England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL
CIVIL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 July 2004

WARD LJ:

Introduction

1. On 30 January 2004 His Honour Nigel Fricker QC sitting as a deputy circuit judge in the York County Court ordered that the child with whom we are concerned, a boy called AD, be placed in the care of the local authority and freed for adoption. His children's guardian and his mother applied for permission to appeal against those orders. Thorpe LJ adjourned the applications to be heard on notice to the local authority with the appeal to follow if permission were granted. We are agreed that permission to appeal should be given. This is my judgment in the appeal.

The fact finding inquiry

2. AD's mother is now 25 years old. When she was 16½ she met a boy but a few years older and was soon living with him. They married and have two children, C and D, born in February 1997 and December 1998 respectively. In time they grew apart. It is no surprise. As the mother has acknowledged, they were far too young to marry. One might add they were far too young to become parents. But some do. When her husband lost his job, the mother went to work. She discovered a social life which no doubt had attractions more exciting than her faltering marriage. There she met AD's father, some 2 years her junior. When it was reported to her husband that she was seen out with this young man, he left their matrimonial home taking their children with him and that marriage has now ended. The happy fact to record is that the mother and her former husband remain on amicable terms and the mother readily accepts that her children are securely placed in their father's care where she is content they remain as she has very generous contact to them, giving them a sense that they have two homes.
3. The mother began an adulterous relationship with the father and, notwithstanding her contraceptive pill, found herself to be pregnant. She could not bring herself to terminate the pregnancy. AD was born on 21 April 2002.
4. AD was by common account a sickly baby who had great difficulty in keeping his food down. As far as I can ascertain, the health visitor was satisfied that the mother showed all due and proper concern for her new baby. Perhaps that is exemplified by the fact, as the judge was to find in a preliminary hearing on 20 March 2003, that:

'13 The court finds that on a day or so before 16 May 2002 [the] mother became concerned about AD positing vomit more than before.'

5. Given the story which is about to unfold, it is my judgment that the judge subsequently lost sight of the fact that her taking the baby to the hospital was a proper step taken by the mother to protect her child against harm.
6. He went on to make the following findings at that preliminary hearing:

'14 The court does not accept that the father was not involved in caring for AD during the middle of May 2002. As he accepted during the hearing, he went with AD to the doctors' clinic and to the hospital on 17 May and did not go to stay with his parent until about 20 May.

15 The court finds that the earlier incident of shaking occurred around 16 May 2002. The court takes into account the medical evidence and the parents' narrative histories in so deciding.

16 There is no evidence to link the May shaking episode to any other carer than the parents. The court concludes that one of them must have done this to AD.

17 On the evidence as a whole the court considers that it is more likely that the father shook AD in May.'

7. The conclusion that AD had been injured on 16 May was not one reached at the time: in fact he was discharged and there was no suspicion then of any non-accidental injury having been inflicted upon him. But he clearly sustained injury 3 months later.
8. These are the judge's findings in that regard:

'1 AD's mother left home to go to work by 7 am on Thursday 22.8.02. By then AD had shown no signs of illness or distress.

The court concludes that no symptoms of neurological disturbance had begun before mother left to go to work.

2 AD had a fit while in the care of his father during the morning of Thursday 22.8.02. Father put this at after 10 am in oral evidence: at least 3 hours after mother had left AD in his care alone. This fit was a symptom of insult to his brain from having been shaken violently not long before the fit began. AD had already sustained insult to his brain from being shaken several weeks earlier. [I assume the judge means several months earlier and is referring back to the shaking on 16 May.]

3 On his own account, on 22.8.02 father failed to seek medical attention when it was obvious to him that there was something seriously wrong with his son. After the fit had ended, it remained obvious that something had been seriously wrong. The fit must have been very alarming. The father says he was panicky and scared or "I shit myself". Father's failure to seek help before mother came home is very concerning and at the least amounted to a failure to protect his child.

4 Mother says that when she came home at about 2.30 on 22 August, upon careful inspection AD seemed well. The court considers that this has not been disproved. However, it remains a matter of concern that mother did not seek medical advice in the light of what father told her had happened. Yet the court accepts that father probably understated how severe the fit had been and did not use the word "fit" although that was what he thought it had been.

5 AD vomited violently on Friday 23 August. The court finds that when AD was taken to hospital on that day, at 17.50 the parents failed to report either the fit from the previous day or the vomiting on the Friday. The history taken was report of coughing, runny nose since birth and no diarrhoea or vomiting. The court concludes that the parents were not frank. The failure to report the fit and vomiting were failure to protect AD, failure on the part of each parent.

6 There was further violent vomiting on Saturday 24; according to the parents, this started late evening when they went to bed. Mother says that AD then screamed piercingly and his head and shoulders moved forward as he vomited.

7 The hospital records include as history report which can only have come from the parents, of a deterioration over 24 hours with vomiting, being slightly irritable and three episodes of AD's eyes rolling and him being floppy. The parents denied three episodes during Saturday 24 and deny having reported what was recorded. It was suggested in argument that the writers of the recorded history might have written in the three episodes following the further episode noted at 11.35 later that Sunday morning. It was also suggested that the word "today" tends to suggest that the three episodes happened during Sunday 25 and later than the original taking of the history from the parents. Yet only one episode, not three, appears in the chronological recording during AD's care in hospital that day. The court finds that the history of deterioration over 24 hours, AD being slightly irritable and of three episodes rolling and being floppy before admission came from the parents or one of them.

8 The court finds that on 24 the parents failed to seek medical help as soon as they should, earlier than late evening, and this amounted to failure to protect.

9 Whoever shook AD on either occasion must have realised that this was inappropriate and likely to inflict harm and distress to a vulnerable baby. Whoever did this has concealed what was done.

