S & H-S (Children) [2018] EWCA Civ 1282

Case No B4/2018/0096/CCFMF[2018] EWCA Civ 1282
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS FAMILY COURT
HHJ LYNCH
LS1700208
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/06/2018
Before
LORD JUSTICE MCFARLANELORD JUSTICE LINDBLOM
Between
S & H-S (CHILDREN)AppellantS & H-S (CHILDREN)
Alex Taylor and Giorgia Sessi (instructed by Ison Harrison Solicitors) for Appellant (mother)Gillian Irving QC and Zimran Samuel (instructed by Kirklees Council) for RespondentJoanne Astbury for Respondent (children)Hearing Hearing dates : Thursday 19th April
Judgment
[1]This appeal relates to a care order made on 21 December 2017 by Her Honour Judge Lynch with respect to a young girl who was then aged 2 ¾ years. The narrow, but plainly important, issue in the appeal solely relates to the judge’s finding that the threshold criteria in Children Act 1989 [CA 1989], s 31 were satisfied with respect to L.[2]The background to the proceedings is complicated firstly by the fact that L is one of a family of 3 children, with 2 older siblings aged 9 and 6 years at the time of the hearing and, secondly, by the fact that these proceedings followed earlier care proceedings issued in May 2015 and concluded in July 2016.[3]The Appellant is the children’s mother and the focus of the appeal is upon her relationship with the children, and particularly L, who is the sole subject of the appeal proceedings. Following her birth L lived with her two parents and the elder two children for some two months prior to being removed from her parents’ care at that stage following discovery that she had sustained a fracture to her left femur. By the direction of the court, she was returned to her mother’s sole care in about March 2016 and she remained there, subsequently subject to a supervision order made at the conclusion of the first care proceedings in July 2016, until her removal in March 2017 when the second set of care proceedings was instituted as a result of allegations that one or both of the two older children had been assaulted by their father.[4]Finally, by way of introduction to the issue under appeal, HHJ Lynch, who was the judge with respect to both sets of care proceedings, found the CA 1989, s 31 threshold criteria satisfied with respect to the mother’s care of L on the basis that L was suffering, and was likely to suffer, significant emotional harm. 2016 Care Proceedings: Findings[5]In the course of the 2015/2016 care proceedings the judge made factual findings under the following three headings: i) That the two older children had suffered emotional harm arising out of the significant domestic violence in the relationship between their parents (i.e their father, not the mother’s subsequent partner who is the father of L); ii) L had suffered significant physical harm when she sustained a fractured femur, but this fracture was caused accidentally by her father. The father, nevertheless, failed to obtain prompt medical treatment thereby exposing the child unnecessarily to prolonged pain and distress and failing to meet her emotional needs; iii) All three children had suffered significant harm through neglect of their emotional and developmental needs, at times, although not exclusively, arising out of the drug use of the mother and L’s father. The older children had been harmed by inconsistent school and nursery attendance. The mother’s use of drugs when under stress put the children at risk of significant harm and they were likely to suffer significant harm of that nature in the future.[6]At the conclusion of the 2016 proceedings, the two older children went to live with their father and L continued to live, alone, with her mother under a supervision order. She was also regarded as “a child in need”, by the local authority and a range of modest support services were provided. The 2017 Proceedings[7]The 2017 proceedings were commenced following allegations made by the mother that the two older children had reported being physically assaulted by their father, with whom they were living. The proceedings commenced on the 9 March 2017 and that date, therefore, is the relevant date for the consideration for the threshold criteria with respect to all three children, and particularly L.[8]Partly on the basis of the mother’s allegations and partly on the basis that these were supported, in part, by what had been said by the two older children, the local authority prosecuted findings of fact with respect to physical harm against their father. In addition, allegations of emotional harm to all three children were made.[9]The hearing before Judge Lynch took place over the course of three weeks in December 2017. The Judge issued a reserved judgment which was circulated to the parties ready for handing down on the 21st December.[10]A substantial part of the judgment, 24 of the 56 pages, is taken up with the judge’s review of the evidence relating to the allegations of physical harm. The judge’s ultimate conclusion was that the older children’s father had chastised them by slapping them on their bottoms and legs, but that this did not cause them any injury and that such bruising that may have been seen on them was likely to have been caused accidentally in play or by the children fighting with each other. The father’s discipline did not constitute over-chastisement. On that basis, therefore, the judge declined to make any threshold findings against the father.[11]In the course of her evaluation the judge concluded that the mother held the strong view that these two children should be back in her care and that she had been unable to hide those views from the children when she spent time with them. Whilst the judge found that the mother had not deliberately caused the children to lie or exaggerate, her reaction to their complaints will have encouraged them to speak negatively of their father. Further, the judge expressly found that the mother had, herself, deliberately lied in order to bolster the accounts given by the children.