S (A Child) [2012] EWCA Civ 1915

Case No B4/2012/2167[2012] EWCA Civ 1915
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COUNCIL
MR RECORDER FAROOQ AHMED
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 11 th September 2012
Before
LORD JUSTICE WARDLORD JUSTICE MCFARLANE
IN THE MATTER OF S (a child)
(DAR Transcript of
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Mr Gary Wilmot (instructed by Blavo and Co Solicitors) appeared on behalf of the Appellant.
Mr Nicolas O'Brien, Mr Richard Little, Ms Mary Hughes and Ms Annie Dixon (instructed by Shepherd Harris and Co, Hertfordshire County Council, TV Edwards Solicitors and Fahri Jacobs Solicitors) appeared on behalf of the Respondents.
Judgment
Lord Justice McFarlane:
[1]This is an appeal brought in the course of care proceedings that relate to a young baby, who I will refer to simply by the initial A, a girl born on 10 December 2011, and who therefore is still only some nine months or so of age.[2]Shortly before A's birth her mother became unwell through a collapse in her mental health and was made the subject of an admission under section 3 of the Mental Health Act at some stage in November 2011; thus it follows that when baby A was born three or four weeks later she was born to a mother who was still an inpatient, and mother and baby remained in a mother and baby unit under the umbrella of the Mental Health Act.[3]The local authority, who were aware of the situation, promptly issued care proceedings in the Watford County Court and an interim care order was initially granted. That, however, was not extended by the court at the first contested hearing on the basis that the mother and child were still looked after within the umbrella of the Mental Health Act and there was no need for any separate involvement of the local authority.[4]Matters moved on; the mother's mental health improved, so that the plan developed for the mother to be discharged with the baby on a gradual basis to take up her home at the maternal grandmother's home. I refer to the maternal grandmother as Mrs S. That process started in February 2012 and was (by then) accomplished under an interim care order.[5]Since that time, on a rolling basis but certainly since March 2012, baby A has resided at the maternal grandmother's home under an interim care order on the basis that the grandmother will be very involved in the care of the child; the process, as I understand it, was for there to be a continuing assessment of the mother's return to good mental health and the mother's ability to take on the primary care of baby A. In fact, we are told matters have progressed in the alternative direction, with the grandmother effectively becoming the primary carer for baby A.[6]So far as the proceedings are concerned, the grandmother was joined as a party to the proceedings and, on 3 April 2012, given leave to apply for a residence order or, in the alternative, a special guardianship order with respect to her granddaughter, A. Assessments of the grandmother were undertaken and were, as ever, complicated with issues and factors going in different directions, but were broadly positive and supportive of her being the long term carer of baby A.[7]The placement with the grandmother under the interim care order involved the local authority sanctioning the grandmother as a foster carer. There was a need for the local authority fostering panel to continue to monitor and approve that placement, and it is a feature of the case that the Care Planning Placement and Case Review (England) Regulations 2010 impose strict time limits for the conduct of assessment of potential foster carers and, in default of a satisfactory assessment and approval by the panel, there is a cut off date that does not permit local authorities to maintain a placement with a foster carer who has not been approved within the window of time that the Regulations permit. Initially that process tolerates an 18-week assessment and approval timetable, but there is facility for one extension of up to eight weeks.[8]The timetable was moving forward satisfactorily with a view to the positive reports of the grandmother's care going before the panel and being approved some time in July 2012 and before the expiry of the extended timetable on 20 August 2012.[9]Matters developed, however, and caused the course of the case to alter following decisions by the social services to conduct further interviews with the grandmother. Those interviews took place on 10 and 16 July and, summarising matters very shortly at this stage, a number of reports and descriptions given by the grandmother to the social workers in those two visits about her perception and reporting of how the mother had presented and manifested herself in 2009 when the mother's mental health collapsed on a previous occasion caused the social workers a substantial degree of concern.