England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE HEDLEY)

		Royal Courts of Justice Strand London WC2 Friday, 9th February 2001

Friday, 9th February, 2001

LORD JUSTICE WARD:

1. V was born on 4th December 1999 at St Thomas's Hospital, London. How she came to born there is, to say the least, a little bizarre. To tell the tale shortly, this is what happened.
2. Her mother is Afro-Caribbean, having been born in the Dutch West Indies twenty-six years ago. She lived with her parents and a much older sister and a younger brother in Curacao until the day before her twenty-third birthday when, according to her mother, she disappeared. She had decamped to an adjoining island, St Martens, where she began an association with a Mr R McC. She became pregnant by him. They never married. She left St Martens in September 1999, heavily pregnant, and travelled to Holland. The reason she gave for this move was that she feared that a hurricane might imperil her safety. Another reason, even less understandable, was that her partner had cancer. Because St Martens is a Dutch colony, she is entitled to citizenship of the Kingdom of the Netherlands. She lived in a hostel in conditions she found to be "disgusting" and on the very day her baby was due to be born, she travelled by Eurostar to Waterloo. On arrival she asked to be taken to the nearest hospital and was admitted to St Thomas's. The obstetric team were concerned that her unusual presentation in late pregnancy was due to a mental health problem and she was referred to the Psychiatric Department. She explained to them that she had come to London in order to publish her novel, but those who have read it express the view that her hopes for publication are fanciful. She had nowhere to stay but appeared to be confident that if she could not be accommodated by the Social Services and Housing Departments in London, then the Seventh Day Adventist Church of which she was an ardent member would care for her and her baby. Although consideration was given to the possibility of committing her under section 2 of the Mental Health Act 1983, that step was not taken because she was accepting her treatment in the hospital, was making no attempt to leave and was verbally agreeing to a future admission to a mother and baby unit for further psychiatric assessment after delivery. A fortnight or so later she was delivered of her baby by Caesarean section. Mother and baby were admitted to the Beacon Lodge Residential Unit for assessment of her skills. An interim report observed that her parenting skills were adequate, though she was not happy to accept advice from professionals, but anxiety about her mental health was unallayed and it was felt that further psychiatric assessment was essential in order to identify whether, and if so with what support, she would be able to live independently and safely care for her daughter. Her church, and a member of it who described himself as an "attorney at law", began to involve themselves heavily in her life and their influence and his interventions probably served her ill. No doubt persuaded by the church, she left the Beacon Lodge Unit and the local authority were forced to apply for an emergency protection order and on 23rd March last year for a care order. That was the beginning of the proceedings which have led to this appeal.
3. The upshot was that the mother returned to the Beacon Lodge Unit, not always fully co-operative. Dr Aggrey Burke, a consultant psychiatrist at St George's Hospital, recommended a treatment plan for her. It was suggested she attend a psychiatric assessment at the Bethlem Royal Hospital and at first she agreed to take up a residential placement there with V. Those advising her then suggested that a more appropriate alternative might be the Legard Family Support Centre, though that did not have the same extensive psychiatric facilities. There were changes in the team of her advisers and unfortunately she fell again into the hands of her so-called attorney at law. In the events that happened she steadfastly refused to attend the Bethlem Royal Hospital. On 25th May Dr Burke certified her as incapable of managing her affairs. The next day V was removed from her and placed in foster care. There she has remained. Mother has had regular contact supervised mainly at the Coram Centre. It seems to have gone very well. In the light of her persistent refusal to attend the Bethlem Royal Hospital Unit and, there being in fact no place for her at the Legard, even if the local authority would have thought that to be satisfactory enough, the local authority pressed on with their care proceedings. At a very late stage the maternal grandmother presented herself as a suitable carer for V. On 24th November 2000 His Honour Judge Hedley, sitting as a judge of the High Court, made a residence order in favour of the grandmother. The mother now appeals against that order with our permission.
4. The hearing took place over a number of days and the judge reached his conclusion in this way. He took the view that:-

"Central to my consideration of this case is the issue of the mother's mental health."

5. I agree that he was right to see that as the "central issue". He identified the features of the case which made it the burning question:-

"First of all, the mother has given highly confused and contradictory accounts of her background, even down to such matters as where she was born, who her father was and where she has lived. Secondly, there was the entirely unplanned move from St Martens to Holland when she was, and she knew she was, seven months pregnant with V. Thirdly, on 17th or 18th November of last year, the very day on which V was due to be born, she took a train from Holland and presented herself at Waterloo Station knowing nothing or anyone within the United Kingdom, other than an aunt with whom she has never made contact. The only reason she was able to give was that she wanted to be near her publishers for the publication of a novel which she had written or was in the course of writing. That was the explanation she gave to the hospital staff at St Thomas's.

Furthermore there was been evidence of obsessive behaviour on her part relating to cleanliness and the like, and, very importantly, she clearly has extreme difficulty forming relationships with adults, at least adults outside the Seventh Day Adventist community, of which she has been a member for a number of years."

