Local government – Care orders – Child protection – Foster carers – Islam

Re B-M (children) sub nom AM v (1) a local authority (2) children’s guardian: CA (Civ Div) (Lords Justice Laws, Wall, Lawrence Collins): 16 March 2009

The applicant father (F) sought permission to appeal against care and other orders made in respect of his three children.

F and the children’s mother (M) were Muslims, and the paternal and the maternal families originated from Pakistan and were members of the Pathan community. M’s brother (B) had been convicted of the murder of his two-year-old daughter. B’s wife (W) had subsequently fled the family home with her son. There were concerns for W’s safety on the grounds that she had ‘disgraced’ the family. She was moved to a secret location. Family members, including M, tried to discover W’s whereabouts. M then set fire to her home, when two of her children were present, in order to incriminate W. M pleaded guilty to arson and was sentenced to five years’ imprisonment. The children were taken into care and placed with long-term foster parents who were non-Muslim, English and white. The local authority acknowledged that the placement was culturally and religiously inappropriate, but took the view that the physical safety of the children was paramount and that if they were placed with F or with culturally and religiously appropriate foster carers it was likely that their whereabouts would be discovered by M’s family with serious consequences for the children. The judge decided that he had sufficient information and made final care orders. He authorised the local authority to refuse contact between the children and their parents. F submitted that the judge did not have adequate information upon which to make a final decision and should have made interim care orders only.

Held: (1) There was no challenge to the judge’s findings of fact, nor any criticism of his self-direction on the law. The question was whether or not the judge exercised his judicial discretion in a manner which was properly open to him. If he did, then on established principles the court could not intervene, and would not do so. Unless F could show that the judge was not entitled to come to the conclusion which he reached, and had not given adequate reasons for doing so, that was the end of the matter, even if the judge’s solution was not one which another judge might have imposed.

(2) F had been acquitted by the judge of playing any part in the conspiracy against W. However, F accepted that the children had suffered significant harm and that he had failed to protect them from it. Further, he had been involved in an attempt to uncover the whereabouts of the placement of the children. Critical to the judge’s conclusions as to the overall best interests of the children were: his assessments of the parties, particularly of F; his findings of fact, particularly relating to safety issues; and his analysis of the expert evidence. The judge had carefully examined every aspect of F’s case, and had reached conclusions which were manifestly open to him. He was fully entitled to give priority in the welfare equation to the physical safety of the children. His rejection of F’s case, both as to an immediate transfer of residence and a deferred consideration, was plainly within the ambit of the proper exercise of a judicial discretion, as was his rejection of the alternative placement of the children in an alternative Muslim household. Furthermore, the judge was plainly entitled to prefer the evidence of the cultural expert and the guardian to that of the psychologist. Once he had reached his conclusions on the principal issue, his remaining orders inevitably followed. No appeal against the judge’s findings and conclusions could possibly succeed. Therefore F’s application for permission to appeal had to be dismissed.

Application refused.

Janet Bazley QC, Aelred Hookway (instructed by Petherbridge Bassra) for the appellant; Anthony Hayden QC (instructed by in-house solicitor) for the first respondent; Clare Garnham (instructed by Lumb and McGill) for the second respondent.