ON APPEAL FROM LEEDS FAMILY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
| S & H-S (CHILDREN)
Gillian Irving QC and Zimran Samuel (instructed by Kirklees Council) for the Respondent
Joanne Astbury for the Respondent (children)
Hearing dates : Thursday 19th April
Crown Copyright ©
LORD JUSTICE MCFARLANE:
2016 Care Proceedings: Findings
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.
The 2017 Proceedings
"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."
"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."
"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."
"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."
"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."
The Judge's Judgment
"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."
"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.
(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."
"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."
"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."
The Mother's Appeal
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.
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.
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.
"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  2 WLR 649."
Lessons for the Future?
Lord Justice Lindblom: