S (A Child), Re [2013] EWCA Civ 1835

[2013] EWCA Civ 1835Case No B4/2013/1786
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE HERNANDEZ)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 23 October 2013
B E F O R E:
LORD JUSTICE LAWS
LORD JUSTICE PITCHFORD
LORD JUSTICE MCFARLANE
IN THE MATTER OF S (A CHILD)
(DAR Transcript of
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Mr I Peddie and Miss T Akther (instructed by Duncan Lewis) appeared on behalf of the Appellant
Venue Mr K Rowley appeared on behalf of Manchester City Council
Ms B Morton (instructed by AFG Law) appeared on behalf of the guardian
J U D G M E N T
[1]This is an appeal from the decision of His Honour Judge Hernandez, sitting in the Manchester County Court on 1 May 2013. It comes in the course of a series of proceedings in relation to children born to the mother of the young girl who was the focus of the court's attention on that day. The court made a care order and made an order authorising the local authority to place the child for adoption and it is against those orders that the mother, with the permission of Gloster LJ, now seeks to appeal.[2]In addition, subsequently, at a hearing on 14 June 2013, the same judge heard an application by the mother to reinstate direct contact to an older child, Y, who had by then already been placed for adoption. The judge refused her application on a summary basis and she has subsequently issued an application for permission to appeal that determination and that application for permission to appeal is also before the court today.[3]What it this case about? I only propose to sketch in the factual building blocks that underpin this case but in doing so I hope to communicate just why the circumstances relating to this mother and her children readily justify close judicial scrutiny and I apprehend that it was that that led Gloster LJ to grant permission to appeal.[4]The mother in the case is still only 33 years of age. She has had a very troubled time, particularly in the early years of her own childhood. She was exposed to poor and inconsistent and abusive parenting. It was only at the age of 10, after a substantial period of exposure to such parenting, that she was made the subject of proceedings for her own protection. Under the law as it then was those were wardship proceedings. She was removed from the care of her parents and for a time placed with the maternal grandmother. That placement did not prevail and she spent the rest of her teenage time, such as it was when she was at liberty, in foster care. By the time she was removed from her parents' care she was said to have a severe mixed conduct and emotional disorder. Her behaviour was very unpredictable and difficult and this difficult behaviour continued after removal from her parental care really throughout the 1990s in the range of placements that I have described.[5]The judge dealt with this in the course of his judgment where, from paragraph 18 onwards, he summarises matters. She had become involved at times in criminal behaviour but it was following the birth of her own child, a girl, C, in [a date in] 1995, when she was only still, I think, 14 at that time, that she not only was involved with the social services who were acting for her own protection but she was involved with them as the mother of this young child.[6]Matters moved on but it is plain that the mother and the social services were at odds, to put things in neutral terms, from time to time and her potential for unpredictable, difficult and aggressive behaviour got the better of her on occasions and matters came to a supreme head on 21 October 1997 when the mother committed an offence of arson at the office of the social services where, having entered the offices, she is said to have poured petrol over the desks and set fire to them. It is also said that there were 40 members of staff and young children present on the premises. Fortunately, no-one was injured as a result.[7]Following that behaviour, and despite her young age, she was, the following year, sentenced to a discretionary life sentence with a requirement that she serve 18 months in custody before she would be considered for release on parole. In the event, that period of 18 months was eclipsed by the total time that she spent in prison, part of that following a recall, the total being some 11 years.[8]In broad terms, the reason why the mother is said to have acted as she did, not so much on that extreme occasion but throughout the years of her childhood and adolescence, and in part how she continues to act, does not arise on the reports that I have read from any intrinsic mental health or personality problem arising from her other internal make up but it is largely a result of the abuse, the inconsistency and the unsettled parenting that she experienced up to the age of 10 and no doubt that experience being compounded by her time in care and the reaction of the authorities to her increasingly difficult and at times criminal behaviour.