ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE D HAMILTON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LADY JUSTICE BLACK
| IN THE MATTER OF C (A CHILD )
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Mr Aidan Vine (instructed by Radcliffe Duce and Gammer) appeared on behalf of the Respondent Father
Ms Judith Rowe QC & Ms Isabelle Watson (instructed by and for the Local Authority) appeared on behalf of the Respondent Local Authority
Mr Lee Pearman (instructed by Rayat & Co solicitors) for the Child
Crown Copyright ©
Lord Justice Ward:
"38 Interim orders
(a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or
(b) the court gives a direction under section 37(1),
the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)."
Section 31 deals with care and supervision orders. Section 31 (2) is to this effect:
"A court may only make a care order or supervision order if it is satisfied—
(a)that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)that the harm, or likelihood of harm, is attributable to—
(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii)the child's being beyond parental control."
"Mother contacted social care for help and support. This triggered an assessment. There has been much harassment from the father to the mother and there has been numerous correspondence. Mother is preoccupied by this as it causes her distress. Stopping correspondence and contact has not worked in the short term. Mother's distress has escalated and she cannot manage her behaviour in front of [E]. Professionals have witnessed this. Mother has not managed to cease telephone contact with the father and change her telephone number. Numerous domestic incidents have been reported, mainly verbal but some have been physical. Only one has been reported by a third party with the father reporting most of the incidents. There have been no convictions for either parent. The chronology shows that the police took [E] into police protection in 2007 and this was considered again. Mother can meet [E's] basic needs, but there is concern as to whether she can meet [E's#] emotional needs. This conference is about [E] witnessing emotional distress caused by both parents. [I omit some words]. Family friends have been working with the family but the mother finds this difficult. There is a pattern of her not being able to accept support."
"What [the mother] said at the school was ambiguous but it was quite obviously capable of being interpreted as a threat to harm herself, perhaps in the presence of [E] or in circumstances of which [E] might become aware or as a threat to harm [E].
99 It is not necessary or possible for me to say whether the local authority was right to think that [the mother] was contemplating self harm or harm to [E]. All I can say is that I do not believe that, if I had been there, I could have excluded these interpretations of what she said. Given the nature of the local authority's duties on 8 September 2010, however, it is sufficient that even at the first stage when it asked for the police to attend, the information available demonstrated a real (not fanciful) risk of significant harm to [E]. By the critical time when it asked the constables to take her into police protection, it had further information which made the risk seem greater. In my judgment the risk then left the school authority with no option but to take steps to safeguard [E] and at the time, a request for police protection was the appropriate means of enabling it to take those steps."
"The local authority has lodged a schedule of the findings which it seeks for the purposes of establishing the threshold for making an interim order under Section 38 of the Children Act. It is quite short and can be summarised even more shortly. It contends that on the material date, 8th September of this year, [E] was suffering or was likely to suffer significant harm attributable to care she was given or likely to be given not being good enough (to use the convenient paraphrase). The basis of that was that she was suffering or likely to suffer emotional harm as a result of (a) the acrimonious relationship between her parents and possibly also the risk of physical harm for the same reason and (b) the apparent mental health problems of the mother which, it was suggested, could cause [E] to suffer emotional harm and neglect including the assumption of an adult role within her relationship with her mother, her apparently subdued behaviour when in her mother's care and other manifestations of her mother's perceived mental health problems. I say, 'perceived', because that is how it appeared to the local authority at the time."
"On [the mother's] application for a discharge [of the existing order], just as on a fresh application for another interim care order, the question has to be whether [E's] welfare requires that such an order be made. In that regard, nobody doubts the love which the mother feels for [E] or indeed the love which [E] has for her mother. The problem that has arisen has provoked the application for an order under section 34(4) is that the mother has been unable to manage her own emotions on the two occasions she has seen [E] (and I will come to describe those in a moment) and she lacks the ability to see herself, the impact of her emotional behaviour from [E's] perspective. I think it was Robert Burns who said what a good thing it would be if somebody could give us the gift of seeing ourselves as others see us and unfortunately, [the mother] is strikingly deficient in all that: all of us have our limitations in that: some have greater limitations than others: [the mother] is quite unable to see the problem"
"Ye ugly, creepin, blastit wonner,
Detested, shunned by saunt an' sinner,
How daur ye set your fit upon her,
Sae fine a lady!"
