England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE CORRIE)

		Royal Courts of Justice Strand London, WC2
		Thursday, 12 December 2002

Thursday, 12 December 2002

1. LORD JUSTICE THORPE: This appeal concerns a little boy named B, who was born on 5 May 2001. He has lived throughout his life with his parents: his mother, who is 39 years of age, and his father, who is 31. His mother has three older children all of whom have been taken into care. A fifth child is due in late April or early May 2003. The two youngest and the expected child are all the children of the second respondent father.
2. In the light of the history the local authority, quite understandably, obtained an interim care order in relation to B within ten days of his birth. However, the family of three was united at a specialist residential unit called Westwood House where they all lived between May and September 2001. There is some evidence in a subsequent remark made by the mother that on two occasions during that stay, sometime between May and August, she was assaulted by the father. That is the only evidence of those incidents, and even by her description the assaults seemed to have been relatively minor occurrences.
3. In September 2001 the family were transferred to an alternative residential unit called Monkswood House and there they have remained to the present day.
4. The local authority were, in the light of the history, ambivalent as to B's future and they sensibly pursued a policy of twin-tracking until progress reports from Monkswood House encouraged them to the optimistic view that these two could provide good enough parenting for B. So by 2 July the local authority had replaced the policy of twin-tracking with a policy of rehabilitation to the parents in the community.
5. The plan lurched off the rails later that month when, during a fraught week between 19 and 26 July, the mother described to one of the workers at Monkswood House her sense of despair at her relationship with the father and her determination to escape from his unreasonable controlling personality. She did leave for a women's refuge, but within 24 hours she was back again and the relationship crisis was seemingly overcome. However, it led the local authority to reverse their proposals for B's future. At a planning meeting on 7 August they decided to seek judicial sanction for B's immediate removal from his parents.
6. There was a fixture in the appropriate court, namely, the Coventry County Court for 28, 29 and 30 August. But for the shock of the events of 19 July that would no doubt have been a useful vehicle to have carried the case forward to rehabilitation; but given the reversal of the local authority's care planning it was impossible for them to present their full case at the fixture. In any event on 25 August the parties were informed by the county court that the court could no longer meet the fixture. The most that could be allowed the case was half an hour. Furthermore, we have been told this morning that the parties were informed that the next available three-day fixture would be sometime in April 2003. That is a profoundly worrying failure of the family justice system to meet the needs of the case and thus the needs of the child within the case. It is my hope that the liaison judge for the Midland and Oxford Circuit will examine the circumstances surrounding the loss of the fixture in Coventry as well as the circumstances surrounding the subsequent development of the case. Obviously if the local authority had a case for immediate removal it could not be indefinitely postponed for judgment. So the parties were able to obtain a two-day fixture for 22/23 October by going off circuit and taking advantage of a window in the listing in the Sheffield County Court. However, that fixture fell casualty to difficulties that the mother encountered in her pregnancy. The judge in the Sheffield County Court, Judge Murphy QC, took steps to divert the case to a vacancy in the Northampton County Court for 4, 5 and 6 November. His Honour Judge Corrie took the case. Unfortunately the guardian fell ill on 6 November and it was necessary for him to adjourn over to 29 November to continue the hearing.
7. Judge Corrie's extempore judgment was given on 2 December. He accepted the submissions of the local authority, and sanctioned B's removal from the care of his parents on the closure of Monkswood which was ordained for 17 December. The mother applied to this court for permission on 10 December, and on the day that the application was received, marked urgent, I made an order for an oral hearing on notice with appeal to follow if permission granted fixed for today, 12 December. At the outset we granted permission to Miss Meach, who represents the mother, and we have through the course of the morning heard submissions in relation to the appeal.
8. I revert to the history to trace an issue which has had great significance throughout the argument. The guardian ad litem instructed a local clinical psychologist, Dr Mellor, to prepare a report. She was particularly suitable since she had prepared reports in relation to the earlier proceedings which had resulted in care orders in relation to the three eldest children. Her report of 6 May had this to say of the father:

"... although Mr H has made some progress, he is still ambivalent in his acceptance of violence as a means of exerting control and that to some degree he continues to lack relapse skills for preventing anger expression."

9. In relation to the mother Dr Mellor noted that she had been receiving counselling from a local charity known as The Lighthouse. That counselling had commenced in October 2001 and a report of March 2002 showed that the mother had engaged well and had been making reasonable progress. Of that, Dr Mellor said:

"I would suggest that consideration be given to providing her with a more robust form of therapy in the near future, which could be accessed from a clinical psychologist in adult mental health services, via her GP."

10. Later in her report she said:

"Both adults are in need of skilled group work or cognitive behavioural work to continue the process of change, alongside ongoing daily professional support.

I would suggest that existing or additional therapy requirements I have indicated would need to be in place and well established prior to any transfer to the community."

11. That report was taken up by the worker at Monkswood, House, Mrs McNamara. This we see from a report written by the mother's general practitioner, Dr O'Hagan, on 21 August 2002. The report records as follows:

"On the 10th July 02 I wrote to Maureen McNamara explaining that psychology had declined my referral as they were unable to take on individual psychotherapy due to lack of funding.

I saw [the mother] on 24.7.02 when she was again depressed and tearful ... She felt this was related to her relationship with [the father] who she felt was too controlling she was accompanied by her social worker, Maureen McNamara who had arranged separate accommodation for her for a while. I again raised this issue of lack of psychological therapy and Mrs McNamara was to discuss this with Dr Mellor."

12. There have been a number of failings in the endeavour to provide the mother with the psychotherapy that she plainly needs. One such was that Mrs McNamara did not discuss the problem identified by Dr O'Hagan with Dr Mellor. Mr Coleman, who has most ably put the case for the local authority, tells us that Mrs Mcnamara in her evidence to Judge Corrie frankly accepted that she should have pursued this with Dr Mellor and that she had failed to do so.
13. Some independent effort was made by the guardian ad litem. His solicitor wrote to Dr Mellor on 13 September, saying:

"I have been asked by other parties whether you have names and addresses of practitioners capable of undertaking the work which you have recommended for [the mother]."

14. Dr Mellor's answer came on 7 October when she said:

"I am unable to name any sources in the Coventry area, although the usual route for cognitive behavioural therapy is via mental health services."

15. I turn now to the local authority' efforts. The team manager, Marion Hodgkins, in an affidavit or statement of 23 August wrote at paragraph 7:

"The Psychotherapeutic services in Coventry have a two year waiting list and have frozen the list. They have also made a decision to improve the availability and efficiency of the service in future that they will not be offering individual psychotherapeutic services."

16. As Mr Coleman himself pointed out, it is a perversion of language to suggest that the withdrawal of individual psychotherapeutic services could possibly constitute an improvement in the availability and efficiency of service.
17. Mrs Hodgkins continued:

"I have contacted the link person responsible for commissioning in Coventry Health Services, Karen Corbett. She confirmed the information from the Psychological department and suggested that I contact the Psychological services in Birmingham to see if they have a place and the cost of the service. We can then make a request to the Health Service for the payment to meet unmet needs in Coventry."

18. Mr Coleman has very kindly supplied us with the letter that the link worker, Zelma Van Rhyn, wrote to Psychological Services in Birmingham, namely, the Adult Psychotherapy Service for the South Birmingham Mental Health NHS Trust at Devon House, Edgebaston. The letter of 28 October contains a succinct referral with annexed reports from Dr Mellor.
19. The response of 5 November from Devon House explained their rejection of the mother as a potential claimant for a number of reasons, the most obvious and conclusive of which is the first stated, namely:

"Dr Mellor in her reports has stated that the mother might benefit from cognitive behavioural therapy. Devon House is a psycho-dynamic psychotherapy services and does not offer this service."

So in effect whoever in the Coventry Mental Health Service had directed Coventry Social Services to Devon House had sent them knocking on the wrong door.