[9]I turn now to consider the other, younger, children born to the mother. Her second child, a girl, M, was born in [a date in] 1998 and so therefore is now 15. M was placed in the care of the paternal grandmother. C, the eldest child, was subsequently freed for adoption and adopted outside the family.[10]The mother was finally released from prison in April 2009. Her third child, a boy, Y, was born on [a date in] 2011. He is therefore two and a half. His proceedings had been heard by Judge Hernandez in Manchester the previous year. He has been the subject of a care order and a placement for adoption order and it was in relation to contact to him that the mother sought a fresh contact order in June 2013. That, as I have said, is the subject of a permission to appeal application.[11]Y initially following his birth was placed in the care of his mother but following an occasion when she was found to have sustained a black eye following an altercation with Y's father, he was removed from her care in early August 2011, some 3 months or so after his birth and the proceedings relating to him continued as I have described.[12]The fourth child, another girl, A, was born on [a date in] 2012. She is therefore still only 14 months of age and the proceedings that are the focus of this appeal relate to her. She was made the subject of an interim care order effectively from the time of her birth and she was placed, together with Y, either then or very shortly thereafter, in the same home. During the currency of the proceedings in relation to A, which culminated in the final hearing in early May, the mother confirmed in the middle of April that she was again expecting a child. That child, F, was born on [a date in] 2013, and therefore is still only 4 months of age, and there are, we understand, care proceedings now pending in the Manchester County Court in relation to him.[13]So far as Y is concerned, his prospective adopters have now issued an application, in July 2013, for his adoption.[14]The tragedy, if I may say so, at the heart of this case and the reason why any plan to separate this mother from any of her younger three children warranted, and warrants, close judicial scrutiny arises from the number of sound and well-established positive qualities that she possesses despite all that she has experienced. She is readily seen by professionals to be intelligent and well presented. There is no criticism of her basic childcare skills. When she has seen her children at contact sessions, the reports of her interaction with them are not only positive, they are at times expressed by superlatives. She is tenacious and highly focused on her children. Yet despite this list of real and substantial positives she has demonstrated a consistent history of unpredictable and aggressive reaction to any in authority but particularly social workers if she perceives that they are challenging her. In its most extreme form this surfaced in the very serious offence of arson for which she was imprisoned but it has continued to be a constant feature of the case at every turn and even surfaced on two occasions during the very hearing before Judge Hernandez which is at the centre of this appeal.[15]In addition, and it may be a part of the same facet of her character, she finds it very difficult to be open and honest with social workers. Finally, at least in recent times, she has proved to have difficulty in separating from the man who is the father of at least two of the younger three children despite his potential to be violent to her and despite that very violence leading to the removal of Y from her care as I have described.[16]The strong positives laid against these worrying aspects of her behaviour, the origin of which no doubt owes much to her experience of poor care and her interaction with authority in the past, must make consideration of her case tantalising for professionals. The potential for this intelligent young woman to access effective therapy which might ameliorate some or all of these negative factors and the need on the other hand to ensure that each new child is not simply removed from her care solely on the basis of the understanding of what has happened in the past clearly justifies careful scrutiny. It justifies such scrutiny because of the need to keep the potential for each child to be in the care of his or her mother under review, as our domestic law and the law of the European Convention on Human Rights require.[17]Despite the imperative that I have indicated, Judge Hernandez plainly took the view that A could not be placed in the care of the mother. He made the care and placement orders and it is against those orders that the mother now seeks to appeal.[18]For much of the progress of these appeal proceedings the mother has acted in person. Latterly she has been able to obtain legal representation and I am extremely grateful to Mr Ian Peddie QC and Miss Tahina Akther who have been instructed, as I understand it, almost on the eve of this hearing, certainly on the eve of the time when it really was the last moment to prepare the case and prepare a skeleton argument. Despite the tight timetable, they did that and they have produced an assimilation of the various points that the mother would wish to make in a clear skeleton argument, which Mr Peddie has during the course of this morning taken the court through.