D O'H (Children), Re [2011] EWCA Civ 1343

Case No B4 / 2011 / 1599 and B4/2011 / 1917[2011] EWCA Civ 1343
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE WATSON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 10 th August 2011
Before
LORD JUSTICE THORPELADY JUSTICE BLACK
Between
Appellant motherAppellantRespondent fatherRespondentRespondent childRespondent
In the matter of D-O’H (Children)
(DAR Transcript of
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Alistair McDonald QC (instructed by Brendan Fleming Solicitors) appeared on behalf of the Appellant mother.
Venue Ms Jane Probyn (instructed by Birmingham City Council) appeared on behalf of the First Respondent local authority.
The Second Respondent father did not appear and was not represented.
The Third Respondent child did not appear and was not represented.
Ms Elizabeth Isaacs appeared on behalf of the Fourth Respondent child via his guardian.
Judgment
[1]On 26 May this year HHJ Watson gave judgment in proceedings brought by Birmingham City Council in relation to two children, L, who was born on 28 May 2008 and is three years old, and N, who was born on 4 November 1997 and is 13 years old. The judge refused an application by the children's mother for an order under Section 38(6) of the Children Act for assessment of her parenting capacity by an independent social worker. She granted final care orders in relation to both children on the basis of a care plan for L of adoption and N of long-term foster care. She ordered that there should be an assessment of the attachment between the two children and she adjourned the local authority's application for a placement order to await that information, listing it for a hearing in November to be determined along with N's application which was deemed to have been made under Section 26 of the Adoption and Children Act 2002/Section 34(4) of the Children Act 1989 for continuing contact with L once he was adopted.[2]The mother wishes to appeal against the refusal of the assessment by an independent social worker and the making of final orders when, she argues, matters were not yet sufficiently clear and interim care orders should have been made. The local authority want to cross appeal against the granting of N's application for an assessment of the attachment between the children and the adjournment of their placement application with regard to L. Both matters had been listed in front of us for consideration of permission to appeal with the appeal to follow thereafter if permission is granted. In fact we have heard the matter as if permission had been granted and I would be minded in those circumstances to grant permission and I intend to continue to consider the substantive appeals.[3]The father's representatives have very responsibly decided that it is not necessary or appropriate for him to be represented at this hearing but they have written to the court to indicate that in principle he supports all aspects of the mother's appeal. I will say little about his position in this judgment because there has been no appeal by the father in relation to his own assessment.[4]N has her own solicitor, having parted company from the guardian. Her solicitor has also written to indicate that “[N] does not disagree with the [mother's] grounds of appeal” and in relation to the local authority's proposed cross appeal she agrees with the orders made by the judge.[5]We have had some disturbing further information about N provided in an agreed note today. She has it appears been involved in criminal behaviour and on 27 July this year she entered a guilty plea to a robbery which apparently took place in a playground. There is suggestion, denied I think on N's behalf, that a knife was involved in that and she awaits sentencing in mid-August in relation to that offence.[6]We have considered that information but it has to be borne in mind that it is not material that was before the judge when she made the determination that we consider today, although clearly it is going to be material to the determination which she carries out in due course.[7]The guardian continues to look after L's interests. She opposes the mother's proposed appeal and supports the local authority's proposed appeal. Accordingly the parties who are represented before us are the guardian, the mother and the local authority. I start with the mother's appeal against the refusal of a parenting assessment.[8]The starting point for the mother's proposed appeal in that respect is the assertion that the core assessment done by social services was flawed. The trial judge did not consider it to be so. Furthermore she did not consider that the court required any further information in order to make its decision about the capacity of the parents to care for their children because there was already considerable material available to the court in addition to the core assessment. There was no support from any professional quarter either for the proposed parenting assessment. Neither the local authority nor the guardian supported the application and the psychologist who had assessed the mother, Dr Craig, gave evidence that a parenting assessment should not commence until there had been other therapeutic interventions in the mother's life and there had been a cognitive shift evidenced by an acceptance by the mother of the concerns and by her willingness to engage in the process of change.[9]I only need to give a short history in order to set the scene for the submissions that Mr Mcdonald has made so persuasively today in support of this limb of the mother's appeal.