6. The judge then referred to the psychiatric evidence placed before him. Three psychiatrists were involved. The first in time of their seeing her, was Dr Hodgkiss, the consultant liaison psychiatrist at St Thomas's. He was closely involved in the decisions relating to her state at the time she was at the hospital on 24th November 1999. He formally reviewed her mental state on 8th December 1999 and found "absolutely no evidence of mental illness". She attended his outpatient clinic on 15th September 2000 when he "documented her mental state as unremarkable", though he would not wish too much weight to be attached to that very brief and unexpected contact. He set out his involvement in a written report submitted very shortly before the hearing. He was not called to give evidence. Dr Aggrey Burke has special experience in the diagnosis and management of psychiatric conditions among persons of Afro-Caribbean background. He became involved at the request of the mother's then solicitors. He gave evidence to the judge. Dr Geoffrey Lloyd, a consultant psychiatrist at the Royal Free Hospital, was instructed to report, for which purpose he met the mother on one occasion. He also gave evidence to the court. The judge also had the benefit of a very short report from the psychiatric authorities in Curacao recording that the mother had been treated there from March 1996 to March 1997 and had latterly been admitted due to depression with danger of suicide and with a personality disorder. She had been treated with tranquillising and anti-depressant drugs. I note that the report does not suggest she was not taking that medication prescribed for her.

7. The judge said (with emphasis added here and elsewhere by me):-

"I have considered carefully the psychiatric evidence that has been deployed before me, and come to the following conclusions about it.

First, I am not satisfied that the mother suffers from post-traumatic stress disorder; indeed, I think it highly likely that she does not. It is not that potential causes for post-traumatic stress disorder may not be present, it is simply that the classical symptoms are absent, and it would seem to me unwise to attempt any diagnosis on that basis. On the other hand, I have come to the conclusion that the mother suffers from a definable mental illness, namely bipolar affective disorder. I reach that conclusion partly because it is supported by Doctor Lloyd, partly because it is strongly hinted at by Doctor Hodgkiss, partly because the unplanned and inexplicable moves that took place in the latter stages of pregnancy are suggestive of hypomania and partly because there is some evidence of depressive mood in the background of this mother. If that be right, then I accept Doctor Lloyd's further observations that this is an illness which remains present but is episodic, but that the gaps between episodes get smaller as age progresses, and that the episodes themselves are likely increasingly to be precipitated if there is stress in the sufferer; and of course I find, and accept, that there is no acceptance by the mother of her condition, and therefore inevitably no insight by her into it.

I do, however, accept Doctor Burke's evidence that this is not the full story so far as the mother is concerned. She does not suffer, I think, from any other recognisable psychiatric disorder, but she does suffer from something that I can loosely describe as a personality deficit, which expresses itself in a remarkable emotional immaturity. She is narcissistic and anxious to be the centre of attention, and it seems that she has no sense of personal responsibility for the consequences of actions that she chooses to take, and it appears that she can only work with those who agree entirely with her position on any matter.

My conclusions in relation to the mother are that she suffers from mental health problems which she does not recognise, and that she will continue to do so, and that her own behaviour in fact has the effect of raising levels of stress and thus making relapses into episodes of mental illness the more likely. I make it clear that the mother has not told me anything that she believes to be untrue, that is to say, at no stage has she told me a deliberate lie, but her perceptions are so limited and her control of the line between fact and fiction so tenuous that it is inevitable that I have to approach her evidence with a great deal of caution."

8. The judge then made important findings about the grandmother. He held:-

"I found her to be essentially genuine and, although she tried to put herself in the best possible light, she was willing to face critical questions. I find that her parenting of the mother was not all that it might have been, and was certainly in sad contrast to the parenting of the younger son. It seems to me that the parents here distanced themselves from a difficult daughter and sought to solve a number of the problems by showering her with material gifts, and that had the effect of increasing the distance between them.

On the other hand, the maternal grandmother has cared for other grandchildren, has been a long term nanny to a family with whom she remains in contact, and I think it is fair to say that the assessment of the grandmother, of her capacity to care as a grandmother, really has only one serious reservation, and that is the history of her parenting of the particular child with whom I am now concerned namely (the mother)."

7. He found that the professional witnesses had set out with sympathy for the mother but had become increasingly frustrated by their experiences with her, so much so that:-

"... by the time they came to give evidence it was apparent that their reserves of sympathy and goodwill had become exhausted, and I have to say that I do not find that very difficult to understand."

8. The judge was satisfied with the assessment of the grandmother carried out in Holland where the grandmother now lives though he did record his impression that it was an assessment "clearly intended to succeed ... unless (the social worker) found something that made it quite impossible to do so".

11. He was kind, but dismissive about the role of the mother's church.

9. He set out a number of findings about the history and background, to some of which I have already referred. He acknowledged that the mother's childhood was "difficult".

"The mother had learning difficulties and her parents found her increasingly difficult to deal with. I am satisfied that she suffered a degree of emotional neglect, exacerbated by the comparison with the parenting which her younger brother received. I am satisfied she had under age sexual relations with a man ... who was some twenty years older than her. Whatever may have been the position in the criminal law, I am satisfied that the mother was undoubtedly taken advantage of and may well have taken part in activity that, in other circumstances, she would not have consented to. It is also apparent that the maternal grandmother thought there might well have been something in the complaint (of sexual abuse) about (yet another man) ... There is no doubt that this woman suffered a difficult childhood, and there is no doubt that that did little to help her address her underlying problems."

