AD & AM (Non-Accidental Injury: Welfare) [2014] EWHC 4899 (Fam)

Case No U012C00237[2014] EWHC 4899 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/03/2014
Before
The Honourable MR JUSTICE COBB
Re AD & AM (Non-Accidental Injury: Welfare)
Hearing Hearing dates: 24-25 March 2014
Aileen Downey (instructed by Local Authority solicitor) for the Applicant, London Borough of Newham
John Buck (instructed by SJ Solicitors) for the Mother
Jonathan Bennett (instructed by Norman H. Barnet & Co.) for the Father
Sally Bradley (instructed by Duncan Lewis Solicitors) for the Children’s Guardian
Judgment
The Honourable Mr. Justice Cobb :
[1]On 23 October 2012, AD (“AD”), then aged 9 months (born January 2012) suffered life-threatening head injuries, while at home with his parents. The injuries were inflicted on him by his mother, as I found at the conclusion of a fact-finding hearing conducted within Part IV CA 89 proceedings, in July 2013 (Re AD & AM: Finding of fact: Non-Accidental Injury) [2013] EWHC 4859 (Fam)).[2]AD (now aged 26 months) has been left permanently damaged by the injuries he received.[3]AD’s mother has been charged under section 18Offences against the Person Act 1861 with causing grievous bodily harm to him (“unlawfully and maliciously … with intent to do some ... grievous bodily harm to any person”), alternatively with an offence under section 20 of the 1861 Act (“unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument…”). A Plea and Case Management Hearing has been fixed for 27 March 2014.[4]The Part IV proceedings have been restored before me now for consideration of appropriate orders to secure, so far as the court is able, the welfare of AD and his older sister AM (who is aged 4y 4m).[5]At the commencement of the hearing yesterday (24 March) there was dispute between the parties about the outcome of this stage of the case: on the one hand, the Local Authority, supported by the parents, invited me to endorse a plan for rehabilitation of the children imminently to their parents under a 12-month supervision order; on the other, the Children’s Guardian, Mrs. Susan Justice, (in fact only relatively recently appointed to the case, following the sudden and unexpected departure of her predecessor from the case) opposed such an outcome, and recommended that this application should be adjourned for a Special Guardianship Order assessment of the paternal and/or maternal grandparents.[6]What divided the professionals in this case is the evaluation and management of risk.[7]For a summary of the background leading to the incident in which AD suffered his injuries, and the detailed rationale for my conclusion that his mother inflicted the injuries, reference should be made to the judgment delivered on 19 July.

Threshold and other procedural issues

[8]Before I can make any Part IV CA 1989 order in this case, I must satisfy myself that the ‘threshold criteria’ is established[9]I have effectively addressed this issue by the findings of my July 2013 judgment. When going on to consider the substantive order, welfare considerations dominate. The welfare of AM and AD must be (and are) my paramount consideration (section 1 CA 1989). There is a clear expectation that this public law application should be resolved in accordance with a timetable appropriate for these children – that is to say, that I should have “particular regard” to the impact which “the timetable for the proceedings, any revision or extension of that timetable would have on the welfare of the child to whom the application relates” (revised PD12A §5.2); this dovetails with the expectation of completing the proceedings in 26 weeks from the date of issue (see now section 14 C&FA 14) (at the date of delivery of this judgment, we are in fact in week 69).

Background

[10]Since 23 October 2012, AM has resided with her maternal grandparents who were joined in their home shortly thereafter by the paternal grandmother. AD joined her from hospital in December 2012. The children have plainly thrived in the care of the maternal grandparents.[11]AD is believed to have suffered permanent damage from his injuries. He is now observed to be able to walk and run, although has been left with left-sided reduced muscle-strength, and tends to tip-toe on his left foot. He has less well-developed speech than a comparable child of his age (repeating mono-syllables), though has had speech and language therapy to assist him. Dr. Solebo considers that AD is “very likely” to continue to have some gross motor disorder of the left upper and lower limb. On 22 November 2013 he underwent a cranioplasty with insertion of a titanium plate. Post-operatively he made a good recovery.[12]Since the incident in October 2012, contact between the children and their parents has been regular. For most of the period (I believe) it has taken place three times per week (Tuesday/Thursday/Saturday). Contact originally took place at a contact centre; since December 2013 the contact has taken place at the home of the maternal grandparents. This was moved to the parents’ home in February 2014. At present, the parents see the children every day, and the children stay over on one night per week. At all times, the mother’s contact has been supervised – initially by local authority staff, and more recently by the maternal or paternal grandmother.[13]Reports of the contacts have been universally positive; the reports indicate that the parents are focused on the children’s needs, and engage well with the children, making sure that AD is safe. The children appear to have a warm and loving relationship with both parents.[14]Both parents are heavily dependent emotionally and financially on their own parents. The father has not worked remuneratively since living in this country but has been undertaking voluntary work; the mother is currently not working, and has not done so since October 2012 (at the time of the injury to AD she was working 18 hours per week). The parents are closely involved in the work of their church.[15]In recent weeks, or months, the parents have been seeing Dr. Bella Obi, clinical psychologist; the essence of this work has been to focus on developing a family narrative for the events which have occurred, being age-appropriate and (importantly) truthful.

Response to fact-finding Judgment

[16]The mother and father have both responded to my July 2013 judgment, indicating that while at one level they accept that I made the findings on the evidence, they do not accept that I was correct in my conclusions. Specifically: The mother i) The mother’s response to the judgment reveals that she “fully comprehend[s] why those findings have been made” but maintains that “I did not inflict these injuries”, adding that “I may not ever know what caused AD’s injuries” (ibid.); she denies that there were any tensions in the house at the time of the injury; ii) The mother told Dr. Van Velsen that she “wanted to work with the agencies concerned and accepted the Judgment, although felt that she could not say that she had hurt her son, because she had not”. The father: iii) The father accepted that the court had found that “it is unlikely that the 4.30pm incident was responsible for AD’s injuries” but later thought that there “was still some significance in the 4.30 incident” (Dr. Van Velsen); he has separately indicated (to the Guardian) that he thinks that Vitamin D deficiency and/or rickets may have played a part.[17]Dr. Bella Obi (psychotherapist) has postulated that the mother has ‘blocked’ out of her mind the traumatic events of inflicting the injury to AD. She reports that she has spoken to the mother of the possibility of “traumatic memory processing, and the potential of some aspects of the traumatic memory not being consciously accessed by mother at this time” (letter 23 January 2014). It is said that there has been “no minimisation of the traumatic incident or the impact this has had on the children. Furthermore, there has been no sense of mother trying to conceal information regarding what has happened. It is possible that the event has been so traumatic that mother is not able to consciously access this memory” (ibid.).[18]The mother of course has a self-protective interest in maintaining a denial of causation, given the imminence of the criminal proceedings.[19]The responses of the parents assume an importance when considering future risk.