[10]The mother comes from southern Ireland. There is an extensive history of family difficulties in Ireland going right back to the time of the mother's own childhood. Her behaviour as a teenager was problematic. Once N came along, social services were involved because there were concerns about the mother's care of her. One can see references to problems such as her drinking heavily, fighting, not leaving N with an appropriate adult and family feuding. In June 2003 the mother was given a 12 month prison sentence for an offence of assault. A feature of the passing years in Ireland was drink. For example, in May 2007 the mother was cautioned by police, this time in North Wales, for being drunk and disorderly; in May 2009 she was arrested having returned intoxicated to a unit where she was living and become abusive to the staff when they woke her up to attend to L's needs, L then being one year old; and in July 2009 L was removed from her care to a place of safety by the police when she was once again drunk. The mother then secretly abducted L from the hospital where he was being kept, police and social services in Ireland were unable to find him and there is mention also in the catalogue of events in Ireland of drugs and of domestic violence between the mother and father and in other relationships.[11]Following the abduction of L from the place of safety in August 2009, the family turned up in England. On 9 August 2009 they sought and obtained from the council in Birmingham accommodation on the basis that they were homeless. N's education in Ireland had been disrupted by the move and she has been uprooted from her friends and support networks. L had also been put at risk by this unplanned clandestine and precipitous removal from Ireland. The mother has said that she did not fully appreciate the implications of this.[12]In September 2009 the father was arrested and pleaded guilty to criminal offences in England. He seems to have been imprisoned, being released in mid-December 2009. Meanwhile at the beginning of December 2009 the mother returned to Ireland for a family funeral, became drunk and disorderly and was arrested. She was then detained in custody, there being an outstanding warrant for her arrest. What she did not tell anyone was that she had left the two children at home in England with no responsible adult to look after them. L was 18 months old at the time, N was 12 and they had to look after them only a young man of 17, Carl Carter, whom the mother had not known for very long and about whom she did not know very much. It appears that Carl Carter attended hospital, having injured himself. N was with him and it seems that she had left L with some friends, saying that she was going to return within an hour, but not in fact coming back. The police were called to the hospital because Carl had caused criminal damage. N was taken to the police station. The police believe that she was having a sexual relationship with Carl. This incident resulted in the children being accommodated by the local authority.[13]The mother returned to this country in early 2010. On 5 February 2010 she and the father, heavily under the influence of alcohol, sought out Carl and stabbed him with scissors. They later said that that was because they had discovered that he had had a sexual relationship with N. They pleaded guilty to wounding and were sentenced to 16 months’ imprisonment. Overall they were incarcerated from February to October 2010. In due course, when the mother withdrew her consent to the local authority accommodating the children, care proceedings were begun with a succession of interim care orders being made from May 2010 onwards. N has been difficult to contain in care. She has been accommodated in residential units and she has come close to having to be accommodated in secure accommodation. L has been with the same foster carers throughout.[14]The core assessment, or rather pair of core assessments, one for each child, was prepared as a matter of urgency by a senior social work practitioner at the beginning of the year 2010. The initial referral had come in on 10 December 2009 as a result of the children having been left in the care of Carl Carter and the first assessments are dated 7 January 2010. Mr McDonald invites us to take the view that these assessments were in fact Section 47 assessments rather than part of the local authority's true core assessment of the case prepared in order to inform longer term decisions about the children. He submits that the core assessment that is material for the present purposes is that of 17 August 2010. That assessment is headed with N's name but it appears to be in relation to both children. Certainly there is not another one produced with regard to L. In terms of form, the core assessment is familiar but Mr McDonald submits that it is lacking in substance. He invites us to take the view that it was prepared in a rush, commenced on 13 August and completed on 17 August, because the local authority had missed the filing deadline for it and a subsequent extension of that.[15]At the time of the assessment both parents were in prison. The social worker, (this time the team manager) who was doing the core assessment was able to observe a contact visit between the mother and the children at the prison and had a relatively short conversation with the mother herself on that occasion. The father was not seen at all either on his own or with the children. Mr McDonald relies on the guidance in Working Together to Safeguard Children 2010 and also the Framework for the Assessment of Children in Need. He rightly argues that the local authority must follow the guidance in Working Together unless there are good reasons to the contrary and he relies upon Working Together in identifying the shortcomings of the core assessment. He points out that according to Working Together a core assessment must analyse the parents' capacity to respond to the child's development or needs within the context of their family environment, that the assessor must take a holistic approach to understanding the family and that those undertaking the core assessment must be aware of the impact of any learning difficulties that the parent may have. Furthermore information compiled for the assessment must be checked with and discussed with the parents.