B (A Child) [2012] EWCA Civ 1475

Case No B4/2012/1753

[2012] EWCA Civ 1475

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION

HIS HONOUR JUDGE CRYAN

BT10C00502

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/11/2012

Before

LORD JUSTICE RIX

LADY JUSTICE BLACK

LORD JUSTICE LEWISON

Between

B (A CHILD)Appellant

(Transcript of the Handed Down Judgment ofAppellant

WordWave International LimitedAppellant

A Merrill Communications CompanyAppellant

165 Fleet Street, London EC4A 2DYAppellant

Tel No: 020 7404 1400, Fax No: 020 7831 8838Appellant

Official Shorthand Writers to the Court)Appellant

B (A CHILD)

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Frank Feehan QC & Miss Anna McKenna (instructed by Moss & Coleman Solicitors)

for Appellant

Miss Alison Russell QC & Miss Hannah Markham (instructed by London Borough of Barnet)

for 1 st Respondent

Mr Paul Storey QC & Miss Sheila Phil-Eboise (instructed by Nicola Harries Solicitors)

for 2 nd Respondent

Miss Elizabeth Woodcraft (instructed by Craig Munro Solicitors)

for Respondent Guardian

Hearing Hearing dates: 27 th September 2012

Judgment

Lady Justice Black :

[1]On 14 June 2012, HHJ Cryan granted a care order in relation to A, who was born on 22 April 2010 and was then just over 2 years old. The local authority’s care plan was that A should be placed for adoption but a placement application was not yet before the court.

[2]A’s mother is MM (who I will call simply “M” for the purposes of this judgment) and her father is JB (who I will call “F”); they have been in a relationship with each other since the summer of 2009.

[3]Each parent filed an appellant’s notice during July 2012. Thorpe LJ ordered that the case should be listed for an oral permission hearing with the appeal to follow if permission was granted. We did not, in fact, deal separately with the question of permission as there was no question but that permission to appeal should be granted to the parents and we do grant it.

[4]Judge Cryan described this as a “highly complex case” and it certainly is, as will become clear as this judgment develops. He approached it with enormous care and attention which is reflected in a judgment which is exceptionally clear and easy to read. Judge Cryan came to the case already knowing a considerable amount about M’s situation and background from proceedings in relation to AE, her daughter by a different father, Mr E. He incorporated into his judgment the four earlier judgments he had given dealing with AE. These included a judgment in which he made findings in relation to allegations made by M against Mr E and by Mr E against M.

[5]In Biogen Inc v Medeva plc

[1997] RPC 1

(at page 45) and Piglowska v Piglowski

[1999] 2 FLR 763

(at page 783H to page 784H), Lord Hoffmann highlighted the advantages that a trial judge has over the Court of Appeal and the need for the Court of Appeal to exercise restraint in interfering with a trial judge’s findings of fact and his evaluation of those findings. Although what Lord Hoffmann said is very well known, I will return to it later because it has a particular importance in this appeal. At this stage, I would simply observe that Judge Cryan’s involvement in the AE case meant that his advantage was not limited to seeing the parties and witnesses during the hearing in relation to A; he also brought to that hearing the depth of knowledge acquired from the earlier hearings. It is important to give weight to this when considering his decisions in relation to A.

[6]A has been in foster care throughout her life and has had only supervised contact with her parents. The local authority did not assert that she had suffered actual harm attributable to her parents’ care. Their case was based upon anticipated future harm which they said satisfied the threshold requirement in section 31(1)(a) Children Act 1989 that the child “is likely to suffer …… significant harm” and required A’s permanent separation from her parents under first a care order and then, in due course, by adoption. Judge Cryan agreed with the local authority. The issue for us is whether he was plainly wrong to do so as the parents argue.

[7]There were, of course, two parts to Judge Cryan’s decision.

[8]The first stage was his determination that the threshold criteria were satisfied on the basis that A was likely to suffer significant harm. In relation to this, the parents argue that the risks identified in relation to A were not sufficient to constitute significant harm.

[9]I am inclined to categorise the threshold decision as a value judgment rather than as a finding of fact or an exercise of discretion, as was Ward LJ in Re MA (Care Threshold)

[2009] EWCA Civ 853

. He considered that when reviewing such a decision, the Court of Appeal has to ask itself whether the judge exceeded the generous ambit within which there is room for reasonable disagreement. That is the approach I will adopt.

[10]The second stage of Judge Cryan’s decision was what is sometimes called “the welfare stage” at which he determined which order would be in A’s best interests. The parents argue that permanent separation of the child from her parents was an unnecessary and disproportionate response to the harm that it was alleged A may suffer, that the judge approached the issues of dishonesty, co-operation and M’s behaviour in relation to illness inappropriately, and that he erred in the way in which he evaluated F’s claim to look after A alone if it was not possible for her to be cared for by the parents jointly.

[11]The judge’s welfare determination was undoubtedly an exercise of judicial discretion and it is clearly established that an appellate court should only interfere when it is satisfied that the judge has not merely reached a decision with which it might disagree but exceeded the generous ambit within which a reasonable disagreement was possible and reached a decision which is so plainly wrong that he must have erred in the exercise of his discretion, see G v G (Minors: Custody Appeal)

[1985] FLR 894

How the local authority put their case in summary

[12]The local authority’s case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:

“[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour. There is a real risk that A’s emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm. [F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A. [F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A.”

[13]As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M’s relationship with Mr E and about M’s untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including: i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him; ii) The apparent difficulties in M’s relationship with AE; iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M; iv) The risk that M may impair A’s moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a “tendency to pathological lying”; v) The problem created by social services and other professionals being unable to rely on the truth of what M says; vi) F’s long history of criminality and drug use; vii) F’s refusal to engage with the local authority’s attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them; viii) F’s unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.

[14]The evidence before the judge included quite a large body of expert evidence as well as the evidence of social services and A’s guardian. Dr Bass, a consultant liaison psychiatrist, interviewed M and provided reports about her for the care proceedings. Dr Taylor, a consultant forensic psychiatrist, had interviewed M in the context of criminal proceedings against her in 2004 and assessed her again in 2011. Ms Summer, a parenting assessment coordinator from the Marlborough Family Service, carried out an initial viability assessment of whether the parents, together or separately, could offer good enough parenting to A. Dr Dale, whose background is in social work, also assessed the capacity of the parents to meet A’s needs. Ms Nabi from the Lucy Faithfull Foundation carried out a risk assessment in relation to AE, including assessing M. In addition there were reports dated July 2011 and February 2012 from Dr Bentovim, a consultant child and adolescent psychiatrist, also in relation to AE’s situation.

The facts as found by the judge

[15]Judge Cryan’s judgments are detailed and inevitably long and I do not intend to allude here to all that he said, merely to give the flavour of the facts that he found. References to paragraph numbers are to the main judgment in the care proceedings relating to A unless otherwise indicated.

The judgment of 27 April 2011

[16]The logical starting point is M’s history before she formed the relationship with F. Information about this is contained in particular in Judge Cryan’s fact finding judgment of 27 April 2011. That judgment was given in private law proceedings which M had brought against Mr E in relation to AE. The care proceedings in relation to A were on foot at the time but there were not yet any care proceedings in relation to AE. Later, AE was removed from Mr E’s care by the local authority for the area in which they lived; she remains in foster care.

[17]AE’s family structure is not entirely simple. The reason why will emerge if I give an outline of M’s history. Judge Cryan’s April 2011 judgment, from which I take most of the facts, gives a clear sense of the immense difficulties of M’s life in the twenty or so years before she met F in 2009 which I cannot convey anything like fully in this summary.

[18]M was born in 1970. She alleges that when she was four years old, her father and mother behaved inappropriately towards her in a sexual fashion. When her parents’ relationship broke down, she spent some time living with her grandparents. In 1977, her mother married Mr E and they had two sons. At some time around her adolescence, M went to live with her mother and Mr E. When she was 15 years old, what was to be a long sexual relationship between M and Mr E began. She alleged that she was raped by Mr E; the judge did not find that established but did find that they had a dysfunctional relationship in which he was the dominant partner. M became pregnant by Mr E at the age of 15 and the pregnancy was terminated at his instigation to cover up that fact. Another pregnancy by Mr E was terminated when M was 18. Up to this point, M’s mother was still part of the family but she and Mr E separated when M was 19 and there was a divorce in 1990. M stayed with Mr E and the two boys. In 1998, AE was conceived and she was born in March 1999.

[19]Around this time, M became, as the judge put it, “involved in a series of frauds mostly against financial institutions and the like which netted over £30,000”. The judge commented that it appears that the offences involved a series of relatively sophisticated transactions of a deliberate nature. M was prosecuted and pleaded not guilty. As to the nature of her defence, the judge says this:

“It seems that the defence case was that all counts on the indictment, save count eleven, were part of a conspiracy that stemmed from a BT security officer, who she alleges had raped her half-brother when he was in local authority care and that in tandem with Detective Constable Jones there had been a conspiracy to bring this case against her and set the whole thing up.”

M was convicted in August 2003 and sentenced to two years imprisonment. She was then prosecuted for attempting to pervert the course of justice by virtue of the defence she had run. This resulted in a further conviction in July 2004 for which she received a further sentence of imprisonment of 27 months.

[20]M’s case before Judge Cryan at the fact finding hearing was that whilst she was involved in the offences, the prime mover was Mr E who taught her what to do and accompanied her each time an offence was committed, taking her to the place where it occurred and waiting for her. She also said that her defence had been concocted by Mr E who had a serious grudge against the telephone engineer who had caused him to be arrested for telephone fraud and the running up of vast bills.

