Hertfordshire County Council v FM & Ors [2007] EWHC 2660 (Fam)

[2007] EWHC 2660 (Fam)

Case No WD06C00195/WD06F00196

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 16/11/2007

Before

MRS JUSTICE MACUR DBE

Between

Hertfordshire County CouncilApplicant

F M1 st Respondent

G E-M2 nd Respondent

Ms G Temple-Bone (instructed by Hertfordshire CC Legal Dept) for Applicant

Ms R Auld (instructed by Baxter Webbe Solicitors) for 1 st Respondent

Ms J Bazley QC (instructed by Hancock Quins Solicitors) for 2 nd Respondent

Ms S Segal (instructed by Hancock Quins Solicitors) for 2 nd Respondent

Ms C Graves (instructed by Pictons Solicitors) for 3 rd– 5 th Respondents

Hearing Hearing dates: 9 th November 2007

Judgment

[1]This judgement is an addendum to that given on 27 July, 2007 in which I indicated that I required further information in order to conclude the proceedings. The nature of that further information was clearly set out in paragraph 76 of the judgement. It failed to materialise when the case was re-listed before me on 9 November 2007 and was only supplied by reason of reported telephone conversations between Miss Temple Bone, instructed on behalf of the Local Authority, and Dr Isweran, Consultant Psychiatrist who will be responsible for over seeing the father’s care in the community, during the morning and early afternoon court sessions of 9 November 2007. Those telephone conversations appear to have been held over a ‘speaker’ telephone facility since all Counsel have supplied further or corrected details presented orally to me by Miss Temple Bone. All parties have thereby confirmed the accuracy of the report to me and I intend to proceed on the basis of it. Nevertheless, I have directed that the information imparted to me shall be transcribed and verified by Dr Isweran and placed on the Court file no later than 23 November 2007.

[2]I do not intend to rehearse the history of the matter which is contained in the previous judgement. However, it seems it will be helpful to record in bullet point form the nub of that judgement in order that it may be the more readily accessed by the mother, those who will need to take decisions upon the discharge to, and management of Mr G M within, the community and the management of the order I intend to make in relation to the children, E, J and D.

[3]The relevant points to be derived from the findings I made are as follows:• E was subjected to inappropriate and disinhibited sexualised behaviour by her father, probably at the end of 2003. That is, the father when naked joined E, also naked, in the bath and embraced her. That behaviour is not proved to have led to digital or penile penetration but its effect was necessarily frightening to the child. The slant that the father puts upon the incident when speaking to Dr Isweran to the effect that E saw him naked in the bath before he had opportunity to cover himself and that he merely kissed her goodbye is unreliable.

• The father has otherwise exposed himself in the presence of E and J.

• The father has physically assaulted the mother.

• The father has acted bizarrely in the presence of E and J.

• This behaviour may have, but did not necessarily, result(ed) from the father’s poor mental health at the time.

• The mother failed to ensure adequate supervision of the children and acted contrary to the advice of Dr Fineberg in leaving the children in the father’s care for periods longer than 30 minutes prior to the allegation of E in February 2004, and subsequently when he was released from prison in July/August 2004 and therefore at a time when aware of E’s allegations which she said she believed albeit not proved in a Court of law, and at times when his mental health was precarious and volatile.

• The father is diagnosed as suffering from schizophrenia but was not adequately ‘followed up’ in the community following his period on remand. He did not receive any or any adequate psychiatric care and was adrift in the system until the intervention of Dr Kent, an expert witness in these proceedings. He has subsequently been ‘sectioned’ under sections 2 and 3 of the Mental Health Act 1983. He is currently detained by virtue of section 3. It subsequently transpires that a review of his ‘status’ will take place on 23 November 2007

• The mother was not and has not been wholly co-operative with social services. Her reaction may be explained in part by the inadequacy and inchoate response of social workers who were aware that the father had returned to live in the family home following his discharge from prison. Later social work has been well intentioned but somewhat ham fisted on occasions.

