OF THE HIGH COURT
Liverpool Civil and Family Court
B e f o r e :
| ST HELENS BOROUGH COUNCIL
|- and –
|A, T and S
(through their Children's Guardian, Elizabeth Perry, appointed as of 7th February 2022)
Mr Louis Browne QC and Ms Elizabeth Brennan (instructed by Hogans Solicitors) for the First Respondent
Mr Damian Sanders (instructed by Abel's Solicitors) for the Second Respondent
Ms Rachael Banks and Ms Nicola Noon (instructed by Haygarth Jones Solicitors) for the Third Respondent
Mr Simon Povoas (instructed by Berkson Family Law Solicitors) for the Fourth Respondent
Hearing dates: 19th – 27th May 2022
Crown Copyright ©
Mr Justice Hayden:
'based on the story/social history that can cause significant harm to the child and would need further attention by social care/police':
"Multiple concerns regarding emotional abuse;
Historical physical abuse of elder child;
Disclosure of sexual abuse (historic)"
"Nobody has sought to argue that, in this case, the emotional or psychological welfare of [S] will be impacted by being within or outwith the care of his mother. It is all therefore about physical safety and in that regard, I was then immediately addressed in evidence by three witnesses on behalf of the local authority…"
"38 Interim orders.
"(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment."
(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."
"What was to be assessed was the mother's capacity for beneficial response to the psychotherapeutic treatment that she was to receive. Such an assessment, no matter how valuable the information might be for the purposes of the eventual final care order could not, in my opinion, be brought within Section 38(6)."
"It seems to me clear that the main purpose of the proposed programme was therapy for the mother in order to give her the opportunity of change so as to become a safe and acceptable carer... This purpose in my opinion does not come within section 38(6), notwithstanding that the results of the programme would be valuable and influential in enabling the court to decide whether a care order ... should be made and that if the purpose were to be achieved, it would very greatly benefit the [child].
Baroness Hale summarised matters at [64-71]. At paragraph 64 she said this:
"The purpose of these provisions is, therefore, not only to enable the court to obtain the information it needs but also to enable the court to control the information gathering activities of others. But the emphasis is always on obtaining the information. This is clear from the use of the words "examination" and "other assessment." If the framers of the 1989 Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for her, let alone for her parents, it would have said so. Instead, it deliberately left that in the hands of the local authority."
At paragraph 66:
"I appreciate, of course, that it is not always possible to draw a hard and fast line between information-gathering and service-providing. Some information can only be gathered through the provision of services. It may be necessary to observe the parents looking after the child at close quarters for a short period in order to assess the quality of the child's attachment to the parents, the degree to which the parents have bonded with the child, the current parenting skills of the parents and their capacity to learn and develop..."
At paragraph 69:
"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 1989 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."
And finally, at paragraph 71:
"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."
"18. In my view, a judge deciding an application under s.38(6) must address two questions:
(1) Is this a proposal for an assessment that falls within the terms of section 38(6)?
(2) If so, is the assessment necessary to assist the court to resolve the proceedings justly, as required by ss. 7A, having regard to the matters in ss. 7B?
Both questions must be approached in a manner that upholds the right to a fair trial under Article 6 and the right to respect for family life under Article 8. Only if both are answered affirmatively can the court make the direction requested."
"(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower ('reasonable grounds') threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child's physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.
(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation."
"[M] reported that there is a repeated cycle of her child experiencing sexual abuse, presenting with difficulties as a result of this and her being a victim to their behaviour. She reported that Q presented as psychotic, yet she was sectioned"
"She fully believes her own narrative; she holds a different perspective despite the collateral information. It could be hypothesised that this is either as a result of being disconnected from reality and having difficulties with delusional disorder, or, that she is aware but cannot admit to any misgivings or inappropriate actions on her part. Furthermore, her narrative is that the information is based on lies and she is being unfairly targeted. This area would be the first to address with [M] so that she is able to move forward positively with the Local Authority, to understand the children's perspectives and move on forward positively."
"Anankastic (Compulsive) Personality Disorder: A personality disorder characterised by a preoccupation with orderliness, perfectionism, mental and interpersonal control at the expense of being flexible, openness and efficiency;
Anxious (Avoidant) Personality Disorder: A personality disorder characterised by persistent and pervasive feelings of tension and apprehension, belief that one is socially inept, personally unappealing, or inferior to others, excessive preoccupation with being criticised or rejected in social situations, unwillingness to become involved with people unless certain of being liked, restrictions in lifestyle because of need for physical security and avoidance of social or occupational activities that involve significant interpersonal contact, because of fear of criticism, disapproval or rejection;
DAST: Drug Abuse Screening Test. Structured interview instrument designed to detect drug abuse;
Histrionic Personality Disorder: A personality disorder characterised by a pervasive pattern of attention seeking and excessive emotionality. It is characterised by a person who engages in attention seeking, theatrical and/or inappropriately seductive behaviour. Such individuals can be lively, dramatic and flirtatious. They can express strong emotions with an impressionistic style, can be easily influenced by others, exaggerate their behaviours and emotions and crave stimulation. Associated features can include egocentrism, self-indulgence, continuous longing for appreciation and persistent manipulative behaviours to achieve their own needs;
IPDE: International Personality Disorder Examination. Clinical assessment of personality disorder used specifically for diagnosis;
IPDE-SQ: IPDE screening questionnaire, screening assessment of personality disorder;
MAST: Michigan Alcoholism Screening Test. Structured interview instrument designed to detect alcoholism;
Paranoid Personality Disorder: a personality disorder characterised by paranoia and a pervasive longstanding suspiciousness and generalised mistrust of others where the individual is hypersensitive, easily insulted and can bear grudges. They can interpret other's intentions as hostile and have a persistent tendency to self-reference or a tenacious sense of personal rights;
Personality Disorder: maladaptive personality traits clustering to cause the individual concerned significant difficulty across domains of functioning;
Schizoid Personality Disorder: This is characterised by an individual who lacks interest in social relationships, a tendency towards a solitary life or sheltered lifestyle, emotional coldness, detachment and apathy;
TSI-II: Trauma Symptom Inventory version 2. A psychometric examining reported trauma symptoms."