[21]Judge Cryan heard and relied upon evidence from counsel who had represented M at her criminal trial. Counsel’s evidence was that it was apparent to him that M was completely dominated by Mr E. He said he had found it difficult to accept that she was involved in the criminal matters on her own. He also spoke of reports during the trial from the court security staff that Mr E had been seen assaulting M as they left the court. Judge Cryan found that Mr E “knew all along of M’s defence and, at least, was in league with her or, perhaps even the driving force behind it as suspected by [her counsel].” However he also found that M “is a habitual and purposeful liar and accomplished fraudster” and he said that her convictions “show that she was prepared to lie, to cheat and to behave in a way which was deceitful and very harmful to others”.

[22]M was away from the E household for some time in prison. After she was released, there were scattered reports in the early part of 2006 of her complaining of domestic violence and/or sexual abuse. Arrangements were made for her to go to a refuge but she did not pursue that. The separation finally occurred in 2009 when M was admitted to hospital, not returning home when she was discharged. She made very serious allegations about Mr E’s treatment of her over more than twenty years. AE remained at home with Mr E; she seems to have been coached to make allegations about M’s conduct to the authorities. M was traced and harassed to come home whilst staying in two refuges.

[23]A theme which runs through the April 2011 fact finding judgment and which continued to have importance in the judge’s decision about A is of the family making allegations, complaints and threats when they felt challenged or aggrieved. The allegations made in response to the fraud charges against M are one example; Mr E continued to develop this line in his communications to the Court of Appeal after M’s conviction in which he alleged, for example, that there had been a “secret memo” circulating in the legal community suggesting that she should be dealt with severely and that this was part of a plan “designed to destroy my family” and to cause his death. Another example was the evidence, which the judge felt unable to discount “on a prima facie basis”, of threats made by M, Mr E and one of Mr E’s sons when complaint was made to the police that a fifteen year old girl had had sex with the son, then 18, and been shown pornographic material on a computer in the family home by Mr E. A further example was the accusations made by Mr E against the family GP that he had sexually assaulted one of the boys. After M had left home, Mr E continued to make complaints. These included a complaint to the Independent Police Complaints Commission in relation to a detective constable who was investigating what had happened to M and then, on a website that Mr E had, in relation to the more senior officer who initially investigated that complaint against the detective constable.

[24]The judge’s assessment of Mr E in evidence was entirely negative. The judge expressed his findings about Mr E in various ways including that Mr E “was prone to seriously dishonest conduct and lying”, that he was “aggressive, loud, domineering and without respect for the truth”, that he “was clearly an entirely egocentric personality” and that he was “a violent, controlling and bullying personality” and “unempathetic”. He said that Mr E attempts to control the world about him. He had no doubt violence was used from time to time against M but he did not find all M’s allegations about violence towards her proved, commenting that M “is a consistent liar and exaggerator”. His detailed findings can be found set out on a Scott schedule completed at the end of the fact finding hearing. The final entry on this schedule in relation to M’s allegations against Mr E reads:

“The actions of Mr E have caused M physical and emotional injury, whilst living in his home she was in fear of her own safety, and in fleeing from his home she has remained in fear for her own safety as a result of his continuing threatening behaviour.”

It is recorded that this allegation was found to be proved.

[25]The judge’s general assessment of M was in line with that of Dr Taylor who had concluded that M was a “very damaged individual with multiple psychological problems which include severe somatisation disorder, compulsive lying and deception of others complicated by possible dissociation and self-deception all of which is occurring in the context of a highly unusual and dysfunctional family situation”. The judge found her “both vulnerable and complex”. Whilst accepting that Mr E sexually abused M and dominated her, the judge said, “I cannot see that there is any very marked improvement in the truthfulness of M now that she has been apart from Mr E for approaching two years”.

Following the April 2011 judgment

[26]If there were any doubt, at the end of Judge Cryan’s April 2011 judgment, about the pernicious influence of Mr E, it was dispelled by events that followed which are described in Judge Cryan’s subsequent judgments in relation to AE, particularly those in May and October 2011.

The May 2011 judgment

[27]The May judgment deals with the local authority’s application for an interim care order which was granted, removing AE from Mr E’s care. The judge recorded that Mr E had “once more resolved….to come out fighting” following the fact finding judgment and that the “tone and tenor” of his disagreement with the judgment had been “unbalanced, vitriolic, obsessive and entirely characteristic of Mr E’s tactics when accused”. It is important to note that in contrast, M realistically accepted that she could not put herself forward to care for AE who was not open to such involvement but she was concerned for AE and, as the judge recorded, “by her tenacity in the matter, she has brought about the opportunity for the local authority to do what it has done, which is to change its position” from letting AE remain at home to seeking to remove her.

The October 2011 judgment

[28]The October 2011 judgment followed a four day hearing which investigated new evidence which had caused the local authority to propose that AE should move foster homes and that her contact with Mr E and his sons should be suspended.

[29]The hearing uncovered further “brazen dishonesty” which led the judge to conclude “that there is no predictable end to this family’s mendacity”. The descriptions in the judgment of what had occurred in contact are disturbing. AE was being manipulated by Mr E and his sons into (amongst other things) believing that those caring for her were lying to her, assisting in a campaign to achieve her return home, and making a written complaint about the social worker. Some contact had been recorded and the judge said that “[l]istening to these abusive conversations was frankly harrowing”. Mr E and his sons addressed AE with “saccharine endearments” but could turn to “the most cruel threats of rejection in order to induce or bully AE to do this or that”. They had told her in one conversation that they did not want to see her on the local authority’s terms, that Mr E had decided that they were not going to telephone her or see her, and that she would have to “choose between us and them”. Ultimately, Mr E told AE that he would have to put her up for adoption, despite her begging him not to do so.

[30]I should make it quite clear that nothing that emerged at this hearing was in any way adverse to M; the evidence was all about the actions of Mr E and his sons. It is relevant because it added colour to the picture of life with Mr E that had emerged in the April 2011 judgment and I think it underlines the damaging influences to which M must have been subject during the years she spent in his household. As the judge said of one aspect of the new evidence, it was “powerful evidence indicative of a great many things within the family which had been discerned previously but [were] further confirmed and, indeed, confirmed in some ways in heightened form” (paragraph 79 October 2011 judgment).

The judgment under appeal

[31]I come now to Judge Cryan’s judgment in this case.

[32]At the outset [18], the judge commented that both parents have “extremely troubled and troubling histories”, each with “a serious history of criminal dishonesty and convictions” and each with “an oft repeated tendency to lie”. He said that he had found it exceptionally difficult to understand the background and said that a full narrative history was not available. His judgment nonetheless contains a considerable amount of information about the parents.

Information about the mother

Judge Cryan said that:

[33]“M’s earlier life sets the context for many of the concerns which have been expressed about her in the present case. Her conduct cannot be seen outside the context of her earlier experiences and behaviour. Clearly, she was for many years under the thrall of Mr E, and might fairly be thought of as a victim within that long-standing relationship. However, having seen and heard her over a long period and having regard to her subsequent conduct, I find it difficult to see her role as being entirely inert.” [22]

[34]He said that it was important to understand “the exceptional abusive psychological forces at work” in the E family, which Dr Bentovim had described as “cult like” [23].

[35]Judge Cryan gave full credit to M for her love for and commitment to A. However, he accepted the local authority’s submission that M had continued the practice of the E household of making frequent false complaints against officials and professionals. He gave examples of complaints in 2010 and 2011. These included three complaints to the General Social Care council about social workers [98], as well as complaints [99] to the NHS, the local authority ombudsman, a member of parliament, and the director of social services. There were various threats including to involve the press, the police, and the court by way of judicial review. An email from M to the Director of Social Services complaining about the local authority included a statement that AE had never had anything untoward happen to her which, along with M’s praise for her brothers, the judge described as “almost breath-taking in its duplicity” given the history. There was also an email to a social worker, provoked by the local authority bringing to an end the practice of the parents doing A’s laundry because cigarette butts had been found in the bag, which effectively alleged (without any foundation) that the social worker had planted the butts in the bag and said “your department will go to any lengths”.

[36]The judge found the pattern of complaint and what he considered to be the desire to control through complaint was also evident in M’s approach to A’s foster care. The judge assessed the foster care as “at the very least good enough” [102] but the parents made complaints about it which led to A’s guardian visiting the foster carer more often than normal. F also shouted at the foster carer at a formal meeting with the result that the foster carer has not felt wholly comfortable in his company since.

[37]The foster carer gave evidence that she took A to the doctor more often than she would ordinarily have done because of the complaints against her (or, as M’s counsel described it to us, that she was made more sensitive about health issues although only taking A to the doctor when she needed to go). Having considered the large number of occasions on which M in particular raised concerns about health matters and the experienced foster carer’s assessment of the situation, the judge found [105] that what was behind the parents raising these health issues was an amalgam of the parents being stressed by virtue of having a poorly child with whom they did not live, focussing a little too much on A’s health needs, and in addition using health issues as a strategic ploy in their struggle with the local authority for control over the situation. Because of M’s personality problems as identified by the experts, the judge found this focus on and use of health issues of concern.

[38]The judge considered whether M’s truthfulness had improved since the fact finding judgment in April 2011 and found little change [107]. He described her truthfulness as “patchy” and found that much that she said was not true. He said [165] that M’s “dishonesty has been on a more or less continuous line” throughout and that it was “right to look to see the pervasiveness of M’s dishonesty and not merely to look at it as reactive to a given situation”.