• There has been no adequate communication between the Local Authority Children, Schools and Families team and the Mental Health Team.

• The father is anxious to return home to his family.

• The father’s adverse mental health issues have been compounded by his reluctance to continue medication when in the community despite his previous acknowledgement of the necessity to do so.

• A properly informed and thorough competent risk assessment needs to be completed in relation to the father’s proclivity towards sexually disinhibited behaviour and domestic violence when not subject to untreated mental illness before the father can be considered as part of the family household. Any return of the father prior to the successful outcome of such an assessment will place the children at risk of harm.

• The mother has divided loyalties between her husband and children. She has not fully comprehended the nature and consequences her husband’s mental health problems and will need practical support to access and interpret information concerning his mental illness and the risk assessment that must be made before he returns to the family home.

[4]As indicated above, the father’s circumstances and likely future status has become clearer in the interim since July 2007. I am told that the review on 23 November is likely to lead to his discharge into the community either by virtue of Section 17 or 25(a) – (d) of the Mental Health Act 1983. That is he will be subject to conditions whether given leave of absence from the hospital or discharged with supervision. Dr Isweran confidently expects the conditions to include residence at a specified and supported unit and regular outpatient review and administration of medication.

[5]In a letter dated 5 November 2007 Dr Isweran reports that a Professional’s meeting held that day “acknowledged and accepted” the risks that the father presented to his children and they would be “taken into account in his management”. However, he continued:

“It will also be necessary for the court to take into account the planned discharge arrangements so that effective measures can be put in place for the purpose of the protection of his children. The Community Mental Health Team and the Forensic Mental Health Services will work together to assess Mr M’s mental health needs on an ongoing basis and address his needs. These teams will also work in liaison with the CSF so that the access to children will be arranged properly and that the welfare and the safety of the children are protected.”

These views have been confirmed to me orally in the manner indicated above. I am informed that Dr Isweran takes exception to any suggestion made by Children, Schools and Families that they are or would be ignored in any planning/ risk assessment meetings held in respect of the father.

[6]I bear firmly in mind the assurances I have received as to appropriate involvement and consultation between teams, that is Mental Health and Children, Schools and Families, however, equally I must reflect on past omissions by one or other of the teams and the resultant consequences and risks presented to the children. That said I am somewhat more confident in the future management of the risks the father may present by reason of Dr Isweran’s involvement and obvious commitment to rectify where possible the oversights of the past. However, mindful of the Court’s duty to ensure by the best possible means the future welfare of these children and regardless of the mother’s personal antipathy to such statutory intervention, I consider that it is necessary to make an order in this case.

[7]The issue left open on the last occasion was the nature of the order I should make. The same party lines are drawn. That is, the Local Authority and Children’s Guardian continue to seek Care Orders, albeit on slightly different arguments, the mother and father, Supervision Orders.

[8]I consider the case to be extremely finely balanced. I am not confident that the mother has sufficient understanding of the nature of, or risks presented by the father’s mental health problems to be sufficiently alert to the unpredictable nuances of volatile behaviour and belief system if he fails to take or respond to medication and professional ministration. Supervision of the children by an adult, even the mother, during such times of deteriorating mental health, will not ensure their safety as is indicated by the past history. I am uncertain that she grasps that his past actions may possibly have occurred even if he had not been ill and therefore be over reliant upon a psychiatrist giving the father a clean bill of health before an adequate risk assessment has taken place. However, I did perceive that confused though the mother may have been by the unfolding events of the past four years, she was not impressed by the father distancing himself from the nature of E’s allegations. In her evidence before me on the 9th November she indicated, for the first time in my view, a distancing stance from him, stating that he was “making up stories” which she did not accept and would not tolerate. When asked by Counsel what changed her stance between 2004 and now, since previously he had denied rape, her reply that previously, when on remand, his assertion that he did not remember what had happened but that he was remorseful for his actions was consistent with her believing E’s allegations, convinced me that her evidence was not opportunistic. I see this as a positive move in the right direction for her. I have placed it in the balance.