10 During his oral evidence, I formed the view that father was reluctant to draw on his memory to answer questions that went beyond his version of events.

11 On the evidence as a whole the probability that it was the father who shook AD on Thursday 22.8. is strong enough for the court to find that he did so.

…

18 There is no evidence that suggests that the mother has ever treated AD roughly. The court accepts that on Friday 23 August mother may not have realised how seriously AD was ill. She may not have realised this until some time during Saturday 24 August. The health visitor did not become concerned about how mother handled AD. However the court concludes that there is not enough evidence to be able to exclude the possibility that mother shook AD in May, but the court considers it more likely that it was the father who did so.'

9. In the light of those findings, against which there has been no appeal, the court was satisfied that the s 31 threshold (s 31 of the Children Act 1989) was satisfied in that AD undoubtedly had suffered significant harm attributable to the care given to him by his parents. The case was thus ready for an assessment to be undertaken of the relevant risks and for final disposal as his welfare dictated.

The risk assessment

10. Les Healey, described by the children's guardian as an experienced social worker, had been assigned to this case in November. He worked closely with the mother. So did the children's guardian who by April filed a preliminary report identifying positive changes in the mother leading her to conclude that there should be a fuller assessment of her future potential to care for AD. Les Healey's provisional view formed in June was that the mother had made significant moves to accept the findings of fact but his team manager, Maggi Ballam, who never herself saw the mother, became anxious that Mr Healey had not 'thoroughly explored in depth' the fact that the judge had not exonerated the mother as the possible perpetrator of the May shaking.
11. In June Mr Paul Hunt, a clinical psychologist, interviewed the mother at length over 3½ hours and conducted a psychological assessment on which he reported in July. It is necessary to consider that report in some detail.
12. He required the mother to complete the Eysenck Personality Questionnaire - Revised (EPQ-R) including the Lie-Scale 'which measures the subject's willingness to distort her responses in order to create a good impression'. He found:

'42 (The mother's) score on the Lie-Scale was well above average suggesting a greater than average tendency to deny everyday failings in order to present a good impression (paradoxically, creating an impression of falseness). This score suggests that all her responses should be viewed with considerable caution.'

Other parts of that test had the result that:

'44 At face value, the overall picture was rather odd: (the mother) would appear to be extremely stable, as well as very thoughtful and cautious, but also very detached and self-contained, because not responsive to other people's feelings. If (the mother) was prepared to "fake good" to the extent suggested by the high Lie-Scale score, I am puzzled to know why she wished to appear so emotionally impermeable unless she felt it would suggest independence.'

13. He also required her to complete the child abuse potential inventory, 'a standardised questionnaire measuring personal and interpersonal characteristics known to occur in people who abuse children and which set the scene for parental perceptions and parenting styles that result in acts of physical child abuse'. That led him to these conclusions:

'45 (The mother's) score on the Lie-Scale as higher than normal on this test as well, and thus she scored abnormally high on the "faking-good" index. …

46 For what it is worth, (the mother's) overall abuse score was very low, as were all her scores on the six component scores, suggesting minimal likelihood of her physically abusing a child. Since the Lie-Scale score was high, however, this result should not be interpreted as valid; it seems too good to be true. Note this does not mean she is likely to abuse a child, only that her responses in this area cannot be taken fully at face value.'

14. The following passages appear in his discussion:

'49 It is rather difficult to give a reliable impression of (her) personality and character on the basis of the two questionnaires because her score on the Lie-Scale of each was so high. It is not uncommon to find a somewhat raised score on a Lie-Scale in a person being critically assessed in the context of care proceedings, who is naturally very anxious to create a favourable impression, but in my opinion this score is unusually high even in that context.

50 The one conclusion which it is safe to draw from (her) responses on these two questionnaires is that she is very guarded, not candid or frank, and overly keen to control the impression she gives. The chances are that this tendency to image control will permeate all her dealings in these proceedings, so what she has said to various professionals in interview should be regarded with suspicious scrutiny.

…

60 In the absence of any finding of fact implicating (her) in act of cruelty towards AD, and of any questionnaire evidence that she has a significant potential for physical abuse of children (though the high

Lie-Scale score makes it hard to be definite about this), I believe that (her) ability to protect AD from harm hinges on her ability to provide him with emotional stability … It would be enough to destabilise AD's growing up if (she) were to engage with anyone else in the sort of relationship in which she engaged with (the father).

61 I was most unfavourably impressed by (her) ability to prioritise the needs of C and D in 2001 over her own needs for a social life, attention and casual sexual liaison. Apart from her failure to protect AD consisting of her failure to secure appropriate and timely medical attention, it can also be said that she did him no favours from the moment of his conception by allowing him to be brought into the world in the context of such an ill-founded and ill-fated relationship as her relationship with (the father).

62 The key question then becomes, has (the mother) so reliably and sufficiently changed her outlook and practices since July 2001, for the court to be able to be satisfied that she will offer her son AD good enough parenting and protection from harm of all sorts, and thus for the court to have confidence in reuniting AD with his mother?

63 I doubt very much that (the mother) will continue without a boyfriend, lover, or husband for the next 17 years until AD becomes of age in 2020. She shows every sign of being very partial to male company. This in itself is not a problem, provided (she) can learn to be sufficiently critical and choosy about her men.'

15. His conclusions were:

'65 The one conclusion it is safe to draw from (her) responses on the personality questionnaires is her lack of candour and her strong wish to portray herself in the most favourable light.

67 In my opinion (her) record of intimate relationships does not inspire confidence, in that she has more than once attached herself to a man too soon and too deeply, then regretted the consequences. I am not convinced that this could not happen again, as she seems to be emotionally needy.