[10]In short, they reported that the grandmother described the mother behaving in a way that the mother's body had seemingly been taken over by forces, or a force, that the grandmother regarded as demonic, and a course of conduct was described in which the family failed to involve any health or mental health professionals to assist the mother for a period measured in days, but instead sought the help of members of the local church of which they are members. That introduction of church members itself, according to the grandmother's account, exacerbated the mother's presentation. In the end it was the church that recommended the calling of medical assistance and then the mother's hospitalisation as a result.[11]These matters were reported to the fostering panel of the local authority when it met on 27 July. The panel determined that it could not approved Mrs S as a foster carer based upon the information that it now had, but it decided, as it well have might, that the sensible course would be to adjourn approval so that a psychiatric assessment of the grandmother could be obtained.[12]That decision inevitably meant that the psychiatric assessment could not be obtained prior to the expiry of the extended period permitted under the regulations on 20 August; it also led the local authority to look at the options, and the authority determined that the way forward was to apply to the court for approval for the removal of A from the grandmother's home pending the obtaining of a psychiatric assessment. It was that application that came before Mr Recorder Ahmed on the 16 August 2012. He heard evidence from the key social workers and the grandmother and, in an extempore judgment given late in the afternoon of Friday 17 August 2012, he acceded to the local authority's application, made an interim care order, but did so on the basis that the child should be immediately removed from the grandmother's home.[13]An out of hours application was made to this court which was dealt with by Hughes LJ. He suspended the interim care order, he took delivery of a notice of appeal which was filed at the beginning of the following week on 21 August, and on that day, having considered the papers in the case, Hughes LJ granted permission to appeal; he stayed the interim care order on the basis that the child was to remain in the care of the grandmother at her home and at nowhere else.[14]We are told that the effect of that order is that the legal position has been consolidated by the making of a residence order to the grandmother to cover the interim period between granting a permission to appeal on 21 August and today's hearing on 11 September.[15]The Recorder's approach to the case, which, as I have indicated, came before him as a result of the technical impasse that the local authority had reached in their inability to tolerate, as a matter of administrative law, a foster placement under an interim care order with the grandmother beyond 20 August. The case before the Recorder developed in that, by the time he had heard the evidence and in particular the evidence of the grandmother, the Recorder formed his own freestanding assessment of the case which, he concluded, irrespective of the regulations, demanded the immediate removal of A from the grandmother's care. He described the situation as he saw it in more than one place in his judgment as one which caused him "grave concern about the immediate safety of the baby in the care of the grandmother" and, in another place in the judgment, "A is in a deeply unsafe place".[16]It is against that conclusion that appeal is now brought by the mother, but it is right to record that all parties other than the local authority support the appeal, and by all parties I mean the father, the grandmother, who is now a represented party to this appeal, and the children's guardian. The guardian was not present at the hearing before the Recorder and had not been able to file a formal report, but her position was plainly before the lower court and was one in which she supported the child remaining in the grandparents' home, about which there were positive reports which the guardian endorsed.[17]In granting permission to appeal Hughes LJ said this:
"There are clearly good reasons to undertake a careful assessment of grandmother's mental health. The acid question, however, was whether that had to be undertaken with the child removed to foster care."
It is important therefore to look at the judge's reasons for coming to the high level view that I have described as to the deeply unsafe circumstances in the grandmother's home which supported an immediate removal. Before doing so, I should report that it is common ground before this court that the learned Recorder's approach to the law is not a subject of criticism. It was dealt with in bullet form but quite correctly in the course of his judgment, and in particular he recorded the test as being:
"the court should not make an interim care order unless the child's safety demands immediate separation from her current carers."