20. Mr Coleman has told us that this rejection of the mother as a potential patient, coming as it did on the final day of the first part of the hearing, led the judge to suggest that an approach should be made to Dr David Jones at the Park Hospital in Headington. Judge Corrie is the designated judge in Oxford, and of course would be very familiar with the extensive child and adolescent mental health services offered by the Park, and in particular the forensic work which Dr David Jones does in the family justice system. the inquiry was predictably unsuccessful since Dr Jones simply said that he was unable to take referrals from Coventry.
21. Mr Coleman this afternoon provided us with a copy of a letter which Marion Hodgkins wrote on 12 November to the manager for Mental Health Purchasing in the Coventry Health Authority. The letter is an extremely full and careful letter setting out the therapeutic needs of both the mother and the father. The writer made the telling point in her conclusion:

"Whether or not B is removed from this couple, the reality is that there is another child who may be affected if no work is completed with these parents. The key to protecting other children is the provision of the appropriate therapy and in giving the parents at least an opportunity to show that they can work towards changing their patterns of behaviour and care appropriately for their children. They have made some progress at Monkswood and are now willing to make changes and they have a good attachment to B which needs to be maintained when he reaches terrible two's. This is unlikely to happen without the therapy.

I am therefore requesting help to identify appropriate resources and funding to provide such therapy either through our own health resources or through provision of funding to another agency specialist ..."

22. That seems to me a commendably succinct review of the case and the urgent need for Mental Health Services to meet the parents' identified needs. The letter has not been either acknowledged or answered. Given the urgency the social worker, Miss Van Rhyn, telephoned on the 14th. This is the note that she took of the response:

"This is a difficult situation, and because this therapy was an outcome of court proceedings/child protection issues, health authority is saying that social service are responsible for funding."

23. I have recited this history at some length because it demonstrates to me two things. One is that there seems to be chronic lack of psychotherapeutic services available to NHS patients in the Coventry area; second, that there seems, at the least, to be a lack of clarity as to whether funding for such psychotherapeutic services falls upon the Health Service or the Social Services in the area in which the potential patient resides. I am in no doubt at all that the investigation that we have carried out this morning demonstrates that the mother in this case is the victim, either of the completely inadequate psychotherapeutic services in Coventry or of some sort of demarcation dispute between the Health Service and the Social Service as to who picks up the bill.
24. The father has fared rather better. As a result of a referral by Dr O'Hagan he was assessed on 3 October by the consultant clinical psychologist who is head of Adult Psychological Services for the Coventry NHS Primary Care Trust. He, together with his assistants, runs a particular anger management programme. He assessed the father for admission to that programme and rejected him on a number of grounds. It is perhaps unnecessary to particularise the grounds; it is enough to say that he shared Dr Mellor's opinion that the father had been motivated to portray himself as totally in control of anger experience, feelings he indicates he does not experience anyway. In relation to this aspect of the case it is only necessary to record that the mother has continued to receive regular counselling from the Lighthouse, and that she has also been accepted by the Family Project, Coventry, another charity which runs a domestic violence self-help group, and there seems to be no dispute that she is benefiting from the support that she is receiving from those separate charities. It seems also to be undisputed that the father is on a waiting list to join some similar self-help group for perpetrators at the Family Project, which may be set up sometime next month.
25. The issue for the decision of Judge Corrie was whether when the parents leave Monkswood on Wednesday next they should move to the suitable nearby accommodation that they have identified and prepared with the help of the local authority on their own or with B. The local authority submitted that they should go on their own. All other parties said that B should go with them.
26. One of the features of the trial was that there was a fundamental conflict between the assessment and recommendation of the guardian ad litem and the assessment and recommendation of the expert he had instructed, namely, Mrs Mellor. Such situations are by no means unknown in public law proceedings but they are rare and they present judges with particular problems. We do not have a transcript of the judgment of Judge Corrie but we do have a high quality note which has been improved by suggestions that had come from all counsel in the case and which has finally been submitted to the judge for correction and approval. It is no substitute for a transcript. As Judge Corrie has himself observed, "It is neither full nor verbatim. Some corrections have been made but I am not satisfied that it accurately conveys what was said." However, in situations of urgency this court has to make do with the best available note.
27. The intention of the mother to come to this court with an urgent application was formed, as I understand it, immediately after judgment. However, Miss Meach tells me that the tape was only posted recorded delivery on 10 December and when an inquiry was made yesterday, the 11th, the transcribers said that it had not arrived. With concerted effort it should be possible to produce a transcript of judgment where ten days have elapsed between the conclusion of the trial and the hearing of the appeal.
28. In addition we have skeletons from the mother, the father and the local authority. In her skeleton Miss Meach makes a number of forceful points from the history, particularly emphasising the solid progress made by the parents throughout their stay at Monkswood. She submits that the disruption of the week commencing 19 July has to be judged in the context of the history preceding it, and also the undisputed fact that since that week the parents have coped well despite the reduction in monitoring consequent upon staff reductions at Monkswood in anticipation of its final closure.
29. She makes the point that Monkswood is little more than a family hostel; there is no staffing other than during office hours, Monday to Friday; residents are free to come and go. What difference, she submits, between that and the arrangement that she advocates which would have parents and child living in nearby suitable accommodation with daily visits from an independent social worker who has been commissioned to carry out an assessment of the parents' capacities to deliver adequate parenting in the community.
30. Miss Meach points to the continuing support that the parents are receiving from the independent charities. She submits that although ideally psychotherapy for her client should have been in place before the move to the community, it is by no means essential.
31. Mr Rogers, for the father, adopts her submissions. His essential case is expressed in the final paragraph of his skeleton:

"To justify removal at an interim stage must require real evidence of a risk of immediate harm not simply a speculative risk based upon comments made four months prior to the hearing."

32. Mr Neaves, for the guardian ad litem, again adopting the submissions of the other parties, emphasises that Dr Mellor, in the course of her evidence, strayed beyond the essential question: would B be safe in his parents' charge between 17 December and the hearing on 7 April fixed to consider long-term risks? That diversion led the judge to found himself on a consideration of the long-term rather than the interim.
33. Mr Neaves also adverts to the Convention rights of the children: rights which demand a fair trial and which protect them from precipitant or disproportionate removal from their natural parents.
34. Mr Coleman has submitted a full and careful skeleton in the course of which he emphasises that the judge's discretionary decision was well-founded on his rejection of the evidence of the parents and his preference for the assessment and opinion of Dr Mellor to that of the guardian. He says that Dr Mellor emphasised that the structure of Monkswood was important to the parents' capacity to manage. In addition, their performance at Monkswood was monitored to some extent, not only by staff, but by other residents and all that would be lost were they at large in the community. He realistically conceded before the judge that were he to succeed in his submission it would be largely determinative of the parents' case notionally fixed for trial on 7 April. That he says was justified by the essential need to provide a safe and secure environment for B over the course of the interim four months.
35. Mr Coleman submitted that the judge had come to the clear conclusion that that safety could only be guaranteed by separation and that it was not for this court to question that discretionary appraisal made by an experienced judge who had seen and heard the evidence, lay and professional.
36. I have great respect for that submission. This was an extempore judgment from a very experienced judge who had heard at least four days of evidence. We have not had the opportunity to see precisely how he expressed himself but the note we have shows a careful reasoned judgment, explaining his conclusions and expressing his preference for the expert evidence of Dr Mellor.
37. Thus it is with some misgiving that I find myself driven to differ from him. I reach my conclusion by the following steps. Superficially, it seems to me that the reaction of the local authority to the events of 19/26 July was disproportionate. That is a superficial view from which the judge of trial on 7 April may well differ. But for the purposes of the review of an interim judgment that is my starting point. I am then troubled by the systemic failure to provide for the mother's therapeutic needs which were clearly identified, at least by the date of Dr Mellor's report of 6 May 2002.
38. There can be no doubt that the events of 19/26 July are crucial and fall to be assessed judicially and were as well able to be assessed at an interim hearing as at a final hearing. But I think it is important to recognise that they are all within the context of the complex relationship between these two adults and focus on the frustration and sadness of a fragile mother, coping with a 15-month old child under constant monitoring and suffering from some level of clinical depression. The performance of the mother, qua mother, and of the father, qua father, since, is acknowledged to have been excellent. Above all it seems to me important to recognise the purpose and the bounds of an interim hearing. There can be no doubt that a full and profound trial of the local authority's concerns is absolutely essential. But the interim hearing could not be allowed to usurp or substitute for that trial. It had to be properly confined to control the immediate interim before the court could find room for the essential trial.