[16]It is argued that the assessment was flawed in fundamental respects. Firstly those conducting it failed to evaluate the extent of the mother's learning disability before beginning the assessment although she had been assessed as having an IQ of 76 when she was a teenager. They could not therefore take sufficient account of the impact of her disability. Secondly there was only a cursory discussion with the mother at the supervised contact session and no in-depth interview or opportunity to respond on factual matters. Thirdly the father was not spoken to at all and the social worker could not therefore consider the whole family context and the role each parent had in it. Fourthly only one contact between the mother and the children was seen and that was in prison. No contact at all was observed with the father. The social worker could not therefore assess the relationships between the parents and the children. Fifthly there was no observation of sibling contact except in the limited setting of the prison contact. Finally it is also submitted that the assessment was out of date, being nine months old and prepared at a time when the mother and father were presenting themselves as joint carers, a situation which, whilst out of date at the time of the hearing in front of the judge, appears now once again to be the case.[17]I do not think that there can be any doubt that the core assessment was much more limited than would have been desirable or normally required by the guidance, not least because the parents were in prison when it was prepared and it was done over a very short period of time.[18]Mr McDonald appeared to be submitting that that was fatal. There being no other social work assessment, the gap could not be filled by any other evidence of any other type. I cannot accept that submission. It is one thing to say that a local authority is bound by the guidance in Working Together. Indeed it is, unless good reason exists to depart from it. Clearly Working Together is relevant for judges too because they need to be aware of shortcomings in any assessment presented to them, but what I cannot accept is that a judge may not proceed without a core assessment or similar social work document even if that is not actually entitled a core assessment, even if there is other evidence available to the court which makes it clear that no matter how favourable the social work assessment may be there are obstacles in the way that prevent the parent caring for his or her child.[19]The application for a parenting assessment by the mother did not turn on whether the core assessment fulfilled the expectations of a textbook core assessment or not. As the judge rightly identified in deciding the Section 38(6) application for a parenting assessment, she had to determine whether such an assessment was necessary to provide the court with the material it required to enable it to reach a proper decision about the care of the children. The principles relating to Section 38(6) have very recently been set out by this court once again in the decision of TL v Hammersmith and Fulham [2011] EWCA Civ 812, and I can detect no error in the judge's approach to the Section 38(6) application even though her decision predated this recent authority.[20]The judge said in her addendum judgment of the 11 July 2011, prepared in response to a request to provide further explanation of her decisions, that the core assessment was part of the assessment process in relation to parenting. She rightly took the approach that it had to be considered along with all the rest of the material about the parents rather than in isolation. So what other information did the judge have and was she entitled to treat it as sufficient to enable her to determine the children's future in terms of the possibility of the parents being able to care for them? She went about her task with Article 8 clearly in mind and with a clear understanding of the domestic provisions that governed the various applications that were before her. It cannot be said that she failed to give proper weight to the need for rehabilitation to be properly explored before settling on arrangements which would in L's case sever his links from his natural family by adoption and in N's result in her remaining in care for the foreseeable future.[21]There was further evidence from social services in addition to the core assessment material including the social work statement of Evelyn Williams of 21 April 2010 and the social work statement of Amy Hanson of 29 March 2010. There was a report from the children's guardian of May of this year. There was a letter from the mother's GP and a statement from her probation officer. There was a report on alcohol testing with regard to the mother which the judge says showed frequent excessive alcohol use for the period of mid-November 2010 to mid-February 2011, although counsel for the mother submits that the report should be understood to show merely “a recent period of alcohol consumption" which is said by the mother to be a reaction to being told the children would not be returning to her care.[22]In addition the mother herself gave evidence and was cross examined and particularly important in the material available to the judge was the report about the mother from Dr Craig, the jointly instructed forensic psychologist who interviewed the mother at prison and also at his clinic.