The Court of Appeal today handed down judgment in Re H (A Child) [2015] EWCA Civ 1284, which you will have seen in its previous incarnations here : when the original first instance decision on care and placement orders was successfully appealed : Re H (Children) [2015] EWCA Civ 583 and when Russell J subsequently dealt with the rehearing and combined adoption application in July (the second first instance decision) here : Re W (Adoption- Reunification) [2015] EWHC 2039 (Fam).

This was a case originally involving four siblings, three of whom were rehabilitated to the father’s care following maternal mental health difficulties. The child we are concerned with is the baby of the family, although the pinging and ponging of the case to the Court of Appeal twice (so far) has meant that she is now 3 years old.

This was a depressing read for a Friday night in December, so I’ll just set out a few key points, as they strike me, rather than a methodical or in depth analysis.

Firstly, in Court of Appeal Round 1 the DJ was overturned primarily because his judgment did not pass the Re B-S analysis test. Importantly, the Court of Appeal left his threshold findings of fact untouched. However, Russell J in First Instance Round 2, seemed to take the approach that the Court of Appeal had indicated that the Judge’s conclusions as to threshold were also unsound – and wrong.

This led her to criticise the LA in her judgment (pa 20) :

In the light of the local authority’s stance in the Court of Appeal it was most regrettable that before me they continued to place emphasis in their approach to this case on the need for the father to accept their view that his own experiences as a child made him unable to accept help and advice; as exemplified by the evidence of the current social worker Lucy Wilkinson. Their view of the father seemed to remain unaltered despite the fact that he had remained separated from the mother; had been to counselling and was successfully parenting three children on his own. The evidence of Dr Willemsen, a clinical psychologist instructed to prepare a report on all four children within their current placements for the purpose of this hearing is to the contrary and I shall return to it when I come to consider the evidence before me in detail later in this judgment.

In Court of Appeal Round 2 the court analyse Russell J’s approach to this case, and remarks that she made during the course of the hearing, including to the experts in the case, demonstrated her error of approach regarding threshold. She said, for example that :

“The effect of [the decision in Court of Appeal Round 1] is that the court needs to keep in mind that, had the proper decision been made in the first place, there would have been no placement.”

Russell J referred to the presumption that children should be raised by their parents. The Court of Appeal are clear in drawing the distinction between private law cases (where there is said to be no presumption, only the paramountcy principle – although there is of course a “presumption” of sorts now enshrined in s1 CA, albeit this is weak and is about “involvement” not care), and public law cases where at threshold stage there IS a presumption, but (my words) that presumption is displaced once the threshold for state is crossed. Although we all often gaily sprinkle a little Hedley J wisdom into our skeleton arguments at the point of welfare decisions in care cases, the Court of Appeal reminds us that in fact his “tolerating diverse standards of parenting” spiel relates to the crossing of threshold – and what is significant enough to open the door to a public law order. In the light of Re B, Re B-S this is counter intuitive, but I suppose one could say that to apply a presumption would be to adopt a linear analysis, only starting at the other end of the line. One could argue conversely : what else is “nothing else will do” than a presumption against adoption (which is of course not quite the same as a presumption of parental care)? However, this is a philosophical debate that I am not quite up to tonight so I will leave you to ponder it. The practical point is that Russell J seems to have sort of ignored the fact that the original DJ had found that threshold was crossed and that those findings still bound her.

The impression one has from this judgment is that there was quite a lot going on in the interstices. The appeal was in part based on judicial bias. However, the Court of Appeal did not think that Russell J had evidenced bias, she had been guilty of having a fixed (and wrong) view of the meaning of the Court of Appeal judgment from the outset (which led to the judgment being unsound), rather than having a fixed view of the outcome from the outset. One imagines, having read the Russell J and Court of Appeal judgment, that such a nice distinction may have been difficult for the trial advocates to hold in mind in the moment. One can get a sense of how “rancorous” the hearing may have been (to use the Judge’s own word) by reading the passage from her own judgment relating to the Guardian :

He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.
I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.

One can see in this passage the seeds of the bias complaint. In fairness to the Judge, it appears it was subsequently accepted that the Guardian’s analysis was not up to scratch, but the tone is striking. This judge is what my mother would describe as “very minty”. Counsel before Court of Appeal Round 2 chose their words carefully when describing their experience at trial, and ultimately the Court of Appeal listened to the transcripts. Whilst the transcripts did not entirely bear out the recall of the advocates there is a reference to the advocates indicating that “you had to be there”. I have to say, I’m not sure you do – I read Russell J’s judgment and though “owch”. The grounds of appeal asserted that :

The judge was over influenced by her disapprobation of the stance taken by the local authority to such an extent that this clouded her judgment and prevented her from forming a balanced view of the totality of the evidence

In the event, whilst the Court of Appeal did not run with the bias argument, it rolled up all these “tonal” issues into one – the Court of Appeal concluding that various aspects of the judge’s handling of the case were of concern, unnecessary and unhelpful – implicitly if not explicitly accepting (I think) an appearance of bias.

The other significant point is the “unedifying” moment when the Court of Appeal discovered that sloppiness with the rules on communication with experts and a failure to think through what information was going to the experts had potentially contributed to the expert’s change of position in oral evidence (from supporting adopters to supporting rehabilitation to dad), having been given an imperfect explanation of the import of the Court of Appeal judgment by means firstly of an attendance note summary of the judgment made by one party, and subsequently by the judge’s own inaccurate summary of its import during his evidence. It happens too often. Red faces all round when everyone realised nobody had checked what information the expert had been given on this critical point.

Anyway, exactly as with Court of Appeal Round 1, court of Appeal Round 2 have concluded not that Russell J was wrong necessarily but that the flaws of approach were such that the Court of Appeal could not be confident that the decision was sound. And so, back downstairs it goes once more, for a third try at making a decision which can withstand the scrutiny of the Court of Appeal or (miracle of miracles) manage not to be appealed at all. Not the Family Court’s finest hour. Must be awful for the the biological and adoptive families. Presumably the child herself is currently blissfully unaware of the maelstrom all around her, but of course one of the sources of much angst in the course of the hearing was what on earth she would think when she was older and adults tried to explain all of this to her. Goodness only knows. One can only imagine that she is likely to be distressed and angry whether she is living with her current family or her biological family, for either way she faces loss and a terrible pulling in different directions. Maybe it is cheap to say she can at least take comfort from the knowledge that she was loved very much by two families, but perhaps that will be comfort all the same.