He also stated that removal needs to be proportionate in the light of the risks if the child remains with the mother and the maternal grandmother. The question raised by this appeal is not therefore so much a matter of law but whether the learned Recorder's analysis of the factual evidence was such as would permit him to come to the view that the child's immediate safety did indeed demand separation from her current carers.[18]The Recorder's concerns arise from the grandmother's account of the mother's collapse in her mental health in 2009 and, to a degree, what is said about the grandmother's mental health at a much earlier stage, either 1980 or 1978, when she herself was a young parent of a young child.[19]On that occasion, 1980 or 1978, the grandmother is reported to have experienced some hallucinations and to have heard voices in her home, and it is accepted that there was mental health intervention to support the grandmother at that time. It was either 32 or 34 years ago. There has been no further acute, or indeed any, significant mental health event involving the grandmother's own mental health since that time. What was the most prominent cause for concern was what the grandmother said about the mother's collapse in 2009:
“38. … The social workers asked the grandmother about the mother’s mental health episode and grandmother started talking about mother’s having had an acute psychotic episode at home in 2009. The grandmother was carefully taken through at least half of that statement or report by Miss Hughes and I have tried to incorporate what the grandmother said about certain parts of it. She said the mother was very restless, moving from room to room very quickly and mounting the stairs so rapidly that it was unnatural. The grandmother followed and at the bedroom doorway mother said something about crossing the threshold together. Grandmother did not like the sound of this and hung back. The mother leapt, as if flying, across the room and out of the window. The grandmother said about that that she leapt up by jumping on to a table in front of the window. She got out of the window. She went feet first and she held the mother by the hands. 39. This happened again, but the second time the mother went out of the window and on to the front porch. The grandmother said it was on to the flat roof. Christine Wilson in oral evidence was clear that the grandmother made reference to mother’s feet leaving the floor and her flying through the air. 40. The grandmother agreed with the following passage: ‘During this episode, S had several different entities, the old lady, the clutterbuck and the neat and tidy calm person. As an old lady, S’s shoulder went down and it was as if she had scoliosis of this spine on one side. This was more than just a change of body image. Later, C [the grandmother] said that something was distorting her, i.e. something demonic.’ In oral evidence the grandmother confirmed that she thought was demonic “C said that she and L also heard voices, not S’s.” 41. In oral evidence, the grandmother said that these voices were coming out of S. They were not S’s voice. She went on to say in oral evidence, “I felt something external propelling and speaking through the mother. One voice said something like ‘I’ve got a breast here’. A different voice said ‘She’s got blades down here.’”
C went on to say that she thought that S had cut her labia. She saw her in the bath and it was all drawn tight, stitched, or words to this effect. It was hard to follow exactly what she meant. The grandmother clarified it by saying it looked as if that was the case, but was accepting essentially the description given. However, the grandmother said that she saw S and that her labia were intact.” ‘During this episode, S had several different entities, the old lady, the clutterbuck and the neat and tidy calm person. As an old lady, S’s shoulder went down and it was as if she had scoliosis of this spine on one side. This was more than just a change of body image. Later, C [the grandmother] said that something was distorting her, i.e. something demonic.’ In oral evidence the grandmother confirmed that she thought was demonic “C said that she and L also heard voices, not S’s.” 41. In oral evidence, the grandmother said that these voices were coming out of S. They were not S’s voice. She went on to say in oral evidence, “I felt something external propelling and speaking through the mother. One voice said something like ‘I’ve got a breast here’. A different voice said ‘She’s got blades down here.’” C went on to say that she thought that S had cut her labia. She saw her in the bath and it was all drawn tight, stitched, or words to this effect. It was hard to follow exactly what she meant. The grandmother clarified it by saying it looked as if that was the case, but was accepting essentially the description given. However, the grandmother said that she saw S and that her labia were intact.”[20]That sets out the basis for his view. It caused the Recorder to go on to characterise the grandmother's state of mind in 2009 as "a delusional mental state" (paragraph 51). He goes on to say in the same paragraph:
"On the information before me, in the absence of a psychiatric assessment to the contrary, the grandmother could have hallucinations and hear voices again at any moment. If she did, the baby might be harmed. That there has been no reported instance of such an episode since 2009 does not in any way reduce the risk which remains unquantified."
[21]A further concern of the Recorder was that a) the grandmother had not told any of the social workers who had assessed her, or indeed any other professional, or independently told the court, of her account of the mother's collapse in 2009. It came out to professionals effectively for the first time during the two social work visits in July 2012. The Recorder was therefore concerned that if there was any repeat of any similar event the grandmother might not be relied upon to report matters to professionals at that stage.[22]The second ancillary matter of concern was that it was plain to the Recorder, having heard her give an account in oral evidence, that the grandmother continued to regard what she had thought she was observing in 2009 as being the fact of what she was observing and had not, during the intervening three years, rationalised matters and come to a view that it may be, or might be, not a manifestation of demonic presence but symptoms of a collapse in mental health that she had witnessed in 2009; and thus it is that the Recorder felt that these matters were "doubly concerning" to him.