[23]Dr Craig's conclusions were very damaging for the mother. He did recognise the mother's limited intellectual ability, having assessed her as within the mild disabled range, although he thought that possibly an underestimate because she gave up on the tests part way through. He identified risk issues that needed to be addressed on the mother's part including domestic violence, alcohol, her parenting ability, interpersonal communication and engagement with authorities. He found her personality characterised by anti-social and narcissistic traits and he said that her pattern of personality difficulties is inflexible and pervasive over a broad range of situations. He said that features of her personality may prevent her from recognising her risks and engaging in interventions to address them and that she denied or minimised the issues with her behaviour, failing to recognise that any parenting problem existed. He considered the possibility of treatment. He thought the mother required CBT or other psychotherapy to change her parenting style. He also said she needed to undertake intensive rehabilitative treatment for her alcohol abuse. His view was that she needed to maintain change consistently over a significant period but he was not clear that she had sufficiently demonstrated a motivation to change in that way. Intervention by means of various types of professional help can only succeed if the individual recognises and accepts the risks which require intervention and is appropriately motivated to engage in addressing them. Typically this ought to be an intervention that Dr Craig recommended takes six to nine months to complete. He said that considering the mother's learning style, denial, minimisation and defensive interactional style, it is likely that in her case the duration will be much longer. Without change by the mother he considered that the events of 2009 or similar events would repeat themselves. He considered that the mother would need to show she was making some headway in addressing the issues before her parenting could even be assessed.[24]The judge was able to see what the mother had done or not done in the period prior to the hearing by way of seeking assistance for herself. She had not approached Aquarius, an organisation which could have helped her with her alcohol difficulties, and there was quite recent evidence of drinking. She had not approached Relate either or engaged with Women's Aid for domestic violence counselling. She had not approached her GP to be referred to assistance. She had not taken up suggestions made by her probation officer and the judge also found that the mother had not been honest with professionals since her release from prison.[25]The judge was not only entitled to look at all of this material that was available, including the important evidence of the psychologist and the mother's own oral evidence, she was bound to do so, giving it whatever weight was appropriate in the circumstances. Plainly it would not be acceptable for a local authority deliberately or negligently not to assess a family as required of them on the basis that the deficiency would be made good by other evidence in the proceedings including cross examination. The local authority must observe the requirements of good social work practice and comply with the guidance in Working Together. However, that is not to say that where there are in fact gaps in the material provided by a core assessment the judge is not entitled to consider the implications of that in the light of the entirety of the evidence that is available. Indeed as the core assessment is often an early document, it is not at all unusual to find that the case has moved on since it was prepared and that, however flawless the assessment was, it is supplemented or overtaken by other material that has been accumulated subsequently. Indeed Mr McDonald conceded in argument that if a proper core assessment had been done but later a psychological report identified insuperable obstacles for a parent, that later psychological report could supersede the core assessment. His problem was with a psychological report which raised insuperable obstacles in the absence of a proper social work core assessment.[26]This judge was also able to see the long pattern stretching back to the mother's period in Ireland where there were problems as well as the acute incidents in this country more recently.[27]In my view she was amply entitled to take the view that she did at paragraph 89 of her main judgment where she said this:
"It is my finding that the proposed parenting assessment takes the case no further until mother takes up the interventions and makes changes to her most basic behaviours. Until then she will continue to behave as she has always done. She will be able at times to give good enough care to her children but at other times and quite unpredictably to abscond, to abandon her children, to abuse alcohol, to make poor judgments and to fail to appreciate the consequences of her behaviour. This is the issue to be addressed, her inconsistency and at times her unavailability for her children. The question is what needs to be done before she can reliably put her children's needs before her own? Dr Craig has made it very clear. I am satisfied that having heard the evidence from the expert and oral evidence from the mother that none of the interventions are in place or in prospect because mother cannot accept that there is a need to change and cannot, therefore, recognise the need to change, sadly, this being part of her psychological make up."