39. I would accept the analysis that in this instance the interim hearing exceeded its proper bounds in the evidence of Dr Mellor which undoubtedly invited the judge to reach present conclusion on her assessment of long-term future prospects. There can be no doubt that to some extent, and perfectly understandably, the judge, in accepting the evidence of Dr Mellor, was drawn into the same boundary breach. The judge at the end of his judgment during the course of exchanges between counsel offered some reassurance that the parents' case would be fully judged on 7 April despite the conclusions that he had reached. But with all due respect that seems to me an unrealistic reassurance. Mr Coleman's concession that an order sanctioning separation was effectively determinative of the parents' long-term case seems to me to be the realistic view. In my judgment, the Articles 6 and 8 rights of the parents required the judge to abstain from premature determination of their case for the future beyond the final fixture, unless the welfare of the child demanded it. In effect, since removal from these lifelong parents to foster parents would be deeply traumatic for the child, and of course open to further upset should the parents' case ultimately succeed, that separation was only to be contemplated if B's safety demanded immediate separation.
40. Mr Coleman has sought to identify those parts of the evidence which sustain the submission that separation was essential to secure B's safety. He says there was the danger to B of crossfire between the parents. Evidence of that seems to me to be extremely scant. There is one incident referred to in the record of what the mother was saying in late July when she says that she was slapped by the father during a car journey and B was a passenger and it might have led to some sort of accident. If that is the high point I do not think much of the crossfire submission.
41. Then it is said these are bickering parents with a fraught relationship; there is a danger to B in exposure to risk of emotional abuse. I am not much impressed by that either. Of course these parents have a very unstable and insecure adult relationship; but B has been part of that all his life and continuing exposure for a further four months does not seem to me to begin to justify the draconian conclusion.
42. Finally, Mr Coleman points to the mother's assertion, again during the July confessional, that the father demonstrates irritation and frustration when tested by B. Well, again on its own that seems to me to count for little against the record of performance by the parents throughout their stay at Monkswood, both before and after the July fracas. Even taking these three elements cumulatively, they do not seem to me to justify removal.
43. Thus with some hesitation and with proper acknowledgment of the care and concentration that the judge brought to this difficult interim hearing I would reverse his decision and say that B should remain with his parents until the hearing on 7 April or further order in the interim.
44. In preparation for that final hearing it seems to me absolutely essential that the mother be assessed by a consultant within the Adult Mental Health Services. It may be that Coventry has more or less closed down psychotherapeutic services suitable for this mother's needs, but I cannot believe that consultant psychiatric services are not available to assess the mother medically to confirm that what she really needs is cognitive behavioural psychotherapy as opposed to the psycho-dynamic psychotherapy which is available at Devon House.
45. If that cannot be achieved because of budgetary constraints within the Health Service I see absolutely no reason why it should not be achieved forensically, and I would propose a direction within the order of this court giving permission to the mother to release to a consultant adult psychiatrist to be agreed between the parties and jointly instructed such of the documents in the case as would be pertinent to his assessment. I would also urge that redoubled efforts be made to find for the mother whatever psychotherapy is adjudged appropriate at the earliest opportunity after the completion of the assessment, so that by the time the case comes on for trial there is some treatment either in being or at least in prospect.
46. For all those reasons, with some hesitation, I would allow this appeal.
47. MR JUSTICE LAWRENCE COLLINS: I agree.
(Application for permission to appeal granted; appeal allowed; mother's solicitors to obtain a transcript of the judgment of 12 December 2002, the costs shall be shared equally between the parties; no order as to costs save detailed assessment of the First, Second and Third Respondent's costs in accordance with the Community Legal Service (Costs) Regulations 2000; order as per minute agreed between counsel).