that he could not find a reason to fault the recorder's conclusion that further evidence was not necessary.

He said: “The mother's argument has not identified any potentially significant matters that were missing from the evidence that was eventually before the court, or that had to be completed before the hearing itself. Inquiries can usually be fuller, but this was in my view a thorough one.”

The Court of Appeal judge noted that the recorder “rightly placed considerable weight” on the changes the mother had made, but found that the changes had not brought her to the point where she could meet the children's needs.

Dismissing the appeal, Lord Justice Peter Jackson concluded: “These young children have been in limbo for 2½ years and their childhoods are slipping away. The recorder understandably decided that they cannot wait any longer.”

Lord Justice Baker and Lord Justice Andrews agreed.

Lottie Winson