Shand, (A Child), Re London Borough of Barking & Dagenham v Richards [2017] EWHC 2863 (Fam)

[2017] EWHC 2863 (Fam)Case No FD17P00276
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/11/2017
Before
MR JUSTICE HAYDEN
Between
London Borough of Barking &DagenhamApplicantJessica RichardsRespondentsElliana Grace ShandRespondent
Hearing Hearing dates: 6 th, 7 th and 8 th November 2017
Judgment ApprovedThis judgment was delivered in public. The judge has given leave for this version of the judgment to be published.Mr Justice Hayden :
[1]During the course of the last 3 days I have been hearing an application made by the London Borough of Barking and Dagenham to commit to prison Sharon Shand, who is the grandmother of Elliana. Elliana was born on 19 December 2013 and is therefore not quite yet 4 years of age. As it transpired, during the course of this application, there were a number of significant procedural deficiencies which led me, ultimately, to conclude that the application, as advanced by counsel on behalf of the Local Authority could not succeed. It is not necessary to set these failings out extensively. The following does however require emphasis. In Re. L (a child) [2016] EWCA Civ 173 Sir James Mumby (P) underscored the importance of the Collection Order in these terms:
“7. At the same time as making a collection order the court also gives the Tipstaff a direction in standard form. For present purposes the relevant provisions, which I need not set out, but which are in essentially the same terms today as they were in 2004, direct the Tipstaff to arrest any person whom he has reasonable cause to believe has been served with the collection order and has disobeyed any part of it and to bring him or her before the court as soon as practicable and in any event no later than the working day immediately following the arrest: see Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477, [2015] 2 FLR 321, para 4.”
[2]It follows that service of the Collection Order is fundamental not only to the requirements of FPR 37.5 but to the integrity of the Collection Order itself. Thus:
“57. there is, however, a second, and equally fatal, flaw in these committal proceedings. It has never been proved, as it had to be if he was to be committed for breach of it, that Mr Oddin was served with the collection order. Service of the collection order was not merely something which, unless dispensed with, was required by FPR 37.5. More fundamentally, it was something required by paragraph 3 of the collection order itself. Unless the case could be brought within the proviso to paragraph 5 of the collection order (and that has never been suggested), paragraph 3 by its very terms would not bind Mr Oddin unless he had been “served” with the collection order. And although this point was taken only very late in the day, it was fairly and squarely taken by Miss Norman before Mr Oddin started to give his evidence on 18 January 2016 (paragraph 35 above). Miss Norman made it clear that Mr Oddin’s case was that he had never been served with the collection order.”
[3]During the course of submissions I indicated that I had not been satisfied that service had been effected, at least on the evidence presented. Importantly, when I asked the Tipstaff to check the file which contains a box indicating whether the Collection Order had been served, it had not been ticked. As none of the relevant witnesses had filed statements there was no evidence to gainsay the grandmother’s assertion that she had not been served. This was fatal to any application to commit on the basis identified.[4]In the light of Ms Shand’s evidence, to which I will refer below, I considered whether there was a ‘contempt in the face of the court’. The relevant procedure is set out in FPR R37.12 and Part 3 of the FPR 210. These rules reflect the judgment in Wilkinson v S and Anor [2003] 1WLR 1254. The contemplated contempt here is the grandmother’s lies to the Court. Lies in the face of the Court are, in some circumstances, capable of amounting to contempt. In the circumstances of this case I was hesitant as to whether this could truly be categorised as contempt. I asked the parties to consider this overnight and the following morning Ms More O’Ferrall sought leave to withdraw her application to commit. She was correct to do so and I granted it.[5]During the course of her evidence, Ms Shand told me that, contrary to her earlier assertions, she had taken Elliana to Jamaica in May 2017. On the 26th of September 2017 Ms Shand now accepts that she returned, with Elliana, to the United Kingdom. The Tipstaff investigated the circumstances of the return and has been able to confirm that both Elliana and Ms Shand’s names are recorded on the database of airline records.[6]For a variety of reasons, I was entirely satisfied that Ms Shand is now telling the truth on these core facts. Her evidence was delivered calmly, characterised by detail and her account was consistent with other available evidence. The circumstances of how Elliana came to go to Jamaica require to be summarised.