The Recorder draws matters together at paragraph 52 of the judgment when he says this:

"In my judgment A is in a deeply unsafe place. There is a likelihood, in the sense of a real possibility or a possibility which cannot sensibly be ignored, that the grandmother will suffer further hallucinations and that, if she does so, she will not report them. I am very concerned about the likelihood that she will think that the baby is possessed by demons in the same way that she thought the mother was in 2009. I am concerned about the real possibility that she will do something to the baby that is harmful in order to remove the demons. The grandmother's thought processes and actions in respect of the mother in 2009 were abnormal and gravely worrying. They go far beyond ordinary and acceptable religious belief because they demonstrate disordered and delusional thinking. I use these words in their ordinary English sense and not as an assessment of her mental health, that being for the psychiatric assessment."
He therefore found that the baby was in "imminent danger" and required that her welfare demanded her immediate removal.[24]The Recorder at the same time as making that substantive order sanctioned the instruction of Dr Matthew Castle, an adult psychiatrist who is to produce a full report on the grandmother's mental health by 28 September, and the matter is timetabled to come back before the court shortly after that date on 1 October for review. Dr Castle has been instructed and we are told the instructions make him well aware of the very issue that I have summarised. Dr Castle has been sent the Recorder's judgment. We have today been shown a short email from Dr Castle which we have received effectively by way of additional evidence. He has conducted his interview with Mrs S and had hoped to provide a full report by this stage but has not been able to do so. He does, however, to say this:
"However, it would be reasonable for me to say that my findings of Mrs S on 4 September 2012 revealed her to be calm, appropriate and without any gross psychiatric disturbance. She was able to openly recount her previous psychological experiences which were broadly consistent with the medical notes which have been provided. I could find no evidence of any intrusive symptoms of depression or other current psychological problems. She was able to speak about hearing voices on two separate occasions and from the information available, this would not merit a diagnosis of a psychotic illness. In conclusion at the moment there is no evidence of active psychiatric illness. However, I will be addressing this question in more depth and with greater accuracy when I file the report."
That information was plainly not before the Recorder but it is information which certainly I have in mind.[25]The task that the Recorder had was to consider A's placement needs in the immediate period between the 17 August, when he was hearing the case, and the 1 October, when it was coming back with the assistance of the full psychiatric report, a period of some six or seven weeks. He nevertheless plainly took the view that there was a crisis in the household in the sense that the grandmother's reports of her reaction to her own daughter's deteriorating mental health meant that at any time a similar event might happen – on the Recorder's view not only to the mother but also the baby might manifest behaviour that the grandmother would misinterpret or, to use his words, give rise to the hallucination for hearing voices on the part of the grandmother and put the baby at risk.[26]The approach we have to take, and we are quite properly cautioned by Mr O'Brien on behalf of the local authority to adhere to this approach, is to afford full measure to the breadth of discretion that the Recorder had in determining where baby A's welfare needs lay and what needed to be done in order to meet those needs in terms of placement.[27]The other parties' stress, first of all, that there was no evidential basis for the Recorder to make any findings that might indicate that the child A would be at direct risk of harm from the grandmother; that, secondly, all the reports were that nothing untoward of the sort predicted by the judge had occurred during any time in the seven months or so that the child has been in the grandmother's home. Encouraged by the court, the parties were able to tell us that in fact when the mother's most recent mental health deterioration occurred in November 2011 there was no indication that the grandmother behaved in an untoward or concerning manner there. The mother moved into her hospitalised status under the Mental Health Act without any repeat or reported repeat by the grandmother of any misinterpretation, "hallucination" or other matter of concern.[28]Looking at this case as I do for the purposes of this appeal, I am struck first of all by the care that the Recorder has applied to his recording of the material that he had before him and to his general conduct of the hearing. This case came to him at short or no notice on the afternoon of the first day and he then conducted a full hearing and sat on beyond the ordinary court hours in order to provide a solution for the child and the family. Secondly, this experienced family Recorder plainly came to a view which indicated to him that this child was subject to immediate, unquantifiable and unpredictable risk of potentially serious harm occurring by the grandmother reacting in an adverse and unpredictable way to a trigger event. This court should only interfere if we are satisfied that that characterisation of the evidence and that conclusion is one that was not open to him and was, to use the well-known phrase, plainly wrong. I am afraid, despite my respect for him and the process that he conducted, that is my view. In particular, the conclusion which appears to be at the centre of his judgment in paragraph 52, which is that the baby herself may act in some way that leads the grandmother to consider that she is possessed by demons and that the grandmother may do something directly physically to the baby which could cause harm, is, in my view, not supported in any part of the evidence that the Recorder had before him. There is some evidence, 30 or more years ago, of the grandmother experiencing hallucinations and hearing voices, but there has been no reported repeat of that, as on my reading of the judgment, at any stage thereafter.