68 I believe that (her) ability to protect AD from emotional harm is compromised by her poor record of unstable relationships, in which she has shown a tendency to follow her own whims rather than consider her children's need for emotional stability and consistency.

69 Therefore if the court is minded to rehabilitate AD to his mother's care, I believe such a order should be safeguarded by fairly stringent conditions: that (she) have no more to do with (the father) whatsoever; that she be monitored and mentored by an experienced family worker, probably for 2 or 3 years; and that any male companion agree to meet this family worker …'

16. Mr Healey saw and considered that report. He took issue with Mr Hunt over her having 'a poor record of unstable relationships'. He observed:

'My interviews with (her former husband) and (her) is that they had a relationship for 6 years. (The mother) then entered into a relationship with (the father) which she has obviously lived to regret. (She) admits that she made a bad decision by entering so quickly into the relationship with (the father).'

17. Notwithstanding, therefore, Mr Hunt's views, Mr Healey recommended that AD reside with his mother subject to a care order. He said in his conclusions:

'(The mother) has demonstrated that prior to meeting (the father) she is capable of entering into a long-term positive relationship and has the experience and parenting skills to give AD what is required long term having successfully demonstrated her commitment and care of her other two children D and C up to and after her separation with her husband.

(She) has said it would be a very long time before she could trust anyone outside her extended family and close friends with AD in the future.

(She) has grown in confidence, and is now much more relaxed and her self-esteem has improved since the finding of fact judgment. (She) has put in place positive requirements to enable AD to be returned to her sole care.'

18. Thus the local authority, led by Maggi Ballam, approved a care plan on 29 July 2003 whereby:

'Taking into account the view of the children's guardian … and the assessment of Mr P Hunt … the local authority would support a return of AD to the (birth mother), but under a care order.'

19. Shortly thereafter Maggi Ballam learnt to her surprise that police inquiries were still actively continuing and so, instead of putting that plan before the court, the local authority sought extensions of time to take account of that further police inquiry. Mr Healey was relieved of responsibility for the case and a new care plan was put forward namely:

'The local authority has carefully considered the assessment carried out by the social worker, Mr Healey, which recommends a return home. The local authority has also considered the findings of fact, the assessment of Mr Hunt a psychologist. The authority has also taken into account the transcript of the second interview of (the mother) with the police and the fact that the police may still wish to prosecute (the mother) for offences associated with child abuse. Under the circumstances the local authority is of the view that a care order would not protect the child from abuse and therefore have not given precedence to the wishes of the relatives.'

Instead it was proposed to place AD for adoption.

20. Maggi Ballam explained the reasons for this change in her witness statement. The following passages are relevant:

'12 I was concerned that the issue of her being a possible perpetrator of the first injury had not been addressed by Les and that the report seemed to concentrate more on protection issues.

13 … there was little reference in (Mr Healey's) report to how she felt about the finding of fact judgment made against her as a possible perpetrator of the first injury to AD. When Paul Hunt's report was received it further raised my concerns about (the mother's) ability to work openly and honestly with the local authority.

39 I can see no evidence that (Mr Healey) undertook a probing interview about the injuries or (the mother's) personal involvement in this matter.

40 The local authority believes that (the mother) has tended to minimise her involvement in AD's injuries and deflect responsibility onto (the father). I feel that this has been evidenced again in the police transcripts from 28 July 2003.

60 If AD were returned to (the mother's) care, the local authority would need to feel confident that he would be safe and that we were made aware of any new relationships or changes in circumstances within the household. I am not confident that (the mother) would disclose all relevant information.

62 The local authority views the rehabilitation of AD back to his mother's care as a high risk situation.'

21. On 22 December 2003 the father was charged with the wilful ill-treatment and both parents with the wilful neglect of AD under s 1 of the Children and Young Persons Act 1933. We are aghast to learn that they will not stand trial until 13 December 2004.
22. The children's guardian reported on 8 January 2004 having considered all the information. She said:

'8.19 I have read and considered the psychological assessment of Paul Hunt in respect of (the mother). From my own perspective, and based on knowing (the mother) over a considerable period of time rather than in one interview situation, I consider his view of (her) to be harsh. It was in June 2003 when Mr Hunt conducted his interview with (the mother) and from that time I would contend that she has made significant changes in self-esteem, confidence and independence, not least because of the impact of the decision-making process within these proceedings. From my professional experience, I acknowledge that in the context of care proceedings when the stakes are so high parents invariably attempt to portray themselves in the most favourable light and particularly to a professional such as myself who is seen to hold considerable power and influence.

8.23 I have concerns about Paul Hunt's assertions about the mother's ability to protect AD from emotional harm being compromised by her poor record of unstable relationships. To the best of my knowledge, (her) history of significant relationships with male partners extends to (her former husband) and to (the father). She had no hesitation in ending the brief relationship she had entered into around the time of the Finding of Fact hearing as she was able to see for herself its inadvisability. From that time, to the best of my knowledge, she has not been involved in a further relationship.

8.24 At the time Paul Hunt wrote his report, I accepted his opinion of (the mother) as emotionally needy. I am less willing now to accept that contention being of the opinion that she has made considerable growth in her own emotional resourcefulness. In my opinion, she has consistently demonstrated her positive commitment to AD, has expressed a strong desire for his rehabilitation to her care and, in my opinion, in difficult circumstances over a protracted period co-operated well with professionals.'

23. On 13 January the solicitor acting for the children's guardian spoke to Mr Hunt and recorded this note of their conversation:

'(Mr Hunt) said he could see that his report might be read as very negative and may be worded too strongly. He can see that the guardian is more positive. She has obviously seen mother more recently than him. His appointment was in June. If [the] guardian is satisfied that mother has had a wake-up call he would not oppose the plan of rehabilitation if safeguards are in place. He is not saying that the risks are so high that rehabilitation is not possible. Accordingly he would support the recommendations of the guardian.'