[19]There are, effectively, five grounds of appeal cast by Mr Peddie, although I suspect he would accept that inevitably some of them overlap with each other.[20]Firstly, he draws attention to the need for the court to be satisfied that the threshold criteria in section 31 of the Children Act 1989 is satisfied, not just a tick box exercise because it has been satisfied in the past but satisfied on this occasion in relation to this child. He accepts that the record shows that that state of affairs was in fact conceded by counsel acting for the mother before Judge Hernandez but he submits that this may be a case where the threshold was only "barely crossed", that being a reference to the first instance judge's characterisation of matters in Re: B [2013] UK SC33. Mr Peddie submits that that state of affairs in this case might justify this court in ordering a rehearing to ensure that the threshold was in fact properly met in this case. Secondly in this regard, Mr Peddie submits that the judge in any event did not sufficiently explain how the threshold was crossed in the course of his judgment.[21]The second ground of appeal focuses on the positive aspects of the mother's ability to care, and the submission is made that the judge gave inadequate weight to those clear positives.[22]Thirdly, under the heading "Can mother be trusted and can she work with professionals?" he effectively makes three points. First of all, there is a factual basis which was conceded by the mother to the effect that she was not always truthful with the local authority but, secondly, he submitted that it did not follow from that that the child A would be at sufficient risk of harm to justify removal. Thirdly, he submitted that there was a danger in focusing solely upon whether she was or was not trustworthy and the court might in doing so fail to undertake the necessary task of standing back and looking at the overall risk by taking into account both the positive and the negative features.[23]The fourth ground relates to the risk of harm, and the submission is that the judge was required to undertake a careful analysis of this in A's case and he failed to do so.[24]Fifthly, under the heading "Other protective factors" it is submitted that in effect again the risk assessment failed to descend to sufficient detail to be considered valid or acceptable.[25]I propose, looking at the hearing before the judge, to bear those headings in mind.[26]So far as the threshold is concerned, the judge's judgment shows that he did have these matters in his consideration when he came to deal with the case. It is recorded in the judgment that the threshold was conceded and indeed the judge recites in terms the basis of that concession. He adumbrates in various paragraphs the history which I have done no more than summarise and, in my view, he more than adequately dealt with the threshold. Standing back from that observation and looking at the details of the case myself it seems to me inevitable that the threshold would have to be conceded in this case and that the mother's counsel was sensibly taking that course. This is not a case where there is no problem. This is a case where the evidence shows that from her past behaviour, and indeed her continued presentation from time to time, the mother was unpredictable and she was prone to demonstrating uncontrolled emotional outbursts, which would be confusing, destabilising, unsettling and in the end emotionally harmful to any child in her care.[27]In addition, because of the relationship she had with authority and with social workers in particular, there were enhanced difficulties in social workers monitoring the safety of the child. She would have to be trusted with the child's care and, thirdly, her potential to engage in and persist in relationships with an individual or individuals who might cause her domestic violence and harm was an added component in the threshold.[28]It is said by Mr Peddie, and indeed recorded in the judgment at page B28, paragraph 16, that the mother sought to challenge the evidence and the interpretation of some of the historic events. Mr Peddie’s understanding was that this was, as it were, a root and branch challenge to the factual background and he submits that the judge failed to engage in that process. The judge certainly did not engage in it, but in terms of progressing that point on appeal, both Mr Peddie, and then consequently this court, are at a great disadvantage as we have not got the document that was produced which spelt out the mother's criticisms and so for my part it is just simply not possible to evaluate that point. The bigger point is the one that I have already dealt with, which is that the threshold on the material the judge had was established.