13. He then dealt with her confinement and time in the mother and baby unit as follows:-

"After the mother's admission to hospital she was regarded as psychotic until the birth of V, and then there was a very significant change. Her psychotic symptoms relented, and it appears that she was able to give a good quality of care to V during the few days that she remained at St Thomas's ... The mother will not be able to accept what I now have to say and indeed I do not believe that she, in fairness, would understand it, but her behaviour at Beacon Lodge was wholly impossible. She was obsessive, confrontational, eccentric and egotistical to a degree, and the staff persisted with her but ultimately two events occurred which resulted in the complete breakdown of the placement. The first, which need not have been fatal to the placement, was that on 18th March she absconded for a week ... It was decided that she needed a mother and baby placement with a psychiatric input, and it was arranged for her to have a placement at the Bethlem Hospital, the place she now seeks to go to, but she refused to do so and, as a result of all of these matters, on 26th May of this year the child was removed from her and was placed with foster parents, or a foster mother, where she has remained ever since. In the course of the time at Beacon Lodge V was isolated from others, so far as the mother could, but the mother was able to give her some good care, but the child was inevitably caught up in the mother's eccentric behaviour. There was an occasion which caused some degree of concern, when V sustained a nasty burn which actually damaged the upper levels of the skin, and which is not accounted for satisfactorily by the mother's explanation that she massaged the baby with mint oil. The mother also was subjected to probably some quite insistent and singularly unhelpful advice from other people, and because, I fear, it fed her own aspirations she listened to it when she was most unwise to have done so."

10. The judge then considered whether the threshold criteria for the making of a care order set out in section 31(2) of the Children Act 1987 were made out and he drew on the findings of fact he had already made. He said:-

"First, there were the unplanned moves to Holland and, in particular, the move to England. There is evidence in these and other parts of this lady's life of a complete indifference to the consequences of decisions that she chooses to make. There is a combination of her mental health and her personality condition which she cannot acknowledge or address which will result in lapses which will be exacerbated both by age and stress, which is inherent in the way of her relations with others. I have in mind her obsessive and confrontational behaviour at Beacon Lodge as well as the absconding, which is a minor matter, and I have in particular in mind her refusal, despite obvious need, to work with anyone who did not agree with her, and indeed, insofar as it related to professionals, descended into distrust and hostility. It is that aspect that actually makes the burn a serious matter. Every young mother, every new mother, can make mistakes, even quite bad mistakes, but if they learn from them it is not held against them. If they are totally resistant to anyone trying to do anything to help them it raises to a serious level of concern the risk that further mistakes will be made out.

In those circumstances, I am satisfied that the threshold criteria are abundantly made out, and the court is now required to consider what it should do and what is right for the child, bearing in mind that V's welfare is my paramount consideration, and bearing in mind the matters set out in s.1(3) of the Welfare Check List. I have particularly in mind the need for stability and long term security for this child ..."

11. There followed another crucial part of the judge's reasoning which has now come under quiet but sustained attack by Mr Larizadeh, on the mother's behalf. The judge directed himself that:-

"The first question and the central question, in this case therefore is, can this child be returned to the mother through the route of a s.38(6) assessment?"

16. He summarised the respective cases as follows:-

"The mother says yes, and she points, as she is entitled to point, to a number of features in the evidence which suggest that she can give good care to this child, not least of which are the contact reports from the Thomas Coram Foundation. The local authority, supported by the guardian, say there is no such prospect, and that what positives can be found are more than offset by the absence of any serious prospects of making or sustaining consistent improvement in the mother's ability to care for the child and care for herself and manage a family in the world."

17. He reached this conclusion:-

"Sadly, in the light of all that I have found, I have come to the conclusion, that assessment or not, there is simply no prospect of this child being safely returned to the mother in the foreseeable future. Her care will be utterly unpredictable. It will be subject to relapses in her mental health, in circumstances where she will inevitably deny all needs, except material ones, and will refuse to deal with anyone who does not do exactly as her deluded wishes will demand. This route betokens disaster for this baby. Such a course is particularly sad because were the mother to face up to the mental health issues and her emotional frailties they could be addressed, and then she would be able to make a real contribution to and indeed parent V, who would have been able to gain so much from that experience."

12. He weighed up the options, and he recognised, rightly, that a care order is an order of last resort which should only be made if the court were convinced no family placement were possible. He expressed his belief:-

"... that the time may come when the mother is able to make a contribution to this child and should have every opportunity of doing so. The difficulty is that the only family placement on offer to the court is that of the maternal grandmother, a placement that is profoundly opposed by the mother herself."

13. It presented a "stark question" for him because, as he said, on the basis of the findings that he had made, "that placement cannot be without risk". Against that risk he balanced a number of other matters namely:-

"The first is that the maternal grandmother has a family structure in place, that her health is reasonable, and her sons health is excellent. The Dutch authorities are, and will be, involved, although the exact legal structuring in which they will be involved is not entirely clear. A placement with the maternal grandmother meets the child's cultural needs as a black Christian Dutch West Indian, and it does provide, as I have indicated, a prospect of the mother's involvement in due course. This is not an ideal placement, nor one that would perhaps pass muster as a foster placement, but there are three further matters that convince me that this is the right placement for this child at this time, as I have reminded myself of the primacy of V's welfare.

The first of those matters is that I am satisfied that the maternal grandmother is a responsible person with some insight into her past failings, which are extremely unlikely to be repeated in the future, and I believe her in all respects to be essentially competent as a carer of children. Secondly, the maternal grandmother is committed, and I make this specific finding, to the mother playing such a role as the mother can as soon as the mother is willing to do so, and I believe, as it happens, there is a fair prospect that that may well happen. Thirdly, if Social Services had come upon this placement, that is to say, if they had found V voluntarily placed with the maternal grandmother with all the knowledge that there is about the maternal grandmother's background, I think it inconceivable that a local authority would intervene so as to terminate it. This placement is moreover prospectively good enough to avoid the draconian consequences of a care order leading to adoption, which is the only other option available.