[7]It is plain that the Local Authority has for some considerable time had real concern about Elliana’s mother’s capacity satisfactorily to care for her daughter. These concerns go back to late 2014 and early 2015. On 16 March 2015 the Local Authority decided to apply for a Care Order in respect of Elliana. The concerns were investigated and ultimately lead to the making of a Supervision Order by District Judge Backhouse on 27 July 2015. The objective of this Order was to support Elliana in the care of her Mother. The Supervision Order was devised to provide practical assistance for the Mother and child, promoting the relationship. It also requires to be said that the order was made with the consent of the Mother, in accordance with the Local Authority’s care plan. What is equally plain is that the child’s Guardian in these early proceedings had, at very least, expressed grave reservations concerning the suitability of the plan. Nonetheless the plan was implemented and Elliana remained with her Mother.[8]In making the Supervision Order the Court had satisfied itself that the threshold criteria pursuant to s. 31(2) of the Children Act 1989 were met. In the document endorsed by the Court as formulating the ‘agreed threshold’ it is noted that the Mother suffers from a psychotic illness and severe Obsessive Compulsive Disorder. Moreover, it is emphasised that she has struggled to manage her mental health. It is clear to me, having read the documents that were before the judge, that the Mother has some, but limited and fluctuating insight into her own mental health difficulties. She feels able to discuss them when she does not perceive herself to be threatened. Almost inevitably the presence of professionals, e.g. social worker, experts, lawyers, and so on, however well motivated they may be, ultimately caused the Mother to feel threatened.[9]Sadly, the Mother very much needed the support of a range of professionals e.g. health visitors, family support workers and visitors from the mental health home treatment team. Regrettably, cooperation dwindled to such an extent that the Authority became concerned once again about Elliana’s welfare. Dr Martin Lock, Consultant Forensic Psychiatrist produced a substantive report and a number of supplemental reports. It is, of course, almost impossible to distill his observations and conclusions into a few lines. Suffice it to say, he was entirely clear that the Mother suffered from schizophrenia and obsessive compulsive disorder. It is also obvious that the Mother had, at times, felt able to speak very freely with Dr Lock and had reported to him her own auditory and sensory hallucinations. Dr Lock had flagged concern that under stress the Mother was unpredictable and less likely to comply with the regimen of anti-psychotic medication. In those circumstances it is self-evident that she presents a risk to her child. This is a risk that Sharon Shand, maternal grandmother, is either unable fully to accept or alternatively to acknowledge in front of others. That Elliana is at risk is beyond any question. I emphasise this for the avoidance of any ambiguity.[10]The family inevitably came to the attention of the court again. Further proceedings were brought and considered by District Judge Dixon, sitting in the County Court, on 8, 9, 10, 11 and 12th May of this year. By this stage both the Local Authority and Elliana’s G had come to the conclusion that Elliana’s placement with her mother no longer provided her with the essential safety and security which she needed and which I emphasise is her right.[11]It is clear that those proceedings were particularly painful for the Mother. Ms Shand attended with her daughter, I am satisfied, at every opportunity in that process and virtually every hearing. What is very clear from the reports advanced by the social worker employed by Barking & Dagenham is that for all of her difficulties Jessica Richards had a warm and affectionate relationship with her daughter. It is also clear, if I may say so, that Sharon Shand had a similarly close relationship. This is a very much loved little girl. It is important that I record this fact.[12]Both mother and grandmother were fully able to read the way the case was developing before the District Judge. On 15 May 2017, before the Judge had delivered his judgement, grandmother took matters into her own hands and left the country with Elliana to travel to Jamaica where she has friends and relatives.[13]Not only am I intending to release the names of all of the parties, including the child, into the public domain, I am also going to release Elliana’s photograph. I do this because I have come to the view that Elliana’s immediate need for safety outweighs even her entitlement to privacy. Looking at the photograph that has been given to me, it is easy to see why the grandmother is so proud. Elliana is a strikingly beautiful little girl.