IN THE MATTER OF v O (a child) [2001] EWCA Civ 16

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT
(HIS HONOUR JUDGE W POULTON)
[2001] EWCA Civ 16Case No B1/2000/2886Venue Royal Courts of Justice, Strand, London WC2
Between
IN THE MATTER OFO (a child)
Before
Lady Justice HaleMr Justice CresswellMR C ARCHER (instructed by Kent County Council, 27 Castle Street, Canterbury, CT1 2PZ) appeared on behalf of the appellantMR P FORBES (instructed by Kingsford Flower & Payne, 2 Elwick Road, Ashford, Kent, TN23 1TD) appeared on behalf of the guardian ad litemMR C WALL (instructed by Bradleys, 19 Castle Street, Dover, Kent, CT16 1PU) appeared on behalf of the respondentDate 15 January 2001

LADY JUSTICE HALE:

This

[1]is a local authority's appeal from the decision of HHJ Poulton in the Canterbury County Court on 3rd August 2000, when he made a supervision order in relation to a baby boy called O.[2]O was born on 23rd October 1999, so he was 9 months old then, and is 15 months old now. It was common ground then, and remains common ground, that he was to live with his parents, as indeed he had done for all his short life with the help and support of the psychiatric and social services. The local authority and the guardian ad litem wanted a care order. The parents wanted no order at all.[3]O is the mother's fifth child. She has three daughters, P, V and A, who are now aged 17, 16 and 14, from her first marriage to a M. They divorced in 1987 soon after A's birth. In 1989 the mother married again to a Mr RG, whom she had met around Christmas 1988. Her daughters were removed from home in December 1989 and placed in a foster home, where they still live, in a context of serious allegations of sexual abuse. The mother had her fourth child, a son L, by RG in August 1990.[4]In May 1991, RG, the mother and three other family members were tried for sexual abuse of the girls. RG was convicted of the rape of P and indecent assault upon V and A. He was sentenced to seven years' imprisonment. One of the others was put in charge of the jury but acquitted. The three others, including the mother, were acquitted on the direction of the judge. In July 1992 care orders were made in respect of all four children. L has since been adopted and the mother, as I understand it, is not in touch with her daughters.[5]The mother met her present husband in 1992. He was not in any way involved in the previous history. He is some years older than the mother and this was his first relationship of such seriousness that it caused him to leave his family home. The only blemish in his character is a conviction for indecent exposure many years ago for which he was placed on probation. They married in June 1994.[6]O was born in October 1999. Because of the previous history, the local authority had, of course, given prior consideration to what should happen after his birth. There was a prior psychiatric assessment by Dr Judith Freedman from the Portman Clinic and her colleague Mr John Lawrence. They recommended a residential assessment. The family therefore stayed voluntarily in hospital after the birth and then transferred voluntarily to a residential assessment facility known as Fegan's.[7]There was a four-day hearing in February and March 2000 before HHJ Poulton. This is referred to as a "causation" hearing; it was, in reality, a hearing into the facts relating to the mother's degree of involvement in the earlier abuse of her daughters. HHJ Poulton gave judgment on 23rd March 2000 having earlier heard evidence from the social workers who had been involved at the time, from the girls' foster mother, and from one of the paediatricians who had examined them at the time. There was also available a transcript of P's evidence at the criminal trial and of video interviews with the children.[8]The findings that he made were as follows. The mother was not present at the abuse by RG. She did not know of it or see anything. She was however suspicious. She did not want to know what was happening. She did know that M's step-daughter R was abusing P. This was no secret. The mother did fail to protect all three of her daughters. She should have made further inquiries and taken steps to safeguard them. Furthermore, her attitude since the criminal trial had been "seriously inadequate". She had failed to accept the conviction until RG had admitted his guilt. The judge also found that the children had been neglected. They had been allowed to watch pornographic videos. The state of the house was terrible and their clothing was inadequate, although he did not accept that there was sufficient evidence to support an allegation that the children had been so badly fed that they were going round dustbins trying to get food.[9]At the end of the evidence HHJ Poulton made an interim care order, but that was on the basis that the family should go home. In fact they did so the following day. This was at the beginning of March. The interim care orders continued until the final hearing, which took place in July 2000, and again occupied several days. There was evidence of assessments from the social worker, from Fegan's and from Dr Freedman. There were also letters from the mother's psychiatrist, Dr Khine-Smith, reporting on her psychiatric history and current mental state.[10]As far as the threshold criteria were concerned, no harm had yet been suffered by O. Furthermore, the thrust of the case for saying that he was likely to suffer significant harm in the future had, in the judge's view, to be based upon the mental health considerations.[11]The information from Dr Khine-Smith was that the mother was first referred to the community mental health team in 1992. There were several documented overdoses from 1992 to 1996. She had inpatient treatment on several occasions from 1992 until the last admission in April 1997. The diagnosis centered around:
"... Reactive Depression with Secondary Psychotic Features/Paranoid Psychosis/Schizophrenia and Schizo-affective Disorder - Depressive Type."