In those circumstances, acknowledging all the matters that I have set out above, and acknowledging too that so far the maternal grandmother has only seen V twice, I propose to approve the placement with the maternal grandmother ..."

14. Mr Larizadeh advanced two grounds for upsetting that judgment and I take them in reverse order. The second, not being pursued with great vigour, was that the judge was wrong to entrust the child to the grandmother given the extent of her failure properly to care for her own daughter, the appellant, and given the deficits in the Social Service's checks on her background, especially in Curacao. The main criticism however, was that the judge misdirected himself in asking whether the child could be returned to the mother through the route of a section 38(6) assessment when he ought to have asked himself whether such an assessment was necessary to enable the court to decide whether or not to make an interim care order as opposed to some other order. He submitted the judge's findings on the central question of the mother's health were against the weight of the evidence. Miss Nazareth, for the local authority, refuted any error of principle as well as the suggestion that the judge had been plainly wrong in his assessment of the evidence or in the exercise of his discretion. Both counsel presented their arguments admirably and I am grateful to them.
15. I deal first with the submission that the judge was plainly wrong to entrust care of the child to the grandmother. In his written skeleton argument Mr Larizadeh sets out a number of detailed criticisms of failures fully to check the grandmother's past history as well as pointing to those worrying aspects of her own failure properly to care for her child, the appellant. I do not find it necessary to set these matters out in great detail. I also have no doubt that there may be weight in each and every one of them but the appellant's insuperable difficulty on this part of the appeal is that the judge recognised that the placement could not be without risk, that risk having to be balanced by the other factors which he identified. His central finding was that the grandmother was a responsible person with some insight into her past failings and his conclusions were that they were extremely unlikely to be repeated in the future. He had the advantage of seeing and hearing the grandmother give evidence and his conclusion is not one with which the Court of Appeal could interfere unless there was the plainest indication that he had not taken full advantage of the opportunity he had to form an assessment of her. Assuming that the mother was properly ruled out as capable of caring for her own daughter, then the invidious choice was between making the care order which would inevitably lead to adoption and placing the child within the family with the hope that in that way the link between mother and child can somehow be maintained. Put as starkly as that, I see no justification whatever for concluding that the judge erred in keeping the child within the family, especially a family where other grandchildren are living with this grandmother. In the choice of the least detrimental alternative, this, in my judgment, was the right choice to make.
16. I am, however, bound to question the judge's modest optimism that there is a fair prospect that this mother is willing to return into the family fold and still play an effective role as mother to this child. Far from the evidence supporting such optimism, the portents are all bleak. The mother was, as the judge found, "profoundly opposed" to the placement with the grandmother. There are pages of transcript in Dr Burke's evidence where he speaks of the mother being "terrified" by any contact with any family member. Dr Burke was concerned by the vehement and implacable extent to which she had cut herself off from the family. He said for example:-

"I am saying to you that I have not seen in several hundred cases anyone cut off from their family to this extent and in my view this is unusual and abnormal behaviour."

23. In his written reports he had commented:-

"She displays an inner sense of persecution by members of her family ... She believes that she can deal with this inner sense of persecution by escaping from her family members."

17. Changing that frame of mind was one of the insuperable difficulties Dr Burke saw in the case. Whilst I suspect that the judge's optimism was misplaced, that cannot undermine his essential decision to trust the grandmother. This ground of appeal fails to convince me.
18. Whether the judge misdirected himself and whether the findings of fact he made were against the weight of evidence is much more difficult.
19. I deal firstly with the question of an assessment under section 38(6) of the Children Act 1989. It is to be observed at once that section 38 deals with interim orders. In In Re C. (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489 the subsection was purposively and broadly construed. Lord Browne-Wilkinson said at page 500:--

"Therefore the context in which s.38(6) has to be considered is this. The child is in the care of the local authority under an interim care order pending the decision by the court whether or not to make a final care order. Under the interim care order the decision making power as to the care, residence and general welfare of the child is vested in the local authority, not in the court. However for the purpose of making its ultimate decision whether to grant a full care order, the court will need the help of social workers, doctors and others as to the child and his circumstances. Information and assessments from these sources are necessary not only to determine whether the s.31 threshold has been crossed (including the cause of the existing or anticipated harm to the child from its existing circumstances) but also in exercising its discretion whether or not to make a final care order."

27. At page 501 he said:-

"The purpose of ss.(6) is to enable the court to obtain information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority. I therefore approach the subsection on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority's application to take the child away from its parents by obtaining a care order."

20. I am far from confident that the judge did approach the matter in that way, and any such misdirection may well have been material. The appropriate time and context in which to consider whether or not to order an assessment is when considering whether the section 31 threshold is crossed and when the question is whether the court is fully enough informed to make a full care order, or whether it should make a further interim order to enable the further enquiries to be made. The judge did not exactly address the question in that way. He went straight to the threshold requirements without reference to a consideration of a further assessment and without consideration (at least without express consideration) whether there should be a further interim order. He drew upon his findings of fact which he identified as follows:-

(i) The unplanned moves to Holland and England;

(ii)The combination of her mental health and personality condition which she could not acknowledge or address;

(iii) Her obsessive and confrontational behaviour at Beacon Lodge;

(iv)In particular her refusal despite obvious need to work with anyone who did not agree to her.

