Strand, London, WC2A 2LL
B e f o r e :
President of the Family Division
|In the matter of S (A Child)|
Mr Andy Pitt (of Aldridge Brownlee Solicitors LLP) for the mother
Ms Nicola Preston (of Dutton Gregory) for the father
Mr Steven Howard (instructed by Pengillys) for the children's guardian
Hearing date: 25 March 2014
Crown Copyright ©
Sir James Munby:
The background facts
The mother's problems
The expert evidence
"[A report] evidenced some positives in the basic case of S provided by [the mother] during the parenting assessment sessions. [She] has also evidenced a high level of motivation during the assessment, and has engaged to a high level
[She] has remained stable on her methadone prescription as proven by her hair strand test. This is a positive step forward and indicates a desire and ability to remain clean even at times of stress such as current proceedings
The child protection risks are of concern and there are still considerable risks potentially posed to S.
However [the mother] has showed some positive insight into parenting and has showed potential for further growth and change.
[Her] mental health difficulties are complex and difficult to understand and I feel we require in depth support from her mental health professionals, to ascertain if there is further support that could be provided with regards to her mental health that may improve [her] position as good parent.
There is a possibility that a short term mother and baby placement tailored to [her] additional needs may be appropriate dependent on other professionals reports and professional opinions. This would be to further determine if she can parent in the whole when responsible for her child, or whether or not, she can merely manage basic parenting in a controlled environment such as FRC for 1½ hours.
It should be noted that since completion of the report, I have had access to case recordings from recent contacts from the start of December and there has been deterioration in [her] parenting skills and presentation.
There have been concerns raised by the contact worker regarding her physical support of S, her hygiene and nappy changing. It is unclear why this change in [her] skills has changed.
[She] has also expressed to contact workers she is experiencing panic attacks and cannot cope with the short journey by taxi to FRC. This contradicts the information she provided to me, and is concerning she is mentioning this now the assessment is complete.
The fundamental concern this raises is that since completion of the parenting assessment, [she] has been unable to sustain the level of parenting she previously was providing S. This could be due to instability in her mental health or an inability to maintain good level of parenting.
S requires a safe, nurturing and consistent upbringing to ensure she has the best possible opportunity for a health and happy life.
If [the mother] is unable to provide this in the confines of the FRC, it is questionable whether or not she could long term."
"[She] appeared to be making progress until she was befriended by a known perpetrator who has a history of violence and abuse towards vulnerable women … Unfortunately once the relationship began [he] had complete control over [her] … and she appeared to be working more."
That man is S's father. He has been in prison again since July 2013. Of the mother's subsequent re-engagement with the Project and more recent presentation the key worker says that the mother's presentation has "improved greatly" and that she "continues to make good progress".
"Given [her] long standing drug problems, dating back almost 20 years, it is likely that achieving and sustaining first stability and subsequently abstinence from illicit drugs may take some time and is likely to require on-going treatment and support for many years."
She added, "there is still a very real risk that she may resort to buying other medication to help her sleep … and thus exacerbate her problems again."
"The high level of monitoring, 24-hours a day, afforded by a residential assessment would allow a thorough assessment of parenting to be undertaken whilst concurrently ensuring the safeguarding of S. This would include [the mother's] parenting ability, and capacity for further change, and a consistent period of assessment regarding her current drug use."
"During assessment at Orchard House [she] would be provided with a tailored package of support and intervention to develop her capacity / potential capacity to meet the full range of S's needs, including 'Keep Safe' work around prostitution, appropriate adults, and ongoing drug use.
The Social Work led Assessment Team and the Family Support Workers at Orchard House are highly experienced in working with a wide range of parents, and benefit from full integration of Clinical Psychologists experienced in a wide range of clinical presentations including personality disorder presentations and selective mutism. The staff support parents in developing skills and provide immediate verbal feedback, as well as written / pictorial feedback to improve parenting skills, which are based on research evidence. All staff at Orchard House aim to ensure that each family receives appropriate and consistent information The staff use a variety of techniques and specialist materials designed to help parents learn new skills, which may include formal instruction, modeling, breaking tasks down into small chunks, and giving lots of opportunities for rehearsal and repetition.
I am aware that any assessment will need to be within S's timescales, and would therefore recommend that the residential assessment be kept as brief as possible, with regular reviews held to ensure the progression of the assessment. Typically, residential assessments are 6-12 weeks in length, though this depends on the specific needs of the family and the key issues of the assessment. Following a successful period of residential assessment, it may be appropriate for the assessment to move to the community or to the Orchard House community base. Orchard House are able and willing to provide carefully considered plans for transition."
"In short, what is directed under section 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves."
Referring to the Protocol for Judicial Case Management in Public Law Children Act Cases  2 FLR 719, the precursor to the revised Public Law Outline (PLO), due to come into force in its final form later this month, she added (para 71):
"if the aims of the protocol are to be realised, it will always be necessary to think early and clearly about what assessments are indeed necessary to decide the case. In many cases, the local authority should be able to make its own core assessment and the child's guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring."
I draw attention to Lady Hale's use of the word "necessary".
"I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother's right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?"
Referring to this in Re T (Residential Parenting Assessment)  EWCA Civ 812,  2 FLR 308, para 93, Black LJ rejected the proposition that "a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority." She continued:
"Still less is there a principle such as that for which [counsel] contends, namely that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made'."
Sir Nicholas Wall P, para 53, identified the "critical questions" as being:
"(1) does this child's welfare warrant an assessment under section 38(6) of the Act? And (2) in looking at the timetable for the child, is there evidence that this mother will be able to care adequately for the child within the child's timetable?"
"(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.
(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,(b) the issues with which the examination or other assessment would assist the court,(c) the questions which the examination or other assessment would enable the court to answer,(d) the evidence otherwise available,(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,(f) the cost of the examination or other assessment, and(g) any matters prescribed by Family Procedure Rules."
The wider context
"(1) A court hearing an application for an order under this Part shall …(a) draw up a timetable with a view to disposing of the application –(i) without delay, and(ii) in any event within twenty-six weeks beginning with the day on which the application was issued; and(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to. …
(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings; and here "ensuing timetable revision" means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.
(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification. …
(10) Rules of court may provide that a court –(a) when deciding whether to exercise the power under subsection (5), or(b) when deciding how to exercise that power,
must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules."
No rules have been made pursuant to section 32(10) and none are proposed to be made for the time being.
"We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption."
"If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."
" … we must see how best the PLO can accommodate the FDAC model (I put it this way, rather than the other way round). We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy."
i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing)  EWCA Civ 25,  2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent's disabilities require recourse to special assessments or measures (as to which see Re C (A Child)  EWCA Civ 128, para 34).
ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly 'derailed' because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.
iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).