[12]However, the doctor reported that she began to experience stability in her mental state on her last admission, and to wean herself off her psychotic medication from December 1997. She was under regular review and had sessions with her key worker, the community psychiatric nurse. The current state of her mental health was good. Nevertheless the prospect of recurrence remained, and she was still unrealistic about past events. Dr Freedman supplemented this information by pointing out that whatever the precise diagnosis of the mother's disorder, it did imply a serious mental illness, not one of a kind that simply ceases and goes away forever. Hence a relapse in her condition must remain a serious possibility.[13]The judge took the view that it followed that there was a risk of significant harm to O. It was not possible to be very definite about precisely what harm might be suffered. The highest the judge could put it was that the child might suffer physically or emotionally because the mother's behaviour would become unpredictable were she to suffer such a relapse. He certainly did not hold that there was a risk of sexual abuse. Nor did the judge find the threshold criteria made out on the basis of any risk from the father. He found that that was not proved at all, and in making that finding he took into account the conviction to which I have referred.[14]As to what the outcome of that finding should be, the judge observed that the assessments had all been carried out before the fact-finding hearing and were therefore to some extent tainted with a suspicion of greater involvement on the mother's part in the girls' abuse than the judge had found proved. He rejected a criticism that the parents had not been sufficiently frank and forthcoming with those who were asking them questions for much the same reason. He found that there had been co-operation of a very high level indeed between the parents and the social workers in particular. He found nothing in the Fegan's assessment to criticise them. He did not consider it surprising that the father had referred to the facility as a "ball and chain" or that they were not accepting of the proposal for a care order.[15]Dr Freedman recommended a care order in her written report. She was asked to reconsider this after the fact-finding hearing had taken place, and having done so, maintained her view that that was the appropriate order. In her oral evidence she spoke of a "watchful brief" being needed. The judge agreed that that was what was required. In his judgment he rejected the suggestion that there should be no order. He did so on the basis that there was a possibility that the parents might withdraw their co-operation once the proceedings were over, but he was more concerned that planned regular visits from care workers and from the mother's community psychiatric nurse were necessary for O's safety, and his reason for that was the mental health situation.[16]He found that the mother lacked realism and insight into the position. The father had been to considerable lengths to instruct himself about the nature of the mother's illness. If there was anything serious he would call for help, but he might find it difficult to call for help immediately. The judge also accepted that the father might not see the danger signals arising.[17]He regarded it, therefore, as a classic case for a supervision order. This was not a situation where things were likely to deteriorate so fast that the local authority needed to be in a position to remove the child without even going to court. The local authority could put in whatever services they wanted to put in under the auspices of a supervision order. The community psychiatric nurse would continue to visit as before. He thought it desirable for the parents' self-esteem that they should have parental responsibility and not be subject to a care order unless that was really necessary. He did appreciate that this "watchful brief" would be needed for some time. He expected that the supervision order would be renewed at least twice. He pointed out that there might be less need for it as O grew older and went to playgroup or to school. It was for those reasons that he made the order.[18]He did, however, himself give permission to appeal on 10th August 2000. His reasons for doing so are worth quotation:
"The case calls for a supervision order rather than a care order, except that an order may be needed for some years; probably two or three, perhaps more. The local authority contend that this justifies a care order even if the level of intervention needed is more suited to a supervision order. I thought this point deserved consideration in the Court of Appeal."
[19]Mr Archer, who has appeared for the local authority in this appeal as he has done throughout, has not pressed the argument made in his grounds and skeleton argument that the judge failed adequately to consider the risk of harm and the seriousness of the harm suffered by the mother's daughters. Wisely he has not sought to go behind the judge's findings of fact in relation to the nature and degree of risk to O. It follows that we are looking at a risk of unspecified harm which O might suffer if the mother were to suffer a relapse in her mental health and the father or others not take appropriate steps to protect him. The risk to this child must therefore, in my view, be seen as at the lower end of the spectrum of risk.[20]Indeed, that is recognised in the local authority's own care plan. The plan as from early December 2000 was that there should be monthly visits to the clinic. A family care worker would visit for three quarters of an hour each Tuesday and Friday. There would be one monthly unannounced visit to the home. The health visitor would do a home visit every eight weeks. The community psychiatric nurse would continue to visit the mother at home on a regular basis, the exact pattern of which would be determined by the mother's forthcoming appointment with Dr Khine-Smith. Furthermore, the contingency plan was that if there was evidence to believe the care of the parents was having a wholly negative and destabilising effect on O, an emergency review inter agency meeting would be convened without delay:
"The range of options to be explored would encompass an increased level of service delivery and in the extent of a breakdown in the parenting of O to the extent that he were to become at risk of significant harm [sic], then a temporary foster placement would be found for O, with direct contact with his parents being facilitated on six days each week. This would be for an initial ten-day period to enable a global assessment of need and risk to be undertaken in consultation with the parents."
[21]That care plan clearly contemplates a greater level of service delivery, but not any great interference in the family's life or any rush to remove O, should it be observed that matters were deteriorating.[22]The argument pressed by Mr Archer, ably supported by Mr Forbes for the guardian ad litem, in essence relates to the time scale. The judge accepted Dr Freedman's evidence that the mother's illness will not simply go away. The risk of relapse never goes away entirely, but there may be a good chance that there will not be another after there have been ten years free of psychotic symptoms. It was argued that it was illogical to regard the risk as persisting for that period of time while making an order which only lasts in the first instance for one year and is only capable of renewal for a maximum of three years. Nevertheless, Mr Archer had to accept that the level of service needed by this child and his family both can and should be provided irrespective of an order. The local authority would be failing their statutory duties to the child if they did not do so. The National Health Service would be failing in its duties to the mother if it did not continue to offer her what help and support she needed. There was no reason to suppose that those authorities would fail in their duties.[23]The point, therefore, must be the need for compulsion. Nobody should be in any doubt that a supervision order is compulsory. The parents' failure to co-operate is very cogent evidence indeed that something more stringent may be needed, or, at the very least, that there is a continuing risk of harm to the child.[24]A care order is, however, very different from a supervision order. There are three main points. First, it gives a local authority power to remove the child without recourse even to a family proceedings court for an emergency protection order. The parents' only means of challenging that removal is by an application to discharge the care order, which usually takes some time to be heard, especially if, as in this case, it would have to be transferred to a higher court. Given the judge's findings as to the nature of risk, the slowness of any deterioration, the level of protection available from other sources including the father, it is very difficult to say that the local authority need to have this power. The care plan itself, as I have already indicated, does not suggest that they do.[25]Secondly, it gives the local authority parental responsibility for the child coupled with the power to control the parents' exercise of that responsibility. Again, the care plan does not suggest that the local authority wish to exercise parental responsibility or control the parents' exercise of it. It expressly states, for example, "that O's social, moral and academic education will be the responsibility of his parents". Under "Health" it points out that he "continues to be in good health and he will need to receive the usual check-ups and vaccinations via the local health visitor and GP service". This is not indicative of the suggestion that the local authority need to be in a position to arrange that for him. In any event, that could be done by inserting appropriate requirements in the supervision order.[26]The third difference is one of timing. Mr Forbes in particular has argued that it might be difficult to achieve a further order in three years' time, but of course that difficulty would only arise if by then the risk of harm had disappeared or almost disappeared, or the need for an order had disappeared or almost disappeared. If that were not the case, the local authority would have to investigate and take any action which was thought appropriate to protect the child.[27]All of these considerations, therefore, suggest that the judge, far from being plainly wrong to make a supervision order, was absolutely right so to do. Mr Archer has not relied upon earlier case law on the choice between care and supervision orders. He was probably wise to do so. Each case is an exercise of discretion on its own particular facts and earlier case law may be of limited help in this context. But, in any event, it has to be considered in the light of the Human Rights Act and Article 8 of the European Convention on Human Rights. As I said in the case of Re C and B (children) (Care[28]Proportionality, therefore, is the key. It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also plays their part, and the parents must co-operate fully.[29]Everyone's concern is that O shall have a happy, healthy, safe upbringing where he belongs, with his own parents who are responsible for him. If they fail, they must be in no doubt that others will have to step in. But his future lies in their hands.[30]For all those reasons I, for my part, would dismiss this appeal.

MR JUSTICE CRESSWELL: I agree.

order

future harm) [2000] 2 FCR 614 , paragraphs 33 to 34 at page 625: "I do note that under Article 8 of the Convention both the children and the parents have the right to respect of their family and private life. If the state is to interfere with that there are three requirements. Firstly, that it be in accordance with the law. Secondly, that it be for a legitimate aim, in this case the protection of the welfare and interests of the children. Thirdly, that it be necessary in a democratic society. There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim." Order: Appeal dismissed. Detailed funding assessment of costs.

Cited in 23 later judgments

and 14 more of the most senior