21. It was in those circumstances that he was satisfied that the threshold criteria had been abundantly made out. He did not in that passage directly ask himself whether he would be assisted by further enquiries. If he did implicitly address the question he concluded but does not expressly explain the reason for the conclusion that further assessment was unnecessary.
22. He does directly address section 36 at the subsequent stage of his analysis and asks whether the child can be returned to the mother through the route of a section 36(6) assessment. He elevates that to a "central question" for his judgment. He concludes "assessment or not" there was simply no prospect of the child being safely returned to the mother in the foreseeable future. He is, therefore, pre-empting any assessment and he could only do so on the basis that nothing could emerge from such an assessment which would make any difference to his conclusion. I am not at all sure from his approach whether he asked himself, as he should have asked himself, might a psychiatric assessment of the mother with, or even without, a further assessment of her parenting abilities produce a different result? I am concerned that his conclusion begged the question. My concern arises from the stark way he put it: "assessment or not" there is no prospect of safe return. He was not addressing the matter (or he certainly was not expressly addressing the matter) in the way it is often presented to the court, and in the way in which the guardian ad litem was presenting the problem to him, namely that the prospects of a successful outcome to the assessment was so slight and the time it would take so long that the child at the child's particular stage of development could not wait for so uncertain an outcome. The effect of this judgment was that an assessment was utterly pointless.
23. It therefore becomes important to see why he reached that conclusion. The reasons he gave for concluding there was no prospect of safe return were:-

(i)Her care will be utterly predictable;

(ii)It will be subject to relapses in her mental health;

(iii) She will inevitably deny all needs;

(iv)She will refuse to deal with anyone who does not do exactly as her deluded wishes will demand.

24. By referring to her mental health, the inevitability of her denials and the delusional underpinning of her wishes, the judge is coming to conclusions which overwhelmingly, if not entirely, relate to her mental health. That takes one back to the beginning of his judgment where he acknowledged that "central" to his consideration of the case was that very issue.
25. He was correct in my judgment to see that as the central issue. There was ample material for him to find and he did find that in many respects this mother was capable of giving good enough care to her daughter. He observed how after the baby's birth, "her psychotic symptoms relented" and it appears that she was able to give a good quality of care to V. The evidence to support that was in the report of Dr Hodgkiss who noted that:-

"One midwife described her as a very loving, caring and considerate mother."

26. The judge dealt with the next period of time at Beacon Lodge where "the mother was able to give her some good care". It is quite apparent, indeed in May last year it was common ground, that the level of care was at least good enough to warrant the further assessment. The Beacon Lodge report concludes:-

"In conclusion, staff are in agreement with Social Services' plan to conduct further assessment of A in order to ascertain her ability to live in, and function in the community and the resources needed to be put in place. Staff do believe that A requires input from a specialist unit. However, it is important that A is offered a choice of therapeutic interventions, without drug therapy being the sole one on offer ... A does appear to have insight into her emotional needs, but this is dependent on her mood and she has stated to staff that she has problems but could not state their nature. A consistently refutes the possibility of having any form of mental illness." (Emphasis added).

27. The judge also said, apparently with approval, that the mother was entitled to point to a number of features in the evidence which suggested that she could give good care to this child, not least of which are the contact reports from the Thomas Coram Foundation. It is significant, in my judgment, that those reports speak of the good attachment between mother and child. The foster carer observed the same. One can add to this list of praise this passage from Dr Burke's evidence:-

"Q. You did have the opportunity of observing the mother and V and you write very positive things.

A. I was on the bandwagon. Let us be clear on that. I was the leader of the bandwagon at one time.

Q. Because she was impressive in terms of her care of V was she not?

A. I have said that repeatedly. I have written it repeatedly. I have not said not."

36. He was also asked:-

"You said you were a strong believer at the time, in May, that the separation should not take place. Why did you think the separation should not take place?

A. One, it was strong the bonding was strong. The second one was that I genuinely believed then that the mother was committed to ... the idea of caring for V ..."

37. Finally the judge accepted, and this is an important finding, that:-

"Were the mother to face up to the mental health issues and her emotional frailties they could be addressed, and then she would be able to make a real contribution to and indeed parent V, who would have been able to gain so much from that experience."

28. That analysis demonstrates that in the judge's view the fatal obstacle for mother was her not facing up to and addressing her mental health problems and emotional frailty. That is why her mental health is the central consideration. Thus it is important to examine what the issues were.

39. They seem to me to be:-

(i)What is the correct diagnosis?;

(ii)The nature of the diagnosed illness;

(iii) What is the treatment for that illness?;

(iv)What are the prospects of her accepting treatment and responding to it?

(i) The diagnosis:

29. There was a short report from Curacao after the mother had been admitted to hospital in March 1997 "due to depression with danger of suicide and with personality disorder". The diagnosis was: adaptation disorder, mixed emotional or behaviour disorder; borderline personality disorder.
30. Dr Hodgkiss was in charge while she was at St Thomas's. He considered she was suffering a psychotic illness with hypomanic features but felt the situation was precarious and that further assessment of her mental health was essential. The likely diagnosis was hypomania. She was not detained under the Mental Health Act. After the birth of the baby he found "absolutely no evidence of mental illness". She was discharged from psychiatric treatment. When he saw her in September her mental state was unremarkable, though he observed that the meeting was too short for too much weight to be placed upon that assessment. His view reported to the court in writing in November was:-

"With the benefit of hindsight I think it is most unfortunate that almost a year has passed since the birth of V without an assessment of mother and baby at the Bethlem Mother and Baby Unit. This would be an obvious next step in terms of further psychiatric management. It could also provide an opportunity for further detailed assessment of parenting." (My emphasis added).