[39]By way of example, he found that M lied about who was living with her in a recent claim for housing benefit [108] and it was likely that her application for child benefit was also unlawfully based. Events of late autumn 2009 when M went to stay with F’s half sister, CN, (about whom more can be found later) provided more evidence of lying. CN said that M rang her in tears and said that she and F had fallen out and then arrived unannounced and uninvited and stayed for two nights before CN took her to the local authority housing department [49]. M disputed this account but the judge accepted it. M’s accounts of that period were not consistent and included an assertion that she came to London because she had been advised by the local authority to relocate because Mr E was outside her home [50]. The housing department’s records from that time showed, as the judge found, that M had given them a number of pieces of false information. By way of example, she must then have been pregnant with A as a result of her relationship with F but she told them that she was pregnant by her step-father, a solicitor, who was violent; F was “air-brushed” from the picture [51].

[40]Judge Cryan also found [54] that, in the period leading up to and after A’s birth, M had obstructed the local authority’s efforts to find out about AE, including pointing them in the direction of the wrong local authority as the authority responsible for AE, giving her own surname as AE’s surname whereas in fact AE uses Mr E’s, telling them that AE was safe when she did not believe that, giving the false impression that AE was communicating with her, and telling them that she had legal proceedings on foot to gain custody of AE when there were no such proceedings.

[41]Considering the question of M’s ability to cooperate, Judge Cryan said [140], drawing on the examples of the assessment carried out by the Marlborough Family Service (to which I come below) and M’s dealings with the social worker, that “from the start she has failed to cooperate reasonably with the local authority and at times has behaved in a singularly unconstructive way, adopting various tactics I have described. She has cooperated at times and in some respects, but I am satisfied that it can best be categorised as intermittent and inadequate. I am satisfied that the evidence broadly demonstrates that provided whoever M is dealing with appears to be going along with her without challenge, she will cooperate to achieve her ends. If she is questioned, challenged or thwarted cooperation is abandoned and entirely unacceptable hostility begins.”

Information about the father

[42]F has what the judge described as “an exceptionally long criminal history” [25] and has spent a considerable portion of his adult life detained. He was convicted of 52 offences of dishonesty and, as the judge put it, “mostly kindred offences” between 1980 when he was 13 years old and 2008 when he was 41 years old. He had drug convictions in the mid-1980s and a conviction relating to cannabis in 1997. There was mention as recently as 2007 of him having “a crack habit” and occasionally using heroin. His criminal activity also included three convictions for robbery attracting sentences of imprisonment, and convictions for assault whilst resisting arrest and possession of an offensive weapon. He was finally released from prison on licence in May 2009 and he has not been convicted of an offence since then. Drug tests carried out until the summer of 2010 were negative after two positive results in the early stages of testing. A drugs test in July 2011 showed cannabis use (which has continued, see [77]) but not the use of Class A drugs [69].

[43]F has four children by a woman with whom he commenced a relationship in the mid-1990s. The children range in age from 16 down to 5 years old and live with their mother. The judge found that F had exaggerated his involvement with them. It seems that he has what the judge described as “an amiable relationship” with them [40] and sees them from time to time [42] but the judge said [40] that “the evidence suggests that he failed to be a stable, consistent, supportive or responsible presence in their lives and failed drastically to prioritise their interests and needs” and that “his involvement in their lives has been, in practical parenting terms, marginal for most of their lives” [42].

[44]The judgment contains a significant number of examples of F, indeed both parents, being less than frank or helpful.

[45]The judge was satisfied that F was not always frank about his use of drugs. In particular, he told Dr Dale he had not been involved with Class A drugs since 2002 when in fact he was still involved with them in 2007 [76].

[46]The judge also noted that F had refused to submit to hair strand testing for a significant period during the care proceedings. He declined to accede to Judge Mayer’s invitation to do so in June 2010 even though he was warned that this may lead to inferences being drawn against him; he did not have a drugs test until July 2011 [69]. He told the Marlborough Family Centre that the social services could “kiss my arse when they next want a drug test”.

[47]Judge Cryan saw F’s attitude over drug testing as an aspect of his general approach to authority and to social services. He rejected F’s case that it was this local authority and its social workers with whom he was unable to engage, inferring from the history that the picture was much larger than that [79]. He also rejected as completely untenable the assertion of both parents that there had been a failure on the part of the local authority to explain why they were involved and what was concerning them [62].

[48]The judge commented [61] that, entirely unreasonably, F seemed not to accept the legitimacy of the local authority’s concern to investigate his role in A’s life in view of his criminal and drug history and M’s troubled background and seemed not to appreciate [74] that his attitude unreasonably hampered them in their job in a way that disadvantaged both him and A. It was clear from the very first meeting with the social work team that he was unable or unwilling to engage with them. He refused to provide even basic information to them and exhibited hostility and aggression in a fairly early meeting [80]. He was unwilling to enter into any assessment process with the local authority and failed to engage over a protracted period without satisfactory reason [87]. His dealings with social services included a comment, made in a telephone conversation with a social worker in November 2010, that the social worker took (understandably the judge thought) to be a threat to cause her serious harm [86].

[49]The judge concluded that F had “very poor impulse control”, that he “acts to gratify the emotion of the moment without regard for the impact on others, including A”, and that he “has no respect for the role of others if they appear to be frustrating his wishes and puts his own wishes and feelings to the fore” [85]. The judge said that “his mistrust of social services is one of the reasons underlying his failure to engage, but I find that by itself that does not adequately explain, let alone justify his conduct. I am satisfied that there is in addition an assertive wilfulness in F’s personality that does not dispose him to co operate with others save on his own terms” [87]. Even his engagement with Dr Dale was marred by “a disappointing lack of candour”.

[50]F’s angry and threatening reaction to a well-meant attempt by his half sister, CN, to assist illustrated the “unacceptably assertive aspect of F’s personality” [88]. Later events concerning CN were also noteworthy. CN had been prepared to put herself forward to care for A but then decided not to pursue that. Shortly after she reached that decision, an anonymous telephone call was made to the social services department for whom she is a highly respected foster carer. The caller, who M now admits was her, pretended to be a professional who had concerns about CN’s teenage son who was being investigated for issues of a sexual nature and in relation to an offensive weapon. Judge Cryan found that M was acting out of vindictiveness because of CN’s refusal to go along with her plans for the placement of A. He saw it as a “highly concerning further example of the ‘attack by complaint’ tactic used in the E household”. Indeed, he commented later [131] that he was satisfied that this sort of behaviour was still very much present in M’s conduct even without the direct influence of Mr E, commenting that M’s conduct “is that of an accomplished pupil of Mr E”. He was very troubled by the fact that F knew of the CN incident and went along with it and he concluded that F could not be relied on to curb M’s excesses. He said that “[r]ather the two of them would seem to find in each other willing support for their inappropriate conduct” [92]. The parents’ uncommunicativeness about F’s arrest in the street in July 2011 also, in the judge’s view, illustrated their closing of ranks [93].

[51]The judge was not blind to the more positive aspects of F’s relationship with others. He recognised F’s relationship with his older daughters [95] and that he has a strong emotional attachment to A and has been committed to contact with her and cares very strongly about the outcome of the proceedings, as well as that there have been no reports of difficulty with the supervisors of the many contact sessions [94]. The judge posed for himself the question [95] whether, having regard to the evidence overall, the court could have confidence that the positive sides of F’s conduct are likely to assert themselves over the negative and whether he would be capable of sustaining an engagement with M and/or A which would be beneficial and not significantly detrimental to A.

The parents’ relationship

[52]There is quite a long passage in the judgment where the judge deals with the parents’ relationship. It begins [43] with a recognition of the strength and consistency of their united wish to have A placed in their joint care, or in F’s care if that is not possible, and a recognition of their consistent attendance at court, at statutory meetings with the local authority, and at contact which has taken place five days a week for an hour and a half for two years and in the course of which they “behaved unimpeachably towards A”. The judge recorded that “[b]y all accounts they each have a warm, loving and appropriate relationship with their child” and neither has “been seen to put a foot wrong in their direct dealings” with A. The judge said explicitly that he was starting with this because “it is one of the most important things to be put in the balance when considering the case” [45]. He returned to the theme in a later section relating to M [96] in which he said that “one of the most important and obvious aspects of the evidence is her love for and commitment to A”.

[53]The judge’s global assessment of the parents’ relationship is important, however. He said [46]:

“They appear to be deeply loyal to each other ‘against the world’. Each has had a difficult life. It is clear from numerous examples throughout their evidence that each views the outside world, particularly the world of authority, with great suspicion and they seem to be very protective of each other. They share a disregard for the truth and integrity of conduct and seem unphased by that trait in the other. They seem from various things they said in evidence to share a joint belief in the unfairness of the outside world to the other and a preparedness to keep it at arms’ length.”

The expert evidence and professional advice

[54]The expert and professional advice went in two different directions. On the one hand, Dr Dale and the guardian, with some support from Ms Nabi from the Lucy Faithfull Foundation, recommended that A should be placed with her parents. On the other hand, Dr Bass, Dr Taylor, Ms Summer from the Marlborough Family Service and the local authority all considered that this should not happen because it would carry a significant risk of harm to A.

Dr Bass and Dr Taylor [110 et seq]

[55]The judge set out that Dr Bass and Dr Taylor effectively agreed that “whilst not falling into any of the specific formal categories of personality disorder there was ample evidence that M has abnormal personality traits, which are demonstrated by illness deceptive behaviour” [109].

[56]They agreed that M has a long history of somatisation disorder. It was not disputed before Judge Cryan or before us that there is some truth in this although she denies that she suffers from what her counsel described to us as “a full blown version”. Her argument is that any risk that flows from this is low enough to be managed and that this behaviour of hers was a response to living in the E household where, in addition to suffering real medical problems provoked by Mr E’s violence and the large number of abortions she had to have as a result of pregnancies by him, the stress of her life with him produced genuine but psycho-somatic symptoms for which she also sought medical help. She argues that the problem with somatisation has not been evident since she left Mr E, and will not be replicated.