[29]What has led to concern and the need for investigation is what the grandmother reports as seeing and hearing in 2009, and that is set out in the judge's judgment and I have repeated it already. That seems to me not to justify the label "hallucination" or "hearing voices". It is the grandmother's perception and understanding of physical actions and sounds that were actually being played out in front of her over the course of a period measured in days when the mother's mental health deteriorated in 2009. There is no evidence that the mother herself was physically harmed by the grandmother's reaction to that; help was sought and eventually that help lead to hospitalisation. Baby A is not yet a year old; matters are going to be clarified and investigated and hopefully resolved before she is a year old. Were she even to have been present in the family home during the circumstances described in 2009, it is unlikely that a baby of that age would be directly harmed or even directly discomfited by what was going on. Other family members were there, other members of the church were brought in.[30]Going further to the judge's conclusion that the baby might be directly harmed by the grandmother doing something to baby A, there is no ground, in my view, for that concern. Baby A is not going to be, as an adult experiencing a psychiatric collapse would be, saying things and doing things which are entirely out of the ordinary and cause for concern. There is no indication that baby A has any condition at all that might cause her to exhibit seizures or any other form of physical manifestation that could provide any form of trigger for misinterpretation by this grandmother who is otherwise described as a carer in very positive terms. There is, as I have said, even less evidence to support a conclusion that the grandmother might herself do something that is harmful to the baby. I therefore conclude, and am very clear in that conclusion, that the basic premise of the judge's risk analysis is unsustainable on the evidence.[31]The approach that the judge had to take as a matter of law was to determine whether the baby was in imminent danger and required immediate removal from the household. He had to balance any detrimental concern with the positive evidence about the care that baby A has received to date. In looking at the danger overall, that positive evidence has to be taken into account.[32]If I was looking at the case on the basis that I have described, for example, on the 21 August when Hughes LJ had the papers, I would have allowed the appeal on that basis on that day. We now have the benefit of further time having gone by so that(a) we now have more information that nothing untoward has happened, and indeed the reports such as they are continue to be good, and(b) we have Dr Castle's short report which itself indicates that nothing untoward is to be concluded from the material that Dr Castle has seen, that being the same material that was before the judge. Baby A has continued to live in the grandmother's house as a result of the orders that this court made on 21 August, but there is now also in place a working agreement between the grandmother and the local authority which includes a clause requiring the grandmother to seek immediate professional help from social services and mental health professionals if there is any perceived alteration or collapse in the mother's mental health in this interim period.[33]The general view of the social workers of the grandmother is positive in the sense that she is honest and open with them. Indeed, she was open to the extent of telling them the information in July of this year which led to the further investigation that I have described.[34]We now have to look at a much shorter period than the Recorder had to contemplate, the period between now, the 11 September, and 1 October when the matter is back before the court. I would have allowed the appeal, as I have indicated, immediately after the Recorder's judgment, but, on the basis of the material that is now before us and the time that has gone by, I am reinforced in the view that the appeal should be allowed.[35]The question of what order is put in place for the interim care order made by the Recorder therefore falls to be considered. The options are unattractively stark, made so by the impact of the 2010 Regulations. It is not open to the court to make an interim care order on the basis that the child would be maintained in the care of the grandmother because that option itself is not open to the social services. It is to be hoped that when the fostering panel meet they will have the benefit of a full report from Dr Castle and may, in due time, come to approve Mrs S as a foster carer once more; that is a matter for them and it is a matter for the future. In the meantime, I am clear that there is no pressing need, looked at from Baby A's point of view, for her to be removed from the grandmother's home; all the information is that she should remain in the grandmother's home. The grandmother has been the primary carer under the arrangements to date, and for my part I would make a residence order to the grandmother for this interim period but couple that with an interim supervision order so that the local authority have, albeit a reduced, but nonetheless plain duty to support her and to monitor the placement.