[28]In these circumstances the judge's refusal to order a further parenting assessment was entirely appropriate and I would dismiss the mother's appeal against her decision on that point. I will leave the balance of the mother's appeal, which is against the making of a final care order as opposed to an interim care order, until I have considered the local authority's cross appeal because it needs logically to be seen in that context.[29]I turn therefore to the local authority's appeal with regard to the ordering of the report on the attachment between the children and the adjournment of their placement application. The local authority argues that the judge was wrong to order a report on the attachment between N and L. It argues that the report was not needed because it was not disputed that there was a bond between the siblings which is important for both of them, and they argue that a report would not assist the court to assess whether there could be face to face contact between the siblings without disrupting L's placement which was the pivotal question. The local authority points out that the threshold had been satisfied. It had been determined that neither parent was able to care for L, and the judge had approved a care plan for adoption for L. It argues that the delay in granting a placement order in relation to him would prevent a settled and permanent placement being found for him and would be harmful to him. The guardian particularly reinforces this point on L's behalf, pointing out that research indicates that the greater the age of a child at placement the more the risk of the placement breaking down, and the statistics indicate that the prospect of placement for adoption decreases dramatically for children over the age of four. L will attain four years of age at the end of May 2012.[30]The local authority also complains that the judge failed to give proper weight to the likely disruption to an adoptive placement that would result if the children continued to have direct contact with each other, about which the local authority say she should have made findings there and then which would have been determinative of the contact application. It also argues that the assessment that is ordered would require a disproportionate use of public funds.[31]The judge was very much aware of the question of delay and its implications for L, as one can see from both her original judgment and her supplemental one. She records very clearly the view of the guardian, who had herself considered whether an assessment of attachment was required, that an expert's report was unlikely to provide any significant assistance in the case and was not necessary in order to formulate plans for the two children. She property directed herself that she had to have regard in relation to adoption decisions to the welfare of the child throughout his life and to his relationships with relatives. She said at paragraph 25 of her main judgment that this gave rise to a duty on the court to have regard to the relationship between the siblings when considering not only the care plan with regard to L but also the placement application. She was undoubtedly aware that maintaining contact between N and L may disrupt his placement for adoption, see for example paragraph 126, although she declined to make any detailed findings about it at this stage, leaving the matter to be determined when the expert evidence on attachment was available. She was conscious of the tension between N's position and L's, and her reflections on the issue in this passage of her original judgment show her appreciation of the complexity of the issue and the difficulty that there may be in reconciling the various considerations.[32]It was within her discretion to require the provision of further evidence in the form of a specialist report on the attachment between the children so that she could take that into account when making the remaining decisions in the case.[33]The scope of the instructions to the psychologist who forms part of the assessment team in this regard has been drawn to our attention today and it can be seen from that that it includes not only the pure question of the attachment between the children but also the view of the psychologist as to whether it is likely that N would succumb to pressure to disclose information about L which might enable his whereabouts to be found, were she to have face to face contact with him. This sensible expansion of the instructions to the psychologist confirms my view that the obtaining of a specialist report was something which had the capacity to assist the judge in the decisions that she had to make.[34]The report was not just important in the context of N's application for contact with L, it was, as the judge said at paragraph 129 of the judgment, also important in terms of identifying a particular placement for L and settling the sort of contact that could take place without disrupting it. We can see the sort of information that the judge was seeking at the end of paragraph 129 and in paragraph 130 of the main judgment where she says this:
"The attachment between [N] and [L] informs [N's] care plan in terms of contact but also would inform the care plan in terms of strategies to minimise the impact of cessation of that contact. It would also inform [L's] care plan in terms of identifying a placement and would give balance to the argument that [L's] safety in a placement must override the children's ongoing relationship. 130. I am left with a very uneasy feeling that this is an essential piece of work which probably should have been done at an earlier stage but that without it I cannot be satisfied that all of the necessary evidence is in place to support the basis for [L's] placement for adoption. I am left with the uneasy feeling that I do not have an answer to the question as to whether face to face contact between the siblings could take place without disruption to the placement and I particularly have regard to the fact that in five years time [N] will be eighteen but [L] will still be only eight years old."