Psychiatric risk assessment

[20]Pursuant to leave which I granted on 19 July 2013, Dr. Cleo Van Velsen, Consultant Psychiatrist in Forensic Psychotherapy, was instructed by the parties jointly to undertake a risk assessment. She saw the parties, and their respective parents, and read the relevant documents. She reports (8 October), understandably, that in the absence of any true acceptance of the court’s findings “this means that it is hard to measure risk”. She postulates that something may have happened which caused the mother to lash out in an uncharacteristic way. She contemplates that the mother was struggling with not being the perfect mother – and “not wanting to be a disappointment”. She makes the following important points, which I set out in full from the report: “There is a psychological defence mechanism called denial, when an external reality is too hard for the people to face leading to denial. Her need to be the ‘perfect’ mother would have made it very hard to consider that she could have harmed her child. This might explain [the mother’s] lack of detail about the hours leading to the injury and her somewhat ‘cut off’ presentation” (§190). “The difficulty about a lack of explanation means that it is impossible to know how to understand predisposing, precipitating and perpetuating factors when it comes to a risk assessment. Therefore it is not possible to say that the mother does not pose a risk to the children in the future. Indeed, it sets the risk higher because there is no way to predict it.” (§191)[21]Dr. Van Velsen proposes that risk is managed “with the engagement of the whole family” (§192), and in her assessment “father would be able to protect the children when with mother” (§195).[22]She concluded her report by opining (§197):
“I think this family is a stable one that could be organised in such a way as to protect the children from risk by their mother.”
[23]Pursuant to this advice, the local authority proposed a rehabilitation plan. A brake on this plan was then imposed by the Assistant Director of social services and a revised plan (with a slower pace) was proposed. Dr. Van Velsen was asked for her view of the revised plan. She supported a more measured approach to the rehabilitation, and recommended “family intervention” as being of benefit to the parents.[24]At the time of advising last autumn Dr. Van Velsen had not known the charging decision in relation to the mother. She plainly had not seen the Guardian’s assessment, nor did she know the views of Dr. Obi.[25]I heard from Dr. Van Velsen briefly this morning. By this time, she had seen the Guardian’s report and analysis, and other miscellaneous documents, and had been appraised of developments.[26]She told me, essentially, that she had not changed her advice or recommendation to the court. She told me that she believed that the mother’s response to the verdict of her criminal process will be significant whether the mother is found Guilty or Not Guilty. In the meantime, the mother will (she felt) “find it hard to relax into a rehabilitation programme while she is concerned about the criminal trial”. She was asked to comment on the stress for the family, but commented that “they are a strong and supportive family and I expect that this will continue to be the same”.[27]Dr. Van Velsen was asked to consider the Guardian’s assessment of the father as a protector. The Guardian had commented that “[FB] cannot be relied on to be a protective father to the children. If he does not consider his wife inflicted the injuries on AD, he is not going to be vigilant in observing her care of the children”. Mrs Justice considered that the mother would soon resume the primary role of carer for the children, and the father would be slow to seek outside help if required. Dr. Van Velsen, while qualifying her response on the basis that it was somewhat out of her field of expertise (her experience is of mental disorder and dysfunction) acknowledged that “there is an element of denial” but indicates that she thought he accepted the integrity (my word) of the court’s findings, even if not the findings themselves. In any event, and notwithstanding his rejection of the core finding: “... he has been compliant with what the court has asked and with the contact. Denial is an interesting phenomenon. Denial in itself does not mean that someone can’t be treated or managed; I emphasised the importance of the wider extended family; he needs that.” (in evidence to Ms Downey’s questions).[28]Dr. Van Velsen indicated that it would be sensible for the paternal grandmother to live with the family for the next 3 years:
“I can understand why there is a need to support the arrangement over a longer period. Nothing I would wish to gainsay this.”
[29]I asked her about Dr. Obi’s interesting and important letter (dated 23 January 2014); while not associating herself with Dr. Obi’s formulation of repressed traumatic memories, Dr. Van Velsen nonetheless thought that “this mother will take a long time to face the reality of what she did. It may come out as sadness or depression. Once the intensity of the proceedings has passed, he (father) may become angry”. She confirmed that the change in residence (and the conclusion of these proceedings) will have an impact on the mother, the father and the children – adding:
“I feel cheered that Dr. Obi is going to be involved – for at least another 6 sessions. She will have a good knowledge; she has understood the court case; she has read my report. She needs to help this family to adjust. Important for these sessions to happen.”
[30]She confirmed that she would be willing to see the mother again, following the criminal trial.

The Local Authority plan

[31]Following the July 2013 judgment, the local authority considered its plan for the future of the children. At the end of October 2013, and having seen the report of Dr. Van Velsen (discussed above), the social worker placed a plan before the court which would have permitted rehabilitation of the children to the care of their parents within 6 weeks (by mid-December), on the basis that the mother’s care of the children would be supervised “at all times” for 2 years (ibid).[32]The ink was barely dry on that statement, before this plan appeared to be countermanded by the Assistant Director of social services.[33]The case was brought before me for hearing (27 November 2013); at this hearing, the competing internal views within the social services department were laid bare. Ultimately by agreement, though not without considerable frustration on all sides (albeit for different reasons), a revised rehabilitation plan was advanced which slowed the pace of rehabilitation, permitted for change of venue of contact, shift of supervisor to the grandparents/father (pursuant to written agreement), and provided for professional review (followed by court review) of the arrangements in early-February 2014.[34]The then-appointed Guardian (Christine Montgomery) is recorded as having supported the plan.[35]On 3 February 2014, the professionals met and indicated their broad support for extending the rehabilitation plan.[36]At the hearing two days later, 5 February 2014, the local authority once again presented to the court its plan to rehabilitate the children; I gave this plan qualified approval, subject to the views of Mrs. Justice, then only recently appointed, and acquainting herself at speed with the case. In fact, Mrs Justice shortly afterwards indicated that she did not, on the evidence provided, support the plan and proposed that an independent social worker be instructed to assess the family. Again the case was listed before me; I rejected the application for independent social work assessment, on the basis that I expected that the local authority could/should complete its own assessment in accordance with the guidance given by the Court of Appeal in Re B-S [2013] EWCA Civ 1146 (at §30 et seq) and Re W (A Child) [2013] EWCA Civ 1227 (see [80]-[81] and [111] in particular). In fairness, I should add, that I believe it did.[37]In a case which has inevitably given rise to considerable tensions, it has been unfortunate that the care planning has not been more straightforward. To some extent this may have been because the social work team on the ground had not clarified with all interested professionals at all times that there was unanimity of approach.[38]Notably, in this regard, the Independent Reviewing Officer appointed to the case has apparently indicated that he was not entirely happy with the arrangements/care plan indicating (as is apparent from e-mails subsequently passing between him and the Guardian). Specifically he has raised: i) His concern about the time-limited nature of the supervision order; ii) That he does not believe that he family have taken on board the delayed development of AD, and have not been given enough information and support from the child development team; iii) Concerns about there being no “robust” health plan; iv) Concerns about the family being in denial about the injury and its effect on AD (there is some indication that they attribute his poor speech to a MMR vaccination not the injury); v) Confirmed that he favoured an SGO being made in favour of the grandparents (e-mail 21.3.14); And further (as articulated at the recent LAC review): vi) Concerns about rehabilitation prior to the criminal trial.[39]While these observations are important, they may not be either definitive or unqualified. I say so because I am otherwise advised that(a) he has not shared these comments/concerns directly with the local authority, and(b) he has otherwise indicated to the social worker (e-mail 10 March 2014) that he supported the contents of her most recent statement.