31. Dr Burke diagnosed her to suffer from (i) a post-traumatic stress disorder following the abusive experiences in early life; (ii) depression; (iii) personality problems with low self-esteem and an impulsive pattern of behaviour.
32. Dr Lloyd examined her in October. He found no evidence of psychiatric illness at the time of the assessment. He felt she had not described any symptoms of post-traumatic stress disorder, nor was she currently depressed. He considered the possibility of a hypomanic illness. He said:-

"Whether she has the capacity to care for her child in a safe and responsible manner cannot be established on the basis of a single psychiatric interview."

33. Dr Lloyd gave evidence. He drew support for his conclusions from the report of Dr Hodgkiss. He gave detailed reasons, maintained under cross-examination, why he was of the view that there was no evidence of post-traumatic stress disorder nor of depression. He said that her unusual behaviour and regard for cleanliness "would be certainly compatible with somebody with an obsessional personality" but that was a separate issue from her bi-polar disorder. He was unhappy about any diagnosis of a personality disorder which he thought was unreliable. He said:-

"I avoid it (the diagnosis of personality disorder) if I can. I try to diagnose mental illness.

Judge Hedley: I'm afraid I rather have come to the view with borderline personality disorder that there is a way of a doctor telling me, 'there is something wrong and we cannot do anything about it'.

A. Or, 'I don't know what it is'.

Q. Precisely, yes. I appreciate that one needs to approach it with caution."

34. Dr Burke was subjected to sustained cross-examination about his diagnosis. Eventually he was driven to concede:-

"I do not come down firmly on any diagnosis in that report, nor do I come down firmly in my substantive report on any diagnosis."

35. He was much more concerned about her abusive life's experiences and her remarkable cutting off from her family. His position is probably well summarised in this answer:-

"I think one would really have to look at this as a two horse system, possibly three, with parenting difficulty being a possible third. The two horses that exist, one the early life experiences and how that leads to us being here now, the whole business, it is like a fairy tale. Getting on a boat from Holland escaping the hostile - all this stuff is a fairy tale for me. And it is not the outcome, in my view, of manic depressive disorder. It is the person we are looking at. Certainly Doctor Hodgkiss' report is consistent with the view of a manic element and I think that at other times in her life she describes being quite despairing and depressed, and in my view, it will explain something; but this is a developmental disorder primarily that she has. The main manifestations are paranoid style and an inability to put the interest of the child first. That is my view. That is my submission."

36. The judge found that it was likely that she did not suffer a post-traumatic stress disorder. That must have been a rejection of that part of Dr Burke's evidence. He did find she suffered from bi-polar affective disorder and he accepted Doctor Lloyd's further observations that this was an illness which remains present but is episodic. It is to be noted, though the judge does not advert to it, that in his evidence Dr Lloyd did not express surprise that the gap between the episodes might be as much as three years which he considered was not outside the average. The judge found that she did not suffer from any other recognisable psychiatric disorder but, accepting some part of Dr Burke's evidence, that she did suffer from something he loosely described as a personality deficit.
37. In my judgment there was evidence before the court which entitled the judge to come to those conclusions.

(ii)The nature of a bi-polar affective disorder:

38. She demonstrated the symptoms of being "on a high" when she was at St Thomas's with her grandiose delusions. She may have been at a low when she attempted to take her life in the West Indies. It must, however be stressed, and there is no sign of this in the judgment itself, that this illness does not totally disable a parent from caring for a child. These exchanges are to be noted:-

"Doctor Lloyd: I would like to make the point that the absence of psychiatric illness does not necessarily mean that someone is a competent mother, nor does the reverse apply: somebody with a mental illness of a recurrent nature can still, with appropriate support and treatment, be an effective parent.

Judge Hedley: Provided they have insight into their condition normally?

A. Yes. But insight is something which can develop over time."

50. In re-examination there was this exchange:-

"Q. Doctor Lloyd, can someone suffering from bi-polar affective disorder look after children? Does it depend on the individual and the severity of the disorder?

A. There are many people with bi-polar affective disorder who have custody and care of their children and who cope well for the great majority of the time. And there are many people with bi-polar affective disorder who are very eminent, competent, productive citizens and, again, function extremely well for the great majority of the time and from time to time they need help and treatment for discreet episodes of illness."

(iii) The treatment:

39. The usual treatment by drugs is with lithium carbonate. Dr Burke had been recommending treatment for the disorders he had diagnosed, which the judge rejected, with other drugs which Dr Lloyd considered to be inappropriate. Given the disparity of opinion and proposed treatment, it is not unreasonable for a patient to ask to be fully informed before she consents but, as a warning to this mother, it may be unreasonable to refuse competent advice. She has a very narrow path to tread.

(iv)The prospect of treatment being effective.

40. The evidence established that a co-operative patient can respond well to treatment and can cope with help and support. We are back to the burning question: is this mother such a patient?

The crucial finding in this case:

41. The same essential finding appears at two stages of the judgment. Dealing with the diagnosis of her mental illness the judge found:-

"There is no acceptance by the mother of her condition and therefore inevitably no insight by her into it."

42. Having concluded, as he was entitled to do, both that the mother was suffering from health problems and that she did not recognise them, he then went on crucially to find that she would continue not to recognise her problems.
43. When reaching his conclusion that there was "simply no prospect of this child being returned safely to the mother in the foreseeable future" the judge went on to explain that not only would her care be utterly unpredictable, but also, and importantly in this context,

"It will be subject to relapses in her mental health in circumstances where she will inevitably deny all need."