[29]Turning to the topic of experts, it is of particular note that the local authority at the start of these proceedings sought to run the case through on what was described as a "fast track". The judge, however, declined to follow that course; the local authority's invitation no doubt being that in the course of a substantial hearing only a year previously the judge had made adverse findings against the mother in relation to the case relating to Y, nothing had changed, no doubt it was submitted, and that therefore the court should move swiftly to make final orders for A.[30]The judge acceded first of all to the application for the introduction of a forensic psychiatrist, a Dr T, who reported on 3 January. In turn, Dr T indicated in his report that he considered that the mother's behaviour and the risks she presented were sufficiently contained for her to be assessed as a parent for A either in the community or at some residential parenting assessment unit.[31]On the back of that recommendation a further application was made and the judge again acceded to a request on the part of the mother to instruct an independent social worker of her choosing. That social worker, Miss P, was instructed and she produced a report some 2 or 3 days before the hearing of evidence at the final hearing.[32]So far as Dr T is concerned, his recommendations developed during the course of the hearing. Initially, as I have indicated, at page E78 of the bundle, paragraph 12, he recommended a parenting assessment either residential or community based. By the time he came to give his evidence matters had developed in one respect, in that the fact that the mother was again pregnant had become known to the court. Also, secondly, Dr T by then had read, albeit at the 11th hour, Miss P's independent social work report, which concluded negatively and against a placement with the mother. The transcript shows Dr T being taken to these matters, in particular at page E102 and E103 of the transcript. I am not going to read all of his evidence at that point but it is plain that he indicated at one stage that he would "like the opportunity just to think about whether perhaps in the context of another pregnancy whether some psycho-dynamic therapy might be indicated". He was then asked to be more precise about that and he indicated that some form of short, focused psychotherapy might be proportionate and "would be probably 6 months" but "depending on progress made potentially longer than that, but clearly I don't know if there's evidence as to what stage the new pregnancy is at but clearly that does shift the whole landscape of consideration about A".[33]In addition, in the course of Dr T's evidence itself the mother had to be removed from court on two occasions because she reacted adversely to one or other thing that had been said either by counsel or by Dr T and so by the time he gave his evidence his eyes were open, as it were, to first hand experience of how she might be. 34. The judge dealt with this in the course of his judgment at page B32 of the bundle, paragraph 35, in which the judge says this, having summarised the points I have just highlighted:
"This led Dr T to conclude that he had perhaps been overoptimistic in his assessment of her and he now concluded, having witnessed her outbursts, that she needed some psycho-dynamic therapy over a period of about 6 months and potentially longer. It was confirmed at the hearing on 11 April that the mother was pregnant. Dr T accepted that that was a significant change of circumstances."
[35]Mr Peddie, in his submissions, submitted that the judge was wrong in summarising Dr T's evidence in that way; the error is not that the judge failed to record adequately what he did say in his judgment, the submission is that the judge was in error in banking, as it were, that as a conclusion by Dr T, who had asked for some time to think about matters.[36]Circumstances have moved on and the proceedings in relation to the youngest child, F, are, as I have said, pending, and in the course of those Dr T has been asked a number of questions by the lawyers, the result of which is a letter dated 22 October 2013, only some 2 days ago, which Mr Peddie has handed into us and we have accepted on the basis that no party objects to us reading it. I am bound to say that this document confirms, in my view, the judge's rather pessimistic view of Dr T's opinion. Dr T repeats his basic categorisation of the mother's behaviour as not meeting any clinically identifiable psychiatric or personality disorder condition but, having witnessed her outbursts at the hearing, he says this:
"I was forced to conclude that the personality traits, such as mistrust of authority figures and tendency to overtly express anger et cetera (short of personality disorder) identified in my report have persisted and could interfere with her ability to work with social services." 37. He then indicates some brief psycho-therapeutic intervention but he indicates later in the letter that 6 months "in the first instance" would be required. That seems to me to be entirely in line with the view the judge had of his opinion and despite having now had the time to think it through, that remains the doctor's view. But of more significance to my eye is the following quote from the doctor's letter: "
