England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
(HIS HONOUR JUDGE ORRELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd October 2008

Lord Justice Wall:

1. This is the application by the mother of a young child for permission to appeal against an interim care order made by HHJ Orrell, sitting in the Derby County Court, on 1 October 2008. It is a poignant case, and before I go into the facts I would like to pay tribute to the way the application has been argued this morning by Miss Rogers on the mother's behalf. Her skeleton argument is, in my view, a model of force and clarity, and those arguments were buttressed by careful and moderate submissions made to us this morning. Her client ought to be extremely grateful to her for the manner in which her case has been argued.
2. When I first saw the papers, this being an interim order, I was initially concerned that an application had not been made sooner to this court following the order made by the judge on 1 October, but once again Miss Rogers was able to satisfy me that there was good reason for not making an immediate application to this court. In fact what happened was that an Appellant's Notice was filed swiftly. The case came before me on the papers on 9 October and I directed it into the list for today, taking the view that, whereas the judge might well have been justified in finding the threshold criteria under section 38(2) of the Children Act 1989 satisfied, this was nonetheless the separation of a mother from a very young child, and such a separation always causes the court considerable anxiety and therefore needed to be heard at the earliest opportunity. That is in fact what we have done.
3. The history is not altogether happy. The mother has three children altogether. The eldest, who was born in August 2006, was removed into care at a relatively young age and now lives with her natural father. The removal of S, as I will call her, into care naturally triggered proceedings. In those proceedings the mother was psychiatrically examined and a number of difficulties were unearthed. It was clear that she had a most disturbed and unhappy background.
4. The mother gave birth to V, the child with whom we are concerned, on 9 November 2007. V was born at 31 weeks' gestation, and the local authority unsurprisingly issued care proceedings in relation to V immediately. Initially there was no real dispute between the local authority and the mother insofar as the local authority obviously wanted to try and keep mother and child together and the question was how that was done. However, the mother wanted a residential assessment; the local authority did not agree. The local family proceedings court found in favour of the local authority but the mother appealed, and HHJ Orrell upheld her appeal on 29 April 2008 and directed a residential assessment of her and V at an institution called Tadpole Cottage.
5. The mother stayed at Tadpole Cottage with V for a substantial period of time, much longer than would normally be the case. We have the great advantage in the case, it seems to me, of having regular reports almost day by day: notes and references as to what happened during the course of the assessment. Although it begins in a faltering way, there is a greater improvement in July when the mother is described as being more self-confident and giving good enough care to her daughter, but a complication which arose in the case was that the mother at this time was pregnant, and she gave birth to her third child, P, on 29 August 2008. P was born very prematurely indeed: 26 weeks' gestation. She had initially to be in intensive care and, as we understand the matter, she is still in hospital albeit receiving a lesser degree of care. Inevitably mother had to be separated from V. She went off to hospital to have P. V stayed in the unit, being cared for there, and it was not for some time that the mother was able to return to the unit with a view to resuming V's care. But unfortunately a number of things happened. First of all, the psychiatrist who had been advising throughout the period came to the view that really mother had not demonstrated good enough parenting and was not in a position fully to care for her daughter. Secondly, the unit itself wanted the mother to move on, and for someone else to occupy the slot that she had been occupying and had been occupying for some time.
6. The "final" report -- I use the word "final" in inverted commas because there are several final reports from the psychiatrist in question which we have in our papers -- which is dated 12 September 2008, makes it clear that -- in effect -- the mother had not succeeded in the placement. I quote from the conclusions in the report under section 3:

"3.2 Although we were not able to assess her behaviour under more independent circumstances, events during this period of assessment have shown that the mother is unable to prioritise her children over her interactions with other adults. In spite of repeated and explicit warnings and guidance against doing so, mother continued to involve herself in an extremely unhelpful way with another patient at [blank] House and this led to a rapid relapse into her previous unsatisfactory parenting of V. She also showed herself willing to be extremely deceptive, thereby making it impossible to trust her to be open about any difficulties that she might encounter in coping with her children in the community.

3.3 [The mother's] behaviour has been incompatible with good enough or safe parenting and I do not recommend any attempt at rehabilitation of V to her care in the community. V's timescales make it extremely undesirable for there to be any further assessment of her mother's ability to care for her. Further delay or attempts at assessment would be harmful to V because she needs stability and permanence as soon as possible. Clearly these observations would also apply to her capacity to parent P.

3.4 If [the mother] was sufficiently motivated she might then benefit the types of psychological treatment that have been developed to assist individuals with personality disorders and difficulties, such as dialectical cognitive behaviour therapy, interpersonal therapy or cognitive analytical therapy but it may be difficult for her to gain access to treatment of this kind because it is highly specialised with only limited availability in the NHS. At this stage it seems that the mother will continue to have the difficulties we have observed for the foreseeable future preventing her from parenting well enough."