24. The guardian's recommendation was that the mother be granted a residence order subject to the supervision of the local authority for 12 months in the first instance.
25. That was the state of the case when it came before His Honour Nigel Fricker QC on 26 January 2004.

The judgment

26. The judge identified the central issue to be whether AD would be safe if returned to his mother's care. He said:

'2.1 Having read the report and heard the oral evidence of Mr Paul Hunt, clinical psychologist, there is concern that (the mother's) lack of clear and frank acknowledgment of neglect to respond to harm to AD may mean that there is a risk that she may not be reliably committed to strategies designed to protect AD if he is in her care.

2.2 The key question [has become] has (the mother) so reliably and sufficiently changed in her outlook and practices since July 2001 [when she first had intercourse with (the father) while still married: Mr Hunt agreed in oral evidence to add "and continuing to August 2002"] for the court to be able to be satisfied that she will offer her son good enough parenting and protection from harm of all sorts, and thus for the court to have confidence in reuniting AD with his mother?' [Psychological assessment by Mr Paul Hunt.]

2.3 AD should be cared for by his mother unless it is shown that his physical or psychological safety would be likely to suffer unacceptable harm in her care.

2.4 The outcome decided by the court, by way of seeking protection for AD, must be proportionate to the risk.'

27. That may have been how the judge saw it when giving judgment but it is worth recollecting that the issues as they seem to present themselves at the beginning of the hearing were essentially these. So far as Mr Hunt was concerned he had two anxieties:

(i) Based on the lie testing, could she be relied upon to tell the truth?

(ii) Having previously entered into unsatisfactory relationships, was there a risk that she would do so again and thereby cause emotional damage to her child?

Ms Ballam's concerns were:

(i) Had Mr Healey rigorously enough explored with the mother and excluded the possibility that she had shaken AD in May?

(ii) Echoing Mr Hunt, had she the ability to work openly and honestly with the local authority especially in making the social workers aware of any new relationships or changes of circumstances in her household?

28. The judge did not directly address Ms Ballam's first concern, though he did find:

'10.6 I consider that the risk that (the mother) might inflict physical harm on AD is so slight that he should be rehabilitated unless the risk of failure to protect makes it unsafe and inappropriate.'

Although he still does not exonerate her in making that finding, he is finding that that risk is not great enough to justify removing AD from her care.

29. So the case would seem to turn on the answers to issues 2.1 and 2.2 set out in para [26] above. Issue 2.1 seems to me to be the concern more of the judge than of the local authority. This is particularly apparent from the judge's observation during the course of the evidence given by the mother when he intervened to point out when she was being cross-examined by the solicitor for the children's guardian (see p 364 of our bundle) that:

'You are being led along a path even more of saying I did not make correct findings of fact. Because you are saying that I got it wrong in thinking that you knew more and kept quiet about it … So you are being led into danger. This is an extremely important issue, and may be the turning point of the case.'

In para 9.2 of his judgment the judge said:

'I am concerned that Mr Healey may not have challenged (the mother) adequately about my findings 4, 5, 7 and 8 (page 5; note also finding 18) and the material summarised earlier in my judgment (pages 2-4). Did he approach the issue of failure to protect sufficiently rigorously?'

30. Issue 2.2, described as the key issue, is taken from Mr Hunt's report but it fairly reflects Ms Ballam's second concern set out in para [26](ii) above.
31. The judge reached these conclusions:

'10.1 In the light of Mr Healey's concessions [that he did not explore how AD sustained the May injury], his assessment generally and of risk in particular, does not have the same weight as it would had he been more robust.'

This does not for me does not sit entirely easily with his earlier comment in para 9.1:

'However, I doubt that more robust questioning by anyone following the findings of fact would have achieved significant additional information about how AD sustained the May injury. I accept that Mr Healey did explore with (the mother) and make an assessment of strategies for the issue of achieving future protection of AD.'

32. Then he concluded, with emphasis added by me:

'10.2 In the light of Mr Hunt's evidence, the court must be careful before accepting (the mother's) assurances that she acknowledges the risks to AD if he is placed in her care and the need for compliance with strategies for his protection.

10.3 In the light of the indications in the personality tests administered by Mr Hunt, and Mr Healey's lack of robust challenge to (the mother) the court is cautious about accepting the assessments of Mr Healey and the guardian of degree of risk and adequacy of protective strategies.'

33. I add the emphasis because it seems to me that the judge is here placing reliance on Mr Hunt's evidence and his personality tests as establishing a proneness to faking her responses to difficult questions. He omits to bring into the balance the fact that both Mr Healey and, in particular, the children's guardian were aware of Mr Hunt's report and were on guard not to accept everything she said at face value.
34. Paragraph 10.4 contains important findings. The judge said:

'Even though it would have been better if the kind of robust approach expected by Miss Ballam had been used, I accept the factual evidence, based on significant work with (the mother) of Mr Healey and the guardian about what (the mother) says and her lifestyle. I find that (the mother) has sustained commitment to change in her lifestyle, to positive contact with her son, and to acceptance and support of the placement of her older children with their father. I also accept that she reliably attends on and co-operates with professionals apart from providing information about [an occasion when her former husband was staying in her home].' [emphasis added by me]

35. Those clear findings favourable to the mother seem to me to sit ill at ease with para 10.8 where the judge says:

'The problem remains that the court is unsure how far to rely on (the mother) engaging sufficiently with professionals to keep AD safe, and whether the court can conclude that the risk of harm to AD can now be assessed as low enough, and manageable enough, to justify rehabilitation of AD to her care.'

36. I do not understand why he was still unsure when he had found that she was co-operative with the professionals and that her lifestyle had changed and she was committed to that change.
37. I have a second concern about that paragraph. It can be viewed as reversing the burden of proof. It is for the local authority to prove that the risk of harm justifies removal of a child from his family. It is well established that the underlying philosophy of the Children Act 1989 is that children are not to be removed from their families unless the risk of harm compels it. I would, however, not wish this appeal to depend upon a pedantic view of the burden of proof. I am also mindful of the judge's vast experience and his correct setting out of his approach in para 2.3 of his judgment (see para [26] above).
38. Paragraph 10.5 referred to the mother's competence in giving practical day-to-day care of her son. Paragraph 10.6, already referred to, all but exonerates her from causing harm in May.
39. Paragraph 10.7 is crucial because it identifies the risk which will determine the outcome of the case. The judge said:

'The substantial risk is that (the mother) might drift back into neglecting AD's needs by putting her own needs first and in particular by forming another relationship in which she and AD could be vulnerable.'

40. He expressly refers back to Mr Hunt's views and concerns particularly those set out in para 68 of his report recorded in para [15] above. As I have indicated it is essentially Ms Ballam's second concern. One can also fairly infer that if that was the substantial risk, the risk to the child's health of the mother not properly or timeously reporting to the doctors the full symptoms of the child's illness is less than substantial.
41. I confess I do not fully understand para 10.9:

'I accept from the guardian and Mr Healey that (the mother) does speak [of] acceptance of the findings of her responsibility for what happened to AD, of the need for AD to be protected by monitoring, that she needs to put his needs before her own in order to give him the mothering care he needs, and that she should not allow herself to be seduced from her responsibility towards AD by forming a relationship with a man whose demands on her undermine her competence and commitment to caring for AD.'

In saying that he accepts that the judge cannot simply be accepting that she said those things. He must be accepting that they were satisfied by what she said. But he goes on in para 10.10 to note that:

'The local authority contends that the conclusions in the assessments by Mr Healey and the guardian are not sound. It contends that (the mother) has not been challenged with sufficient rigour about her response to the findings of fact and the assessments are insufficiently rigorous.'

42. It seems to me, with respect, that the judge is losing sight of several features of the case in particular:

(i) Ms Ballam's primary concern was expressed in her oral evidence at p 260 of our bundle as follows:

'I had an assessment plan that [Mr Healey had] drawn up, which actually talks about "we have to consider the mother may be a possible perpetrator", but then didn't get followed through. That's what - I just didn't feel it was rigorous enough. It had not - it should have been the focus to start with and it didn't satisfy me that that had happened.'

(ii) Challenging the mother about why she did not report the vomiting etc was not at the forefront of her concerns.

(iii) It lies ill in her mouth to complain about Mr Healey's shortcomings. He left the case in September. The newly appointed social worker carried out no assessment whatsoever of the kind which would have met Ms Ballam's concerns. Ms Ballam had no direct contact with the mother prior to her being informed of the change of plan in September 2003.

(iv) Much more importantly, Mr Hunt himself was prepared to accept the recommendation of the guardian as he made plain to her solicitor (see para [22] above).

43. The judge then went on to deal with the mother's failure to take on board his findings of fact that she had not reported on Friday, 23 August that 'something weird happened to AD' or that he had been vomiting. Nor did she report on the Saturday the three episodes of his eyes rolling. Having related those matters to the findings of fact he made, he continued:

'10.14 I make allowance for the mother having experienced a sickly child from May to August, and the hospital on 17 May and 23 August did not diagnose something serious. However the hospital was not told in May that AD had been shaken, which the mother may not have known, nor was the hospital told on 23 August about the several episodes of vomiting that day.

10.15 As the mother still says that on 24 August she was not aware of eyes rolling or floppiness or of AD being unable to keep anything down since Friday, we still have inadequate explanation of what was happening on 24.

10.16 I cannot accept that during 24 August mother was unaware of the matters reported by the parents to the hospital that night, unless she had ceded effective caring of AD to (the father) which has not been suggested.

10.17 Thus the explanations by mother of what she failed to report on 23 August, and what she knew during 24, are inadequate.

10.18 During quite detailed discussions with Mr Healey … and the guardian … this mother did not add any significant information about how she came to neglect AD. She acquiesced in the findings, that she had failed to inform the hospital or act soon enough. But she did not add what had been proved or explain adequately how she let things happen.

10.19 After the fact finding, mother understandably felt very relieved that she no longer needed to prove that she had not herself inflicted injury on AD. But very soon she was made to realise that problems remained about failure to protect. She clearly developed rapport with Les Healey and the guardian. From then until late July when she had to respond to further police investigation, in my judgment was the optimum period for her to reveal to Les Healey or the guardian her secret thoughts about how she may have failed to protect AD. But she added nothing significant when she had ample opportunity to do so.'

44. These conclusions confirm earlier passages in the judgment:

'9.8 During her oral evidence I understood (the mother) at times to be asserting that she thought she had told the hospital everything she knew. This appeared to me to contrast with what she is reported as having said to the guardian … In her statement prepared by her solicitors … (the mother) reported that AD had been sick quite a lot on Friday 23 August and something "weird" had happened on the Thursday; these were not reported to the hospital; I found that this was a failure to protect by each parent. It is true that I found that (the mother) may not have realised the seriousness of the "fit" which happened when AD was in the sole care of his father on Tuesday 22, and that (the father) may not have used the word "fit" when telling her about it. In re-examination (the mother) again accepted that she did not tell everything to the hospital.

9.9 I make allowance for the distressed state (the mother) must have been in when AD was taken to hospital on 23 and again during the night of 24/25 August, and that (the mother's) recollection of precisely what she reported to the hospital may be confused. However, the findings of the court were that she failed adequately to report important information on 23 and failed on 24 to seek medical help as soon as the parents should have done.

9.10 When (the mother) was dealing with these findings in oral evidence, I was concerned that she seemed inclined to minimise her responsibility for neglect of AD, though in re-examination she did say she had not told everything to the hospital on 23 August. But before and after that she was also saying that she had told the hospital everything she knew. This equivocal and variable response could be consistent with the interpretation given by Mr Hunt of her responses in the personality tests administered by him. This is of concern in relation to whether (the mother) would share problems relating to her lifestyle or AD adequately with professionals in the future.'

45. The judge was perfectly entitled to find, and having read the transcript of her evidence plainly right to find, that the mother gave equivocal and variable responses to the findings made of her failures to protect her son. That is a legitimate area of concern but, as the judge accepted in para 2.4 of his judgment, it must be kept in proportion.
46. The following paragraphs seem to me to contain the kernel of the reasoning:

'10.20 The problem in my judgment is not so much that Les Healey and the guardian failed to challenge (the mother) sufficiently rigorously. It is that they too readily accepted that she had revealed all her thoughts and material knowledge. The lack of rigour was more in analysis than in questioning.

10.21 The lack of adequate explanation for the failure to protect and the personality testing results tend to reveal that (the mother) is still likely in real situations as well as tests to "distort her responses in order to create a good impression". This raises serious concerns about the reliability of her commitment to work openly and co-operatively with professionals who have to monitor AD's safety.

10.22 When I prepared by reading the papers for this disposal hearing, I expected to prefer the pragmatic and practical working with (the mother) experience of Les Healey and the guardian, to the managerial analysis of Ms Ballam and the personality testing by Mr Hunt. However, reluctantly I conclude that Ms Ballam is right in contending that the risk to AD in rehabilitation remains high and cannot be managed adequately.

10.23 If (the mother) were in future to have another baby in the context of a sustained relationship with a man who was likely to share with her good enough parenting, a new baby might be safe with her. Sadly I cannot accept that AD would be safe while the concerns discussed in this judgment remain. And he should not be expected to return to her care on a trial basis with the risk that if things start to go wrong he would have to transfer to another carer once more.

10.24 I consider that the new care plan for adoption is the only safe way to protect AD from significant harm.'

47. It is clear from these passages, as it is from paras 10.2 and 10.3, that the judge was placing significant weight upon the personality testing and the report of Mr Hunt. He seems wholly to have ignored the extent to which Mr Hunt retreated from that position. In his judgment he refers only to one aspect of Mr Hunt's retreat. In para 7.2 he said:

'In oral evidence Mr Hunt considered that his original report had been too negative in relation to (the mother's) relationships and he expanded on the conversations with Ms Davidson.'

48. One needs to examine that in more detail. At the beginning of his evidence he told the judge:

'I paid particular attention to the guardian's report … in which she made it clear that she had some reservations about my conclusions.

I therefore revisited my report and considered that I had perhaps worded myself in rather too strong a manner. So I consulted Ms Davidson and suggested that it might be helpful if the parties knew that I would not be giving oral evidence in court in quite such a strident manner as I think my report on (the mother) was worded. And Ms Davidson made notes of this conversation and very rightly circulated them, which I was quite happy with.'

49. In cross-examination he said (p 297 of the transcript):

'And the danger which I felt was a possibility, which is why I am raising the element of risk, was that if (the mother) formed an attachment to an unsuitable male in some sense, that AD might suffer as a result … And I was certainly focusing more on the risk of unstable relationship than on the potential risk of physical harm.'

In another passage at p 304 he said:

'If you'd turn to … my para 68, "I believe that (the mother's) ability to protect AD from emotional harm is compromised by her poor record of unstable relationships". Now, I think the word "somewhat" would have helped, "somewhat compromised". I am certainly not saying "fatally compromised".'

When it was put to him that the way she had resumed contact with C and D showed 'maturity and careful thought on her part' he added:

'and weakens my last line in para 68, about not considering her children's emotional stability and consistency.'

50. His evidence concluded with his answering the judge's questions which I should recite more fully:

'Q: I think it is implicit that you accept that you have painted a rather negative picture of (the mother's) responsibility in your report. The gist of your conversation with Ms Davidson if I have understood correctly was that you felt that too much may have been made …

A: Yes your Honour.

Q: … Of - well, you say it then.

A: I felt that perhaps my report had been read in a way which made it look as if I was suggesting that she was liable to all manner of unstable relationships. Whereas in fact two was the number. I flagged up what I thought was her irresponsibility at the point of the inception of her relationship with (the father) …

Q: And you have just agreed with me that that really should be extended to include not dealing with the problems with (the father) while the relationship went on?

A: I would say so, yes not just the inception, but the relationship as a whole.

Q: And particularly its affect on AD?

A: Indeed.

Q: Yes.

A: Yes indeed your Honour. I then - I mean, conscious of the fact that my report was only about a specific point in time, or events up to that point, but obviously didn't take into account what might have happened since, which the - we are now January, so it's rolled up by about seven or eight months. I am quite prepared happily to accept the view of someone who has seen (the mother) and (the father) ongoing, and is able to come to somewhat different conclusions as of now.

…

Q: Well, I think we learnt from your report, particularly from the tests, we need to be cautious in the weight we attach to what (the mother) tells us. And it seems to me that there is some correspondence between your caution and that of Maggi Ballam about how one challenges or should challenge (the mother) about whether she really acknowledges the problems that arise from what happened to AD and her responsibility for it. So I think that is what is in your report and what you are saying today as well?