[57]Dr Bass is an acknowledged expert in the field of somatisation and factitious illness. Both he and Dr Taylor accepted that the fact that the updated medical evidence did not indicate that M was continuing to present herself at hospital or medicalising stresses or emotional problems was significant and lessened the concerns but neither thought that somatisation should be discounted as a risk for the future. Dr Bass considered that there was an unquantifiable risk of A being subject to “excessive medicalisation”. He was particularly concerned, and the judge thought reasonably so, about M’s assertion that A nearly died during her alarming admission to hospital in November 2011 which Dr Bass considered to be a grave distortion of the truth. Both Dr Taylor and Dr Bass thought this a risk indicator of factitious disorder.

[58]Dr Bass referred to a need for a person in M’s situation to engage in a therapeutic undertaking for at least a year and to acknowledge the problem. He considered good collaboration and cooperation with social services was critical. Dr Taylor thought that there would need to be very careful monitoring of mother and child. Both thought that there needed to be a strategy to ensure that health care professionals were aware of M’s past and were able to intervene to protect A if symptoms resurfaced.

[59]Dr Bass viewed the issue of somatisation as only a part of the picture, the mother also in his view having a factitious disorder and severe personality problems. He said towards the very end of his oral evidence that it was necessary to look at all aspects of M’s life, not just medical matters, and that current events and current behaviour would be very important for his diagnosis. Whilst instances of somatisation may have diminished in frequency, the overlying deception was crucial in his view and he would be very concerned if there was ongoing deceitful behaviour, as of course the judge found there was.

[60]As the judgment discloses, counsel for M made considerable inroads in cross examination towards removing the foundation that Dr Bass himself had laid for his diagnosis of factitious disorder. Some of this damage was repaired in re-examination when Dr Bass was taken to other features in the medical history and decided that he did not want to resile from his diagnosis, although he said that the disorder was less severe than one normally sees, its intensity being mild to moderate but he thought still concerning. The judge carefully reviewed the material in the light of these developments and was satisfied that Dr Bass was fully entitled to reach the conclusion that he did and justified in not fundamentally resiling from his earlier diagnosis [118].

Ms Summer [143 et seq]

[61]In her assessment, Ms Summer challenged the parents about concerning aspects of their behaviour. This process did not show them in their best light, producing dishonesty, petulance and a failure to engage usefully in the assessment process. The judge considered that this gave rise to a poor prognosis for the parents’ response to professional involvement. He saw it as a clear example of their response to being challenged about their behaviour and of their tendency to react with hostility to those they see as against them. He was satisfied that their behaviour in the assessment spoke very poorly of their capacity to play an appropriate part in what was necessary to ensure A’s safety and appropriate development in future, which included at the very least co-operative engagement with professionals [145].

[62]Ms Summer concluded that it was not appropriate to continue with the viability report and that the parents, whether separately or together, were not likely to be able to meet A’s emotional needs adequately in future. She did not think they were open to therapeutic intervention, neither of them considering there were issues which they needed to address and useful work not being possible without honest relationships with professionals.

[63]One of Ms Summer’s greater concerns was as to how M first stayed with Mr E for such a long period during which AE was at risk and then left AE behind in an extremely abusive environment and failed to do all she could to help her. Ms Summer was also not impressed with F’s inability to see things from AE’s point of view. She was troubled too by the parents’ failure to be candid or open and by their attitude to the question of F’s drug use. She had real concerns about the adverse impact that what she took to be M’s “deceptive behaviour and pathological lying” would have on A who would be confused and at moral risk, in difficulty differentiating right from wrong. This could lead to problems with her social and emotional development affecting her school life, friendships and other relationships, resulting in her adopting similar styles of behaviour and potentially becoming delinquent or criminal later in life.

[64]The judge shared Ms Summer’s concerns about how A would cope with the high levels of M’s dishonesty [155] and considered that at the least it would be very confusing and at worst it would draw A into colluding with M against the outside world. This would be most undesirable in terms of A’s development. It put him in mind of the highly undesirable isolation of the E household.

[65]I turn to the advice that went in the opposite direction.

Dr Dale [158 et seq]

[66]Dr Dale’s evidence was a mainstay of the expert view that the parents would be able to look after A. He began his career as a psychiatric social worker and has worked continuously in the field of child care since 1976. He has provided numerous risk/parenting/family assessment reports over the years. He spent a considerable period of time assessing the parents in interview with them and also meeting paternal family members and social workers.

[67]Dr Dale was critical of Ms Summer’s approach. He had not been challenging in his assessment in the way that she had and he said that his experience of the parents had been different. He thought M had taken important steps away from Mr E’s influence and was showing insight and creating a normal lifestyle for herself. He agreed there was a risk which would require handling by a risk management and family support programme but he thought the parents would be likely to cooperate if they thought everyone was genuinely working towards A’s return. Various professionals would be involved in his proposed programme including the general practitioner, a psychiatrist, a social worker (who he thought might best be an independent social worker) and the health visitor; there would also be drug testing.

[68]Both Ms Summers and Ms Nabi of the Lucy Faithfull Foundation were critical of Dr Dale’s approach, considering that valid assessment required the assessor to see how the parents responded to more difficult questions.

[69]The judge was in possession of material that enabled him to test some of the impressions that Dr Dale had formed in the course of his assessment and this led him to question Dr Dale’s neutrality (see the passage about “verificationism” at [173] and see below). A few examples will illustrate the basis for this.

[70]The first concerns the paternal family, about whom I think Dr Dale should have been disillusioned if he had known what Judge Cryan came to know.

[71]In his first report, Dr Dale said that F appeared to have “a large and supportive extended family”. For his second report, in which there is no indication that he changed this view, he met paternal family members, amongst them KB and AMB. He reported that they had a strong belief that it was unnecessary for A to have been separated from her parents and that it was not possible to obtain a clear explanation as to why this happened. They liked and trusted M, about whom they had no concerns and who they felt had been a stabilising influence on F. They said they would support the parents but if it was not possible for A to live with them, kinship options should be explored although none of them were actively offering themselves as carers.

[72]KB gave evidence before Judge Cryan and he found her to be “a brazen liar on oath about a highly material topic” [168], that is as to whether F and M had ever cohabited. As for AMB, it came to light that she had permitted F to use her home address from which to claim benefits knowing that he was in fact living with M [169]. Commenting on these pieces of information, Judge Cryan said:

“The reliability of the B family to be honest and cooperative cannot in the light of these facts be thought to be other than highly questionable. In a situation where the full and honest assistance of the wider community I have seen as one of the safeguards for A, the fact that the two women who come forward each have serious question marks against them must to a considerable extent neutralise their effectiveness as safe-guarders for this child. It is also to be noted that despite the vaunted supportiveness of this family no one remains who is offering A a home if it is thought that her parents cannot care for her.”

[73]A second example relates to Dr Dale’s acceptance of F’s account that he had been clear of drugs since 2002 (apart from occasional cannabis use) when documentation indicated that he was involved in serious drug abuse in 2007. Judge Cryan considered that Dr Dale should have been aware that he was being misled by F and should have challenged F about this and reported any concern he had about it.

[74]Dr Dale was critical of the local authority for their “stance and style” which he felt had contributed in a significant way to the deficiencies in their relationship with the parents who he thought had understandably felt unfairly treated and adopted a defensive posture. Dr Dale thought the social workers had only paid attention to information which supported their view but Judge Cryan considered that that was in fact what Dr Dale had done. The judge gave examples of why he thought that, such as Dr Dale’s failure to explore the incident of the anonymous telephone call about CN and his opinion that the allegation that the social worker planted cigarette butts was just par for the course.

[75]The judge was concerned that Dr Dale had not given sufficient weight to the difficulties that other professionals had identified in relation to working with the parents. The judge himself thought that it was probable that events would arise which did not please the parents and there would be a serious risk of that producing “a characteristically toxic reaction from them”.

Ms Nabi from the Lucy Faithfull Foundation [121 et seq]

[76]Ms Nabi’s assessment was aimed at the issues of sexual abuse and domestic violence, rather than at broader parenting issues, although her report and evidence went outside the boundaries set, notwithstanding that Ms Nabi had no personal clinical experience with adults with somatisation or factitious illness.

[77]The judge said that in many respects Ms Nabi formed a positive view of M. In her report, Ms Nabi said that she thought it possible that there was “a link between M’s experience of sexual abuse and her somatisation disorder which is likely to be aggravated when under stress”. She commented on the reduction in M’s symptoms and the marked reduction in her seeking medical treatment which appear to have coincided with her leaving Mr E and starting a relationship with F. She thought M’s mental health much improved and took it that M was now in a stable and mutually supportive relationship and motivated to seek support. She picked out that there was no evidence to suggest that M ever presented AE for unnecessary medical intervention (in relation to which the judge observed, however, that it was probably the case that M’s autonomy in that household was limited) or that her mental health impacted upon AE sufficiently to bring her to the attention of professionals. She said that she thought the risks for A of exposure to M’s mental ill-health were currently low and could be managed. She said that it would clearly take time for the wounds left by M’s early abusive history to heal but this could be managed via cognitive behavioural therapy to deal with the symptoms of somatisation and any factitious disorder and long term psycho-sexual therapy to deal with her abuse history.

[78]The judge considered, however, that M had not been honest with Ms Nabi. What she told Ms Nabi about a sexual relationship with her father was significant to Ms Nabi’s view but was highly unlikely to be true. She had also effectively given a false picture of her relationship with F’s family by omitting any mention of the difficulties with CN. Furthermore, Ms Nabi had formed a wrong impression about M’s cooperation with the local authority about liaison with AE’s local authority.