Guardian’s position

[40]The Guardian has prepared a thoughtful report, plainly analysing the issues here with considerable care.[41]In that report, and until this morning, she was recommending that the proceedings be adjourned for the purposes of a Special Guardianship Order assessment of the maternal grandparents and/or paternal grandmother. As the hearing began, in fact it appeared that none of the grandparents knew that this was being proposed, and I suggested that they should be told of this, provided with key documentation, and given the opportunity to receive legal advice.[42]The Guardian essentially considered that for many reasons rehabilitation was indicated, but someone other than the parents should have ‘senior’ parental responsibility for the two children.

Risk

[43]As indicated earlier, assessment of future risk is the key to decision-making for the children in this case. As the local authority makes clear, as we are no further forward in understanding how AD suffered his injuries “assessing future risk [is] an almost impossible task”.[44]For as long as the mother continues to deny causing the injuries, the risk is unquantifiable and absolute.[45]Any re-constitution of the family is bound to generate positive and negative feelings; memories and distress around the incident may be triggered. The stresses in the household are plainly likely to rise around the time of the criminal trial in the summer of 2014. It is possible that the risks will rise commensurate with those stresses.[46]The real question is whether the protective measures in place are adequate to manage that risk.[47]I first have to consider whether the father offers a safeguard to the children. He currently does not accept that the mother caused the injuries to AD; this causes me to question whether he may in the circumstances be somewhat less vigilant in the supervision of the mother, or too accepting of her conduct, I have no doubt that he loves the children, but he loves his wife too and this will inevitably place him in a position of potential conflict. While concerned that he is not yet able to confront and accept the full horror of what his wife did to AD, I am satisfied that he would not do anything to put AD at risk, and – importantly – his resolve will surely be buttressed by that of the constant presence of his mother in the home over the next 2 years and 10 months.[48]I am satisfied that the presence of either the maternal or paternal grandparents do offer genuine protection to the children; they are accepting of the judgment even if they struggle to understand how/why the mother behaved as she did. The paternal grandmother has attended at court today, and has informed me that she regards it not as a burden but a “joy” to be able to offer a monitoring role in the home[49]Additionally protection is offered by the local authority – who under a supervision order have various duties to advise assist and befriend the children. Importantly, the authority has a duty to return the matter to court during the currency of the supervision order if it believes that the order is not being complied with – see section 35(1)(c)CA 89.

Other welfare factors

[50]Risk is, as I indicated above, the key issue to be considered here, but it has to be assessed alongside the other welfare factors.[51]AM has made known very clearly her “ascertainable wishes and feelings”; initially she was said to be confused and distressed by the change in her living situation and limited contact with her parents. More recently, and since the contact moved to the grandparents’ home, she and AD have been more settled and relaxed; they both displayed delight at their parents’ visits, and on their visits home. AM was noted by her nursery to have become “more confident and chatty” since contact with her parents increased. AD also appears to view positively his contact with his parents.[52]The children need a degree of permanence sooner rather than later. This is vital for their emotional needs. The children’s physical needs have been well-met with the grandparents; there is no evidence that, but for the assault on AD, the children’s needs were not being met in the care of the parents prior to 23 October 2012. AD will have very particular physical, educational and emotional needs in the future. The parents and extended family are all intelligent and high achievers; it may (I emphasise may) be that AD, because of the damage to him, may not achieve educationally, emotionally or physically to the same extent. If this is so, the parents will have to learn to accommodate and accept this.[53]If the children were not now to live with the parents, they would find the situation frustrating and inexplicable. The likely effect on them of changing their circumstances so that they can move back with their parents is only likely to be of benefit to them.[54]At 2 years 2 months, AD’s age is plainly important. The family and authority will be in a different child protection territory when he is at full-time school. Until then, there needs to be a close protective structure around him.[55]I have dealt extensively in my July 2013 judgment, with the‘harm’ which he and is suffering or is at risk ofsuffering, and don’t propose to rehearse the contents of that again here.[56]Critical to the safety of the children is my evaluation of the capability of the parents and any other relevant person is of meeting their needs. The mother has been on the one hand loving and caring, but on 23 October the perpetrator of grave injury to her son. It has been noted that the mother is “distant” and “tends to keep herself in the background” as a result (I am advised) of reduced confidence in her abilities following the incident. The father has been co-operative with the authority, but for as long as he aligns himself with his wife in denying her role in the causation of the injuries to AD, he places himself in a position of potential conflict with his feelings for, and duties to, his children. I take comfort from all that I have read about the extended family, the grandparents, who appear to provide genuine support for this couple.

Care plan

[57]I have reviewed the care plan and had a number of concerns about: i) The frequency of visiting of the family; ii) The health plan going forward including advice to carers and professionals working with AD; the Child Development Plan had appeared to be inadequate “and displays a lack of recognition of the serious implications for later life of the injuries sustained and outcomes of treatments in such a young child.” iii) AD’s attendance at children’s groups.[58]These concerns have now been addressed in the revised care plans.

Conclusion

[59]When the parties had had the opportunity to receive Dr. Van Velsen’s up-to-date views, informed by the recently filed material, the dispute identified in §5 above dissolved, and on the morning of the second day of this hearing I was invited to approve a consent order whose essential terms were: i) Shared residence order to the parents and the paternal grandmother (the grandmother’s shared parental role to continue until AD is 5 years old); ii) Conditions to be attached to that shared residence order which provided for detailed and constant supervision of the mother in her home; iii) Supervision order for a period of 12 months, with the expectation of it being renewed for at least another 12 months; On the basis of :- iv) The revised care plan to accommodate the Guardian’s and my concerns.[60]Decision-making for these children has not been straightforward. The authority has understandably wrestled with the significant challenge of balancing on the one hand the powerful evidence of attachment and mutual love between the parents and the children, and the otherwise unimpeachable record of parenting, and on the other the mother’s gross act of injury on her son. Many authorities, and courts, would have found it hard not to allow the perpetration of life-threatening injury to dominate future decision-making whatever the other advantages may have laid in rehabilitation.[61]I for my part remain concerned by the apparently unprovoked assault on AD, the lack of identified stressors in the household, and the lack of acceptance by the parents of my findings. I am equally concerned by the challenges ahead: the parental response to reconstitution of the family, the inevitable stresses of the forthcoming criminal trial. All of these make the task of this court profoundly challenging.[62]In the final analysis, I am sufficiently persuaded that the best interests of the children do require that they return to live with their parents provided that their safety can be (as reasonably as is possible) assured. I consider that the authority has now struck the balance correctly in the plan which they have presented to the court following discussions this morning. Vital to the plan is the role of the paternal grandmother (and in exceptional circumstances, where the paternal grandmother is unable to undertake the monitoring/supervision, a maternal grandparent or other approved third party). I was impressed by the paternal grandmother’s apparent ability to accept, indeed embrace, the onerous obligations on her to monitor the family going forward.[63]I should state now that I would have been loathed to adjourn these proceedings for further assessment (as the Guardian had initially urged) unless this had proved to be absolutely necessary, given: i) the duration of the court involvement so far, and ii) the impact on the welfare of the children who indicate through their behaviours that they are keen for a solution. That said, I am extremely grateful to Mrs Justice, the Guardian, for having brought herself ‘up to speed’ quickly with this case, independently standing out for an outcome which she felt would be more likely to promote the children’s safety. She pointed up some of the deficits of the plan as it was presented, and caused the authority, and the Court, to pause for reflection on the adequacy of protective safeguards.[64]It is better for AM and AD that an order is made by agreement, than one imposed on them following a further bruising contest. I am pleased in the circumstances to be able to endorse the order proposed.[65]That is my judgment.

Cited in 2 later judgments