[9]In the same vein, I note that the mother has fulfilled her stated intention that the girls should attend the Treetops NSPCC ‘therapeutic’ project subject to their other school commitments. She has achieved this in the face of their stated defiance and in the context of her previous objections to dates proffered, which she explained to be in an attempt to avoid disruption but others perceived as intransigence. (As to this also note paragraph 10 below.) The report is ‘mixed’, has not been subject to cross examination, but has encouraging aspects. No further work is recommended at this stage.

[10]I am very concerned as to the nature of the relationship between social workers and the family. As I previously indicated, some personnel did not cover themselves in glory either in the field or in the court room. I do consider that Miss Smith has worked hard at developing a relationship with the mother, despite the reluctance of the mother to engage fully in the process. It is disappointing that ultimately the breakdown of trust between the two sides was no doubt exacerbated by the sudden change of care plan without any prior notification to or consultation with the mother. The Guardian is rightly concerned about this breakdown of trust and uses it as a main plank of her change of recommendation. I have dealt with the late differences between the mother and Miss Smith in my previous judgement and do not repeat them here. I don’t think either side completely understood the position of the other. Both read into the others dialogue what initially they wished to hear. On the balance of probabilities I conclude that this was a genuine misunderstanding of each other’s perspective with a slow dawn of realisation for each that they were not ad idem.

[11]The reticence of a family to engage with social services on a voluntary basis is no bar to the making of an order; in fact it is often the main basis to found an application. It is to be reasonably expected that the majority of parents and carers will resent outside interference within their family life no matter how sensitively approached. However, in a case such as this I consider that the impact upon family life of a statutory order, and particularly the nature of that order, must be factored in to my consideration of the so called ‘welfare check list.’

[12]I have paid regard to all features in section 1(3) of the Children’s Act 1998 although I do not descend to the detail of my findings on each aspect of the list at this point of the judgement. They may be derived within this and the previous judgement of the Court.

[13]The girls, and quite obviously D, are not capable of protecting themselves from possible vagaries of family life with their father at this time. I am not satisfied that their mother will be able to satisfactorily, in point of view of their welfare, resolve any possible quandary that may arise in the short and medium term. I say this in knowledge of her love for her children and my finding that she would not knowingly put them at risk but balanced by her commitment to her marriage, feelings of responsibility for a sick husband and understandable confusion of the events as they have unfolded. In the light of the risk that I have assessed the father to pose on the available evidence, these facts would normally tend me towards the view that the local authority needs to share parental responsibility in such a case.

[14]However, of particular significance to me has been the girls’ open hostility and strong opposition to the role of the social worker in their lives, inherited or assimilated, as I am sure it has been, from the mother, seen in the context of the evidence of Miss Spencer, a social service’s team manager, as to the proposed method of working under Care or Supervision order.

[15]The girls are fiercely loyal to their mother despite indications of a strong disciplinarian model of parenting. They have done well in her care and are intelligent, otherwise independent, and high achieving girls across the spectrum of academic, musical and sporting activities. It seems that they have a good network of friends. They are truculent in the face of any attempted engagement by social services personnel. They know of their mother’s strong resistance to such outside intervention. They will be difficult to engage whatever order I make but are more likely to be compliant to mother’s instruction to participate in the process which is the more likely in the case of the least draconian order.

[16]Ms Spencer’s unambiguous evidence was to the effect that regardless of the type of order, the programme of visiting would be exactly the same. In the event of the father’s return home the children would not be immediately removed, but a meeting would be convened to assess the situation, whether or not a care order was in place. This evidence was no doubt given to assure the Court that the local authority would not intend to be heavy handed in policing a care order and would intend to give the fullest possible rein to the mother in exercising her parental responsibility save in the decision of allowing the father to return to the family home. Her approach is to be commended but raises the pertinent question of the benefits that would flow from a care order as opposed to a supervision order in these circumstances.