[14]During the course of her evidence the grandmother told me that she realised that her granddaughter was likely to be removed from the maternal family and that she saw the trip to Jamaica as a kind of farewell final holiday for the two of them. On some level I think that is precisely how she saw it. She told me that this was ‘the very last opportunity to spend significant time together as grandmother and granddaughter’. ‘We are very close’. She told me. ‘she calls me Ma’. When I asked the grandmother she told me that Elliana called her mother ‘mummy’. It is also apparent that the grandmother, who is a regular church attender, felt a sense of public shame in no longer having her grandchild within (her side of) the family. I consider, having listened carefully to her, that she felt this to be humiliating. She need not do. The core challenges to this family arise from the mother’s mental health issues. These are to be understood and not condemned. They require to be acknowledged and worked with.[15]From Jamaica, where she had flown on 15 May 2017, the maternal grandmother eventually went to America to visit friends there and finally home to the UK, via Sweden, in September 2017. I say home, because I had a strong sense that the grandmother regards the UK and London as her home. There is, incidentally, no evidence at all that the Mother has left the UK. It is at this point in her account that I began to feel the grandmother’s evidence became far less convincing, not only in the manner and speed in which she gave it but more generally in its inherent internal inconsistency. The Maternal grandmother contends that she handed Elliana over to her mother upon her return to the UK and has only seen her subsequently on one occasion. She claims that she does not know where her daughter and granddaughter now are.[16]I am bound to say that my whole assessment of the grandmother’s relationship with Elliana and her daughter Jessica is that she would not let them out of her sight for one minute more than was necessary. I have utterly no doubt that she is in contact with her daughter and almost certainly with her granddaughter. During the course of this hearing, when she retrieved her mobile telephone, she was able to make immediate contact with her daughter and it seems likely that the phone on which the call was answered was here in the UK.[17]As I have read the report of Dr Lock I have become very concerned indeed for Elliana’s safety. In a recent addendum to his report he made the following observations: “It is very important to note that untreated psychotic symptoms can be a major problem. It is widely recognised that they might well become increasingly difficult to treat the longer they remain. Residual symptoms might also result in a patient undergoing a significant social and intellectual decline. Ms Richards would therefore be well advised to allow her remaining symptoms to be further assessed and successfully treated if at all possible. ” “In my opinion Ms Richards continues to experience very significant psychiatric symptoms. Even if those were to remain stable I am of the opinion they will continue to have significant effects on Ms Richards’ thinking and behaviour.” “There is also a significant risk that Ms Richards’ mental state might deteriorate further given her reluctance to allow regular monitoring by psychiatric services. I also continue to have fears as to whether Ms Richards is as nearly compliant with taking the antipsychotic medication as she suggests.” “I also have some fears that Ms Richards will continue to somehow manage in the community, albeit with a number of residual psychotic symptoms, and therefore evade follow up by psychiatric services. There is often a very uncomfortable period when psychiatric professionals know someone is unwell but the person does not present a danger to themselves or others and therefore cannot be detained under the Mental Health Act, 2007”.[18]In optimum circumstances the Mother’s capacity to meet her daughter’s needs was barely satisfactory but it is abundantly clear that under stress, no longer taking her anti-psychotic mediation, perhaps in the grip of auditory hallucinations she poses a very real risk to her daughter’s safety.[19]It is for this reason that I indicated to Ms More O’ Ferrall on behalf of the Local Authority that I intended to put the identity of this family and this Judgment in the public domain in order, hopefully, to expedite the process of securing Elliana’s recovery. Ms More O’ Ferrall has taken instructions and very much urges this approach on the Court. The Children’s Guardian is also supportive of the proposal. I should also emphasise that the Local Authority’s plan, which was in fact endorsed by the District Judge, is to place Elliana with her paternal grandparents. The grandfather has been at Court this week and, I have been told is extremely keen for the press to be involved as widely as possible in helping him to recover his granddaughter.[20]I am grateful to the advocates for their careful note of this ex tempore judgment which has enabled me to place it in the public domain immediately.