[79]The judge noted that as Ms Nabi considered matters put to her during her evidence, the tenor of her evidence changed and “she effectively express[ed] a much more cautious view about M and her relationship with F whom she had not met”. The judgment includes a number of examples of Ms Nabi’s evolving concerns. For instance, she found M’s anonymous allegations in relation to CN very worrying and considered that this incident demonstrated or alluded to learned patterns of how to manage or manipulate situations and showed an inability to moderate behaviour, a view which the judge shared. She was concerned, and so was the judge, about M’s acceptance of F’s attitude to his recent arrest for violence and the possession of an offensive weapon (which I stress came to nothing). She had not seen F herself but she became concerned in evidence about the effectiveness of F as a moderating influence on M’s conduct in the light of what happened with CN.

The guardian

[80]A’s guardian sadly died shortly after Judge Cryan’s judgment. A new guardian has been appointed but I bear in mind that the absence of the original guardian may have limited what may otherwise have been said in response to this appeal. This is especially so given that Judge Cryan was critical of the guardian and she may have had something to say about that. In fairness to her, I record particularly that one has to bear in mind these days (as the judge did, see [184]), the restrictions on the nature and amount of work that a guardian can put into any one case. I also record that the guardian felt she had encountered unusual difficulties in working with the local authority.

[81]Prior to the hearing, the guardian filed a report which was non-committal. After hearing the evidence, she filed a further report in which she said she firmly believed that there was an alternative to adoption. She remarked on the parents’ love for A and their commitment to contact which had been excellent. She acknowledged, however, that she had some serious concerns about M’s evidence and that she had asked herself whether M was reverting to her previous behaviour/lifestyle or whether this was just a blip. She agreed that it was imperative that the parents were able to work with professionals in an honest and open way and that a risk management programme (which would include the general practitioner, health visitor and a mental health worker) would only work if there was complete honesty and openness from them. She said she was of the opinion that Dr Dale’s approach with the parents was the correct one whereas Ms Summers took a very hard line. She recommended that there should be a supervision order and contemplated that there would be a new social worker to give effect to it.

[82]The guardian appeared not to be aware of the limitations of a supervision order and in her oral evidence changed her advice to recommend a care order with a plan to place A with the parents but she remained firmly of the view that adoption would be wrong and was also worried that there would be delay in finding adopters for A.

[83]Judge Cryan’s judgment set out the limited role that the guardian had played during the care proceedings and the judge’s concern that in a case of this complexity she had not been able to engage more closely so that she could help the court from a more personally informed position. Her assessment of the family support network was described by the judge as “virtually useless”. His overall conclusion about the guardian was that she was “an unimpressive witness whose input to this complex case was little short of superficial”.

The threshold decision

Judge Cryan said [189]:

[84]“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. I am satisfied from the evidence of Drs Bass and Taylor that when A was taken into the care of the local authority some two years ago now she would have been at risk of significant harm from the care likely to be given to her by her parents. I am satisfied that the mother suffered from each of the disorders which the doctors have diagnosed and following on from that I accept their evidence that in the way described by them there was a risk of significant harm being caused to A. In addition, though for the purpose of the section 31 threshold such considerations are otiose, I am satisfied that the matters identified by Ms Summer, whose evidence I accept, cause me considerable concerns. In particular, curious as it may seem in light of the parents’ obvious commitment to contact, I would be seriously concerned about the parents’ capacity adequately to promote her emotional welfare if she was in their full-time care.” (minor typographical corrections made)

The welfare decision

The judge introduced the welfare section of his judgment with this paragraph:

“190. The risk to A’s welfare is a complex one. In one sense it is clear that it has diminished with time, but it has not gone away and it is a continuing risk because of the triggers which cause M’s somatisation disorder and factitious illness disorder to become florid again. The triggers are the sort of stresses which life throws up unpredictably from time to time and the fact that M is recognised, even by the experts who would wish to place A with her, to require a safeguarding package to be put in place demonstrates the need for on going concern.”

[86]The judge went through the welfare checklist, alluding to the various features that were more fully described in the rest of his judgment. He recognised the importance of the parents in A’s life and the child centred love they had given to her “in spades” in contact.

[87]He considered the conflicting advice that he had received and explained why he was not persuaded by Dr Dale and the guardian. Dr Dale had not taken into account a number of important features and his criticism of the local authority and of Ms Summer was not justified. In contrast to Dr Dale, the judge himself considered [196] that “when faced with a challenge to some of the distorted elements of their world view, or with a refusal to be compliant, [the parents] react as they did to Ms Summer, the social workers and Ms Noel. They are controlling and wilful. That does not mean that they are incapable of good behaviour when they choose. They clearly are, but it does not mean that their unacceptable behaviour is merely reactive, for example, to the mishandling of events by others.”

[88]The judge therefore took the view that Dr Dale had reached his conclusion by a defective process. The guardian had been heavily dependent on Dr Dale and in so far as her view had been formed for other reasons, the judge did not consider that she had demonstrated good judgment in the matter.

[89]That left Judge Cryan with the other group of experts who were advising against a placement of A with the parents. He was persuaded by them that [197]:

“what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where A would be safe and protected from emotional and/or physical harm identified by Drs Bass and Taylor. ”

[90]At the invitation of F’s counsel, he added to his judgment to consider specifically whether A could be placed with F on his own if a joint placement was not possible, as he had concluded was the case. He underlined that F did not accept the risks which had been found to be present in a placement with M and that there was no prospect of F being a practical force for their amelioration. Indeed, for reasons he set out, he thought F would compound the problem. He considered it would be wholly unjustified to assess F further as a sole carer because there was a high probability that the parents would not separate in any meaningful sense. The judge said that he was satisfied that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded”. Even without that, F’s history of criminality and drug abuse and in relation to his involvement in the lives of his other children as well as the examples of his failure to control his own reactions and to act in A’s best interest gave the judge grave reservations that he would be able to look after A if left to his own devices. Any attempt to place A with him would require very close involvement with professionals and the judge had no confidence in him dealing with this constructively with honesty and openness.

[91]Accordingly, the judge endorsed the local authority’s care plan and made a care order. The submissions in support of the appeal M’s grounds 1 and 2: risk and significant harm, proportionality and the welfare stage

The submissions in support of the appeal

[92]It was M’s case that the risks identified were not sufficient to constitute significant harm as required for the threshold. However, even if the threshold was crossed, the feared harm was not yet on the horizon and in any event it was disproportionate to respond to such risks as there were by removing the child permanently from her parents.

[93]M’s counsel submitted that the judgment concentrated on the parents’ attitude and behaviour in reaction to the actions taken by the local authority and failed to articulate what risks A would run if she was in their care. The judge did not address the risk of significant harm until paragraph 189 in a 203 paragraph judgment and then did so in a single paragraph without analysis. When he returned to the question of risk in the welfare section of his judgment, he did not analyse what would actually go wrong for A or what the triggers would be for M’s return to somatising despite what counsel described as M’s “acknowledged stability” since leaving Mr E’s home. He failed also, it was submitted, to “balance the proportionality of risk against the need for removal” by reference to Re C and B (Care

[94]M’s argument relating to harm proceeded on the basis that the local authority’s case was largely dependent upon M’s illness-related behaviour, the other aspects that had concerned the local authority earlier having fallen away or receded into the background. It was submitted that even if a diagnosis of factitious illness disorder was appropriate, it was not open to the judge to find that M’s condition was such that she would induce or fabricate illness in her child and furthermore, she had not been shown to “over-medicalise” any child she had cared for. There was no evidential basis for the judge’s acceptance [192] that physical harm could not be discounted.

[95]It was argued that the possible risks identified during the hearing were: a) that A would “at some undefined time in the future, model her behaviour on the mother and thereby react to stressors by seeking medical attention” b) to the extent that M suffers from factitious illness disorder, that A would also model such behaviour c) to the extent that M exhibits extreme dishonesty, that A might model that d) the risk arising if F returned to class A drug use and M failed to protect A in relation to it. Of these, it was submitted that the drug risk was not a serious part of the local authority’s case given that F now only occasionally used cannabis and that the other three areas of risk were “conditional, contingent, inchoate and potential”. The route by which they would arise was not clearly identified and there was, in contrast, a clear mechanism by which to prevent the medical risk which did not require parental cooperation, that is the NHS “gatekeeper system” to which Dr Bass referred.

[96]Detailed complaint was made about the way in which the judge dealt with aspects of the evidence. Prominent amongst the criticisms were the following: i) Complaint was made about the way in which the judge dealt with Dr Bass’s re-examination, permitting the local authority to put references to him from the medical records which he had not himself identified as relevant to his diagnosis but which he accepted as supportive of it. The judge was criticised for relying upon this “shored up” opinion without dealing with the detailed case against Dr Bass’s factitious illness diagnosis which had been put before him in M’s written submissions. It was submitted that what the judge did was to decide in favour of the diagnosis by simply comparing the local authority’s case with Dr Bass’s criteria for diagnosis and that this was a significant error. ii) His treatment of Ms Nabi’s evidence was said to be flawed in that he did not refer to her assessment that M posed no risk to child and had good insight into protective parenting (§40). iii) He failed to give sufficient weight, it was argued, to the numerous factual errors and invalid assumptions in the Marlborough Family Service assessment which he gave only passing mention when they were in fact crucial because it was essential that a challenging model of assessment such as Ms Summers used should be based on accurate facts (§41). iv) He failed to mention the social worker, who accepted in evidence that there was no physical, sexual or educational risk to the child and no suggestion that the parents would not offer her adequate physical care in the community and emotional warmth and who accepted there was a warm emotional bond between parents and child (§44). Her evidence in cross-examination had been that the parents’ attitude had never prevented her from undertaking her work properly with A, that A was at no risk of physical, sexual or educational harm from them, that they had a warm emotional bond with her that was likely to be maintained in the community and that the risk was that A would model her behaviour on her mother as she grew up so as to resort to over-use of medical professionals and/or lying.