44. The main issue in this appeal is whether the judge was entitled to find that inevitability. It is important because, as I have already set out, he went on to accept that:-

"were the mother to face up to the mental health issues and her emotional frailties they could be addressed and then she would be able to make a real contribution to and indeed parent V."

57. So everything hung upon his judgment that a further assessment was pointless.

Conclusions

45. I am fully aware of the need to give great weight to a trial judge's findings on a matter of fact, especially where part of that judgment is based upon the impression a difficult witness made upon him. Nevertheless, I am reluctantly driven to conclude that in this case the finding is against the weight of evidence. These are the material factors:-
46. (i)It was common ground in May that a psychiatric assessment at the Royal Bethlem Hospital was the best way forward although an assessment at the Legard was not ruled out as an alternative option. That was the care plan at that time. It had the backing of Dr Burke, the local authority, the guardian ad litem and even the mother who after prevarication had attended the Royal Bethlem and had agreed to go there. Their final report acknowledged she was showing insight into her emotional needs. Then she changed her mind. So it was that change of mind, not the lack of a sufficient prospect of a useful outcome being achieved from an assessment which altered the picture. If the arguments in favour of assessment then were good, they remain good unless the welfare of the child has imposed a different factor, or her refusal to co- operate is fatal.
47. (ii) A lack of insight into and an acceptance of mental illness is not exceptional: it is probably more likely to happen than not. Dr Lloyd said

"I think it is a fairly common observation in psychiatry that many patients resent and reject the diagnosis that they are psychiatrically ill, at least in the initial stages of their illness"

48. Asked how her mental health was likely to impact upon her ability to parent V, Dr Lloyd said:-

"I think the more worrying development may be if she were to become hypomanic again, in other words, develop symptoms similar to those which were described in Doctor Hodgkiss' report during her admission to St Thomas's. She was said to be grandiose and euphoric and lacking any insight into her illness and in that condition she may not be as conscientious and responsible a mother as she would be when she is well. When I assessed her, I was very impressed by her level of responsibility and commitment to her child. Hypomania, characteristically, is associated with lack of insight, because the person suffering from it does not feel ill, in contrast to somebody suffering from a significant depression, who is usually all too aware that they are unwell. Hypomania is associated with a sense of enhanced well- being, enhanced talents and powers and a sense of grandiosity. Somebody behaving in that manner does not usually take kindly to any suggestion they are ill because they do not feel ill."

62. Cross-examined he was asked:-

"Q. If the mother consistently seems to have denied any previous psychiatric history, psychiatric input, what effect does that have on the prognosis for further treatment and monitoring in co- operation with mental health professionals?

A. As a general rule, the less insight the less chance there is of a person co-operating with monitoring; but insight is something that can be acquired and doctors and other mental health professionals can help the person acquire insight, particularly if the patient (using that term) believes that the mental health team are working with her. I had a strong sense when I interviewed (the mother) that she regarded the people who were looking after her daughter as adversaries and there was not a sense that they were trying to help her. I know they were, but that was not the impression that had been given to (the mother).

Q. In terms of acquiring that insight, are you able to put a time frame upon that?

A. That is why I have recommended a further period of observation. I would have thought, in the course of an admission to a unit such as the one at the Bethlem for, let us say, four to six weeks, when there would be constant and regular contact with mental health professionals, if insight is not acquired at the end of that period then one would be a bit pessimistic that it is ever going to be acquired but I suspect that it would be....

Q. A further assessment is going to put her under the microscope and it is going to be her ability to work under that microscope with a view to having V returned to her. Are you confident she can make that quantum leap? She does not seem to have done it in the last seven or eight months.

A. I am not confident, because otherwise I would say she could have the baby here and now. The whole purpose of that assessment would be to establish whether or not the desired changes come about. As I have answered the previous question, the assessment would be a success if it enables people to come to a definitive decision whatever that decision is."

63. (iii) The overwhelming tenor of his evidence was that a lack of insight was not fatal.

Dr Burke, who had been so in favour of further assessment that he attempted to resist the local authority removing the child from the mother, changed his mind by the time he gave evidence. He expressed the view that V should be placed in a secure, consistent and effective environment and he was of the view that V was of such an age that:-

"The time has come, in my view - and I say it with all respect and with high regard for the mother - I have a great deal of regard to her, by the way: I saw her many times and have a lot of regard for her. But at this point it would not serve V's interests best if we should go through the whole thing again ..."

49. What is important to note is that he was giving priority to V's needs and he did not address the question whether or not the mother would respond. That is not the approach taken by the judge. For Dr Burke the vital question was not so much her mental health but her paranoid attitude to her family and to the world. He was asked:

"Q. So that if another placement were tried at a mother and baby unit with a psychiatric component, such as the Bethlem Royal, do you think there would be the same concern about her feeling of being persecuted by staff and not being able to work with staff?

A. I am unsure. I heard Doctor Lloyd's evidence in chief and also afterwards. I am unsure what the psychiatric unit would do now, because she says she is well and all accounts suggest that she is well, so what she needs is not the Bethlem, in my humble submission. It is not the Bethlem, it is one of the places like Beacon and Legard. They are so good, these people.

... at this point in time, if I were asked to give my opinion as to the likelihood that it will succeed, I would say I do not know, but that on the past evidence I would have to say that it is not the way forward for V. But not the Bethlem, certainly not the Bethlem. She has no evidence of mental illness at the moment, according to Doctor Lloyd, and therefore the Bethlem is unlikely to entertain an admission. So it is not on."

