O-S (Children), Re

On an appeal concerning children’s care, an appellate court should not interfere with an evidence-based discretionary assessment unless the judge was plainly wrong or acted outside the discretionary ambit. A decisive issue may be whether a violent parental relationship has genuinely ended. If it has, earlier violence may be treated as historic. If contact is concealed and the relationship is likely to re-emerge after proceedings, intervention may be required to protect the children. An injunction is equivocal and does not, by itself, establish that the relationship has ended. The children’s welfare remains the paramount consideration.

Following repeated violence by the father against the mother and concerns about the children’s care, the local authority sought care orders for three boys. After a three-day hearing, His Honour Judge Briggs made care orders, approved a care plan for adoption and gave leave to terminate contact. The mother challenged the refusal of further assessment and argued for concurrent planning while assessment continued. The matter came before the Court of Appeal on notice. The central issue was whether the judge had been plainly wrong in concluding that the dangerous relationship remained active and in making immediate protective orders.

Application dismissed unanimously. Lord Justice Laws and Mr Justice Morland agreed entirely with the judgment of Lord Justice Thorpe.

1. The trial judge had made an evaluative and discretionary decision on the evidence. The appellate court was not entitled to interfere merely because it might have assessed the evidence differently. Intervention required a conclusion that was plainly wrong or outside the proper discretionary ambit.
2. The decisive welfare assessment concerned whether the dangerous relationship between the parents had genuinely ended. If the relationship had ended, the violence could be treated as historic, subject to its continuing effects on the children. If the relationship remained concealed beneath the presentation of compliance and might re-erupt after the proceedings, the judge had a responsibility to intervene for the children’s protection.
3. The judge was entitled to rely on the evidence concerning the mother’s repeated concealment of violence, continued contact with the father and the uncertainty expressed by the professional most supportive of her case. The recent missed contact visits were not decisive, but they reasonably increased concern about her responsibility and commitment.
4. The injunction obtained by the mother was equivocal. It could evidence a genuine attempt to secure protection, but it could also be presentational. The absence of an established breach therefore did not resolve whether the relationship had ended.
5. The Court was not persuaded that the refusal of further assessment or the failure expressly to refer to concurrent planning made the decision unsustainable. The formal order was that the application be dismissed, with public funding assessments for the applicant’s and guardian’s costs.

• Middlesborough County Court — His Honour Judge Briggs made care orders for the three children, approved a care plan for adoption and gave leave to terminate contact after a three-day hearing.
• Court of Appeal (Civil Division) — The application was dismissed unanimously. Lord Justice Thorpe gave the leading judgment; Lord Justice Laws and Mr Justice Morland agreed.