"There are a number of potential presenting difficulties for [M]. She could have a non-bizarre persecutory delusion of feeling judged, targeted and fearful of life. This could manifest itself in relation to ex-partners, her family, professionals and her children. A delusion is said to be a strongly held belief. This could have resulted in a life of living in fear. Alternatively, she has experienced trauma being raised in a community filled with criminal activity and drugs, she has connected with men who have been high profile criminals and are dangerous, and this is a reality. Her own brother who she was close to, attacked his girlfriend with a machete. It could be added that such experiences have predisposed her to being paranoid as a safety survival strategy. She has used avoidance as a key mechanism to avoid criticism, conflict and to provide a better life for her children; somehow she has been unable to escape it.
6.11. Being involved in such a highly criminal community would exacerbate any underlying feelings of paranoia so she stays alive. Aged 16, she described hiding out in hotels, being involved by association in gang and drug dealing. She was pregnant and experiencing challenging and traumatic experiences from this age.
It may be understandable therefore that she can misinterpret innocuous events in a negative and paranoid manner. What was once a crucial survival strategy, might now be a sensitive response. For example, she reported consistently that the social worker smirked at her. Whilst I cannot comment if this was true or not, it would give an example of where she perceives was not able to tolerate alternative explanations such as she might have been nervous. Instead, her perception is always that intent is malevolent. A further example is when she saw other mothers at the school laughing and she interpreted this to be connected to her. Such a cognitive bias and thinking error when predisposed to paranoid thinking would then lead to confrontational responses."
"As a way of coping, [M] has developed an attitude where she can appear over-confident, boasting and cold and detached from others. Her confidence, passion and demeanour is also connected with her cultural identity. She recognises that often her being a lioness protecting her children can come across as aggressive (my emphasis)."
I have no doubt that M may perceive herself as a 'lioness protecting her children' but her perception cannot be reconciled with the evidence. She has not been able to protect her children. Indeed, she has caused them significant harm. Reading Dr Hansen's report as a whole causes me to think that she would agree with this, but passages such as the above confound rather than illuminate understanding. Later in her report, Dr Hansen notes:
"[M] is a sensitive and intuitive person; this has served her well to navigate difficult life experiences and to survive them. She is left however coping with distress, hyperarousal, feelings of anxiety, depression, isolation, somatisation and relationship problems. Her sensitivity means she also likes food, sex, and the senses, so when channelled into more positive or acceptable experiences she experiences a release."
I find it difficult to penetrate the logic of this paragraph. I sense that Dr Hansen is endeavouring to filter into her report some of the more positive aspects of M's personality. It is important that these positives are identified and acknowledged.
"The trauma intervention, such as EMDR needs to account fully for the potential for dissociative symptoms. Failure to do so could lead to trauma therapy, such as EMDR, failing to be effective if dissociative symptoms are not prepared for at the outset or mismanaged during treatment. Consequently, the identified EMDR therapist should assess the dissociative symptoms present with so that this can be managed effectively if required. Essentially the therapist needs to prepare for and accommodate such difficulties. Preparation for the management of any dissociative symptoms should include the treatment of these by the EMDR therapist before moving onto the other aspects of EMDR therapy. [M] may be able to access this via CMHT through a referral from her GP. In terms of length of treatment, this would be determined based upon how she engaged, the number of sessions available to her and her capacity to use the sessions productively."
"Sometimes I think it's easier if he goes, he is going here there and everywhere and as a mum you don't want them put through it. I think, take him. Not nice, but I want what's best for him. This is messing him up."
"[M] said, look at him closing the door again… I worry, serial killers do stuff like that. I'm not saying he is a serial killer, but I do worry".
"[M] then told a long-winded story about her friend, whose dad was a Judge, he was stabbed by someone who had mental issues and had an obsession with closing doors"
In the context in the history of this case, I find these remarks disturbing. They resonate with her views that Q and A have mental health problems. I note that M was stressed, and that S had been challenging at the time she made these remarks. Again, that resonates with the accounts of Q and A that I have analysed above.