[12]The remainder of the judgment focussed upon the local authority’s assertion that each of the three children was being caused significant emotional harm as a result of the mother’s emotional personality.[13]Although none of the three categories of finding made in the 2015/6 proceedings related directly to the mother’s personality, the court in those earlier proceedings had had evidence of the mother’s emotional functioning from a clinical psychologist who had described the mother (on the judge’s description) as “an emotionally reactive person, crying frequently with relatively little provocation, and that she presented all information with a positive bias”. She was said to be prone to give “highly reactive emotional responses” and was at times “cognitively dysregulated”. The judge held that this accorded with her own, lay, description of the mother as “a drama queen”.[14]In the closing stages of a judgment given on 11 November 2015, although not directly relevant to the findings of fact relating to the threshold criteria, the judge went on to draw conclusions on the evidence of the mother’s psychological health that had been presented to the court by that stage and, of course, from the judge’s direct exposure to the mother during the hearing. At paragraph 122 the judge said this:
“I then have the benefit of the assessment by (clinical psychologist). Her conclusion from her meeting with the mother was that she had a cluster of difficulties that were at best conceptualised as personality disorder. She said that, in summary, personality disordered individuals demonstrate rigid patterns of functioning and difficulty in learning from experience that tend to lead them to make the same mistakes time and time again. She spoke of one feature of a personality disordered individual being a tenacious stability under conditions of subjective stress, making them susceptible to events which reactivate the past and make them vulnerable to new difficulties and disruptions.”
[15]The judge then records that the psychologist’s description fits the judge’s own impression of the mother as being “someone with highly reactive emotional responses, having difficulties with episodic depression, anxiety and irritability, who experienced relationships in a way which may be chaotic, intense and marked with difficulties, but then found it extremely hard to let go of relationships.”[16]Having cautioned herself that, as the mother was pregnant at the time of the assessment and as the clinical psychologist was not medically qualified, those factors may mean that the court would not rely upon a formal diagnosis of “personality disorder”, the judge went on to hold that that diagnosis fitted entirely with the judge’s own impression of the mother during the case. She said “it also fits with so much other information available to me from the papers and from my impression of the mother in the witness box”. Behavioural therapy had been identified as a possible means of assistance to the mother, but, the judge held, to be effective this would require a significant amount of work on her part.[17]In the final judgment in the 2015/6 proceedings, given on 4 July 2016, the judge returned to the topic of the mother’s emotional health and stated “the mother’s emotional and psychological health has always been at the forefront of this case.” Then, at paragraph 93, she revised her earlier conclusion in the following terms:
“Having now had the benefit of seeing (mother) more than six months on from the last hearing and at a time when she is not pregnant, I am satisfied that (clinical psychologist’s) description of her is accurate. So much of what is in her report now fits with my impression of the mother.”
[18]In concluding that the two older children should live with the father, rather than their mother, the judge explained her conclusion on the basis of the doubts that she had “about the mother’s ability to meet their needs and the fact is that her caring for three children as a sole parent, with the psychological difficulties we know she has, is untested.”[19]In the present round of proceedings, the court had the benefit of an independent expert opinion from a different clinical psychologist, Dr Hall. Dr Hall conducted an in-depth interview with the mother and observed one contact between the mother and all three children. Her report contains a substantial section summarising what is said to be a considerable and growing body of research indicating the importance at all levels of “the relationship environment” upon a child’s emotional and, significantly, neurological development. In summary she stated:
“Attachment in children is the most fundamental process that is essential for the child’s development and has been defined as the “deep and enduring connection established between a child and care giver in the first several years of life. It profoundly influences every component of the human condition - mind, body, emotions, relationships and values. Attachment is a physiological, emotional, cognitive and social phenomenon” (Levy and Orlans, 1998). It is created between care giver and child through a process of attunement and mutual reciprocity.”
[20]Dr Hall then described the benefits of secure attachment and made reference to recent advances in neuroscience indicating the impact on the development of a baby’s brain as a result of the attachment process. Later she stated:
“Without a secure attachment, the child is at risk of serious problems throughout its development. Attachments are categorised as secure, insecure (avoidant and preoccupied) and disorganised attachments. Parent-child interaction which is either frightened or frightening or both has been repeatedly shown to be associated with the development of disorganised attachment in children. Disorganised attachment in childhood is strongly associated with the development of a wide range of psychopathological difficulties in childhood and adulthood.”
[21]Dr Hall’s overall assessment of the mother identified an inability to control her emotional reactions in the course of her ordinary life. She oscillates between a state of hyper-arousal (over emotionally reactive, hyper-vigilant, hyper-defensive, obsessive cognitive processing), or, at the other end of the scale, hypo-arousal (parasympathetic responses, flat effect, numb, cognitively dissociated, collapsed, disabled defensive responses). Dr Hall considered that the mother’s lack of control of her emotional reactions affected all her relationships. She had poor interpersonal boundaries, probably resulting from her own adverse experiences as a child.[22]As a psychologist, Dr Hall, understandably, held back from offering a psychiatric diagnosis but her report was in tune with the earlier conclusions drawn by the psychologist in the previous proceedings. She agreed that the mother had significant borderline personality traits and that “she shows difficulties with attachment, poor impulse control and a level of emotional reactivity which prevents her from learning from situations and showing the level of maturity that she believes she possesses.”[23]In the course of her oral evidence Dr Hall stated with regard to the children’s attachment to their mother that it was “at very best” insecure. The level of attachment was, she considered, “on the boundary of insecure and disorganised.” The part of the questioning, on behalf of the older children is of relevance:
“Q And the continuation of a relationship which has a damaged attachment style would be very damaging for these children, would it not? A Yes, there is a lot of evidence showing that children who have more disorganised styles of attachment with a parent, if they stay there, their future mental health, relationships, social interactions, everything, is negatively effected; learning , schooling. You name it, it is…there is a lot of evidence. Q So to return these children to the care of their mother with that attachment style would be very damaging to these children, would it not? A Without any change in the mother, yes. Q And attachment styles develop over time? A They develop in reaction to the environment in which the child…the emotional environment, the caring environment in which they are brought up and they are a response for what is available to the children in terms of how much consistency and stability the parent gives. The children learn trust through repetition and consistency and if these things are not available to the child, they do not have anyway of attaching to that person even though they have to because that person is their carer. So it is a dilemma for children in that situation. Q So what conclusions can you draw from your considerable expertise about the parenting these children have been afforded by their mother such that their attachment to her is how you have described it? A Well it, tells a story. It tells me that the mother has not been able to provide the necessary consistency to these children in terms of physical care, emotional care, emotional availability; all aspects of parents. There maybe some good bits but overall it is not been good enough for the children to feel secure in that situation.”
Q And attachment styles develop over time? The Judge’s Judgment

Q And attachment styles develop over time?

[24]The first matter of note with respect to the judge’s judgment dated 21 December 2017 is that, although she records the findings of fact made by her in 2015 relating directly to the threshold criteria, she does not make reference to her supplemental finding as to the mother’s emotional and mental well being based upon the clinical psychologist’s report. This is a perplexing omission given the importance that that element of the case was to play in the findings that the judge went on to make in 2017.[25]In the course of the substantial section of the judgment dealing with the potential for emotional harm caused to the three children as a result of the mother’s personality, the judge gave a summary of the evidence provided by Dr Hall. The judge then moved on to set out her conclusions on emotional harm which, as they are of central importance to this appeal, I will set out in full:
“106. I acknowledge that Dr Hall witnessed the children with their mother together at a time when she was pregnant and I accept Dr Mir’s evidence that pregnancy was one of the factors which would have impacted on the mother’s presentation, along with many other stresses she has experienced. I do not accept though that that is relevant to an assessment of attachment which looks not just at the mother’s side of things but how the children respond to her. The description of the contact which Dr Hall observed is mirrored in contacts seen by Sue Bach (independent social worker) and in many of the contact notes filed in these proceedings, at times when the mother was pregnant and when she was not. Dr Hall is a well respected psychologist identified as being appropriate to assess the myriad issues in this case and I accept her assessment in respect of attachment. Mr Taylor challenged this in his submissions, observing she had made no mention of resilience, but her evidence on attachment is clear and she did not resile from it. Many professionals have observed L being clingy to her mother, again at many different times in the proceedings. Attachments build up over the life of a child and demonstrate the child’s response to parenting. It is my view that the difficulties seen in the children by Dr Hall, mirrored in observations of contact and of other professionals, are evidence of emotional harm to the children resulting from the parenting they have received from their mother. 