A: Yes. I can't give her a complete bill of health with regard to truthfulness. I have to raise that warning signal.

Q: But I think what you have added today is having seen the guardian's report and Mr Healey's assessment, while the court still needs to be cautious, you do not say that the guardian's conclusions are unsafe?

A: Correct yes.

Q: And would you want to point the court to worries which survive in your mind - well, worries which the guardian's report puts into your mind, given your investigation of this case? Or do you think we have explored that adequately?

A: I think it's been explored, your Honour, yes, adequately.

Q: Is there something about the report that you think, "I really ought to say this to the judge, because he ought to think about it more?"

A: The guardian's coming out with a recommendation of a supervision order for 12 months in the first instance, and residence.

Q: I did not want to draw you into what the appropriate form of order might be. Although, please feel free to comment if you want to.

A: No, no. Thank you.

Q: Is it more about the guardian's assessment and the weight she attaches to really the likelihood or otherwise of (the mother) looking after AD well enough and protecting him from harm?

A: Well I think that with the safeguards which I outlined in my report, which I am sticking with, I think those safeguards permit rehabilitation in line with what the guardian recommends. But I think that they - those safeguards or something equivalent or similar, should be in place for the benefit of the court to know that things would be properly monitored. And therefore to reassure the court's mind about AD's welfare.'

51. The upshot of that evidence is that notwithstanding his lack of confidence about her truthfulness, he was nonetheless accepting in essence the guardian's recommendation for rehabilitation, subject to some safeguards.

The judge was left with only one professional opinion against rehabilitation, namely that of Ms Ballam.

52. As I have already pointed out Ms Ballam's primary concern was the risk that the mother was a possible perpetrator. The judge discounted that risk. She was concerned about the continuing police interviews and the judge dealt dismissively with that. He said in para 6.1:

'The content of the interview on 28 July 2003 is not, in my judgment, such that the court needs to revisit the findings of fact made on 20 March 2003.'

53. He added in para 8.2:

'It is very unhelpful for the family court seeking to reach disposal in the care proceedings that it took fourteen months before the re-interviews and 18 months to achieve a first criminal court hearing.'

54. I add my concern, which is magnified by learning of the further year's delay in fixing a 5-day criminal trial. This surely was a fairly straightforward investigation and it seems to me to be a most unsatisfactory state of affairs that this mother was not charged with any criminal offence for so long and now has to wait 2½ years before she is brought to court. I would ask the local authority to convey this concern to the investigating police officers and ask them in turn to report it to the Crown Prosecution Service. It would be courteous of them to respond to me.
55. It seems to me that Ms Ballam's concerns, shared by the judge, arose out of Mr Hunt's adverse conclusions about the mother's veracity. Those conclusions also need to be analysed.
56. The following points can be made about them:

(i) His impression of a lack of candour came solely from the Lie-Scale results. He said:

'The lack of candour was signalled only by those two scores, the two scores on those two questionnaires, and that raised a sort of little red flag. "Bing! Could be a problem here".

Q: But in itself, then, its value is fairly restricted is it not?

A: Well I don't - different psychologists may give you a different answer to that - I don't personally believe very much in resting key interpretations on just one source of information. I don't believe in questionnaires to the extent that "Ah-ha, this reading is above … 'a certain value', … therefore it must be the case" I mean I would also try and modify my opinion of personality questionnaires with my impression of the individual as a person, what we would call "clinical impressions".

(ii) He went on, however, to acknowledge that he had not detected any sign or signal of a lack of candour in his long interview with her and his questioning of her.

(iii) Moreover he was saying:

'But in a sense what I am saying is, regrettably I can't draw much inference from the questionnaire. The questionnaires in a sense are telling us very little.

Q: I see.

A: Because the technical problem of the validity scales not being within normal limits. So it's almost like saying "Well, the questionnaires are sort of, in a sense meaningless".

Q: I am sorry the questionnaires …?

A: Are almost meaningless. In this case. But you know, that was not my main conclusion of (the mother) as a person …

Q: Yes.

A: That she is untruthful, no.'

(iv) Finally,

'I think the Lie-Scale is not a perfect test of honesty, by any means.

Q: Yes.

A: I think it's a thumb measure, meant to be a safeguard to the examiner doing the test interpretations, rather than "Is this person truthful, is this person deceitful".

Q: And again, that brings me to the point that it is with caution that we can rely on the results of these Lie-Scale tests?

A: I would say so yea. Considerable caution. Not to be interpreted too much at face value: "Ah-ha, he scores 8, therefore he lies".

Q: Are you saying they are indicative rather than diagnostic?

A: Your Honour, that's very nicely put indeed. Yes. A sort of suggestion of possible problem areas, but not - not diagnostic. I do not know of any paper and pencil test which is diagnostic of truthfulness. I doubt that there is one.'

57. Upon analysis that evidence amounts to this: very little reliance should be placed upon these personality tests. In fact, I would go so far as to say they are more likely to obfuscate the judicial process than assist it. Judges are there to decide questions of credibility. They do so day in and day out. They do not need personality tests to assist them in that task. Judges are probably far better off without them.
58. Thus I conclude that His Honour Judge Nigel Fricker QC placed undue weight upon observations in a report so largely recanted in the oral evidence. Of course there is, as the guardian recognised, a need for some caution in considering the answers of a parent whose back is to the wall because his or her children are at risk of being removed from him or her. No judge looks at the evidence through rose-tinted spectacles but no judge needs a personality test to warn him or her of the dangers.

My analysis

59. My analysis of the judgment demonstrates to my satisfaction the following:

(i) There was no appreciable risk that this mother was likely to cause her child physical harm. Consequently the slight residual risk should be, and was, discounted.