[17]Of course, I remind myself of the different statutory obligations placed upon the local authority by the making of a care order so clearly highlighted in the judgements of Mrs Justice Hale, as she then was, in the cases of RE O(Care or Supervision Order)

[1996] 2 FLR 755

and Oxford CC v L

[1998] 1FLR 70

. I also bear in mind the Guardian’s opinion and recommendation that the protection of these children requires the making of a Care Order.

[18]The Guardian, Ms Flavin’s evidence is unequivocal that in her opinion the children will be more vulnerable under a Supervision Order than under a Care Order. When pressed in cross examination she insisted that this was due to the nature of the poor relationship between Ms Smith (or I suspect any other social worker) and the mother; her realisation of the same initiating her rethink of the most appropriate order to safeguard the children. The final submissions on her behalf suggest a need to impress upon the Local Authority the need for extra vigilance and assumption of responsibility for these children which obviously refers to its duty under section 22 of the 1989 Act if a Care Order is made. At the end of the day the combined effect of her evidence and submissions made on this issue seems, not uncommonly, to come down to the ‘threat of the children’s removal’ providing the sword of Damocles to ensure mother and daughters’ engagement.

[19]I consider Ms Flavin’s opinions and evidence to have been conscientiously developed and presented. Her late change of recommendation is not a product of fickle whim or lack of independence but the discharge of her duty to the children as she feels necessitated by the changing scenario. Nevertheless I do not adopt her recommendation. Whilst I do not underestimate the nature and degree of the risk potentially presented by the father, I balance that risk against the undoubted adverse and pernicious effect on the well being of the present family structure in the event of a Care Order being made, which she herself recognised, and bring into account the likely outcome of the father’s discharge and future community management.

[20]I am satisfied on the basis of the information I have received that the father will be managed by the Mental Health Community Team with full knowledge of this and the previous judgement of the Court as to the risk that the father presents, and decisions will be made in consultation with Children, Schools and Families, whatever the nature of the order they hold. I am entitled to expect that the Local Authority will exercise the management of the Supervision Orders in the same vein.

[21]In this context I view the balance as tipping in favour of a Supervision Order. In making a Supervision Order I do not reflect a diminished risk and make clear that in the event of the mother permitting the father’s return to the home before adequate assessment or obstructing the social workers access to the children in any sense, I anticipate that the Local Authority would seek the Court’s approval, by application, for the ultimate sanction of removal of the children. The mother ( and through her, her daughters) must be under no illusion of what may happen if she/they is/are unable to co-operate with those charged with the duties of Supervising Officer. In my view, these circumstances, by reason of the Community Mental Health Team’s approach as I identify in the previous paragraph and elsewhere, are less likely to occur than previously was the case. The Local Authority will obviously reflect on the need to apply to extend the Supervision Order at the appropriate time.

[22]Since 25 July 2007, the father has seen the children during supervised contact sessions. In general it is considered to be positive experience and will continue on a two weekly, increasing to weekly, cycle dependant upon the continuing improved mental health of the father. There have been difficulties in transportation of mother and children and further breakdown of communication between the mother and social services it seems to me. Mother is reported to have required supervised contact to take place in the family home. In her further evidence before me the mother has made clear that this was said in frustration and not as a demand. Regardless of its context it was ill thought out and is an entirely unmeritorious solution to the perceived problem, real or not. The father should not be allowed to think that he can return home once living in the community without further assessment as indicated above. To visit the family home, even for the purpose of supervised contact may create an unfounded expectation on his part that his return is likely to be imminent. I therefore propose to order of my own motion pursuant to section 8, 10 and 11 of the 1989 Act that contact shall be supervised by appropriate mental health team personnel and be subject to a condition that it is not to take place in the family home without the written approval of the Mental Health Home Team, Supervising Officer of Children Schools and Families and Mrs M, or, in the event of disagreement, the further order of the Court.

[23]In making the Supervision Order I find no justification or legitimate end in denying the mother the return of her own or the children’s passports.

[24]An order should be drawn accordingly