107. The mother’s emotional presentation has been an issue since the end of the last proceedings. The mother says she has been under immense stress from many sources during the proceedings, including the pressure of the proceedings themselves and the removal of her children, learning that the local authority put her in the pool of perpetrators in having injured R and S, and being pregnant and then miscarriage to name but a few. Mr Taylor submits on the mother’s behalf that that means I cannot rely on her behaviour during proceedings to evidence significant harm as at the date of threshold. I look back to the mother’s behaviour since the last proceedings and am satisfied that her emotional difficulties have been evident throughout. She has been emotional in her dealings with social workers and with her community care worker, with the school, with refuge workers, even hospital staff in December 2016. This has often been in front of the children, although (mother) struggled to recall or accept that. Looking at the contact notes, at the contacts witnessed by Sue Bach and Liz Hall, these show only too clearly how the mother behaves in front of the children. Workers who have tried to assist her have come up against the fact that she has been in crisis and has been unable to address issues. This is referenced in the evidence of the health visitor and records of conversation with the mother’s CPN. The evidence is littered with references to difficult discussions with the mother when she has been distressed and unable to contain her emotions in front of the children. Even if I agreed with Mr Taylor that I had to disregard everything since the proceedings began when looking at the risk of harm to the children, I am satisfied the evidence from the end of the last proceedings to the start of these justifies a finding relating to emotional harm caused by their mother. I acknowledge she has had to deal with matters she has found stressful and I acknowledge she has attempted to deal with some of these, although it seems to me often with rather an expectation others would resolve the difficulties for her. However, at least some of the difficulties she encountered prior to these proceedings are likely to be present in future, including the difficulties of dealing with the fathers and their families, quite possible getting pregnant again, and I do not imagine her emotional presentation is going to improve dramatically. 108. Looking at whether threshold was met at the time at proceedings were commenced, I acknowledge that (the social worker) was of the view that he would not have begun the PLO process if R and S had not had bruising, (another social worker) did not think during her involvement it was required, and Sue Bach was not saying the local authority should have begun the PLO process. However, that does not mean that threshold was not met when one stands back and looks at the evidence…We are in proceedings in respect of all three children and the question for me is whether threshold was met at the time proceedings commenced and then what is the right plan from each of the children now. 109. The other factor relevant to whether the children have suffered significant harm as a result of the mother’s emotional presentation and/or would be likely to do so in the future stem from what I have said in respect of the allegations of harm caused to the children by (the father). The mother’s emotional difficulties, as I have said earlier, impacted on her response to R and S being physically chastised and her subsequent dishonest evidence seeking to bolster her case against him. Her actions contributed to all three children being removed from the care of their parents, removal which would undoubtedly have affected each of the children. Her personality difficulties and her view of both fathers and their families, evident very acutely in her heightened allegations against DD, cause me to think she will continue to have anxieties about the care of her children and therefore potentially to undermine any placement of children away from her care, a view shared by professionals including Sue Bach. 110. I therefore find that (the mother) has significant borderline emotionally unstable personality traits and these are played out in her emotional, cognitive and behavioural functioning. Those traits are life long and can be more intense at times of stress. (The mother) shows difficulties with attachment, poor impulse control and a level of reactivity. She has not consistently accessed appropriate treatment and therefore her difficulties have continued to impact on her emotional stability and her presentation is such that the children have suffered significant emotional harm. Change is likely to be a long term prospect and will require specialist therapy alongside appropriate medication.”
[26]In the welfare section of the judgment the following appears:
“Although at the present time the mother does not seek to have L in her care, I must be clear that I am not making a short-term decision in relation to L. The mother’s emotional difficulties are such that she will not be able to meet her daughter’s needs, in the same way that she cannot meet R and S’s, unless and until she can make changes in her emotional functioning because that impacts on her children. I am satisfied that in her mother’s care L would be at risk of significant emotional harm in the future.”