[97]Counsel invited our attention to a number of authorities, domestic and European, in order to provide a framework for the consideration of their factual submissions, whilst rightly identifying that there is relatively little authority on the meaning of “significant harm”; I will consider some of this jurisprudence a little later. Counsel submitted that the section 31 threshold is not a low threshold and that the requirement that the harm should be “significant” should not be diluted but interpreted in the light of the fact that any interference with family life must be “necessary”.

[98]They argued that the risk at its highest is that A “may develop unacceptable or unusual behaviour” but that it is not said how that would harm her or others.

[99]In a passage of their skeleton argument which brings to mind some often-quoted words from Hedley J’s judgment in Re L (Threshold Conditions)

[2007] 1 FLR 2050

(see below), they said:

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

[100]They submitted that to justify interference in family life, the harm which is foreseen must have some element of immediacy or at least reasonable proximity which is lacking here given the number of contingencies upon which it depended and given that the general practitioner would act as a safeguard against problems developing.

Ground 3: failure to give reasons

[101]This ground focussed on the judge’s acceptance of Dr Bass’s diagnosis M’s alleged factitious illness disorder. It was, in effect, an elaboration of the complaint in Grounds 1 and 2 about the way in which the judge treated Dr Bass’s evidence. I note, however, that amongst the matters to which counsel referred particularly under this heading were the judge’s failure to deal specifically with what they described as the destruction of a main plank of Dr Bass’s evidence i.e. his view that M had been deceiving doctors when she insisted that she had an ectopic pregnancy followed by the removal of an ovary (whereas this was in fact confirmed by pathological evidence) and also the judge’s failure to deal expressly with the real likelihood that genuine repeated presentations to the doctors were needed as a result of M’s numerous terminations of pregnancy and Mr E’s assaults.

Ground 4: honesty, lies and cooperation

[102]It was argued that the judge erred in his assessment of M’s ability to cooperate with a protection plan because he failed to deal with her detailed rebuttal and explanation of the various allegations against her in relation to honesty and cooperation or to remind himself of R v Lucas and to exercise caution in drawing inferences from such lies and dishonesty as were proved.

F’s grounds of appeal

[103]F supported M’s grounds of appeal but added a number of grounds of his own criticising the judge’s decision not to permit him to be assessed with a view to looking after A on his own. They argued that this should have happened given that the majority of the reasons advanced by the local authority related to M and the section 31 criteria were met “at the lower end” (see [189]) with the guardian and Dr Dale supporting care by both parents. They argued that the judge wrongly refused F’s proposal as he has a very strong relationship with A, would be able to manage her care with support, and could cooperate with professionals, see for example the evidence of the guardian and Dr Dale.

[104]They acknowledged that F had “a long history of drug taking, previous convictions, a history of economy with the truth and a difficulty engaging with certain professionals” but there were many parents with similar deficits providing good enough care. The judge failed, they submitted, to analyse properly whether F’s deficiencies realistically excluded him from caring alone for A and gave reasons for rejecting that which were “thin in the extreme”. Removing A from him amounted to social engineering.

[105]Furthermore, the judge erred, they said, in concluding that F would not separate from M as he had never had to face the reality of a judgment identifying what was wrong with her and should have been given the opportunity to reflect on it and then be assessed. There was time for this as the placement order proceedings had not yet been started.

Guardian’s position on appeal

[106]The guardian’s position in relation to the appeal was unusual.

[107]Counsel for the guardian made clear that although the judge’s view of the case differed from the previous guardian’s view, which the new guardian adopted, it was not argued that the judge was wrong in concluding that the threshold had been established or that it was outside the bounds of his discretion to decide that a care order with a plan for permanent removal was required. Indeed, when she received the judgment, the guardian had formed the view that she did not herself wish to launch an appeal on behalf of the child, although she indicated that she may support an appeal by the parents. We were told that her view was that the judge’s decision was based to a large extent on his findings concerning the veracity of the parents and the difficulties which flowed from that and that those findings were ones he was entitled to make. Indeed, she herself had said in her final report that the strategy of a risk management programme would only work if there was complete honesty and openness from the parents. She was also influenced by the need for decisions to be made without delay so that A could have stability and security and start to make new attachments.

[108]In the circumstances, counsel’s skeleton argument on behalf of the guardian confined itself to addressing, helpfully and in quite a neutral form, the various issues raised by the other parties. It acknowledged that all the experts in the case felt there was a risk and reminded us that the issue was how great that risk was and whether it could be managed.

[109]She helpfully identified not only the arguments that could be advanced in support of the appeal as to the weight given by

the judge to various aspects of the evidence but also the risks in the case which she said were:

“(i) mother accepts some somatisation, (ii) there is a risk of learned ingrained behaviour, (iii) mother has to be taught how to relate to father ‘normally’, (iv) father has to accept mother presents some risk, (v) the extended family have to be educated about the issues.”

[110]To these she added M’s fraudulent behaviour and F’s history of offending which meant that either or both of them might be sent to prison in future.

The local authority’s position on appeal

[111]The local authority opposed the appeal and their submissions were of assistance to me in formulating my own view of the points advanced by the other parties. It is not necessary to allude to their arguments separately here.

Discussion

[112]The judge identified the complexity of this case. The guardian’s inability to decide what she thought the outcome should be until the very end of the evidence underlined the difficulties and the professionals were split as to what should be done although all accepting there was a risk. In such a case, the Court of Appeal must be particularly cautious and must avoid approaching the appeal as if it were itself making the determination at first instance. Judge Cryan has heard weeks of evidence over the course of his dealing with M and the E household and latterly in the care proceedings relating to A. We have heard none. Our function is to subject his decision to rigorous scrutiny, having regard to the evidence put before us in documentary form and the arguments advanced by the parties, not to take the decision he took all over again.

[113]I alluded to Piglowska v Piglowski (supra). What Lord Hoffmann said there (page 783H) is of such central relevance in this case, as in many other family cases, that I will reproduce it in full here. The appeal with which he was concerned was an ancillary relief appeal, hence the references to sections 24 and 25 of the Matrimonial Causes Act 1973, but his observations are of wider application. He said: “ In G v G (Minors: Custody Appeal)

[1985] FLR 894

, 898G, this House, in the speech of Lord Fraser of Tullybelton, approved the following statement of principle by Asquith LJ in Bellenden (Formerly Satterthwaite) v Satterthwaite

[1948] 1 All ER 343

, 345, which concerned an order for maintenance for a divorced wife: ‘It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’ This passage has been cited and approved many times but some of its implications need to be explained. First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc

[1997] RPC 1

: ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’ The second point follows from the first. The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in s 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. The reason why I have taken some time to deal with the Court of Appeal’s assertion that the judge did not realise that she was entitled to exercise her own discretion is that I think it illustrates the dangers of this approach. The same is true of the claim that the district judge ‘wholly failed’ to carry out the statutory exercise of ascertaining the husband’s needs. Thirdly, the exercise of the discretion under s 24 in accordance with s 25 requires the court to weigh up a large number of different considerations. The Act does not, as I have said, lay down any hierarchy. It is one of the functions of the Court of Appeal, in appropriate cases, to lay down general guidelines on the relative weights to be given to various factors in different circumstances. M v B (Ancillary Proceedings: Lump Sum)

[1998] 1 FLR 53

, emphasising the importance of providing the father of small children in the care of his divorced wife with accommodation in which he can receive them, is a good example of such a case. These guidelines, not expressly stated by Parliament, are derived by the courts from values about family life which it considers would be widely accepted in the community. But there are many cases which involve value judgments on which there are no such generally held views. The present case is a good example. Which should be given priority? The wife’s desire to continue to live in the matrimonial home where she can conveniently carry on her business and accommodate her sons, or the husband’s desire to return to England and establish himself here securely with his new family? In answering that question, what weight should be given to the history of the marriage and the respective contributions of the parties to the family assets? These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the 1973 Act. The appellate court must be willing to permit a degree of pluralism in these matters. The judgment of Brennan J in Norbis v Norbis

(1986) 161 CLR 513

contains a valuable discussion of this question.” ‘It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’ ‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’

[114]With that passage very much in mind, I turn to the arguments advanced by the parents, looking first at the legal framework.

The legal framework

[115]Noting that there was relatively little direct authority on the meaning of significant harm in section 31(2)(a) Children Act 1989, the parents’ counsel drew upon various authorities with the objective of setting the parameters of it. The following propositions emerged. The notion of significant harm had to be considered in context, including the cultural, social and religious circumstances of the particular child and family (see e.g. Oldham v E

[1994] 1 FLR 568

and Re K; A Local Authority v N and others

[2007] 1 FLR 399

). Only when children are put at unacceptable risk should there be intervention (Re B (Care Proceedings: Standard of Proof)

[2008] 2 FLR 141

. The harm must be significant enough to justify the intervention of the State and disturb the autonomy of parents to bring up their children in the way they choose (Re MA (Care threshold)

[2010] 1 FLR 431

). There must exist circumstances pointing to the ‘necessity’ for such an interference with the right to family life (K and T v Finland

[2001] 2 FLR 707

, a decision of the ECHR). In order to determine whether the protective measures were necessary, it has to be considered whether in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for Article 8 purposes, the margin of appreciation varying in the light of the nature of the issues and the seriousness of the interests at stake such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit (another decision of the ECHR, Kutzner v Germany [2002] application number 46544/99).

[116]In none of these authorities is significant harm defined and I do not wish to attempt a definition either. It seems to me that to do so would potentially get in the way of the family courts as they attempt to deal with the infinitely variable problems that come before them. The position is put in the best possible way by Hedley J in Re L (CareThreshold Conditions)

[2007] 1 FLR 2050

when he said:

“[50]What about the court’s approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it’s intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this: ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.’ There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done. [51] That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court’s and social services’ powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s 31(2) is made out. Such an approach is clearly consistent with Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment, Art 8(2) and s 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in Re H and others that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy.”