7. So that report and the conclusion of the residential assessment put everybody in a quandary. What was to be done? The psychiatrist plainly took the view that mother and child could not live together in the community. The residential assessment was no longer available. For the mother it was argued this morning by Miss Rogers that the judge, when faced with this dilemma by the mother and the local authority, should himself, even though there was limited court time available, nonetheless have taken the initiative and sought a placement.
8. Unfortunately, due to the pressures of the work at the local county court, the first hearing was effectively aborted, although it was used to ask questions of the psychiatrist and to record his answers so that they could be used on a further occasion. Finally, when the matter came back on 1 October there was no time for oral evidence and the application had to be dealt with by way of submissions. The judge came to the view that, in all the circumstances of the case, in particular I think the absence of alternatives and the psychiatric report, when he considered the welfare of the child in the context of Article 8 and the nature of the relief being sought by the local authority, that the relief of an interim care order was plainly proportionate and necessary in the interests of the child, particularly given the facts as they were presented to him and the fact that in reality there was no alternative but to do what he proposed.
9. It seems to me that situation and the decision which the judge took in that context puts counsel in a difficulty. What else was the judge to do? Speaking for myself I do not accept it is the function of the court in these circumstances to go into the market or go into the ring and see what is available. That is a matter for the parties: it is a matter for the local authority; it is a matter for the mother. It is not in my view for the judge to select and to insist upon or make orders in relation to a place which he has himself selected. Equally, the argument was put to us this morning by Miss Rogers that the psychiatrist's anxieties were effectively at one remove: that he was thinking that there was not an immediate risk to this child, but there might be risks in the future and indeed the situation might become acute if the mother was unable to care for the child or a crisis arose in her life. In my judgment there was an immediate risk. It may have been a future risk, but it was a real risk which the judge was entitled to take into account when coming to the conclusions which he did.
10. In these circumstances it seems to me that an interim case order was almost inevitable. I would like to make it clear, however, as far as I am concerned and speaking for myself, that Dr H's views which I have read out are, of course, only Dr H's views. They are not necessarily determinative of the outcome of the case. An interim order is not written in stone for the remainder of the case. An interim order is designed to preserve the position until such time as the case can be fully heard. Here there is simply no alternative: there is no other residential assessment; there is no other foster placement. There is no alternative but for an interim order and for the child to be cared for by foster parents, with generous access to the mother. But it will be for the mother between now and the final hearing, in my view, to prove Dr H wrong, to show that she can devote herself exclusively or properly to V and show to the judge at the final hearing whenever it is, that she is in a position to care for V full time. That is a matter which remains open. And so I would wish to make it clear, speaking for myself, that the fact that I am minded myself to refuse this application for permission to appeal against the interim order does not mean that the interim order determines the case for good and all. The interim order preserves the position until such time as the matter can be got before the court fully. It may, to an extent, put the mother at a disadvantage if she is not caring for the child full time, but she must exercise her right of contact to the full and, as I say, try to demonstrate to the judge at the final hearing that she is in a position to care for V. Whichever way one approaches the matter, and I have deliberately not cited from the judge's judgment, it seems to me first of all right for Miss Rogers to concede, as she did, that the threshold criteria were met under section 38(2) and secondly, that in the particular circumstances of the case and the facts of this case, the general rule which is one which is referred to in the two cases which are cited to us by Miss Rogers, Re: H (a child) [2008] LTL 25/9/2008 Extempore (unreported elsewhere) and Re: L (a child) (Care Threshold Criteria) [2007] 1 FLR 1050, namely that one does not separate young children from their mother unless one absolutely has to and, as Hedley J held in Re: L, it is not the role of the court or a state to spare all children the consequences of defective parenting. When one puts those into the balance with the welfare of this child in this particular case, it seems to me the outcome can only go one way and that is towards an interim order. Insofar as we look at the matter in ECHR terms it seems to me, as I say, that the order is proportionate to the needs of the particular child and clearly legitimate under Article 8(2).
11. So for those reasons, briefly stated, I would refuse this application.

Lady Justice Arden:

12. I agree and I join in my Lord, Wall LJ's tribute to Miss Rogers' presentation of this case, and I would add that Ms Drew also dealt with this case in an exemplary way. During the hearing of this application I was concerned to see whether there was any other alternative which would give greater respect to the family life of V and her mother. I think it is part of the court's role to scrutinise the process which has led to the making of the interim care plan to see that the relevant enquiries have been made and the relevant factors considered. But my judgment it is clear from the submissions of Miss Drew there is no realistic alternative to the interim care plan. I too would stress that the interim care order does not deal with this matter finally but the mother should take full advantage of the contact arrangements that have been agreed with the local authority and which will give her 12 hours' contact per week.

Sir Mark Potter:

13. I also agree. The appeal will therefore be dismissed.

Order: Application refused