This passage is of note as it contains the only finding of a risk of future significant harm that appears in the 2017 judgment.[27]Finally, in a separate box of text on the last page of the 21 December judgment the following appears: 28. “THRESHOLD FINDINGS (Mother) has significant borderline emotionally unstable personality traits and these are played out in her emotional, cognitive and behavioural functioning. Those traits are life-long and can be more intense at times of stress. (Mother) showed difficulties with attachment, poor impulse control and a level of reactivity. She has not consistently accessed appropriate treatment and therefore her difficulties have continued to impact on her emotional stability and her presentation is such that the children have suffered from significant emotional harm. Change is likely to be a long-term prospect and will require specialist therapy alongside appropriate medication.”[28]The judge had circulated a draft of her judgment prior to handing it down on 21 December. As a result, further submissions were made by Mr Alex Taylor, counsel for the mother before the judge as, indeed, he is before this court. At Mr Taylor’s invitation the judge provided a supplemental judgment to be read in conjunction with the main judgment which, in part, focussed on the question of emotional harm to the child L as follows:
“The particular element of the original judgment Mr Taylor particularly wishes me to revisit is the aspect relating to emotional harm caused or likely to be caused to L. Overall Mr Taylor queries whether the court has considered the question of the s.31(2) threshold with reference to L individually. My response to that is that it was considered separately but is nonetheless linked with the other children, not least given my findings about the mother’s lack of honesty regarding the bruises those children had. Findings of emotional harm were relevant [to] all three children and hence were addressed in the same section; this does not mean I had not considered the question of threshold for each child separately.”
[29]After making reference to the case of Re B [2013] UKSC 33

the judge continued:

“Turning then to L’s situation, I am satisfied I applied the law as set out in Re B when considering if threshold was crossed for L when looking at the likelihood of future harm. I should first reiterate though that I am satisfied that threshold has been crossed firstly because she has already suffered emotional harm, along with the other children. Mr Taylor asks: “what does the judgment mean by “emotional harm”?”
Emotional harm means different things in different contexts but in terms of harm already suffered by the children the emotional harm is in the lack of a secure attachment of the mother. This is addressed in the main judgment in paragraphs 105 and 106. The evidence of Dr Hall, the psychologist, was of a lack of a secure attachment between the children and their mother. I am satisfied that lack of a secure attachment can constitute emotional harm and is the consequence of parenting over a significant period of time, so here both during the proceedings and before. The fact that Dr Hall observed this during the proceedings does not mean the attachment difficulties had resulted only from care given since proceedings began, as addressed in paragraph 106.” The judge then went on to give further detail in support of her conclusions before turning to the alternative limb in the threshold criteria relating to the likelihood of future harm:
“Looking at likelihood of emotional harm, I was satisfied on the evidence both before and during proceedings of the mother’s emotional difficulties and that these were likely to continue to impact on her children including L.”
[30]Finally, it is relevant to note that the court order dated 21 December simply states that all three children are to be placed in the care of the local authority prior to setting out four further short supplemental directions which are of no relevance to this appeal. The order does not refer to or record the court’s findings on the threshold criteria. The Mother’s Appeal[31]The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made: a) The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9th March 2015, and the compromised state that she descended into thereafter during the proceedings. b) Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern. c) It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017. d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”. e) A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.[32]On 31 January 2018 I granted permission to appeal on the basis that there was arguably a lack of focus in the judgment on the need to establish significant harm (or likely significant harm) to the individual child and that “simply identifying deficits in the mother’s personality is unlikely to be sufficient to meet the legal requirements of s 31.”[33]Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions: i) The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process. ii) The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings. iii) The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken. iv) The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria. v) Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.[34]The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.[35]Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour: a) The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016. b) The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31. c) Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”. d) Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”. e) Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm. f) As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm. g) The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.[36]Despite the concession that the local authority was bound to make as to the formulation of the judge’s “threshold findings”, Miss Irving submits that there is sufficient within the judgment, and the judge’s findings as to the validity of Dr Hall’s evidence, to make it clear that the court accepted that the mother’s life-long personality traits and presentation were causing each of the children significant harm as at 9 March 2017 and were likely to cause significant harm in the future.[37]Miss Astbury, representing the children’s guardian before this court, as she did before the Judge, effectively adopts the local authority’s submissions.[38]What I have said thus far encompasses Mr Taylor’s first two points. The third point relates to Re B in which the judgments of the Supreme Court endorse the practice guidance contained in the judgment of Baroness Hale. Mr Taylor relies upon the totality of what is said between paragraphs 177 and 193, but principally upon the following which appears in paragraph 193:
“193. I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind: (1) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.(3) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened. (4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect. (5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.”