The therapy could take place in the community but I do not know what is available in Manchester. If she were in London I would recommend an assessment by the Anna Freud Centre, which would involve a full multidisciplinary assessment of parenting, not just an independent social work report, and could also offer the individual therapy I suggested."[38]To my mind, and Mr Peddie in submissions agreed with this, this is a higher level of intervention than simply a parenting assessment in the community or even a residential parenting assessment; it is a multidisciplinary assessment intervention involving a team, including social workers and childcare specialists, but also including psychologists and/or psychiatrists. So, looking at Dr T's intervention now as a whole, both before the court case, during the course case and afterwards, if anything the judge was underplaying Dr T's view of the seriousness in his summary of it at paragraph 35. 39. Turning to the second topic, assessments, the conclusions that I have just described from Dr T carry on through to this head. The court had provided the assessment of Dr T and then Miss P. At the close of the case, it seems to me (and this is confirmed by counsel, Mr Karl Rowley, QC, for the local authority today) that there were no positive proposals put to the court for further assessment, there were no alternatives therefore to the local authority's plan actively being canvassed by the mother. That state of affairs is confirmed by the judge's reference to mother's counsel's approach in the hearing. At paragraph 11 the judge says:
"Mr Maddison conceded on her behalf that the local authority would succeed in its applications, she nevertheless opposes the care plan and seeks the return of A to her care."
[40]Then later in the judgment at paragraph 69:
"Mr Maddison on behalf of the mother submits that the mother recognises the inevitable. She hopes that A can be placed with her brother. Whatever the mother may have said about the court process, I hope that in time she will accept that she has been given every opportunity to demonstrate an ability to care for A."
[41]The judge found in the course of his conclusions that there was no alternative to the care plan because of A's age and because of the time it would take the mother to access therapy and then after that be assessed as a potential carer, and those were his conclusions in terms, in particular at paragraphs 84 and 86.[42]Of course, in addition to time scales, the judge will have had at the forefront of his mind the potential for this mother at any stage in an assessment to react adversely to criticism from social workers. In addition, an assessment period could only have been undertaken under the umbrella of a care order or an interim care order with a regular opportunity for the mother to react adversely to the local authority social workers who would be required to work with her. Therefore, it seems to me, although the judge did not expressly spell this out in his judgment, that simply to embark upon a period of parenting assessment would not be an easy passage and there was the potential for choppy water generated from her difficulty in coping with authority figures, in social workers.[43]Turning now to the more global heading of Mr Peddie's submissions about the failure to balance and other criticisms of the judge's approach; really these matters go to weight and to the judge's overall assessment of the risks. The basic submission is that this was not a sufficiently thorough piece of judicial analysis and that the case needs this court to set aside the substantive orders and direct a rehearing by a High Court judge.[44]As I have remarked already more than once, this case did require careful judicial scrutiny. For my part, having looked in detail at the judgment below, both in A's case and then a year before in Y's case, I am entirely satisfied that careful judicial scrutiny is exactly what His Honour Judge Hernandez supplied at both of these hearings. I stress that he did not following the "fast track", he followed also Dr T's recommendation for a further assessment and granted one, with the result that he had two full and thorough expert interventions which were fresh to this process of looking at what was in A's best interests, neither of those assessments supporting immediate reunification of this child to her mother's care. Dr T at the height of his evidence, looking at it from the mother's perspective, advised therapy for 6 months or longer but he did so from the perspective of being an adult psychiatric expert and not necessarily offering a global child-focused appraisal. The judge was required to offer a child focused appraisal, the judge's requirement was only to look to the child's welfare and to afford that paramount consideration and he ruled out further assessment as being beyond the child's time scale. In any event, as I have indicated, Dr T in his recent letter seems to confirm that this is a more intractable problem requiring a greater deal of intervention than he had previously thought. The judge's conclusion, to my view, is not capable of challenge on appeal. I have already made my observations about the threshold; the judge dealt with that issue thoroughly.