[35]The judge reverted to the question in her supplemental judgment in which she explained that she had approved the care plan for adoption of L but was not able to approve that part of the care plan which provided for the cessation of contact between L and his sister. In that addendum document she particularly remarks on the absence of information about the impact of cessation of contact on N rather than upon L, no doubt because she particularly had in mind N's contact application, although it would be the interests of L as the child who is the subject of that application which would be the paramount consideration in determining the application. However, it is self evident that an expert looking at the attachment between the children may well collect information that would be relevant to the question of how L would be likely to be affected by ceasing to have contact with N, and I have no doubt from the decisions that the judge made and what she said that the judge had that in mind as well as the question of the impact on N.[36]Material of this kind in relation to the effect on L of losing direct contact with N could be very relevant to decisions as to the nature of the placement to be found for L. If, to take an extreme position by way of an example, the expert considered that L would be completely confounded by ceasing to have direct contact with his sister, that might indicate that priority should be given to finding a placement that could accommodate face to face contact even if that meant a longer delay than would normally be desirable for L. In any event I do not think it is possible to isolate L's position from N's. N was treated as having made an application for contact with L and that had to be determined. Without such a determination there could not in fact be any finality about the contact arrangements for L. Although the local authority argued that the judge should have dismissed the contact application forthwith on the basis that the disruption that would be bound to flow from direct contact was such as to rule out a contact order, and that any permanent carer for L is likely to have strong objections to contact given the family history, the judge obviously did not see the issue as being as straightforward as that. She felt, and on the state of the evidence understandably felt, that she was lacking evidence about the strength of the attachment between the children and that she needed to know more about that before she could decide what to do about contact.[37]Some judges may have taken a different view on these facts and made findings straight away about whether in principle contact could work. That would have been a perfectly acceptable course but I do not consider that it can be said that this judge was wrong to order a report on attachment and to adjourn the placement application pending it becoming available or indeed that there was anything inconsistent in what she did in this respect. It was open to her to reach a definite conclusion, as she obviously did, that L would need to be adopted, therefore approving the care plan in its main fundamental respect but to decline to make the order for placement until there was greater clarity about the type of adoption placement that would best suit his needs in the light of more information as to how critical it was for him and the placement that he maintained contact with N. Anyone who tries cases such as this is acutely aware of the dangers of a fragmented approach to determining issues in the case, and one can see why a judge might have been apprehensive about making findings on this issue in a vacuum at this stage which might then need to be revisited in the light of more information becoming available in the assessment and in the light of changes brought about by the court's final decision about the parents and the passage of approximately six months before the November hearing.[38]This judge had the flavour of the case and it was very much a matter for her how she exercised her discretion in relation to what may be seen in some ways as a case management decision. I do not think it can be said that she was wrong in principle to adjourn the final decision about the placement order for a period of months until the report on attachment, which she was entitled in my view to order, was available.[39]The final matter for resolution is the mother's argument that the judge should not have granted a final care order. On the mother's behalf it is argued that the undetermined issue in relation to post-adoption contact between the two children rendered the care plan inchoate because it left open the possibility that it may turn out in the light of the report on attachment between the children that L should be placed with long term foster carers rather than adopted. It is conceded that a court can grant a final care order when the only element of the care plan that is not settled is post-adoption contact. The case of Re K (Care Proceedings: Care Plan) [2007] EWHC 393 (Fam) so decides. However, it is argued that that principle does not apply here because it was in fact not just the question of post-adoption contact that remained open but the whole issue of the degree of attachment between the children and as a result whether L should be placed in foster care or for adoption. This argument proceeds upon the basis that no direct contact could take place in the context of adoption because of the risk of disruption being caused by it including possibly through the identity of the adopters becoming known to the parents through N, and that evidence that the attachment is such as to demand direct contact would therefore force the court to consider fostering as an alternative. However, the fact is that the judge expressly declined to make any determination of whether contact could take place without disruption to the placement as we can see from paragraph 130 of the judgment, and it cannot yet be said that direct contact could only take place in the context of fostering.[40]The way in which I read the judgment is that the judge has determined conclusively that adoption is required for L. That is not at all a surprising conclusion given his age and entirely sustainable. I think it must follow from this that she has ruled out the possibility of keeping direct contact alive by L remaining in foster care if it turns out that direct contact cannot be accommodated with an adoption placement. What she has kept open is only the question of what if any contact could/should be arranged with N in the adoption context. I do not therefore consider that the judge was wrong to proceed to make a final care order. It was a course that had in fact many advantages, resolving much of the uncertainty and isolating a discrete issue for determination in the relatively near future.[41]It follows for all those reasons that I would dismiss the appeals that are in front of us.[42]I agree.

Order

Application granted; appeal dismissed