(ii) This mother had underplayed her lack of protection for her child in that she failed to take her child to hospital in time and failed to give the hospital full information of his symptoms.

(iii) She did not fully acknowledge that failure but prevaricated about it.

(iv) Those who knew her best, Mr Healey and the guardian, recommended the return of the child to her. Mr Hunt agreed with them.

(v) The fact that Mr Hunt agreed with that view was a highly material circumstance which the judge failed to take into account. His judgment is flawed for that reason.

(vi) Ms Ballam's concerns were not borne out of personal knowledge but were conclusions to be drawn from the totality of evidence and thus the correctness of her views are inferences for this court to draw as adequately as the judge could draw them.

(vii) The judge's concern about the failure to protect was not a concern at the forefront of the local authority's case.

(viii) The judge's anxiety stemmed largely from his reliance on the report of Mr Hunt that what she said was possibly unreliable or at least had to be treated with caution.

(ix) There was no history of a series of unsatisfactory relationships. She had a 6-year relationship with her husband and a disastrous relationship with this feckless young man capable of injuring a baby.

(x) The judge accepted the mother's sustained commitment to change her lifestyle, her positive contact with her son, her co-operation with the professionals and her proven experience from the care of her elder children to be competent in caring for this child in practical day-to-day matters.

Conclusions

60. I am satisfied that it would be quite disproportionate to remove this child from his mother's care simply because she failed to acknowledge that she had made mistakes in presenting her child to the hospital on 23 and 24/25 August. The professionals were perfectly satisfied she had learnt her lesson and there was scant evidence to suggest that was the wrong conclusion.
61. Her previous relationships with the men in her life did not justify the fear that she would slip into another totally disastrous relationship. She had ended her association with the father. She was vigilant and alert to the dangers.
62. I am extremely conscious of the force of the submission of Ms Swindells QC for the local authority, that this court should be wary before interfering with a discretionary exercise by an experienced judge who has seen and heard witnesses and formed conclusions based on the evidence he has seen. I know that this court does not interfere unless it can be shown that the judge has exceeded the generous ambit within which there is reasonable room for disagreement. Nonetheless the duty of the Court of Appeal is to interfere if the judge is 'wrong', wrong in that sense.
63. In my judgment, the undue prominence given by the judge to the personality testing and his failure to accept that Mr Hunt agreed with those who had the closest knowledge of this mother's changed attitudes were errors which oblige us to interfere.
64. Paying due deference to this judge's decision, I am nonetheless satisfied he was wrong and it is, therefore, my duty to allow the appeal, set aside the care order and freeing for adoption order and in place thereof order that AD reside with his mother, but subject to a supervision order. My present inclination would be to accept the guardian's opinion that supervision for 12 months is long enough, the local authority always having the power to extend its operation. I would, however, invite counsel to submit written argument on this question if they cannot agree about it and we will deal with the matter in their absence.
65. It is, of course, a necessary consequence of this judgment that the orders made in respect of the father's contact should also be set aside. He must renew his application for contact to the county court but I would order that he is to have no contact to AD without an order of the court first having been granted to permit it.

ARDEN LJ:Arden LJ

66. I agree with both judgments, and specifically associate myself with the observations made by Ward and Scott Baker LJJ about the use of the evidence from the psychometric tests (referred to below as personality tests) in this case and about the delays in the institution and prosecution of criminal proceedings against AD's parents.
67. In my judgment, the principal issue for the judge was the mother's parenting skills. If the judge was (exceptionally) minded to rely on the results of the personality tests, he had first to assess their validity, both generally and for the purpose of this case. The qualifications to the test results properly made by Mr Hunt in his evidence, to my mind, demonstrate that personality testing of this kind cannot be used to resolve issues such as parenting skills unless they are validated by other evidence.
68. In this case, there was other evidence but it seriously undermined the apparent conclusions to be drawn from the personality tests. The events giving rise to the prosecution of the mother and the fact of that prosecution are without doubt very serious matters, which rightly give rise to concerns about the mother, but the evidence shows that the mother has sought to turn over a new leaf: see, for example, her recent conduct towards AD, her separation from his father and her caring approach to resuming contact with her other young children, C and D. Importantly, she now has a measure of support from AD's guardian and Mr Hunt. In those circumstances, it is difficult to see what the personality tests added to the process to be undertaken by the judge.
69. For these reasons, in addition to those given by Ward and Scott-Baker LJJ, I agree with Ward and Scott-Baker LJJ that the results of such tests will rarely have any place in cases of this kind. I further agree with the form of the order proposed by Ward LJ.

SCOTT BAKER LJ:Scott Baker LJ

70. I agree that this appeal should be allowed for the reasons given by Ward LJ. I also agree that the order should be in the terms that he proposes.
71. I wish to add emphasis of my own on two points. First, I do not think the court was assisted by the reports of Mr Hunt in this case. In particular I do not feel that psychometric testing ordinarily has any place in cases of this kind. It is for the judge to evaluate the facts and assess questions of credibility. He sees the witnesses give evidence and has an overview of the whole picture of the case. It is important that expert witnesses or purported experts should not trespass into his field of responsibility.
72. Secondly, whilst I have every sympathy with the difficulties of the police and prosecuting authorities in cases involving allegations of child abuse, it is very important from everyone's point of view, not least that of the child, that they should be conducted and concluded as expeditiously as possible.

(1) Permission to appeal granted; (2) Appeal allowed in application no 2004/0317; (3 ) Appeal refused in application no 2004/0296; (4) Child to reside with the mother subject to supervision order in form of the local authority for a period of 12 months; (5) Father to have no contact unless granted by the court; (6) No order for costs save assessment of public funding; (7) Reporting restrictions.

PHILIPPA JOHNSON

Law Reporter

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