[45]In addition, and perhaps inevitably given the flood of decisions from this court following the Supreme Court's decision in Re: B, Mr Peddie has submitted that the judge's approach here was a linear approach in which he followed the course of looking at the mother's case, jettisoning that before turning to adoption and the judge failed to undertake an holistic welfare appraisal.[46]To my mind, this judgment is not open to that criticism. This was not a case where the court was weighing up two potentially viable options for immediate placement, for example, as it might be in another case, between a grandmother or an aunt on the one hand and adoption on the other. That is when an holistic appraisal or welfare balance is required. The reality here, sadly, but the reality accepted by the mother's counsel, was that there was no option on the other side of the balance other than waiting for a significant period to see if therapy was achievable.[47]In terms of proportionality, which again is another angle from which Mr Peddie rightly asks us to consider the case, we are asked to consider whether this is a case, to use the phrase adopted by Lady Hale, in Re: B where "nothing else will do". I respond rhetorically, that there was "nothing else" put forward other than the open ended wait for therapy that I have just described and that wait had no guarantee that there would be success and a reduction of risk at the end of it. There was clear and immediate evidence before the judge's very eyes in the courtroom of the continuing problem presented by this mother from time to time.[48]It is impossible, in my view, to accede to the submission that the judge failed to engage sufficiently in analysing the factors in this case or that he failed to give sufficient reasons. The judgment shows that he was fully steeped in the detail of this case and no submission today has established that he was incorrect in his understanding of any part of the micro-detail, as I might call it, in the background of this matter. In the course of his judgment, the judge explains the material that was before him, explains his consideration of it and offers his analysis of it. He deals in detail with the threshold, he deals in detail with the expert evidence. There was, in reality, no viable alternative before the court other than placement for adoption.[49]In my view, this was a textbook judgment, which is incapable of challenge on appeal both as to its substance and, more importantly, its conclusions. I would therefore dismiss the appeal.[50]It is necessary to move on to look briefly at the request for permission to appeal of the refusal of contact in relation to Y at the hearing on 14 June.[51]We have not got a copy of the mother's application form or any statement that she put in in support of it but Mr Peddie tells us that his understanding is that she was seeking to establish direct contact with Y at the rate of one contact per week. It is not necessary for me to go into an analysis of the law in this field, which is well known to those who practice in it. Direct contact to a child who has been placed for adoption is a rare order for the court to make. Either such contact will be agreed by the adopters, in which case the court will not need to make an order, or, if it is not agreed, the court will be highly reluctant to force contact on adoptive parents who are being handed the child on the basis that they will take full responsibility for his or her care. Any parent would therefore face an uphill task in persuading a court at this stage in the proceedings for Y that contact should be investigated and started.[52]It is plain from the judgment given in Y's case that the judge did consider contact at the time that he made the care and placement orders in May 2012. Contact was part of the local authority's plan in the sense that it had already been suspended, at least for part of the time, and the plan was that it should not go forward as direct contact after these orders were made, and at paragraph 92 in the judgment, which I will not read into this judgment, the judge expressed that he was satisfied that that was a proportionate plan in the child's best interests.[53]In a case such as this, the judge has a wide discretion as to how he deploys the procedural apparatus available to him. There is a spectrum of procedural intervention which runs from, at one end, a full hearing to, at the other, summary dismissal. In my view, the judge was fully entitled to treat this application in the short terms that he adopted. Only a month before he had conducted the full hearing in relation to A. He knew all of the material that related to this mother and her current circumstances. In those particular circumstances, therefore, he was well placed to form an immediate view of the merits of her application. That is what he did and he refused it.[54]In my view, there are no potentially arguable grounds of appeal against that decision and I would refuse permission to appeal. LORD JUSTICE LAWS: I agree. LORD JUSTICE PITCHFORD: I also agree.

Cited in 3 later judgments