[39]For the reasons which I have already rehearsed in more detail with respect to his first two points, Mr Taylor submits that the judge’s analysis wholly fails to deliver the degree of particularity and precision described by Baroness Hale in her judgment.[40]So far as Mr Taylor’s fourth point is concerned, if the judge’s findings on threshold are to be taken as being set out in the paragraph at the end of the judgment, then, as conceded by the local authority, simply to identify a deficit in the mother’s emotional and mental wellbeing is indeed insufficient, of itself, to establish that the children were suffering or were likely to suffer significant harm as a result.[41]Mr Taylor’s fifth and final point is, in reality, an attempt to neutralise part of Miss Irving’s presentation of the local authority’s response which he knew was to be delivered. Miss Irving had extracted some 14 specific findings made by the judge in the course of her judgment and had included them in a new “threshold” document which, she argued, could now properly stand as a record of the judge’s findings on threshold with respect to L.[42]For my part, it is simply not possible for this court to contemplate directing that Miss Irving’s document should now replace the threshold findings recorded by the judge in her judgment. I hold that view for two separate reasons. Firstly, and this is not unimportant, the document was produced for the first time at the oral hearing having been prepared by counsel overnight. As it is a submission that the care order should now be upheld for reasons that are either in addition to, or replace, those stated by the judge, the local authority’s case on this point should have been set out in a Respondent’s Notice filed in due time in order to provide the appellant and this court with sufficient notice of the point. It would, simply, be procedurally unfair for this court now to entertain the local authority’s submissions in that regard.[43]Secondly, whilst the specific findings relied upon, for example the mother’s manipulation of the older children in order to generate false allegations against their father, might have been used by the judge to support a threshold finding, the judge, who had been steeped in the detail of that aspect of the case forming, as it did, a major aspect of the trial before her, chose not to take that course. The judge made no finding that the children were suffering significant harm as a result of the various matters which are now pleaded. It seems to me, therefore, notwithstanding any issues of procedural fairness, it would simply be exorbitant for this court now to re-determine the threshold on a wholly different basis from that found by the judge. Discussion[44]In contrast to the position that applied when granting permission to appeal, this court now has the benefit of the judge’s judgments given in 2014 and 2015, Dr Hall’s very detailed report and the transcript of her evidence. That material plainly and sadly establishes that the mother’s emotional and psychological vulnerability has been evident throughout the period from 2014 onwards. Dr Hall’s evidence, which the judge accepted, was that the mother’s difficulties were deep-seated and arose as a result of the impact of her own childhood. On the judge’s findings in 2014, 2015, and now in 2017, the mother’s emotional difficulties are “life long” and, whilst possibly amenable to therapy, such therapy would represent a substantial piece of work.[45]Although the judge makes no reference to the findings that she made in 2014 and 2015, she was the judge who had made those findings, she records that Dr Hall agreed with the basic premise advanced by the clinical psychologist in the earlier proceedings, and the judge, in turn, was impressed with Dr Hall’s evidence and adopted her conclusions.[46]As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.[47]The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.[48]It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.[49]This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.[50]At paragraph 106 the judge expressly accepted Dr Hall’s assessment with respect to attachment. She holds that the attachment difficulties seen in the children by Dr Hall are evidence of emotional harm resulting from the mother’s parenting. At paragraph 107, the judge, as she was able to do having been the judge in the previous proceedings, held that the mother’s emotional presentation and behaviour had been evident throughout the period prior to the issue of the 2017 proceedings and that the children had suffered emotional harm during that period.[51]Although the phrase “significant emotional harm” is not used in paragraphs 106 and 107, HHJ Lynch, as a specialist family judge, will have been well familiar with the need to establish “significant harm” within the context of s 31. As her conclusion in paragraph 110 demonstrates, she did indeed find, on the basis of the matters set out in the previous paragraphs, that “ the children have suffered from significant emotional harm” and, as I have demonstrated, that this related to the period prior to 9 March. Further, so far as L is concerned, paragraph 152, although appearing in the welfare section of the judgment, does include a finding that L would be at risk of significant emotional harm were she to return to her mother’s care.[52]Set against the comprehensive expert evaluation provided by Dr Hall, the positive records of L’s functioning made by the health visitor and others, and, indeed, the fact that social workers were not considering care proceedings as a result of the mother’s care of the children, can only be of minimal weight. Whilst the judge did not expressly refer to the positive records of those visiting the family, she did engage with the bigger point relating to the social worker’s view of the mother prior to 9 March at paragraph 108. For the reasons given by the judge in that paragraph, she was entitled to hold that the threshold criteria were met at the conclusion of a three week trial informed, as it was, by the credible expert opinion of a clinical psychologist.[53]In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.[54]For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm. Lessons for the Future?[55]Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.[56]In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.[57]When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.[58]A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.[59]Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.[60]At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.[61]The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.

Lord Justice Lindblom:

[62]I agree

Cited in 4 later judgments