[117]These authorities dealing with significant harm also illuminated the issue of the judge’s welfare decision as there was, as is so often the case, a marked overlap between his threshold and welfare decisions. When considering the welfare decision it is helpful, additionally, to keep firmly in mind, as did the judge, what Hale LJ (as she then was) said in Re C and B (Care

[118]I move from the law to a consideration of the facts of this case.

[119]Although a significant focus of the argument before us was upon M’s medical behaviour and particularly upon whether her somatisation was sufficient to justify the orders the judge made given that there was no evidence of inappropriate consultation since she left Mr E, and whether she could additionally be said to suffer from factitious illness disorder, in fact the judge’s consideration of the case was rightly considerably wider than this. All the professionals involved in the case, whether or not advising that A should be united with her parents, accepted that there were risks. The focus of each individual witness varied depending on their point of view but the field was not limited to the acknowledged risk that M’s distorted behaviour in relation to illness (whatever it may be termed) may not be historical only and may revive. It included also wider risks to A’s emotional welfare posed by M’s personality problems and her non-medical behaviour, as well as F’s conduct separately and in conjunction with her.

[120]Given the focus of the hearing before us, I will deal in some detail with the type of harm that I consider the judge was entitled to find was a real possibility here. I do not accept that he erred either in the harm that he identified or in treating it as of significance. Furthermore I do not accept that the judge’s reasoning about harm and risk is confined to the latter parts of his judgment; he refers to both issues repeatedly throughout it as I hope can be seen from my earlier summary of the judgment.

[121]The judge was clearly aware of the need to look critically at what harm there actually was and in particular to separate that issue from the question of whether the parents would cooperate sufficiently with social services. This was evident not only from the judgment but also from a passage to which we were taken in the cross-examination of the social worker where at one point the judge intervened to explain to her that it did not matter how uncooperative parents were with social services if there was no risk against which social services needed to guard. He isolated for her the questions, “What is the risk to A that is actually being guarded against?” and “Why is it necessary [for social services] to engage with M?” (transcript 7/35).

[122]The corollary of the risk of M’s medical behaviour reasserting itself was the risk that A would be harmed by the “intergenerational transmission of abnormal health behaviour” and “excessive medicalisation”, which terms are self-explanatory even if not part of everyday language. This harm would not necessarily be physical but the judge did not discount the risk of physical harm. He is criticised for his acceptance of such a risk. The criticism is misplaced in my view. He found only that there was a risk of over-treatment or inappropriate medical treatment. He was undoubtedly entitled to find that there was a risk that M’s illness related difficulties, if they reappeared, would lead her to present A inappropriately to doctors and unnecessary treatment was a logical potential consequence of that. His finding about the parents’ approach to A’s health whilst she has been in foster care added substance to this risk as did M’s exaggerated description of A’s condition on her hospital admission to which both Dr Taylor and Dr Bass attached significance and which might, if repeated or made to those not in possession of the facts, influence her medical care as the judge said.

[123]Ms Summers dealt with the harm flowing from M’s chronic lying and F’s active tendency to dishonesty [192] in her report at paragraph 6.5. She considered that as A got older and reached more sophisticated levels of understanding, she would become aware that her mother’s version of the truth differed from her own which would be confusing for her and force upon her difficult decisions about whether or not to collude with her mother against the outside world such as friends, school and professional agencies. She said that exposure to persistent and longstanding patterns of lying would present a moral risk to A, potentially making it difficult to differentiate right from wrong which could lead to problems with her social and emotional development affecting school life, friendships and other relationships. Continued exposure to deceptive behaviour was likely, she thought, to result in A adopting similar styles of behaviour which would potentially have serious consequences in later life, such as delinquent/criminal behaviour.

[124]The judge said he shared Ms Summers’ view but he had plainly also made his own assessment of the likely emotional risk/harm to A from features of the case other than M’s illness related behaviour. He had the evidence of Dr Bass and Dr Taylor that M had personality problems and he had found a catalogue of ongoing deception which Dr Bass had indicated he would find very concerning. The catalogue can be found in full in the judge’s judgment and I have referred to it above so I will only briefly draw together a few of the features here.

[125]I would attach particular importance to the findings that the judge made about M’s position in the E household. M had plainly suffered very considerably in that household and she deserves sympathy for the abuse inflicted upon her there but the judge’s findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur. There was, to borrow phraseology from the guardian’s skeleton argument, a problem about learned or ingrained behaviour. The judge did not see M’s role in the E household as entirely inert [22]. In the April 2011 judgment, he described her as “a habitual and purposeful liar and accomplished fraudster” and said he could not see that there had been any very marked improvement in her truthfulness despite her nearly two year separation from Mr E. Her use of complaining tactics since she separated from Mr E, as detailed in the judge’s current judgment, led him to describe her as “an accomplished pupil of Mr E” [131]. The incident when M behaved vindictively with CN was redolent of the E household and worrying. It will be remembered that the judge also found that her dishonesty was pervasive and not merely reactive to a given situation such as the proposal that A should be adopted [165], giving examples which substantiated this assessment.

[126]F could not be relied on to curb the excesses as he had known of M’s inappropriate activities and furthermore had not been entirely candid himself in ways which the judge described. The judge also found him to have very poor impulse control and to have an assertive wilfulness about him as well as a problematic way of approaching authority including social services. The wider context was that F had not played a full role in the upbringing of his other four children and had an extended history of criminal behaviour and of taking Class A drugs, albeit that in more recent times he had not been convicted of any offences and had confined himself to cannabis.

[127]The judge’s assessment of the couple’s relationship was that they were deeply loyal to each other against the world, viewing the world of authority with great suspicion and sharing a disregard for the truth and integrity of conduct [54]. It will be recalled that he referred to their “characteristically toxic reaction” when matters did not please them as they probably would not at times [177] and said that they were “controlling and wilful” when challenged on some of the distorted elements of their world view or faced with a refusal to be compliant [196]. Commenting that there was a high probability that F would not separate from M in any meaningful sense in order to bring up A alone, he said that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded” [199].

[128]Counsel for M submitted that non-medical risks of the sort identified by the local authority and the judge were not what the Children Act was driving at. However, I agree with counsel for the local authority who submitted that it is a question of degree. The judge was best placed to assess the situation as a whole and to make the necessary value judgment about whether the threshold criteria were established and whether a care order was required. Somatisation might not have been an active problem for M in recent times but the same could not be said of her other maladapted behaviour and the judge was entitled to take the view that he would have to proceed upon the basis that there would continue to be problems. The emotionally harmful effects of maladjusted behaviour, albeit it may be said that they were in a more extreme form, had been amply demonstrated in the course of AE’s case. That the judge had made the link with this can be seen from his remark at [155] that the “highly undesirable isolation of the E household comes to mind”.

[129]It was argued on the parents’ behalf that the risk/harm was not sufficiently immediate. No doubt it could be said that A, at her present age, would not be old enough to appreciate the difficulties in her parents’ behaviour. However, a child’s emotional and social development begins from the earliest stages whether he is conscious of the influences upon him or not and, as the social worker said in her statement (C44), the actions and behaviours of parents can have a long lasting effect on children from an early age. Furthermore, this was not a case in which there appeared to be any realistic hope that things would change in future and a placement of A at home followed by a later removal into care would import a danger of more emotional damage plus even greater difficulties in finding a suitable permanent placement.

[130]In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy. They were also of long standing and had not only manifested themselves in response to the intervention of this local authority. There is no doubt that the judge was entitled to take the view that any strategy to manage the risks would have to go beyond the safeguard of the watchful eye of the general practitioner and would need to involve social services. The parents needed to have the capacity to engage with professionals to ensure that A was safe from harm and there was ample evidence on which the judge was entitled to conclude that they would not be able to do this.

[131]The judge’s conclusion did not take him into territory of his own. He was supported by the advice of the local authority and was able to rely on the evidence of Drs Bass and Taylor. He had good reasons for finding the advice of Dr Dale and the guardian less persuasive.

[132]Before concluding, I need to deal with the specific complaints made by the parents about the judge’s approach.

[133]I am not persuaded that he took an approach to Dr Bass’s evidence that was impermissible or that he arrived at a conclusion about Dr Bass’s diagnosis which was not open to him. We were told that M’s medical records were not in the original court bundle and were brought to the hearing by those representing M and used for the purposes of cross-examination of Dr Bass and that the local authority’s re-examination was in response to that. Judge Cryan’s decision to permit this was in the nature of a case management decision. It has to be recognised that a hearing such as this one does not always run perfectly smoothly. Lines of questioning open up, material is used in ways that are not anticipated, and the judge, often reluctant to exclude material which may enable him to get as close as possible to the truth of the situation, must decide what to do to ensure a fair hearing. Judge Cryan’s decision was well within the band of decisions open to him. He provided an opportunity for M’s counsel to examine the witness again after the local authority re-examination and he reviewed the material himself carefully thereafter. It is fair to say that the judge did not set out in his judgment the details of M’s challenge to Dr Bass’s diagnosis from her written closing submissions but he explicitly recognised that most of the matters upon which Dr Bass had originally relied (which are the matters addressed in M’s closing submissions) were not valid, see [116] and [118], and must have had the submissions well in mind as he reviewed the material after the hearing.