And the lines which were quoted by the judge were followed by another important admonition:
"O, wad some Power the giftie gie us
To see oursels as ithers see us!
It wad fraem manie a blunder free us"
"...the mother said that she still had to address me on the question of whether there should be an interim care order and she made submissions based on the welfare checklist in subsection (3) of section 1 of the Children Act, and particularly item (k), the ascertainable wishes and feelings (which she calls the wishes and feelings) of [E] and item (c), the likely effect of any change in her circumstances and she made the observation that no one had asked [E] about her wishes and feelings. There is evidence that work had been done to try and ascertain more about her wishes and feelings but she has not disclosed them and the word "ascertainable", which is omitted from [the mother's] submission to me, is important here.
14. In [the mother's] submission to me the interim care orders which have been made in the past should never have been made: they were made unlawfully and the correct procedure was not followed. She went on to say that the new evidence following deterioration in the emotional and physical wellbeing of [E] had not been considered. In her final submission she said that it was wrong to continue to extend the interim care order and she went on to refer to the evidence of Police Constable Martin about the occasion when [E] was originally taken into police custody and to repeat her assertion that on that occasion she was not liable or threatening to commit any act of self-harm or of harm to [E]. I reminded her of what I said about that in paragraph 99 of my judgment on that point "
I interpose to say I have already quoted paragraph 99:
"15) Two things about this case are deeply disturbing. One is that [E] does not have contact with her mother and the other is that [E's] presentation in recent months has indeed been indicative of some disturbance. Whether that is a change or deterioration remains to be seen because one of the worrying features about her presentation at the very beginning of foster care was that she settled too well. That is an observation made by me …. "
"There are two features in this case which are deeply disturbing. One is that [E] is not seeing her mother and the other is that her condition, her presentation, does appear to be changing and it may well be changing for the worse. Before she went into foster care she was described as happy, settled and confident and displaying no particular causes for concern but since she went into foster care, when attempts have been made to arrange contact between her mother and herself she has been observed to be exposed to her mother's behaviour and to have even taken the role of concerning her mother, which was not an appropriate role for a child of her age to be taking.
17. Since then her presentation has apparently deteriorated further. It is not for me to say whether these are real changes or simply different manifestations of an underlying problem which was expressed by Miss Morgan [the social worker] when she said that [E] settled too well in foster care. I do not know, at this stage, even whether that comment is right but that was Miss Morgan's view and expressed to Dr Dale and to the court in evidence which she gave to me several hearings ago and which we have not yet got to the bottom of what is happening to [E].
18. The mother very naturally thinks that what is happening to her is very simply and very easily explained: [E] is suffering from separation anxiety as she would call it, in other words, suffering from the very fact of being separated from her mother. The difficulty about that is that her mother's own presentation is such that one would have to be very cautious not only about allowing [E] to go back to her mother's care but also about the circumstances in which contact can be reintroduced. It has to be remembered the original lack of contact started with [the mother] refusing to see [E] when she was first taken into foster care because she said that to co-operate with that would be to condone the local authority's conduct in taking [E] into foster care.
19. [The mother] shakes her head now to indicate she did not say that but the fact is that she said something very similar to Dr Dale when he saw her on 23rd February when discussing the arrangements which might be made for contact to be resumed, at least for the purposes of observation for his report. ... She insisted that there should be no representative of the Local Authority present and made similar observations to the Local Authority.
20. The situation cannot continue indefinitely but it is as it is but at the moment I have to consider the welfare of [E] and, in particular, whether that requires the continued separation of [E] in a foster placement rather than allowing her to go home to her mother. Nothing the mother has said to me today has given me any reason to think that [E] would be properly looked after or that her emotional needs would be protected and met if I declined to make a further interim care order. I readily acknowledge that harm is done to [E] by keeping her in foster care. The problem is that the harm which she is likely to suffer if she is returned to the care of her mother outweighs the harm she will suffer by being kept in foster care: it is as simple as that and that is an application of the checklist in subsection (3) of section 1 of the Children Act to which [the mother] has drawn my attention "
"She [the mother] acknowledged she has very intense emotional range and this was clearly visible during the consultation with her. This extreme emotional lability, high levels of conflict in her relationships, her disturbed relationship with herself (characterised by various types of self harm including facial mutilation, an overdose, threats of self harm and eating problems) and general ambivalence leads me to agree that she has a diagnosis of a borderline personality disorder. This diagnosis was first made when she was young, and I completely agree with it."