50. (iv) The thrust of his evidence was focused on the needs of the child, not on whether mother could or would gain insight and help. By the time the mother came to give evidence, she had given instructions, in essence repeated to us, that she was willing to undertake the assessment and, having been given full information, to consider taking whatever treatment was prescribed. She was certainly not ruling it out. Dr Lloyd was asked by counsel for the local authority:-

"It may be that you would be able to comment on the reason why (the mother) might refuse in May but perhaps might be willing to give it a try now.

A. I would assume that (the mother) did not regard the admission or the proposed admission in May as necessary and relevant. I think she was wrong in that context, but it is not unusual for somebody for whom admission to a psychiatric hospital is suggested it is not unusual for them to turn it down in the first instance ...

Q. Are you able to give any indication from what you have read in the various reports, not necessarily any of the psychiatric ones, of whether (the mother's) attitude so far has been that she might be thought to be likely to co-operate in that kind of set-up?

A. From what I hear latterly her behaviour has been co-operative and I am informed that the suggestion of an admission to a unit such as the Bethlem is one which (the mother) would now accept."

51. The judge does not deal with that change of heart at all in his judgment. It ought to have been dealt with.
52. (v)The judge accepted Dr Lloyd's views to a substantial degree but he did not accept his advice that insight could be achieved and that the whole purpose of the assessment to see whether that could occur. Dr Burke's views for not trying were not the views adopted by the judge for not doing so. If he relied on Dr Burke in this instance, he did not expressly say so or explain why he preferred his opinion. The fatal weakness of the judgment is that the judge gives no reasons for coming to his own conclusion when that conclusion flies in the face of expert opinion upon which he had in other respects relied. One is left, therefore, wondering why he decided as he did. Henry LJ's observations in Flannery & Anr v Halifax Estate Agencies Ltd (t/a Colleys Professional Services) [2000] 1 WLR 377, 381/2 apply:-

"(i)... fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost ...

(ii) ... want of reasons may be a good self-standing ground of appeal ...

(iv) ... the judge must always explain why he has reached his decision. The question is always, what is required of a judge to do so and that will differ from case to case. Transparency should be the watchword."

53. The difficulty I find with Judge Hedley's judgment is that he does not explain what evidence from the experts he had accepted, what he has rejected, and why he has preferred one to the other. He was entitled to find both from the history and from his observation of the mother giving evidence that she was generally unco-operative, that being a manifestation of her "personality deficit". That however did not go to the issue he had made central which was her mental health and in considering her illness, and her attitude to it, he was, in my judgment, bound to have regard to the expert evidence and not simply substitute his own views on that narrow question. His failure to give reasons for the essential findings that the mother inevitably has no insight into her condition and will continue not to recognise her mental health problems is, unfortunately, fatal.
54. (vi) Whilst, therefore, any misdirection on the place and role of an assessment may not by itself have been so material as to undermine the judgment, his finding that the mother would never accept her illness or the need for help is against the weight of the evidence that it would need an assessment of her over a period of time before that conclusion could properly be reached. The point was well made by Doctor Lloyd in a passage I have already quoted:-

"The assessment will be a success if it enables people to come to a definitive decision, whatever the decision is."

55. In my judgment the judge erred and this appeal should be allowed. The question then is what we are now to do. Time has already been lost. I am in full agreement with Dr Hodgkiss that it is most unfortunate that almost a year has passed without an assessment. The guardian ad litem properly raises the important question whether time is still on V's side so as to wait until June or July before knowing the outcome of the assessment. The crucial question is whether the harm caused to V by that delay, and the harm caused by her upheaval to enable the assessment to be undertaken outweighs the prospect that enough hard information may be gained to enable the court confidently to decide the future of this child, with the possibility of reuniting mother and child. In my judgment time is on the baby's side. She will not be two by the time a final decision will have been undertaken. Her attachment to her mother is good, even remarkable in the circumstances. She will survive upheaval. The prospect of the greater good of being cared for by her mother is not so fanciful that it should be rejected with a real risk that mother and daughter will never know each other. Rather than send the matter back to the Family Division, I would grasp the nettle myself.
56. In my judgment this appeal must be allowed and an assessment of mother and child under section 38(6) of the Children Act 1989 must be ordered. In my judgment, and being faithful to the judgment of His Honour Judge Hedley, this mother does have psychiatric problems which need attention. The preferable place for an assessment is the Royal Bethlem Hospital and whilst I am all too well aware of the difficulties this imposes upon them, I hope they may be able to offer mother and baby a place in mid-April. If that cannot happen, then the court must at least in the first instance rely on the local authority and the mother, with the help of her very competent legal advisers, to agree some other suitable placement. In default of that the matter will have to go back for directions but I earnestly hope that time will not be lost in that way.
57. I end with the bleak warning to this young mother. Her child has by order of the court once been removed from her care. She must appreciate the real risk (and I acknowledge it as a real risk) that the court may come to the same conclusion when this matter is finally disposed of. This, therefore, is the mother's last chance to be an effective mother to her daughter, something she so desperately wants. It is for her daughter's sake that she must undertake this process and undertake it with humility. If she truly loves her daughter, she will put her daughter's needs before her own, something she has not yet been seen to be able to do. In this harsh world, second chances are not often given. She must seize this one or she will live to regret it.

LORD JUSTICE WALLER:

73. I agree.

(Appeal allowed; assessment of mother and child pursuant to section 38(6); interim care order for 28 days; detailed assessment)