[134]Similarly I am not persuaded by the arguments that the judge’s findings and conclusions were undermined by his treatment of the evidence from Ms Nabi and Ms Summers. As far as Ms Nabi is concerned, he recorded not only the shortcomings of her consideration of the case and the concerns she developed but also that in many respects she formed a positive view of M and that she had expressed the view that there was no apparent risk to A from M’s mental health condition [125]. He ultimately grouped her with Dr Dale and the Guardian [195]. As for Ms Summers, he acknowledged that her report contained errors of fact but satisfied himself that they were not sufficient to invalidate the report or, importantly, to invalidate its conclusions [144].

[135]As for the social worker’s evidence, her concern was in relation to emotional harm, partly due to somatisation/factitious illness (in relation to which she had the medical evidence upon which to rely) and partly due to the feared impact upon the child’s development and emotional health of having to deal with overall dishonesty and lying. I cannot see that the judge omitted to consider any part of her evidence that would have altered his overall view, which was of course formed on the basis of a great deal of evidence in addition to hers.

[136]In so far as it concerns the judge’s failure to give himself a Lucas direction, Ground 4 of M’s grounds of appeal has no substance in my view and, in fairness, whilst not abandoned, it was not particularly pushed by her counsel. The judge was plainly well aware of the nature of a Lucas direction which he had given himself in one of the earlier judgments. In this judgment, he referred to the parents’ oft-repeated tendency to lie and the difficulties that had arisen in understanding the background [18] but he did not then assume matters against either of the parents because there were clear examples of dishonesty on their part. He remarked expressly [21] that M’s history made her vulnerable to being disbelieved even when she is telling the truth and said that he had that very much to the front of his mind. He described her truthfulness as “patchy” but said that her evidence could not be “comprehensively dismissed” [107]. The complaints made in Ground 4 about the judge’s failure to consider M’s case in relation to allegations against her of dishonesty lack substance, in my view, when the judgment is considered as a whole. As the judge said in [108], he had recorded throughout the judgment various untruthful statements by M and he said in [106] that he was satisfied that there are numerous examples of her dishonesty through the evidence. He may not have dealt one by one with all the points set out in the closing submissions filed on her behalf but he plainly looked at the evidence critically and it has not been demonstrated that the findings he made about her dishonesty were not open to him. He was in a position to assess the entirety of the evidence with the advantage of full cross examination, including seeing M in the witness box. Similarly, he was entitled to take the approach that he did to complaints. The points made on that subject in M’s closing submissions, whilst obviously worthy of careful consideration, did not eliminate the local authority’s case in this regard. The final element of the argument under Ground 4 relates to what is said to be the judge’s failure to mention specifically the points made in the closing submissions about cooperation. The principal focus of those points was Ms Summer’s assessment and the errors of fact she had made. This was a matter that the judge did address specifically. I have already referred above to his acknowledgment [144] of the errors of fact made by Ms Summer (of which he gave a specific example). However, he decided, as he was entitled to do, that these did not invalidate the report or its conclusions.

[137]I am not persuaded by F’s criticism of the judge for not permitting him to be assessed with a view to looking after A on his own. The judge had made findings which were critical of both parents. F had a turbulent background and limited experience of parenting. The judge showed that he had the good quality and committed contact with A well in mind but he had grave reservations, to which he was entitled, about whether F would be able to care for A if left to his own devices [200]. He was entitled to take the view that this would need very close involvement with professionals and that there could be no confidence in F dealing with that constructively and with the necessary honesty. He was also entitled to conclude that the parents would probably not separate in any meaningful sense and that it would be impossible to monitor the situation and safeguard A.

[138]Having considered all the matters raised by the parents by way of appeal by way of detailed criticism and fundamental challenge to the judge’s orders, I have concluded that the judge was entitled to determine that the threshold criteria were satisfied and to make the order that he did which involved permanent separation of the parents and their child. He had to look for a proportionate response to the difficulties he had identified. It is said on behalf of the parents that that would have been an increase in contact, gradually moving the child to the parents with the involvement of the health and social services if they thought that appropriate, perhaps even in the context of a statutory order. However, in my judgment, the judge was entitled to conclude that no half way house was available here. There could be no confidence in social services being able to work constructively with the parents as they would have to do given the acknowledged risks. There was every chance that the climate would quickly become toxic with attendant emotional risks to A. There was equally no obvious route by which the risks could be reduced to the point that A could be returned to the parents without social services’ intervention, given that they did not acknowledge the problems or see the need for therapeutic assistance and given the way in which they responded to unwelcome intrusion into their lives. What was more, A’s need for a permanent placement had become urgent.

[139]Accordingly, I am of the view that the judge was entitled to reach the conclusions that he did and I would dismiss the appeal. Lord Justice Lewison:

[140]I have found this a very worrying case. In a long, detailed and careful judgment HHJ Cryan found that:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been.”

[141]Yet when he came to make his ultimate order he made an order with a view to placing A for adoption; in other words to remove her from her parents forever. As I understand it that is, for practical purposes, the most extreme order that he could have made. How is that to be reconciled with his finding?

[142]This is not a case in which A has suffered any harm, not least because she has been in the care of the local authority since very shortly after her birth. It is a case where, on the judge’s findings (§ 44) throughout supervised contact the parents “behaved unimpeachably towards [A].” They have “a warm, loving and appropriate relationship with their child.” For two years, five days a week they “have not been seen to put a foot wrong in their direct dealings with their child”.

[143]What was it, then that the judge found justified this extreme intrusion into the life of this family? It was not, I think, the problem of somatisation. Both Dr Taylor and Dr Bass accepted that since M had left the dysfunctional household of Mr E there was no current evidence of somatisation. They accepted that this lessened their concerns. The judge accepted the evidence of Dr Taylor and Dr Bass. But his appreciation of their evidence on that question was that (§ 114):

“Each held to the diagnosis bringing future risk and necessitating a plan and strategy for the future to ensure that all health care professionals are aware of [M’s] past and are able to intervene to protect [A] should the symptoms resurface.”

[144]If a plan could cope with this problem it does not seem to me to justify removing A from her family. The judge went on to say that somatisation was not the key diagnosis. He seems to have accepted the evidence of Dr Bass that “it is the overlying deception which he thought to be crucial” (§ 115).

[145]The judge found again and again that M was both dishonest and a liar. The judge was concerned about how A would cope with the high levels of dishonesty exercised by her mother (§ 155). He was also troubled by their lack of co-operation with the local authority and other professionals.

[146]Lady Justice Black has quoted the wise words of Hedley J in Re L (Threshold Conditions)

[2007] 1 FLR 2050

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

[147]At the conclusion of the argument I had an uneasy feeling that that is what the judge had done. I was extremely impressed by the powerful submissions made on behalf of the parents, and their stress on the requirement of proportionality. I have now had the benefit of further reflection coupled with a study of Lady Justice Black’s comprehensive judgment. On further reflection I have come to the view that what the judge must have decided was that for A to remain in the care of M and F would have required intense support from social services and other professionals. He found that they were not willing to engage with such people. Thus there was no halfway house available which would enable A to remain with her family. In consequence he was driven to make the order that he did.

[148]I am by no means sure that I would have made the same order. But as Lady Justice Black emphasises our task is not to make the decision; but to examine whether the judge’s decision fell outside the generous ambit within which reasonable disagreement is possible. Although I still have doubts, I do not push those doubts to a dissent. I have also read in the draft judgment of Lord Justice Rix. I wish to associate myself with the last sentence of it.

[149]Accordingly, with some reluctance I agree that the appeal should be dismissed. Lord Justice Rix;

[150]I am grateful for and admiring of the care and judgment with which Lady Justice Black has distilled the conflicting strands but also the essential core of the complex material in this case. I agree with her, and with her stand, authoritatively supported, that in such a case this court should trust the judge of trial: and particularly one who has shown by his deep involvement in the case and his evaluation of the evidence in it, factual and expert, that he has sought to penetrate its undoubted difficulties. I would acknowledge those difficulties, which have exercised me inmy own evaluation of the excellent submissions which have been put before us, and to which Lord JusticeLewison has also alluded. However, standing back, I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk.

Order

Future Harm)

[2001] 1 FLR 611

which he had cited at the beginning of his judgment but to which he did not return when dealing with welfare. Order: Future Harm)

[2001] 1 FLR 61

. The authority is well known and need not be cited at length here. It will be recalled that Hale LJ laid stress upon proportionality. She recognised that there are cases in which the local authority is not bound to wait until the inevitable happens and can intervene to protect a child long before that but said that there has to be a balance and that: “[30]…..[t]he cases where it is appropriate to do that are likely to involve long-standing problems which interfere with the capacity to provide even good enough parenting in a serious way, such as serious mental illness, or a serious personality disorder, or intractable substance abuse, or evidence of past chronic neglect, or abuse, or evidence of serious ill-treatment and physical harm……Nor can it follow that every case where there is any significant risk of harm to a young child should result in a care order in which the care plan is adoption.” The particular facts of this case

B (A Child) [2012] EWCA Civ 1475

How the local authority put their case in summary

The facts as found by the judge

The judgment of 27 April 2011

Following the April 2011 judgment

The May 2011 judgment

The October 2011 judgment

The judgment under appeal

Information about the mother

Judge Cryan said that:

Information about the father

The parents’ relationship

The expert evidence and professional advice

Dr Bass and Dr Taylor [110 et seq]

Ms Summer [143 et seq]

Dr Dale [158 et seq]

Ms Nabi from the Lucy Faithfull Foundation [121 et seq]

The guardian

The threshold decision

Judge Cryan said [189]:

The welfare decision

The judge introduced the welfare section of his judgment with this paragraph:

The submissions in support of the appeal

Ground 3: failure to give reasons

Ground 4: honesty, lies and cooperation

F’s grounds of appeal

Guardian’s position on appeal

the judge to various aspects of the evidence but also the risks in the case which she said were:

The local authority’s position on appeal

Discussion

The legal framework

Order

Cited in 4 later judgments