Lord Justice Ward:

[36]I agree with all my Lord has said and, but for some deference to the careful judgment of the Recorder, I would have little to add. The nub of that judgment is contained in paragraphs 51 and 52. In 51 the Recorder finds:
"The delusional mental state of the grandmother during the 2009 incident occurred suddenly and at a time when the mother herself was having a psychotic episode. On the information before me, in the absence of a psychiatric assessment to the contrary, the grandmother could have hallucinations and hear voices again at any moment. If she did, the baby might be harmed. That there has been no reported incidence of such an episode since 2009 does not in any way reduce the risk which remains unquantified."
[37]I am very mindful of the fact this was an extempore judgment, and one must read it with a degree of tolerance for the fact that it may not have been as well expressed as it might have been had it been reserved; but there seem to me to be two difficulties in that paragraph. The first is that, in saying that there has been no reported incident since 2009, I am troubled that the Recorder may have omitted to weigh in the scales the fact that in 2011, shortly before the baby was born, the mother was again suffering a mental breakdown, and although grandmother said, as he records in paragraph 44, that it was a lesser episode and that it was not demonic, it is a fact that bears consideration in contemplating the possibilities of a repeat: here the mother did break down, here the grandmother did not overreact. But my second and more fundamental concern about that paragraph is the judge's conclusion that, if the mother did hallucinate and hear voices again, the baby might be harmed. He does not explain how the baby might be harmed in those circumstances. The inference, as I read the judgment, is that the precipitating factor for the grandmother's further hallucinations would be another breakdown in her daughter’s (the mother's) mental health. But if it was the mother who was manifesting these demonic episodes that the grandmother was so troubled by, then I am not at all sure how the baby is going to be harmed; I am not even sure how the mother was harmed in 2009 by the grandmother's actions. This is a baby who would be lacking the consciousness of any drama that might envelop the grandmother and mother. If she were upset it would be of a transitory kind and hardly a substantial matter. If the episode when repeated endured over the days that apparently lasted in 2009, I can understand that the family's concerns might be more concentrated on the mother than on the baby, but, again, it does not seem that the risk of that kind of harm is anything like substantial enough to justify the course of action which the Recorder eventually takes.[38]Paragraph 52 is even more fundamental. There, to repeat what my Lord has already read, the Recorder says:
"In my judgment A is in a deeply unsafe place. There is a likelihood, in the sense of a real possibility, or a possibility which cannot sensibly be ignored, that the grandmother will suffer further hallucinations, and that if she does so she will not report them."
[39]I pause there to say that there is now a contract between the local authority and the grandmother, and we are told, and commendably frankly told by Mr O'Brien for the local authority, that they have every reason to believe that the mother would report the breakdown in mother's mental health as that contract requires her to do.[40]Continuing the judgment, the Recorder says:
"I am very concerned about the likelihood that she will think that the baby is possessed by demons in the same way that she thought the mother was in 2009. I am concerned about the real possibility she would do something to the baby that is harmful in order to remove demons."
There I fear the Recorder has taken account of possibilities which are not real in my judgment. There is no evidence whatever to suggest that the baby is behaving, or likely to behave, in any way which would arouse fears in the grandmother that this little baby was being possessed by demons. Even if she were, bearing in mind the way the grandmother reacted in 2009 to the mother's episode at that time, there is nothing, it seems to me, to justify any harmful physical act by grandmother taken to remove the demons from the baby. Her actions in 2009 were to call in the help of the elders of her church and perform an exorcism. If there was delay, it does not seem to me to be so substantial as to overcome the fact that there is no other concern expressed at all about the care the grandmother is giving to this little baby.[41]So I too have no hesitation in allowing the appeal, discharging the interim care order and substituting for it an interim residence order to grandmother and interim supervision for the local authority to keep their eye on the situation.

Order

Appeal allowed