"[The mother's] parenting problems are likely to be related to her personality structure, she is very sensitive to criticism, and reacts in a defensive way when she feels undermined. This has led to significant conflict in her various relationships, which has been marked with professionals as well as her family members. She has not been able to protect [E] from persistent and high levels of conflict. Her distress levels are also very dramatic. I think things may be particularly marked at the moment as she has seemed to be depressed, and I do not think that her depression has been treated adequately. As I have said, I believe she loses empathy completely with the position of other people, including [E] when she is distressed, which must be very anxiety-provoking for her daughter and may force her to take a parental role. I think that because of her highest level of distress at times, she will be unable to respond sensitively to any distress shown by [E]."
"Her tolerance of frustration is also poor; the rate with which her emotions escalate is dramatic, and her threshold for acting violently is low. I could not see that she had used weapons, and her major threat is likely to be intimidation rather than severe physical harm. However, [E] must have been exposed to an atmosphere at home full of tension, in which the adults around her could not contain their emotions or their behaviour. This again is a highly anxiety-provoking situation for a child; children exposed to intimate partner conflict and violence can develop difficulties in their peer relationships and later intimate relationships, as conflict and poor self control is modelled for them as a routine way to resolve inter personal differences.
16. I believe that her ability to parent has been affected in that she is someone egocentric has become completely overwhelmed with the demands of parenting, as her own emotional needs are extremely high. I would agree that there have been difficulties in her being emotionally available to [E] and in [E] taking a rather parentified role with her"
"[E] has had a disrupted life in terms of changes at home, changes in the relationship between her parents and changes in her mother's behaviour. She does not appear to have a secure attachment to either parent and appears to be indiscriminate in her friendliness, as shown by her reactions to her two carers in a short period of time and her remark about loving a social worker she had met only once"
I bear very much in mind though it is relevant to the welfare question that E's first wish when offered three wishes by Dr Morgan was to live with her mother.
"Her stance appears to have been disputatious uncompromising, volatile and hostile towards many who have come into contact with her including the local authority, and myself. Sadly a pattern seems apparent with [the mother] having been engaged for significant periods of her life in volatile intensely conflictual relationships (for example with her mother and [the father]). She is now in such a relationship with the child protection system.
13.3 In my view (from my perspective as a counsellor) the prospects for the mother being able to make significant changes in her habitual processes of perception, analysis and the nature of her emotional/behavioural responsiveness is uncertain."
"15 September 2010 when Mrs Gow the headmistress reported that her teacher had described her [that is, E] as 'subdued, reticent and reluctant to participate in lessons and carrying her favourite toy, Bing-Bing around with her, constantly sucking her thumb. It was noticed that she had a sore on the inside of her mouth and suggested this might be a sign of stress.'"
"In September the foster carer also reported [E] not playing with other children and biting her cheek and in contrast to previous behaviour at school not wishing to talk about her mother..."
"By 1 November E may be self harming by using a stick to scratch herself so she could go to the school and the nurse."
"Over Christmas E's behaviour had been 'extremely concerning'
22nd January 2011: Foster carers visited by prospective adopters of another child placed with them. [E] is present during their visit and becomes 'unsettled, very withdrawn, quiet and clingy.' Next day she ties a knot in her hair so tight it has to be cut out"
4 February: [E] 'very difficult at school and not co-operative.' Behaviour deteriorated in the last week. Very distressed with foster carers on return from school including pulling hair out, tying it in knots, banging feet on floor and lying on bed banging feet on mattress. She was rolling on the bed and moaning.
8 February: School expressed concerns at [E's] deteriorating behaviour."
"The difficulty about that is that her mother's own presentation is such that one would have to be very cautious not only about allowing [E] to go back to her mother's care but also about the circumstances in which contact can be reintroduced."
Lord Justice Rimer:
Lady Justice Black:
Order: Father's application for permission to appeal refused; Mother's appeal dismissed